United States District Court, W.D. New York
DECISION & ORDER
J. MCAVOY, SENIOR UNITED STATES DISTRICT JUDGE
the Court is Petitioner Jerry Robins' motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. The parties have briefed the issue and the Court
has determined to decide the motion without oral argument.
government charged Petitioner Jerry Robbins in a twenty-six
count Indictment on September 15, 2010. See dkt. #
1. Generally, the government alleged that Petitioner
laundered money for drug dealers through his business, Finish
Line Auto Sales. According to the government, Petitioner sold
automobiles to persons he knew to be drug dealers for cash,
titled those vehicles in the names of third parties, and then
failed to file currency reports mandated by federal law for
cash transactions of more than $10, 000. Such practices, the
government alleged, were a means by which persons engaged in
illegal drug sales could dispose of the cash from those sales
and make the money appear to come from a legitimate source.
of the Indictment charged Petitioner with conspiracy to
engage in money laundering. Count 2 alleged money laundering
in a sale to an undercover officer. Counts 3 through 9
charged money laundering with respect to specific
transactions. The Indictment listed a particular vehicle,
purchase price, and date of transaction, but alleged that the
criminal conduct was of the same type for each transaction.
Counts 10 through 16 charged defendant with engaging in
monetary transactions within the United States involving
property valued greater than $10, 000 which was derived from
a specified unlawful activity. The government also charged
Petitioner with aiding and abetting on Counts 3 through 16.
Counts 17 through 25 charged Petitioner with violating
certain laws related to reporting cash transactions over $10,
000. Each of those counts referenced specific transactions.
Count 26 charged Petitioner with violating laws prohibiting
the destruction of property subject to seizure.
trial, the jury returned a verdict of guilty against
Petitioner on Counts 3, 7, 8, 17, 19, 24 and 25. The jury
acquitted the Petitioner on all other Counts. After an
appeal, the United States Court of Appeals for the Second
Circuit on January 9, 2017 determined that the facts were
insufficient to convict Petitioner on Count 7, vacated his
conviction on that Count, and remanded for resentencing.
See dkt. # 238. The Court then resentenced
Petitioner. See dkt. # 255. Petitioner immediately
filed a motion to vacate pursuant to 28 U.S.C. § 2255.
See dkt. # 256. He later filed a motion for bail
pending the outcome of his petition. See dkt. #265.
The government has responded to the motion to vacate, and
Petitioner filed a reply brief. See dkt. #s 259,
seeks to set aside his sentence pursuant to 28 U.S.C. §
2255. A § 2255 challenge is limited to claims that
"the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack." 28 U.S.C.
§ 2255. Thus, relief pursuant to section 2255 is
available only "for a constitutional error, a lack of
jurisdiction in the sentencing court, or an error of law or
fact that constitutes 'a fundamental defect which
inherently results in [a] complete miscarriage of
justice.'" Graziano v. United States, 83
F.3d 587, 590 (2d Cir. 1996)(quoting United States v.
Bokun, 73 F.3d 8, 12 (2d Cir. 1995)) (internal quotation
marks and citations omitted). In a Section 2255 proceeding, a
petitioner bears the burden of proof by a preponderance of
the evidence. See Triana v. United States, 205 F.3d
36, 40 (2d Cir. 2000). “Airy generalities, conclusory
assertions and hearsay statements will not suffice because
none of these would be admissible evidence at a
hearing.” United States v. Aiello, 814 F.2d
109, 113 (2d Cir. 1987).
raises several grounds for why his motion should be
granted. Petitioner grounds each of these arguments
as violations of his right to effective assistance of
counsel. “The right to counsel is a fundamental right
of criminal defendants; it assures the fairness, and thus the
legitimacy, of our adversary process.” Kimmelman v.
Morrison, 477 U.S. 365, 374 (1986). The right to counsel
is not satisfied simply because counsel is present:
“the right to counsel is the right to effective
assistance of counsel.” Id. at 377. An
ineffectiveness claim asserts “that counsel's
unprofessional errors so upset the adversarial balance
between defense and prosecution that the trial was rendered
unfair and the verdict rendered suspect.” Id.
at 374. “To prevail on a claim of ineffective
assistance of counsel, a petitioner must demonstrate that:
(1) counsel's representation fell below an objective
standard of reasonableness; and (2) there is a reasonable
probability that, but for counsel's errors, the result of
the proceeding would have been different.” United
States v. Pitcher, 559 F.3d 120, 123 (2d Cir. 2009). In
evaluating counsel's performance, the Court “must
‘indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance'” and “‘[t]he
reasonableness of counsel's performance is to be
evaluated from the counsel's perspective at the time of
the alleged error and in light of all the
circumstances.'” Raysor v. United States,
647 F.3d 491, 495 (2d Cir. 2011) (quoting Kimmelman,
477 U.S. at 365).
Testimony of Henry Lloyd
argues that his counsel denied him effective assistance of
counsel by failing properly to impeach the testimony of Henry
Lloyd. The Court summarized Lloyd's testimony in
addressing Petitioner's post-trial motion:
Henry Lloyd also testified. See dkt. # 160. Lloyd
testified that he had pled guilty to money laundering
involving “[s]elling drugs and buying vehicles.”
Id. at 4. Lloyd had previously pled guilty to
“possessing or selling crack cocaine” and spent a
year in jail. Id. at 5-6. Lloyd testified that he
was “dealing drugs” from 2005 to 2008.
Id. at 6-7. Moreover, he admitted that he had been
selling drugs “[f]or a long time. Since I was like 14,
15-years-old.” Id. at 7. He sold crack and
cocaine. Id. He made “[a] lot” of money
doing so, and worked with others to sell and distribute the
drugs. Id. Lloyd imported drugs to Buffalo from
Atlanta and Houston. Id. at 8. He imported large
quantities of drugs and generated $100, 000s in income from
reselling them. Id. at 9-10. After selling the
“kilos” of drugs, Lloyd would “[b]uy
clothes, jewelry, cars and property.” Id. at
11. The funds for these purchases came from “drug
money.” Id. Buying such goods, however,
generated “concerns.” Id. Drug dealers
like Lloyd could not “put them in our name because we
don't have no income to show-legal income to show where
it's coming, from where the money is coming from.”
Id. They could not put the money in the bank, and
could not “put nothing over 10, 000 with the
IRS.” Id. Lloyd used a landscaping business
“[t]o hide [his] drug money.” Id. at 12.
Lloyd also hid money in “[s]afety deposit boxes, stash
houses.” Id. He also used women for
“buying vehicles, buying houses and stash the money
there, family members.” Id. He looked for
people with “a steady job” to make these
purchases “[t]o show that they can afford whatever
stuff I'm trying to purchase, like property or
vehicles.” Id. at 13. Such purchasers had an
intimate relationship with Lloyd, either as a family member
or a girlfriend. Id.
Lloyd testified that he had known the Defendant as a car
dealer for around ten years. Id. at 13-14. Lloyd
purchased a number of cars from Defendant, beginning when he
was 17 years old. Id. at 14. He paid for that first
vehicle with cash. Id. at 15. Lloyd testified that
Defendant had asked him how a young man could have so much
cash, and asked him where the money came from. Id.
Lloyd “told him I sell drugs.” Id.
Defendant knew one of Lloyd's friends, who had recently
been arrested for “drugs and a gun.” Id.
Defendant asked how the friend was doing, and then asked
Lloyd “you selling crack, you sell butter, you sell-do
your shit be good.” Id. at 16. Lloyd testified
that “butter” referred to crack. Id.
Lloyd assured Defendant that it was. Lloyd testified that he
showed Defendant crack cocaine. Id. He “pulled
out a pocket full of eight balls and quarters and showed it
to” Defendant. Id. at 16. An “eight
ball” is 3.5 grams of crack. Id. at 17. He
showed Defendant sixteen of them. Id. at 18.
Lloyd further testified that he was a low-level dealer at the
time he first purchased a vehicle from Defendant, but that he
eventually became a higher-level operative. Id. at
18-19. To become a “bigger” dealer, Lloyd
related, he had to find “bigger customers.”
Id. at 19. To attract such customers, he needed
“[f]lashy cars, jewelry.” Id. Having
such goods indicates that a person is a “drug
dealer” in the “drug world.” Id.
“It draws attention and it brings people to you and
they ask, do you have drugs for sale.” Id.
Lloyd testified that a number of other persons he knew to be
drug dealers had purchased vehicles from Defendant.
Id. at 42-45. Lloyd testified that he bought two
other cars from Defendant, an Infiniti Q56 and a Ford
Windstar. Id. at 21-22. With the assistance of
Mitchell, he and a friend, Tyrone Pennick, purchased the Ford
Windstar for $4, 000. Id. at 22-23. They drove the
vehicle around Buffalo “and sold drugs out of
it.” Id. at 23. Eventually, Lloyd testified,
he traded that vehicle in on the Infiniti. Id. He
and Pennick purchased the vehicle from Defendant in May 2007.
Id. at 24-25. They agreed to pay $35, 000 for the
vehicle after receiving $3, 000 for a trade-in on the
Windstar. Id. at 25-26. They had cash sufficient to
pay for the vehicle, but Defendant insisted on receiving
cashier's checks and money orders for the vehicle.
Id. at 26. Lloyd presumed Defendant did not want to
take more than $10, 000 in cash. Id. at 27. Lloyd
went to his bank and deposited $9, 000 in cash. Id.
at 27. He testif ied that he deposited $9, 000
“[b]ecause the bank has to fill out a tax form if you
deposit over $10, 000.” Id. at 27. Lloyd
testified that the $9, 000 was “drug money.”
Id. Lloyd then wrote a check for the car from the
account of his landscaping business. Id. at 30.
Pennick and another woman obtained money orders and cashiers
checks for the rest of the purchase price of the vehicle.
Id. They used “drug money” to obtain
these papers as well. Id. at 31. None of these
checks were for more than $10, 000, as they wanted to avoid
filling out a tax form on the money. Id. They wanted
to “conceal where the money came from.”
Id. at 32.
After obtaining these various checks, they returned to
Defendant's business. Id. Lloyd left, and
Pennick waited for Defendant to arrive. Id. A few
hours later, Pennick picked Lloyd up in the Infiniti Q56.
Id. at 32-33. The vehicle was titled in Latese
Mitchell's name. Id. at 33. Mitchell was asked
to put the Infiniti in her name; they “transferred the
plates from the van, because the van was in her
name[.]” Id. at 33. Lloyd testified, however,
that he had written a check to Defendant's shop for the
vehicle, and that he and Pennick were the persons who drove
the Infiniti. Id. at 33. They used the car for about
eight months, and then Pennick gave the vehicle “back
to [Defendant], told him to sell it on his lot.”
Id. at 34. He did so after Defendant “told him
that the IRS raided the shop and was asking questions about
the drug dealers that brought the car[.] . . . Tyrone thought
the main reason why they raided the shop is because of the
cars that he bought from” Defendant. Id. at
35. Lloyd testified that after Defendant sold the vehicle he
gave Pennick around $6, 000. Id. at 40.
See dkt. # at 11-14. The Court found this testimony
sufficient to convict Petitioner on Count 8. Id. at
Court concluded, in relevant part, that:
A rational juror could find the evidence sufficient to prove
beyond a reasonable doubt that the vehicles were purchased
with money from drug transactions-Lloyd testified as much,
and the jury would only have to credit his testimony to find
this element proved. Likewise, the jury would need only to
find Lloyd credible to conclude that Defendant knew that
Lloyd sold drugs and sought to purchase vehicles with the
funds from that operation. The circumstantial evidence
available to come to that conclusion was plentiful; Lloyd
testified that he had shown Defendant the drugs he was
selling when he was seventeen. He also testified about
Defendant's response to that information, which could
lead a jury to conclude that Defendant was a willing
participant in Lloyd's efforts to dispose of the cash he
obtained from these sales. The testimony of Lloyd and
Mitchell also provided the jury with ...