United States District Court, S.D. New York
OPINION & ORDER
P. Griesa U.S. District Judge
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
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.
was represented by Harvey Slovis during all pretrial, trial,
and sentencing proceedings.
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. The applicable U.S. Sentencing Guidelines
range was 21 to 27 months' imprisonment. Slovis Aff. Ex.
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.
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.
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.").
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.
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.
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.
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.
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.
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 ...