United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS United States District Judge.
the court is Petitioner Myron Gushlak's petition for a
writ of coram nobis (the "Petition") under the All
Writs Act, 28 U.S.C. § 1651, filed on May 27, 2016.
(Mot. to Vacate Restitution Order ("Pet.") (Dkt.
1), No. 16-CV-2713.) Petitioner asks the court to vacate the
order of restitution and fine issued in his criminal trial.
(Mem. in Supp. of Pet. ("Pet'r's Mem.")
(Dkt. 1-2), No. 16-CV-2713, at 17.) The Petition relies on
the sole grounds that Petitioner's trial counsel were
constitutionally ineffective in their failure to adequately
investigate alternative methods for calculating restitution.
For the reasons discussed below, the Petition is DENIED.
sections that follow review in relevant part the
Petitioner's criminal charges, the court's
restitution orders, and the Petitioner's initial petition
for a writ of habeas corpus. The court assumes the
parties' familiarity with the extensive underlying
proceedings and summarizes the record only to the extent
necessary for the court's review of the Petition.
The Criminal Charges
22, 2003, Petitioner pleaded guilty to one count of
conspiracy to commit securities fraud, in violation of 18
U.S.C. § 371, and one count of conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956. (See
Feb. 23, 2011, Mem. & Order (Dkt. 35), at 1 (discussing
Sealed Minute Entry (Dkt. 5)).) As part of his guilty plea,
Petitioner admitted that he entered into a conspiracy by
which he paid "kickbacks" to certain brokers in
exchange for those brokers' agreement to
"aggressively push" stock in Global Net, Inc.
("Global Net"), of which Petitioner was the
controlling owner. (See Apr. 20, 2012, Mem. & Order (Dkt.
104) at 1.) Neither Petitioner nor the brokers publicly
disclosed these kickback payments to potential investors.
(Id.) The scheme successfully increased the stock
price, allowing Petitioner to sell roughly 1.1 million shares
in Global Net at inflated prices between January 1999 and
December 2000. (Id. at 1-2.)
The Restitution Submission and Orders
November 18, 2010, the court sentenced Petitioner to 72
months in prison and a $25 million fine. (J. (Dkt. 47).)
Because Petitioner pleaded guilty to an "offense against
property, " the court was required by the Mandatory
Victim Restitution Act (the "MVRA") to order
Petitioner to pay restitution to the victims of his fraud
(See Apr. 20, 2012, Mem. & Order at 2 & n.2.
(citing the MVRA, 18 U.S.C. § 3663A)); however, at the
time of sentencing, the court was unable to determine the
proper amount of restitution (see id. at 2). The
court ordered the Government to provide evidence of the
victims' losses. (See id.) Following a series of
submissions and orders, the court found by a preponderance of
the evidence that restitution in the amount of $17, 492,
817.45 constituted a "reasonable estimate" of
victim losses attributable to Petitioner's fraud and
ordered Petitioner to pay this amount. (Id. at 20.)
Petitioner appealed the restitution award to the Second
Circuit, which affirmed the court's order in an opinion
dated August 29, 2013. See United States v. Gushlak,
728 F.3d 184 (2d Cir. 2013). (See also Mandate of
U.S.C.A (Dkt. 116) (dated Nov. 13, 2013).)
Petitioner's Habeas Petition
completed the custodial portion of his sentence on November
10, 2015. (Pet. ¶ 8.) In March 2015, while still in
custody, Petitioner filed a separate petition to vacate the
restitution and fine pursuant to 28 U.S.C. § 2255. (Mot.
to Vacate J. (Dkt. 1), No. 15-CV-1260.) That habeas petition
asserted the same claim now presented in the instant
petition. (Compare Mem. in Supp. of Pet'r's
Mot. to Vacate (Dkt. 2), No. 15-CV-1260, with Pet'r's
Mem.) However, after a discussion with the U.S.
Attorney's Office, Petitioner informed the court that
"the proper vehicle to challenge a restitution order and
fine may not be a 2255 petition."(Pet'r's
Ltr. (Dkt. 8), No. 15-CV-1260.) With the court's
permission (Order Granting Mot. to Withdraw Mot. to Vacate
(Dkt. 9), No. 15-CV-1260), Petitioner withdrew his motion to
vacate under Section 2255 and brought the instant petition
THE INSTANT PETITION
sole basis for Petitioner's application for a writ of
coram nobis is that he received constitutionally ineffective
assistance of counsel with respect to the court's
calculation of restitution. In particular, Petitioner points
to his attorneys' failure to interview any of the
purported victims of his securities fraud or to subpoena
documents pertaining to those victims' relevant trading
history. Noting that the court, in accepting the
Government's proposed restitution calculation, found that
Petitioner "failed to present  strong countervailing
evidence to prevent the Government from meeting its burden of
proof, " Petitioner claims that victim statements or
investment records may have provided the necessary
contradictory showing. (Pet'r's Mem. At 8-9.)