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Gushlak v. United States

United States District Court, E.D. New York

March 3, 2017

MYRON GUSHLAK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. UNITED STATES OF AMERICA,
v.
MYRONL. GUSHLAK, Defendant.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS United States District Judge.

         Before the court is Petitioner Myron Gushlak's petition for a writ of coram nobis[1] (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.)[2] 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.

         I. BACKGROUND

         The 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.

         A. The Criminal Charges

         On July 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.)

         B. The Restitution Submission and Orders

         On 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).)

         C. Petitioner's Habeas Petition

         Petitioner 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."[3](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 shortly thereafter.

         II. THE INSTANT PETITION

         The 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.[4] 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.)

         III. DISCUSSION

         A. Writs ...


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