United States District Court, E.D. New York
MEMORANDUM & ORDER
KIYO A. MATSUMOTO, District Judge.
Petitioner Isaac Gindi has moved this court to reconsider its February 5, 2014 decision denying his motion to vacate his judgment of conviction and be resentenced pursuant to 28 U.S.C. § 2255. (ECF No. 18, Motion for Reconsideration ("Mot."), 3/21/14.) For the reasons set forth below, petitioner's motion for reconsideration is denied in its entirety.
Although the parties are familiar with the extensive background of this case, the court will discuss certain facts relevant to petitioner's motion for reconsideration. Petitioner pleaded guilty on November 22, 2011 to one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349, (No. 11cr-294, ECF No. 34, Minute Entry for Guilty Plea, 11/22/11), and was sentenced on November 19, 2013, to 27 months imprisonment, three years of supervised release, and also ordered to pay a $6, 000 fine and a $100 special assessment, (No. 11-cr-294, ECF No. 73, No. 11-cr-294, Judgment, 11/21/13). On January 17, 2014, petitioner moved to vacate his judgment of conviction pursuant to 28 U.S.C. § 2255 and be resentenced. Petitioner argued that he had been denied his right to effective assistance of counsel under the Sixth Amendment because his former attorney, Jonathan Kaye, Esq., had an actual conflict of interest due to his representation in a separate prosecution of petitioner's brother Mayer Gindi, and had acted to the detriment of petitioner as a result of this purported actual conflict of interest. After conducting an evidentiary hearing on February 3-4, 2014, the court denied petitioner's § 2255 motion in its entirety on February 5, 2014. (ECF No. 12, Order Denying Motion to Vacate/Set Aside/Correct Sentence ("Feb. 5 Order"), 2/5/14.)
On February 21, 2014, counsel for the government disclosed that they had "recently discovered" a report containing statements made by Mayer Gindi during a proffer meeting with the government on March 30, 2011, that was "arguably relevant to the Court's decision denying the petitioner's motion pursuant to 28 U.S.C. § 2255." (ECF No. 14, Letter re: Additional Information, 2/21/14.) The government further acknowledged that Mayer Gindi conceded during his proffer meeting that "he was aware of the petitioner's bank fraud scheme" and stated that, although Mr. Kaye and the same assistant United States attorneys who prosecuted Isaac Gindi were present at the proffer meeting with Mayer Gindi, "the Assistant United States Attorneys who were present had no recollection of the statements contained in the report." ( Id. at 1 n.1.) In response to a court order inviting petitioner to inform the court as to how he wished to proceed in light of the new information disclosed by the government, petitioner, who is now represented by the law firm Newman & Greenberg LLP, stated that he wished to move the court "to reconsider or renew [petitioner's] §2255 motion." (ECF No. 15, Letter re: Contemplated Motion, 2/27/14.)
The government subsequently turned over additional documents to petitioner's counsel: notes of the government's June 2010 interview of petitioner's co-conspirator and codefendant Daniel Baddouch, notes by the government's undercover agent, "Angel Mejia, " concerning his conversations with Mayer Gindi, and a memorandum of the August 2010 proffer meeting between the government and Yitzchok Kaplan, who also participated in the instant bank fraud conspiracy with Baddouch and Isaac Gindi. (ECFs No. 16-17.) The motion for reconsideration was fully briefed on April 25, 2014. The court notes at the outset that petitioner has confirmed yet again that he does not seek to withdraw his guilty plea. (Mot. at 1, 2 n.1.)
A. The Court's Previous Findings
After considering the affidavits, exhibits, and testimony submitted during the February 3-4 evidentiary hearing, the court did not find the testimony of Isaac Gindi, Mayer Gindi, or Isaac Gindi's wife Julie Gindi credible to the extent that such testimony was at odds with the testimony of Mr. Kaye concerning his discussions with Isaac Gindi, Mayer Gindi, and Julie Gindi. (Feb. 5 Order at 16.) But the court found that Mayer Gindi knowingly made materially false statements to the court under oath while testifying in the proceeding and in a declaration submitted under penalty of perjury, and that Isaac Gindi, Julie Gindi, and Mayer Gindi provided testimony that was not credible concerning their interactions and discussions with Mr. Kaye. ( Id. at 16-22.) The court also found that it was not credible that Isaac Gindi owed Mayer Gindi "[a] few hundred thousand dollars" given the dearth of documentary evidence or any details about such a large claim. ( Id. at 19.) In addition, the court found that both Isaac Gindi and Julie Gindi were opposed to cooperating with the government against anyone. ( Id. at 19-20.)
Significantly, both Mayer Gindi and Isaac Gindi testified during the evidentiary hearing that Mayer Gindi had no role in Isaac Gindi's bank fraud conspiracy beyond the initial referral of Mejia. ( Id. at 25 (quoting Transcript ("Tr.") at 35, 51-52).) Mayer Gindi testified that he "had nothing to do with" Isaac Gindi's bank fraud conspiracy, (Tr. at 35), and Isaac Gindi testified that Mayer Gindi "did not assist" him in any respect concerning the fraudulent business loan, multiple credit card applications, and Toyota lease involved in the instant bank fraud scheme. ( Id. at 51-52.) Based on this testimony by the Gindis, the court found that "[t]here is no evidence in the record... to suggest that Mayer Gindi knew of, planned, supervised, or participated in any way in the fraudulent schemes that Isaac Gindi and Daniel Baddouch engaged in." (Feb. 5 Order at 25.)
Finally, the court found credible Mr. Kaye's testimony that he "made decisions about which arguments to make on behalf of petitioner due to strategic considerations and not as a result of any purported conflict." ( Id. at 22.) The court based its findings on the testimony and affidavits provided in connection with the proceeding, whether the testimony was consistent with other evidence, and on the court's observations of the demeanors of the witnesses.
B. Additional Discovery
1. Mayer Gindi Proffer Session
On March 30, 2011, Mayer Gindi, who was then represented and accompanied by Mr. Kaye, met in a proffer session with government agents and the two assistant United States attorneys who were prosecuting him and subsequently prosecuted Isaac Gindi. (Memorandum of Proffer Session ("Proffer Mem."), 3/31/11.) According to the government memorandum memorializing the proffer session between Mayer Gindi and the government, Mayer Gindi admitted introducing Mejia to his brother Isaac Gindi and told government agents that his brother Isaac "was constantly calling" him "to discuss how" to use Mejia "to obtain a business loan" and how to "make it legal." ( Id. ¶¶ 54, 61.) Mayer Gindi also proffered that, while he was not involved in obtaining the loan for Isaac Gindi, he "knew [Isaac Gindi] intended to use Mejia to engage in loan fraud, " form a company in Mejia's name, apply for credit under Mejia's company and not pay back the loan, and that Isaac Gindi "wanted the loan to appear legal but that it was fraud." ( Id. ¶¶ 50-51, 55.) Mayer Gindi also stated that Mejia would be paid for the use of his name and credit and that Isaac Gindi also intended to use Mejia's name and credit to lease a Toyota Highlander through fraudulent means. ( Id. ¶¶ 56-57.)
In addition, Mayer Gindi reported during his proffer that he, Isaac Gindi, and Baddouch met on the night of June 23, 2010, after learning that Baddouch had been contacted by and spoken to government agents. ( Id. ¶¶ 40-42, 49.) Mayer Gindi stated that he, Baddouch, and Isaac Gindi discussed withdrawing the credit applications and documents and that he had instructed Isaac Gindi and Baddouch not to withdraw the applications. ( Id. ¶ 59.)
Mayer Gindi also proffered that Isaac Gindi had returned the Toyota Highlander obtained through fraudulent use of Mejia's identity to the dealership as a result of his conversation with Mayer Gindi. ( Id. ¶ 63.) Finally, Mayer Gindi stated that he "knew what [Isaac Gindi] was doing was fraud, knew it was wrong, " and "did not get involved in any part of the [Isaac Gindi] application using Mejia's information." ( Id. ¶ 61.) Following the proffer session with Mayer Gindi, the government declined to offer Mayer Gindi a cooperation agreement because the government determined him to be untrustworthy. (ECF No. 20, Memorandum in Opposition, 4/9/14, at 9.)
2. Daniel Baddouch Interview
After he was contacted by government agents on June 23, 2010, Baddouch told the agents that Isaac Gindi and Mayer Gindi were aware of the scheme employed by Baddouch to use Mejia's identity to "falsify loan and credit card applications" but that he could not remember if either Mayer or Isaac Gindi directly submitted false loan or credit card applications using Mejia's identity. (Memorandum of Daniel Baddouch Interview (Exhibit B of Petitioner's Motion for Reconsideration) ("Baddouch Mem."), 6/23/10, ¶ 3.) Baddouch proffered that he submitted loan applications and credit card applications using Mejia's identity, the proceeds of which were to be used by and for the benefit of Mayer Gindi and Isaac Gindi. ( Id. ¶ 2.) Baddouch said he spoke with Isaac and Mayer Gindi "often" and that he, Mayer Gindi, and Isaac Gindi planned to direct Mejia to transfer money obtained through the fraudulent scheme to Isaac Gindi. ( Id. ¶¶ 9, 12.)
3. Yitzchok Kaplan Proffer Session
Kaplan met with the government in a proffer session on August 31, 2010. (Yitzchok Kaplan Interview Memorandum (Exhibit D of Petitioner's Motion for Reconsideration) ("Kaplan Mem."), 9/1/10.) Kaplan, who participated in the instant conspiracy with Isaac Gindi and Daniel Baddouch but pleaded guilty to a separate information, (No. 11-cr-33, ECF No. 15, 3/25/11), stated in a proffer meeting that "Isaac and Mayer Gindi were desperate for money, " that "Isaac Gindi, Mayer Gindi and Baddouch" wanted to use the Mejia's identity to obtain loans, and that Isaac Gindi, Mayer Gindi, and Baddouch gave him "the run around" when he tried to speak to Mejia. (Kaplan Mem. ¶¶ 9-13.)
C. New Findings of Fact
As a preliminary matter, the court notes its concern that the government's late disclosures of the proffers by Mayer Gindi and Yitzchok Kaplan, the interview of Daniel Baddouch, and the agent's notes, have caused understandable criticism by counsel for petitioner. Nevertheless, the court continues to have serious doubts about the credibility of Mayer Gindi, Isaac Gindi, and Julie Gindi, who are all convicted felons who pleaded guilty to crimes involving fraud and false statements. (Feb. 5 Order at 21.) The court finds, however, that certain statements made by Mayer Gindi in his proffer session are partially credible because they are statements by Mayer Gindi that are against Mayer Gindi's penal interest and are corroborated to some extent by the government memorandum memorializing statements by Daniel Baddouch and the government memorandum of Yitzchok Kaplan's proffer session. Accordingly, based on the newly provided evidence, the court now finds that Mayer Gindi knew that his brother Isaac Gindi would use, and was in fact using, Mejia's identity to engage in fraud with respect to the business loan, the Toyota Highlander lease, and credit card applications, that Isaac Gindi constantly called Mayer Gindi to discuss using Mejia's identity to obtain the fraudulent business loan, which Isaac Gindi wanted to obtain through fraudulent means but still appear legal, and that Mayer Gindi met with Isaac Gindi and Baddouch on June 23, 2010, after Baddouch spoke with government agents, to discuss the ramifications of what Baddouch disclosed to the agents. The court also finds that Mayer Gindi did in fact advise Isaac Gindi and Baddouch not to withdraw the submitted Mejia applications in the course of that discussion.
In addition, the court finds that, based upon the statements of Mayer Gindi, Daniel Baddouch, and Yitzchok Kaplan regarding Mayer Gindi's knowledge of and advice about Isaac Gindi's fraudulent schemes, both Isaac Gindi and Mayer Gindi testified falsely about material issues during the evidentiary hearing held by this court on February 3 and 4, 2014. When Mayer Gindi was asked during the evidentiary hearing on February 3 whether he had any involvement with the bank fraud scheme that Isaac Gindi was charged with, Mayer Gindi responded: "No. I had nothing to do with it." (Tr. at 35.) Although Mayer Gindi also told the agents during his March 30, 2011 proffer that he was not involved in the efforts to obtain a fraudulent business loan for Isaac Gindi, (Proffer Mem. ¶¶ 51, 54-55, 61), it is clear that Mayer Gindi knew of and advised Isaac Gindi about the fraudulent credit card applications and obtaining the fraudulent business loan. ( Id. ¶¶ 54, 59.)
Similarly, when Isaac Gindi was questioned on February 3, 2014, by the court concerning his brother Mayer Gindi's involvement in the bank fraud scheme, he testified that Mayer Gindi had no involvement in the scheme besides the initial referral of Mejia:
THE COURT: Other than referring him [Mejia], did your brother, Mayer, do anything else with regard to what you were charged with in this case, was he involved in anything? For example, did he assist you in the business ...