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Romalis v. United States

United States District Court, S.D. New York

August 4, 2017


          OPINION & ORDER

          Thomas P. Griesa U.S. District Judge

         Oksana Romalis brings this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence due to ineffective assistance of counsel. Romalis alleges that her trial counsel, Harvey Slovis, provided ineffective assistance by failing to properly inform her of the possible sentence she faced if convicted. Romalis also states that she was involved in a romantic relationship with Slovis while he represented her. For the reasons discussed below, Romalis's motion is denied.


         The Government charged Romalis with conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349 and also mail fraud in violation of 18 U.S.C. § 1341 and 1342. Romalis was alleged to have participated in a 1994-2010 scheme to defraud the Conference on Jewish Material Claims Against Germany (the "Claims Conference")-an organization that makes reparations to Jewish survivors of Nazi persecution. Romalis, along with her co-conspirators, submitted fraudulent applications for reparation funds.

         Romalis was represented by Harvey Slovis during all pretrial, trial, and sentencing proceedings.

         In June 2012, the Government extended a plea offer to Romalis. Romalis Aff. at 3. The plea offer set forth a base offense level of 7, a 12-level increase based on a loss amount of $200, 000-400, 000, and a three-level reduction for acceptance of responsibility, resulting in an offense level of 16.[1] The applicable U.S. Sentencing Guidelines range was 21 to 27 months' imprisonment. Slovis Aff. Ex. 1.[2] Slovis sent the plea offer to Romalis by email the same day that he received it. Slovis Aff. Ex. 1. In a text message to his client Romalis that day, Slovis described his understanding that Romalis wanted to go to trial, but asked that she read the plea offer so that they could discuss it. Romalis Aff. Ex. Z. Slovis also informed Romalis that if she wanted to plead guilty, the decision was up to her. Romalis Aff. Ex. AA. Romalis alleges that Slovis then advised her not to accept the plea offer because it "was above the Guidelines sentencing range of 12 to 18 months." Romalis Aff. ¶ 7. Romalis rejected the plea offer.

         Assistant United States Attorney Christopher Frey met with Romalis and Slovis on February 19, 2013 for a reverse proffer. At the meeting, Frey extended Romalis another plea offer. Frey explained the terms of the offer, the potential sentencing exposure Romalis risked by going to trial, and the evidence that would be presented against her at trial. Frey Aff. ¶ 2. The February 2013 plea offer included the same base offense level, increase, loss amount, and reduction as the June 2012 offer. Frey Aff. ¶ 5. Frey stated that Romalis faced a statutory maximum sentence of 40 years' imprisonment if convicted on both charges at trial. Frey Aff. ¶ 3. Frey also explained that Romalis's conviction would likely result in a base offense level of 19 to 25 with corresponding Guidelines ranges of 30 to 37 months' or 57 to 71 months' imprisonment. Frey Aff. ¶ 5. Slovis maintains that he "fully discussed with petitioner the proffer session." Slovis Aff. ¶ 46. Romalis ultimately rejected the plea offer and proceeded to trial.

         Romalis alleges that she was never informed that she could face a sentence longer than 12 to 18 months' imprisonment, but also claims that she was never advised that she could face more than 24 to 30 months' imprisonment if convicted at trial. Compare Romalis Aff. ¶ 19 with Romalis Aff. ¶ 7. According to Romalis, Slovis misled her as to the strength of her case. Romalis Aff. ¶ 8. Slovis's text messages to Romalis reflect Slovis's opinion that the case was winnable. See, e.g., Romalis Aff. Exs. AA ("[O]ur case will be winnable."), DD ("I have confidence we will win and I want you to go to trial.").

         Slovis maintains that, at all times, he fulfilled his professional obligations by "fully discuss[ing] [the] plea offer with petitioner as well as trial strategy and her potential exposure were she to be convicted after trial." Slovis Aff. ¶ 27. He discussed the Government's plea offers with Romalis on at least twenty occasions. Slovis Aff. ¶ 30. During those discussions, Slovis says he explained to Romalis that "the decision to enter a plea of guilty or not was hers and hers alone and that if she was concerned about her chances at trial and/or her sentence exposure should she be convicted after trial, and was, in fact, guilty, she should enter a plea pursuant to the proffered plea agreement." Slovis Aff. ¶ 37.

         When Romalis expressed a desire to proceed to trial, Slovis turned his attention toward preparing for trial and reassured Romalis that he was confident in his trial strategy. Slovis Aff. ¶¶ 33-34. Slovis attributes Romalis's desire to go to trial to her fear that she would lose her teaching license if she pled guilty. Slovis Aff. ¶ 32; Opp'n Ex. 2.

         Romalis was tried with two co-conspirators. The evidence at trial established that Romalis participated in the scheme to defraud the Claims Conference by submitting fraudulent applications for hardship funds. A witness at trial testified that Romalis provided documents for between 150 and 200 fraudulent applications. Romalis was found guilty.

         After trial, Slovis admitted that he had "made a mistake" concerning the Guidelines range applicable to Romalis. Romalis Aff. Ex. LL. At sentencing, the Guidelines range was determined based on the number of fraudulent applications she helped submit. Based on trial testimony, the court found that Romalis helped submit 150 to 200 fraudulent applications, and estimated the loss to victims at $700, 000. The $700, 000 loss calculation led to a fourteen level increase, putting Romalis's Guidelines range at 37 to 46 months' imprisonment. In her sentencing submission, Romalis stated that "the sole reason [she] decided to go to trial rather than enter a guilty plea was because a conviction [would] terminate her two teaching certifications." Opp'n Ex. 5 at 3. Romalis was sentenced to 46 months' imprisonment. She began serving her sentence in April 2014.

         Throughout the course of the representation, Romalis alleges that she and Slovis were involved in a relationship, "frequently went on dates together, and became intimate." Romalis Aff. ¶ 4. In text messages between the two, Slovis and Romalis expressed affection for each other and often used terms of endearment. See, e.g., Romalis Aff. Exs. A, G, I, L. Romalis says that her decision to reject the Government's plea offer was "based on [her] intimate relationship" with Slovis. Romalis Aff. ¶ 13. Romalis also speculates that Slovis was "motivated by romance and money, " Romalis Aff. ¶ 28, and "was stringing [her] along in order to prolong [their] relationship, " Romalis Aff. ¶ 25.

         Slovis denies Romalis's characterization of their relationship, asserting that he "had neither a romantic nor intimate relationship with petitioner." Slovis Aff. ¶ 13. Rather, he says that he had a "personal relationship" with her, and that the two "frequently expressed a familial affection towards one another." Slovis Aff. ¶¶ 14, 15, 19. In any event, Slovis maintains that his professional ...

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