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Norman v. United States

United States District Court, S.D. New York

January 22, 2018

DAVID NORMAN a/k/a JIM NORMAN, Petitioner,

          OPINION & ORDER


         David Norman, currently incarcerated at A.U.S.P. Thomson, brings a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He was convicted by a unanimous jury on January 30, 2013 of conspiracy to commit wire fraud; he was then sentenced on July 12, 2013 to 240 months' incarceration as well as $1, 731, 805.34 in restitution and $2, 197, 637.04 in forfeiture. Petitioner now challenges his sentence and conviction on the grounds that, inter alia, he received ineffective assistance of counsel; the Court erred in its evidentiary rulings; and his extradition violated the United States-Canada extradition treaty. For the reasons set forth below, the petition is DENIED.

         I. BACKGROUND

         Starting in at least 2004, petitioner, a Canadian citizen, began soliciting funds through the Jim Norman Program (the “Norman Scheme”), an “advance fee” scheme. The Norman Scheme worked as follows: petitioner and his co-conspirators convinced their victims to make initial “investments” by promising them that, as “investors, ” they would see 500% returns within weeks. (Presentence Investigation Report (“PSR”) ¶¶ 13-14.) Petitioner and his co-conspirators represented through email, telephone, and word-of-mouth that so-called “investors” would receive funds held by the World Bank in an account in a foreign country-funds which could be repatriated once the fees and expenses (e.g., legal fees) incurred by the account were paid.[1] (Id. ¶ 14-15.) Petitioner claimed the “fees” were paid to “agents” identified by the International Monetary Fund (“IMF”) and the World Bank. (Id. ¶ 41; Trial Tr. at 840:8-14.) He also told his victims that their initial investments would be secured by personal or contractual guarantees from him and his associates. (PSR ¶ 14.)

         To bolster his credibility, petitioner maintained a website-for which he paid $16, 000-that portrayed him as a “successful, sophisticated, and important millionaire international financier.” (Id. ¶ 39.) In fact, he “maintained a de minimis income.” (Id.) Most of petitioner's victims were United States residents; to contact them, petitioner used “facilitators” living in the United States. (Id. ¶ 37.) Several of these facilitators were petitioner's co-defendants in the criminal case.

         Once victims made initial investments, petitioner persuaded them to invest more by promising greater returns and/or threatening that returns could not be realized without the payment of additional, unexpected fees. (Id.) Ultimately, no victim received the promised returns, and only a few received even a partial return of their investments. (Id.) Instead, petitioner used the funds-six to nine million dollars in all-for personal expenses, hundreds of ATM withdrawals, and wire transfers to himself and friends. (Id ¶¶ 41-42; Trial Tr. at 840:8-14.) Financial records demonstrate that between November 2004 and March 2005, for example, he received $1.6 million, withdrew $87, 000 from ATMs, and purchased, inter alia, stereo equipment for $7, 896, men's clothing for $13, 612, Gucci luggage for $5, 700, and a chair for $4, 300. (PSR ¶ 42.)

         The Federal Bureau of Investigations (“FBI”) spoke with more than fifty victims, monitored phone calls, and reviewed emails, financial records, and other communications between the perpetrators of the Norman Scheme and victims of it. (Id. ¶ 15.) For example, the FBI ascertained through emails that at least one victim was promised a return of $4 million on a $50, 000 investment in an account held with the World Bank in Switzerland, which itself purportedly held more than $100 million dollars. (Id. ¶ 16.) Another was promised a 500% return on her investment of $20, 000. (Id.) A third victim, a disabled Vietnam veteran who survived on a small fixed income, “invested” $20, 000 and was then “taunted” by petitioner when he accused him of fraud after he did not receive any returns. (Id. ¶ 44.) Petitioner and his co-conspirators also induced their victims to recruit friends and family members, who also made investments on more than one occasion. (Id. ¶ 16.) Victims were told to keep their investments secret, and they were sometimes asked to sign non-disclosure agreements-which on at least one occasion included an affirmation that the victim was not a member of U.S. law enforcement. (Id. ¶ 40.)

         Petitioner was arrested on November 14, 2011 and extradited from Canada to the United States. Though the case was originally in front of Judge Sand, it was transferred to the undersigned on September 21, 2012. This Court kept the trial date of January 22, 2013, and trial was ultimately held from January 22-30, 2013. The Government presented an overwhelming amount of evidence, including victims' testimony, monitored communications, and financial records. As particularly relevant to the instant petition, during trial, petitioner's counsel contemplated calling petitioner's accountant as a witness. (Trial Tr. at 586:16-588:4.) Ultimately, the accountant was not called as a witness.[2] Additionally, petitioner testified about a purported U.S. Treasury document, (see, e.g., Trial Tr. at 814:4- 17), but his counsel never introduced the document into evidence.

         On January 30, 2013, a unanimous jury convicted petitioner of wire fraud. On July 12, 2013, he was sentenced to twenty years in prison a well as restitution in the amount of $1, 731, 805.34 and forfeiture in the amount of $2, 197, 637.04. (ECF No. 270, Sen. Tr. at 53:4-5; id. 55:9-24.) Petitioner appealed to the Second Circuit, where he argued that his sentence was substantively and procedurally unreasonable. A Second Circuit panel unanimously rejected the appeal. United States v. Norman, 776 F.3d 67 (2d Cir. 2015). Throughout the trial and appeal, and even now, Norman maintains that he is innocent and that the program was real, despite testimony given by, inter alia, IMF and World Bank officials that the “program” petitioner advertised did not exist. (See, e.g., Trial Tr. at 400-02.)

         Throughout trial, petitioner was represented by Deveraux Cannick and Jennifer Arditi. (Id.) At sentencing and throughout his appeal, he was represented by Megan Wolfe Benett. (ECF No. 270, Sen. Tr.; ECF No. 246, Notice of Attorney Appearance.)


         A. Pro Se Petitions

         The Court applies a “liberal construction of [pro se] pleadings, which should be read ‘to raise the strongest arguments that they suggest.'” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). Nevertheless, a Court may dismiss a petition under § 2255 without holding an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting 28 U.S.C. § 2255); see also Fed. R. Governing Sec. 2255 Proceedings for the U.S.D.C. 4(b) (“If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.”).

         B. Ineffective ...

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