Bennett v. United States

• Citation: 663 F.3d 71
• Decision Date: 09 December 2011
• Docket Number: Docket No. 06–2443–pr.
• Parties: Patrick BENNETT, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

663 F.3d 71

Patrick BENNETT, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

Docket No. 06–2443–pr.

United States Court of Appeals, Second Circuit.

Submitted: March 30, 2011.Decided: Dec. 9, 2011.

Galgano & Associates, White Plains, NY (George W. Galgano, Jr., White Plains, NY, Michael D. Pinnisi, Pinnisi & Anderson, Ithaca, NY, of counsel), for Petitioner–Appellant, and Patrick Bennett, Loretto, PA, pro se.

Preet Bharara, United States Attorney for the Southern District of New York, New York, NY (Peter M. Skinner, Andrew L. Fish, Assistant United States Attorneys, New York, NY, of counsel), for Respondent–Appellee.

Before: KEARSE, SACK, and KATZMANN, Circuit Judges.

KEARSE, Circuit Judge:

This appeal returns to us from the United States District Court for the Southern District of New York, Paul A. Crotty, Judge, following an evidentiary hearing and findings on a Jacobson remand from this Court, see United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994), with respect to the district court's denial of petitioner Patrick Bennett's motion pursuant to 28 U.S.C. § 2255 to vacate his convictions—following two trials—for securities fraud, bank fraud, and money laundering on the ground that he received ineffective assistance of counsel. In support of that claim, Bennett alleged that there were numerous defects in counsel's performance; he was granted a certificate of appealability to seek review with respect to two such allegations, to wit, (1) that his attorneys overrode his desire to testify at his second trial, and (2) that counsel interfered with his right to testify by failing to object to jury instructions on intent and good faith (“ mens rea ” instructions). The district court, following its evidentiary hearing on remand with respect to those two issues, found that counsel had advised Bennett of his absolute right to testify and to decide for himself whether or not to testify, and that Bennett had accepted, without complaint, their advice that he not testify; the court found Bennett's testimony to the contrary not credible. The court also found that the unchallenged mens rea instructions caused Bennett no prejudice. On this reinstated appeal, Bennett contends principally that the district court erred in its credibility assessments and that this Court should grant him a new trial on the ground that his attorneys (a) failed to inform him that he had the rights to testify and to decide whether or not to testify at his second trial, (b) overrode his desire to testify at that trial, or (c) failed to protect his right to testify because they failed to object to the mens rea instructions. Bennett also contends that the certificate of appealability should be expanded to encompass other alleged errors of counsel. For the reasons that follow, we reject his contentions and affirm the district court's denial of the § 2255 motion.

I. BACKGROUND

The proceedings leading to this appeal—beginning with a 106–count indictment and including two trials (before different judges) resulting in Bennett's conviction on a total of 49 counts, a § 2255 motion (and a supplement thereto) before a third judge, three appeals, and two remands—are summarized below.

A. Bennett's Convictions and Direct Appeals

Bennett was the chief financial officer of a family business called Bennett Financial Group (“BFG”). The crimes of which he was convicted are described generally in United States v. Bennett, No. 00–1330 (2d Cir. May 31, 2001) (“ Bennett I ”) (summary order), and United States v. Bennett, 252 F.3d 559 (2d Cir.2001) (“ Bennett II ”), cert. denied, 535 U.S. 932, 122 S.Ct. 1307, 152 L.Ed.2d 217 (2002).

The indictment alleged offenses of four kinds. First, Bennett allegedly ran a massive pyramid scheme through BFG, selling fictitious leases to investors and pledging or selling legitimate leases twice over to different parties. These pyramid scheme allegations supported mail fraud and securities fraud counts. Second, Bennett allegedly shifted the cash generated by pyramid sales into an unaudited shell company, supporting several money laundering counts. Third, Bennett allegedly inflated BFG's profitability in financial statements submitted to banks and investors who loaned money to BFG. These allegations supported bank fraud and additional securities fraud counts. Fourth, Bennett deceived SEC investigators, supporting public integrity counts such as perjury and obstruction of justice.

There have been two trials. At each trial, the Government submitted evidence that would have permitted conviction on all the counts....

Bennett II, 252 F.3d at 560–61.

At his first trial, which ended in March 1999, Bennett testified that in connection with an investigation into BFG by the Securities and Exchange Commission (“SEC”) he, inter alia, gave the SEC sworn testimony that was false, submitted documents that he had fabricated or backdated, and instructed others to give false statements and fictitious documents. At that trial, Bennett was convicted on one count of obstruction of justice, two counts of conspiracy to obstruct justice and commit perjury, and four counts of perjury, see generally id. at 561; Bennett I at 2. The jury was not able to reach verdicts on other counts, and a second trial on those counts was held in May–June 1999. At the second trial—at which Bennett did not testify—the jury, although unable to reach verdicts on certain mail fraud and securities fraud counts, found Bennett guilty on two counts of securities fraud, five counts of bank fraud, five counts of engaging in monetary transactions with criminally derived property, and 30 counts of money laundering, see generally Bennett II, 252 F.3d at 561; Bennett I at 2. Following the second trial, Bennett was sentenced principally to 30 years' imprisonment and was ordered to forfeit $109,088,889.11.

In Bennett I, we affirmed Bennett's convictions, albeit not his sentence. We rejected all of Bennett's claims of trial error, including, as discussed in greater detail in Part II.B below, his contention that he was entitled to a new trial on the ground that the court at his second trial gave the jury erroneous or incomplete instructions with respect to mens rea on the fraud counts, see Bennett I at 5–6.

Simultaneously with our summary order in Bennett I, we filed a published opinion vacating Bennett's sentence and remanding to the district court for resentencing, ruling that the trial judge had departed upward from the Guidelines-recommended imprisonment range on an impermissible basis. See Bennett II, 252 F.3d at 564–65. On remand, the court resentenced Bennett, imposing the same nonincarceratory penalties but imposing a prison term of 22 years rather than 30. This Court affirmed the new sentence. See United States v. Bennett, No. 02–1379, 2003 U.S.App. LEXIS 19394 (2d Cir. Sept. 18, 2003) (“ Bennett III ”) (summary order), cert. denied, 540 U.S. 1134, 124 S.Ct. 1112, 157 L.Ed.2d 940 (2004).

B. Bennett's § 2255 Motion Claiming Ineffective Assistance of Counsel

At his first trial, Bennett had been represented by David Levitt and Mark Gombiner, attorneys from the Federal Defender Division of the Legal Aid Society (“Legal Aid”); at his second trial, he was represented by Gombiner and Legal Aid attorney Ian Yankwitt. In 2003, represented by new counsel, Bennett filed a motion pursuant to 28 U.S.C. § 2255 (which was supplemented in 2004 to add a claim that is not pertinent to this appeal), seeking to vacate his sentence and conviction on the principal ground that he had received ineffective assistance of counsel at his second trial.

In support of his ineffective-assistance-of-counsel (or “IAC”) claim, Bennett specified 19 instances in which he claimed his attorneys' performance had been deficient. Items labeled Errors 1–11 alleged “errors and omissions relating to the jury instructions”; Errors 4–5 asserted that counsel failed to object to mens rea instructions that did not inform the jury that in order to find Bennett guilty on the bank fraud counts it must find an intent to harm the banks, and failed to object to the wording of an instruction on good faith as a defense. Items labeled Errors 12–19 alleged “errors and omissions relating to trial conduct,” including alleged failures to object to the indictment, to government evidence, or to government conduct, and failures to recognize and present effective defenses. Number 17 asserted as follows:

Error 17. Defense counsels [ sic ] performance improperly interfered with Movants [ sic ] constitutional right to testify at trial.

On the second day of trial, prior to any evidence being submitted against Movant, a discussion took place at a social luncheon between the district court, then U.S. Attorney for Southern District of New York, Mary Jo White, and head of Legal Aid Society, Leonard Joy concerning Movant's case. Based on the version of this discussion relayed to Movant by Mr. Joy, Movant became very upset and expressed his immediate concern to Mr. Joy and Mr. Gombiner, that Movant felt the district court was predisposed of his guilt. Neither Mr. Joy, Mr. Gombiner, nor anyone at Legal Aid Society, advised Movant, after expressing these concerns, of his legal right to immediately put this incident on the record to seek clarification from the district court; and, or ask for recusal. Movant's “fear” of the district court's predisposition of his guilt, became a primary reason Movant did not testify at the second trial. See Bennett affidavit. Ultimately, a recusal request was filed months after trial, for the balance of the proceedings, and the district court put on the record, January 28, 2000 hearing, pages 1–8, the contents of the above discussion. Movant[ ] has sworn that this was a materially different version from that told to him by Mr. Joy, and that if the district court's comments had been on the record immediately at trial, it would have clarified what took place, relieved Movant's concern, at the...