Daugerdas v. United States
| Decision Date | 16 February 2021 |
| Docket Number | 09cr581,18cv152 |
| Parties | PAUL DAUGERDAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Pro se Petitioner Paul Daugerdas moves to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. In June 2009, the Government charged Daugerdas and his co-defendants with engaging in a wide-ranging conspiracy to defraud and obstruct the United States through the design, sale, implementation, and defense of tax shelters that generated billions of dollars of fraudulent tax losses for clients of the law firm Jenkens & Gilchrest, the accounting firm BDO Seidman, and the financial institutions Deutsche Bank and Bank One. For the following reasons, Daugerdas's petition is denied.
On March 4, 2010, the Government filed a third Superseding Indictment, charging Daugerdas with one count of conspiracy to defraud the United States, to commit tax evasion, and to commit mail and wire fraud, in violation of 18 U.S.C. § 371; twenty-two counts of tax evasion, in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 21; one count of obstructing the Internal Revenue Service ("IRS Obstruction"), in violation of 26 U.S.C. § 7212(a); and one count of mail fraud, in violation of 18 U.S.C., §§ 1341, 2. (Criminal ECF No. 81 ("S3 Indictment").)1 On May 24, 2011, following a thirteen-week trial, a jury convicted Daugerdas on all counts. (Criminal ECF No. 397.) Daugerdas moved for a new trial, arguing that evidence discovered after the verdict revealed that a biased juror infected the jury. (Criminal ECF No. 459.) Following an evidentiary hearing, this Court vacated Daugerdas's conviction and granted him a new trial. United States v. Daugerdas, 867 F. Supp. 2d 445, 484 (S.D.N.Y. 2012).
On July 1, 2013, the Government filed a sixth Superseding Indictment, which dropped certain tax evasion charges, renumbered certain counts, and removed the names of some defendants charged in the S3 Indictment who were no longer relevant. (Criminal ECF No. 644 ("S6 Indictment").) On October 31, 2013, following an eight-week trial, a second jury convicted Daugerdas on seven counts, including: conspiracy to defraud the United States ("Count One"); four counts of client tax evasion ("Counts Five, Six, Seven, and Eleven"); IRS obstruction ("Count Thirteen"); and mail fraud ("Count Seventeen"). (Criminal ECF No. 838 ("Judgment"), at 1-2.) On June 25, 2014, this Court sentenced Daugerdas principally to a term of 180 months of incarceration to be followed by three years of supervised release. (Judgment, at 3.) In addition, this Court entered an order of forfeiture in the amount of $164,737,500 and imposed restitution in the amount of $371,006,397 and a $700 mandatory special assessment. (Judgment, at 6-7.)
Daugerdas appealed. (Criminal ECF No. 841.) On September 21, 2016, the Court of Appeals affirmed Daugerdas's convictions and sentence. (Criminal ECF No. 896.) On October 2, 2017, the Supreme Court denied Daugerdas's petition for writ of certiorari. United States v. Daugerdas, 837 F.3d 212 (2d Cir. 2016), cert. denied, 138 S. Ct. 62 (2017).
On January 5, 2018, Daugerdas filed this habeas proceeding. (Mot. to Vacate, Set Aside, or Correct Sentence, ECF No. 1 ("Petition").) Later, he supplemented his claims, (ECF Nos. 5, 8), and sought an evidentiary hearing, (ECF No. 11). In March 2018, this Court denied Daugerdas's request for an evidentiary hearing. (ECF No. 13.) Nevertheless, he persists in renewing that application. (ECF Nos. 24, 47).
Daugerdas offers nine separate arguments to vacate his conviction and sentence: (1) trial counsel was ineffective for signing a series of statute of limitations stipulations and advising Daugerdas to sign them; (2) this Court failed to make a required finding that Daugerdas knowingly and voluntarily signed the statute of limitations stipulations; (3) appellate counsel was ineffective for failing to raise, on direct appeal, a challenge to the statute of limitations stipulations; (4) the statute of limitations stipulations were invalid because they were not supported by valid consideration; (5) trial counsel was ineffective for failing to challenge the S6 Indictment's inclusion of a new overt act allegation that broadened the conspiracy charge; (6) trial counsel was ineffective for failing to challenge the inclusion of a new overt act allegation in Counts Two through Thirteen and Count Seventeen of the S6 Indictment; (7) trial counsel was ineffective for stipulating that Deutsche Bank was a financial institution affected by the tax shelters and for not challenging the Government's failure to allege that the mail fraud affected a financial institution; (8) trial counsel was ineffective for failing to challenge the validity of the mail fraud charge; and (9) that his conviction under 26 U.S.C. § 7212(a) must be vacated in light of the Supreme Court's decision in Marinello v. United States, 138 S. Ct. 1101 (2018). (See generally Petition.)
Although Daugerdas raises a blunderbuss of claims, his principal contention is that trial counsel provided ineffective assistance by advising Daugerdas to sign a series of pre-indictment stipulations tolling certain statutes of limitations. Daugerdas now claims he did not understand those stipulations and that they were not supported by valid consideration. This Court reorders Daugerdas's claims to make the analysis coherent. To begin, this Memorandum & Order addresses Daugerdas's four claims relating to the statute of limitations stipulations. Thereafter, this Court turns to the balance of his claims.
A petitioner may collaterally attack his conviction and sentence by "mov[ing] the court which imposed the sentence to vacate, set aside, or correct the sentence." 28 U.S.C. § 2255(a). Because collateral challenges conflict with "society's strong interest in the finality of criminal convictions," petitioners are subject to a higher bar "to upset a conviction by collateral, as opposed to direct, attack." Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (quotation marks omitted). Further, "[a] motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). To prevail on a § 2255 motion, a petitioner must show "constitutional error . . . or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
Although Daugerdas is now proceeding pro se, he is a disbarred attorney formerly admitted to practice in the state of Illinois. Accordingly, "because he has had legal training and experience, . . . he is not entitled to the same level of deference as would the usual pro se litigant, although he is entitled to some." Pantoja v. United States, 2013 WL 3990912, *4 (E.D.N.Y. Aug. 2, 2013) (citing Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010)); see also Parent v. New York, 485 F. App'x 500, 502-03 (2d Cir. 2012) (summary order) .
To prevail on an ineffective assistance of counsel claim, a defendant must show that: (1) his counsel's representation fell below an objective standard of reasonableness; and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Notably, "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
With respect to the first prong, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quotation marks omitted). And, "the record must demonstrate that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687).
Accordingly, "a defendant cannot prevail on a claim of ineffective assistance merely because he believes that his counsel's strategy was inadequate." Albanese v. United States, 415 F. Supp. 2d 244, 249 (S.D.N.Y. 2005) (citing United States v. Vargas, 27 F.3d 773, 777 (2d Cir. 1994)). It is well settled that a "strategic decision does not constitute ineffective assistance of counsel." Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008). Indeed, courts are cautioned not to "second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every 'colorable' claim." Jones v. Barnes, 463 U.S. 745, 754 (1983); see also United States v. Berkovich, 168 F.3d 64, 67 (2d Cir. 1999) . Accordingly, this Court "will not second-guess trial counsel's defense strategy simply because the chosen strategy . . . failed." United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987). Moreover, "blanket assertions against [a] trial counsel's performance in a self-serving affidavit," Davison v. United States, 2001 WL 883122, at *8 (S.D.N.Y. Aug. 3, 2001) (citing Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001)), and "[a]iry generalities, conclusory assertions and hearsay statements will not suffice" to form a basis for relief, Haouari v. United States, 510 F.3d 350, 354 (2d Cir. 2007) (quotation marks omitted).
With respect to the prejudice prong, a petitioner "must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors,...
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