Fard v. United States
| Docket Number | 8:17-cr-131-VMC-SPF,8:21-cv-2049-VMC-SPF |
| Decision Date | 02 August 2022 |
| Parties | AKBAR GHANEH FARD, v. UNITED STATES OF AMERICA. |
| Court | U.S. District Court — Middle District of Florida |
This matter is before the Court on Akbar Ghaneh Fard's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 203), filed on August 24, 2021. The United States of America responded on January 24, 2022. (Civ. Doc. # 11). Fard replied on March 25, 2022. (Civ. Doc. # 16). For the reasons that follow, the Motion is denied.
On March 22, 2017, a grand jury indicted Fard on six counts of wire fraud, in violation of 18 U.S.C. § 1343. (Crim Doc. # 1). A jury trial was conducted, and Fard was found guilty on all charges on February 9, 2018. (Crim. Doc. # 109).
The wire fraud charges concern fraudulent scientific research proposals that Fard submitted to obtain federal funds through the Small Business Innovations Research Program (“SBIR”) and the Small Business Transfer Technology Program (“STTR”). (Crim. Doc. # 134 at 33). The programs require any federal agency, department, or entity that has a research budget larger than $100 million to set aside part of the research budget for small businesses. (Id.) . The SBIR's purpose is to stimulate innovation, promote growth, and encourage commercialization of products by small businesses in the United States. (Id. at 47).
In submitting proposals for SBIR funding, Fard certified that the information he provided, including the budget, was true, and acknowledged that providing false information in his proposals was a federal offense. (Crim. Doc. ## 106-24, 106-44). Despite this, Fard provided false information in his budget proposals. Specifically, although he proposed a seven percent profit, Fard ultimately took a seventy percent profit. (Crim. Doc. # 135 at 46). Fard also stated in his proposals that his business, Advanced Materials Technology, Inc., had two employees, when Fard was the only employee. (Crim Doc. # 138 at 81). Additionally, Fard proposed costs for materials and equipment that were already included in the subcontractor fee. (Crim. Doc. # 136 at 71).
Fard's trial counsel moved for judgment of acquittal three times. (Crim. Doc. # 138 at 20-21, 70; Crim. Doc. # 114). The motion was denied each time. (Crim. Doc. # 138 at 23, 71; Crim. Doc. # 116). On August 23, 2018, the Court sentenced Fard to thirty-six months' imprisonment and three years of supervised release. (Crim. Doc. # 163). Fard appealed. (Crim. Doc. # 166). The United States Court of Appeals for the Eleventh Circuit affirmed. United States v. Fard, 805 Fed.Appx. 618 (11th Cir. 2020) . The Eleventh Circuit wrote in relevant part:
The district court did not err in denying Fard's motion for judgment of acquittal as sufficient evidence supports his convictions. Throughout the trial, the jury heard how Fard was warned that lying in the proposals was illegal, and how the contracting officers relied on the statements made by Fard, they negotiated with Fard to ensure the budgets and research met the agencies' needs, and entered a final agreement, which required modifications to be made with the contracting officers. Further, the jury heard from Special Agent Mazzella about how the awards were Advanced Material Technology, Inc.'s (AMTI's) only source of income, Fard's spending was inconsistent with the information in the budgets, and Fard diverted approximately 70 percent of the funds awarded to AMTI. From the combination of Fard's obligations and actual spending, the Government presented sufficient evidence to show that Fard had made material misrepresentations to the agencies. From his success in obtaining the awards, the jury could also conclude that Fard's statements had the natural tendency of influencing those in charge of granting the awards. Additionally, the jury could conclude the agencies were harmed and did not receive the benefits of their bargaining with Fard. From both NASA and the Navy representatives, the jury heard how Fard's intentional misrepresentations resulted in the agencies awarding funds they otherwise would not have, thereby undermining the purpose of the programs to stimulate innovation and economic growth.
Id. at 619-20 (citations omitted).
Fard has now filed the instant motion pursuant to 28 U.S.C. § 2255. (Civ. Doc. # 1). The United States has responded (Civ. Doc. # 11), and Fard has replied (Civ. Doc. # 16). The Motion is ripe for review.
Fard bears the burden of proving that he is entitled to relief under Section 2255. Rivers v. United States, 777 F.3d 1304, 1316 (11th Cir. 2015).
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, Fard must demonstrate by a preponderance of the evidence “that particular and identified acts or omissions of counsel ‘were outside the wide range of professionally competent assistance.'” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (citations omitted). In other words, Fard must show that “no competent counsel would have taken the action that his counsel did take.” Id. at 1315. In deciding whether an attorney's performance was deficient, courts are “highly deferential” and “indulge [the] strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment.” Id. at 1314 (internal quotation marks omitted).
To satisfy Strickland's second prong - prejudice - Fard must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “However, if a claim fails to satisfy the prejudice component, the Court need not make a ruling on the performance component.” Ortiz v. United States, No 8:15-cr-409-VMC-JSS, 2017 WL 6021645, at *2 (M.D. Fla. Jan. 11, 2017).
In his Motion, Fard advances two grounds for postconviction relief, both based on ineffective assistance of counsel. (Civ. Doc. # 1 at 4-5).
First, Fard argues that his trial counsel, Bruce H. Lehr, was ineffective because he failed to: (1) investigate the facts, law, and evidence; (2) obtain, develop, and present exculpatory evidence; (3) confront and impeach the government's witnesses; (4) investigate, interview, and call favorable defense witnesses; (5) file a pre-trial motion to dismiss the indictment; and (6) adequately and effectively argue a Rule 29 motion. (Civ. Doc. # 1 at 4).
Regarding Lehr's investigation, Fard argues that Lehr failed to investigate the contracts and subsequently failed to present exculpatory evidence. (Civ. Doc. # 2 at 4). Fard also contends that Lehr failed to investigate and produce evidence that demonstrated that the proposed costs were estimates, and that the General and Administrative (“G & A”) rates were not fraudulent. (Id. at 6, 14). Additionally, Fard claims that Lehr failed to investigate and present evidence pertaining to the NASA SBIR and STTR Program Solicitations, the Federal Acquisition Regulations (“FAR”), and the government SBIR website. (Id. at 9).
Fard has not shown that Lehr was ineffective for failing to investigate or present the evidence to which Fard cites in his memorandum. First, counsel is not ineffective for choosing not to investigate or present every bit of potential evidence. See Strickland, 466 U.S. at 690-91 ( that “[s]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation”); see also Fugate v. Head, 261 F.3d 1206, 1217 (11th Cir. 2001) ().
More importantly, Lehr swore in his affidavit that he “fully familiarized [himself] with all the discovery provided by the Government” and “explored all possible defenses,” supporting that Lehr did investigate the case. (Civ. Doc. # 11-1 at 2). Lehr also met with Fard in person to go over the discovery and Fard's theories of innocence. (Id. at 3). But “[e]ach of [Fard's] theories only showed him to be more guilty of the allegations.” (Id. at 2). According to Lehr, “[w]hat [Fard] refused to accept or comprehend was that he made numerous representations to the government to be awarded grants; they were blatantly false; when the investigation took place, he blatantly lied, and then spent the monies of the grants for everything from groceries to household items instead of the purposes for which they were awarded.” (Id. at 3). Nevertheless, despite Lehr's belief that the government's case was “tremendous[ly]” strong, he hired and called an expert witness to testify to Fard's interpretation of the contracts: that once the grant monies “were received the grantee was free to do what he wished with the funds.” (Id. at 3-4).
Thus the record reflects that Lehr reviewed all relevant discovery, investigated the defense theories proposed by his client, and determined those theories to be meritless. Under these circumstances, the Court cannot hold that Lehr's representation was ineffective. See Bryant v. United States, No.: 2:10-cv-8044-RDP-JHE, 2013 WL 4079339 at *9 (N.D. Ala., Aug. 13, 2013) (...
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