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Barry v. United States

United States District Court, E.D. New York

January 12, 2018

PHILIP BARRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM & ORDER

          RAYMOND J. DEARIE UNITED STATES DISTRICT JUDGE.

         Petitioner Philip Barry moves under Rule 60(b)(3), and in the alternative under Rule 60 (d)(3), of the Federal Rules of Civil Procedure for relief from the judgment entered pursuant to this Court's Memorandum and Order dated June 17, 2015. The decision, which denied Barry's application for habeas relief under 28 U.S.C. § 2255, is reported electronically at Barry v. United States. 2015 WL 3795866 (E.D.N.Y.June 17, 2015), and fully incorporated here. As the parties are aware, the Court held that the Second Circuit's determination that there was overwhelming evidence of Barry's guilt foreclosed any showing of Strickland prejudice with respect to the 17 trial-based branches of Barry's ineffective assistance of counsel claim. Barry, 2015 WL 3795866 at *3-5. Alternatively, the Court concluded, with respect to the all branches of the claim, that Barry failed to show that counsel performed deficiently within the meaning of Strickland. Id. at*3-13.[1]

         In seeking relief from those rulings now, Barry claims that the government committed fraud upon this Court within the meaning of Rule 60 in its § 2255 opposition brief by inexactly summarizing the arguments in Barry's brief, the trial record, and pre-trial proceedings. Barry also claims that the alleged briefing misrepresentations are part of a pattern of fraudulent prosecutorial conduct spanning the entirety of this and other criminal proceedings.

         Separately, Barry argues that certain of the Court's remarks in the decision denying habeas relief reflect a lack of impartiality requiring recusal.

         For the reasons set forth below, these motions are denied.

         DISCUSSION

         THE RULE 60 MOTION

         Legal Standard

         Barry emphasizes in his reply papers that his application is not "a generic motion for reconsideration, " Barry Reply, ECF Doc. 17 at 1; instead, Barry asserts that "relief from judgment" is required under Rule 60 because, in the language of subparagraph (b)(3) of that rule, there occurred "fraud..., misrepresentation, or misconduct by the opposing party" or! in the language of subparagraph (d)(3), there occurred "fraud on the court" or the equivalent.[2]

         Relief under Rule 60 on the ground of fraud is extraordinarily rare. The type of fraud the rule contemplates is "only that species of fraud which does or attempts to[ ] defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases." Pena v. United States. 859 F.Supp.2d 693, 699 (S.D.N.Y. 2012) (internal quotation and citation omitted). The party alleging fraud must substantiate the allegations by "clear and convincing evidence of material misrepresentations, " Fleming v. New York University. 865 F.2d 478, 484 (2d Cir. 1989), and show that the fraud "seriously affect[ed] the integrity of the normal process of adjudication." Pena, 859 F.Supp.2d at 699 (internal quotation and citation omitted). Accord Rowe Entertainment v. William Morris Agency Inc., 2012 WL 5464611, at *15 (S.D.N.Y. Nov. 8, 2012) (movant alleging Rule 60 fraud must show that the "[c]ourt's decision was influenced by the conduct at issue") (internal quotation and citation omitted). Finally, a Rule 60(b) motion "cannot serve as an attempt to relitigate the merits." Fleming. 865 F.2d at 484.

         Barry cannot prevail because, as discussed below, he has simply not shown that the government committed fraud.

         Analysis

         Barry alleges a total of 41 distinct occurrences or "grounds" for relief and has grouped them into six broad categories.

         I. Grounds 1 through 7

         Barry points to seven passages in the government's brief in opposition to his 2255 motion that, he insists, so inaccurately paraphrase some aspect of his brief that they amount to a fraud on the Court requiring relief from the judgment entered against him.

         Mindful that Barry has also moved for the Court's recusal on the theory that the language and tone of its past decision suggest bias, the Court nevertheless cannot mince words here: as a threshold matter, the government simply could not have defrauded the Court as Barry suggests unless the Court had consulted only the government's brief to learn the content of Barry's claims-which is simply not how this Court operates. A party does not commit fraud upon this Court merely by summarizing, characterizing, and paraphrasing an adversary's argument-with I all the risk of imperfection with which those activities are fraught-when the original materials are a matter of public record and before the Court.

         Further, the few discrepancies between Barry's 2255 brief and the government's account of it that Barry has unearthed are semantic or miniscule, and in any event immaterial to the ultimate disposition of Barry's habeas application.

         A representative example, ground 5, is recounted here in full to illustrate Barry's plodding, exacting methodology and its stark disproportion to the trifling nature of the claim it purports to advance.

         Barry begins his "ground 5" discussion by referencing a specific branch of the ineffectiveness claim raised in his Section 2255 papers: he writes that he had "cited counsel for allowing false testimony that [Barry] had written 1, 623 bounced checks [to go] unchallenged." Rule 60 Mot., ECF Doc. 11 at 8. He then reproduces a passage from the government Section 2255 opposition brief to show, in his words, "what the government said [his 2255 brief] argued." Id. The allegedly offending passage states as follows: "Barry now argues that counsel should have objected to this testimony because it is suggested that an insufficient funds fee means that a check bounced."[3]

         Barry next reproduces a passage from the brief he submitted in support of his Section 2255 application to show "what [his 2255 brief] actually said" counsel should have done. Rule 60 Mot., ECF Doc 11 at 8. The passage states as follows: "A few simple questions on cross would have easily exposed the error."[4]

         Finally, Barry asserts that a close comparison of the two reproduced passages yields evidence of governmental fraud:

Note [in Barry's 2255 Brief] the complete absence of the words "object" or "objection." Counsel was faulted for not utilizing cross examination to ! expose the falsity of the 1, 623 bounced checks testimony. Rationale [sic] for the government's purposeful misrepresentation is readily apparent. If the Petition had actually proposed that counsel should have objected on the grounds that the testimony was false, that would have been a request for a j futile absurdity. One cannot object that testimony is false. It must be shown to be false by other evidentiary means, or exposed as such during cross-examination-the precise tactic the Petition called for counsel to have employed.

Rule 60 Mot., ECF Doc. 11, at 8.

         Barry places great weight on a distinction without a material difference: the thrust of his Section 2255 complaint about the bounced-checks testimony, as reflected in the applicable point heading of his Section 2255 brief, was that counsel failed to challenge it. See Barry's 2255 Br. at 33, Point 11. Counsel permitted false testimony when proof of the falsity thereof was in discovery material and despite being made aware of it").

         Even accepting, however, the procedural and substantive differences between a formal objection (which goes to admissibility) and cross-examination (which goes to accuracy, probity, and weight), no error or injustice relating to those differences occurred in Barry's 2255 proceeding as a result of the government's treatment of the issue. In the decision denying habeas relief, this Court concluded that "counsel's decision not to call further attention to the incriminating facts [established by the bounced-checks evidence] is sound strategy by any measure" and therefore not deficient under Strickland's first prong. Barry. 2015 WL 3795866 at *9. Notably, the Court's analysis accounted for both objection and cross-examination as available vehicles. See id (Court framed issue as whether "counsel either should have objected to [the government analyst's] testimony or used ... discovery materials to establish, through cross-examination, that certain of the checks alleged to have bounced were in fact paid") (emphasis added). Moreover, as already noted, this ruling was an alternative to the Court's dispositive ruling that whether or not counsel's performance was deficient, Barry could not show Strickland prejudice. Id. at 3-5.

         The other grounds in this category fail to establish a basis for Rule 60 relief for the same reasons: none makes even the remotest showing of Rule 60 fraud. See Pena, 859 F.Supp.2d at 699; Fleming, 865 F.2d at 484. Further, any discrepancies between the government's! summary and the original material are either wholly semantic or otherwise trivial and in any event not material to the Court's § 2255 rulings. Although the assertions of fraud are so strained that summary rejection would be the appropriate judicial response, the Court briefly addresses each allegation separately.

         In ground 1, Barry complains that the government "purposefully distorted the wording" of his brief when it stated that "[c]ontrary to Barry's claim, the liquidity (or lack thereof) of Barry's underlying investments was not a primary focus of the case against him, " whereas Barry's brief stated that "[a]nother component of the government's allegations was that of misrepresentation of liquidity of investment" but did not use the words "focus" or "primary focus." Rule 60 Mot., ECF Doc. 11, at 9. The government's use of the words "primary focus" is not a material misrepresentation of Barry's position; his § 2255 brief plainly treats the! liquidity issue as substantial. See Barry's 2255 Br. at 8-9.

         In ground 2, Barry asserts that the government "opted to tell the Court that [Barry's brief] said the exact opposite of what it actually said, when the government wrote that "Barry is wrong when he claims that the length of his counsel's closing argument is proof of ineffective assistance, " whereas Barry's brief had asserted that, "[a]lthough the brevity of a summation is not in itself determinative of insufficiency, here the closing argument was lacking in many crucial elements." Rule 60 Mot., ECF Doc. 11, at 9-10. The assertion of fraud is frivolous. In any event, the Court reviewed the summation's contents and length, applied the principle that "[d]ecisions as to the content of a closing argument are quintessential strategic and tactical, " and concluded that, "in this case the summation reflected a sound strategy that satisfies the objective standard of reasonableness." Barry, 2015 WL 3795866 at *10.

         In ground 3, Barry asserts that the government committed fraud when its 2255 opposition brief asserted that Barry had failed to cite authority for the proposition that the "'tactical' decision not to call defense witnesses stops being tactical when the list of potential witnesses is extensive." Rule 60 Mot., ECF Doc. 11, at 11. The government did not commit fraud: Barry's 2255 brief complained of counsel's failure to call any defense witnesses, and noted that the list of potential witnesses was "extensive." Barry's 2255 Br. at 12. In any event, in finding neither prejudice nor deficient performance under Strickland, the Court gave plenary consideration to each of the categories of witnesses Barry would have had counsel call. Barry, 2015 WL 3795866 at *6-7.

         In ground 4, Barry asserts that, when responding to his habeas claim that counsel was ineffective by stipulating to the admission of excerpts of audio tapes of creditor meetings from Barry's bankruptcy case without seeking to introduce other portions under the rule of completeness, the government committed fraud by falsely telling the Court that Barry asked for a "blanket opportunity to offer his own prior statements." Rule 60 Mot., ECF Doc 11, at 12. The government did not commit fraud, but fairly responded to Barry's claim by arguing that, under Second Circuit law, "the rule of completeness... does not provide a defendant with a blanket opportunity to offer his own prior statements just because the government has introduced the defendant's inculpatory statement" but instead requires a defendant to make one of the showings the completeness rule requires. Gov't 2255 Br. at 30.

         In ground 6, Barry asserts that the government committed fraud by asserting in its brief that Barry cited only three specific instances in which counsel was ineffective, whereas he claims he cited a total of seven. Rule 60 Mot., ECF Doc 11 at 15. There was no fraud: as noted, the ...


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