Kowalczyk v. US
| Decision Date | 21 August 1996 |
| Docket Number | No. 94 CV 5620 (ADS).,94 CV 5620 (ADS). |
| Citation | 936 F. Supp. 1127 |
| Parties | Chester KOWALCZYK, Petitioner, v. UNITED STATES, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
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Chester Kowalczyk, Fort Dix, New Jersey, Petitioner, pro se.
Zachary W. Carter, United States Attorney by Peter Tomao, Assistant United States Attorney, Garden City, New York, for the U.S.
Presently before the Court is the motion of the petitioner, pro se Chester Kowalczyk ("Kowalczyk" or the "petitioner"), for a writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2255.1 He bases his claim on the following: (1) ineffective assistance of counsel; (2) erroneous jury instructions; (3) denial of due process; (4) abuse of discretion in evidentiary rulings; (5) unconstitutionality of the underlying criminal statute pursuant to which he was convicted; and (6) the Government's failure to disclose Brady material.
On January 22, 1990, the petitioner, who was tried under an eight count indictment, was convicted by a jury of six counts of altering vehicle identification numbers ("VINs") in violation of 18 U.S.C. § 511, one count of tax evasion in violation of 26 U.S.C. § 7201 and one count of making a false statement in a tax return in violation of 26 U.S.C. § 7206(1). The tax fraud conviction was later dismissed as a lesser included offense of the tax evasion conviction. The petitioner was subsequently sentenced to six concurrent five year terms of imprisonment on the six counts of altering VINs and a $20,000 fine. On appeal, to the Second Circuit, Kowalczyk argued that: (1) there was insufficient evidence to convict him; (2) the district court's charge with respect to the VIN alteration counts was erroneous; (3) the district court erred in refusing to instruct the jury that the defendant's good faith belief that he had filed a correct tax return negated the necessary element of wilfulness inherent in the conviction; and (4) there was insufficient evidence of proper venue. The conviction was affirmed on appeal by writ of mandate dated May 15, 1991. United States v. Kowalczyk, 90-1678, 935 F.2d 1277 (June 26, 1991). A subsequent motion to reduce the sentence was filed on January 27, 1992 pursuant to Fed.R.Crim.P. 35(b). The motion was denied by order dated November 24, 1992 and affirmed on March 15, 1994.
In addition to filing his original moving papers seeking habeas relief, Kowalczyk has also filed motions for summary judgment in his favor and for bail pending adjudication of the habeas petition, as well as a motion for contempt against the former New York City Police Commissioner William Bratton for failure to comply with a subpoena and produce certain discoverable material.
The crux of the Government's case was that Kowalczyk was involved in a scheme in which he would obliterate or alter VINs in violation of federal law. All vehicles have their own unique VINs, a seventeen digit number attached and stamped on the vehicle in several places by the auto manufacturer. At the factory, a public VIN plate is affixed on the dashboard on the driver's side and a "confidential" VIN is stamped on the underside or engine.
As part of his criminal enterprise, Kowalczyk would purchase badly damaged vehicles ("Salvage Vehicles") at a low cost from Tech-Cor, Inc. ("Tech Cor"), a New Jersey salvage business. Tech-Cor is an insurance company salvage yard that auctions vehicles which have been damaged by fire, theft or collision and whose owners have been paid on a total loss basis. After paying the total loss to the insured car-owner, the insurance company obtained title to the vehicles, which are then auctioned off at Tech-Cor in a substantially damaged condition. The defendant would then obtain a vehicle in good condition similar to the Salvage Vehicle with respect to make, model and year (the "Similar Vehicle").
After the defendant purchased a Salvage Vehicle, the public VIN plate was removed and then transferred to the Similar Vehicle. The Similar Vehicle's confidential VIN then would be obliterated or altered. There are at least three separate steps in the VIN alteration process: (1) removal of the public VIN from the Salvage Vehicle; (2) affixation of the public VIN to the Similar Vehicle; and (3) obliteration of the confidential VIN on the Similar Vehicle. According to the evidence at trial, after the alterations described above were performed, the defendant sold the Similar Vehicle at a higher price than the cost of the salvaged vehicle.
Detective Thomas Knobel testified that he, among others, inspected the confidential and public VINs of approximately twenty Similar Vehicles, including the vehicles referred to in Counts one through six of the indictment. Tr. 176-77, 178. As part of the examination, Detective Knobel examined the "rail" or underside of the vehicle and the engines where the confidential VINs are stamped. Tr. 178. In each case, Detective Knobel personally observed that the original confidential VIN had been "ground down," "hammered off," "obliterated" or "restamped." Tr. 183, 185, 189, 194-95, 197-99, 209. In three cases, through chemical restoration or other means, Knobel was able to ascertain the true confidential VIN of the Similar Vehicle. Tr. 189-91, 195-96, 198. Significantly, in these three cases the true confidential VINs differed from the public VINs, and in one case, the evidence demonstrated that the vehicle bearing the true confidential VIN had been reported missing or stolen. Tr. 665-69. The proof showed that this scam enabled the petitioner to sell these procured Similar Vehicles containing the title history and paperwork of the Salvage Vehicles.
The evidence further established that in 1985 Kowalczyk purchased approximately forty-five cars from Tech-Cor at a total cost of $58,055. He was able to resell approximately twenty-five cars that year for the sum of $220,900 making a profit of $152,283, which was not disclosed on his tax returns.
As stated above, Kowalczyk makes the following arguments in support of his petition for a writ of habeas corpus: (1) ineffective assistance of counsel; (2) erroneous jury instructions; (3) denial of due process; (4) abuse of discretion in evidentiary rulings; (5) unconstitutionality of the underlying criminal statute pursuant to which he was convicted; and (6) the Government failed to disclose Brady material.
As recently stated by the Second Circuit, "because requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir.1995), citing, United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). As a result, prisoners seeking habeas corpus relief pursuant to section 2255 must show both a violation of their constitutional rights and "substantial prejudice" or a "fundamental miscarriage of justice." Ciak, 59 F.3d at 301.
Further, in section 2255 proceedings, the Supreme Court has recognized the rule of "procedural default: that prisoners cannot assert claims they failed to raise at trial or on direct appeal unless they can show `cause' for the default and `prejudice' resulting from it." Id. at 302, citing, Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); see also Reed v. Farley, 512 U.S. 339, ___, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) ( ).
However, the traditional procedural default rule generally will not apply to ineffective assistance of counsel claims where a petitioner was represented by the same attorney at trial and on direct appeal or where such claims depend on matters outside the scope of the record on direct appeal. Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir.1993). This rule is based on two policy considerations. First, in many instances, the accused is represented by the same counsel during trial and on appeal. As such, it would be unrealistic to expect counsel on appeal to vigorously pursue an ineffective assistance of counsel claim. Id. at 114. Second, the resolution of ineffective assistance of counsel claims often requires evidence outside the record on appeal because such claims are often based on alleged errors of omission which are difficult to perceive from the record. Id. Examples of such errors include the failure to call a witness, introduce certain evidence or a conflict of interest. Id.
The exception to the general "cause" and "prejudice" rule as set forth in Billy-Eko also contains an exception. Specifically, in the narrow circumstances where: (1) the petitioner was represented by new counsel on the direct appeal; and (2) the claim is based solely on the record on appeal, the exception to the general procedural bar rule will not apply. Id. at 114-15, citing, United States v. Phillips, 914 F.2d 835, 846 (7th Cir.1990).
Kowalczyk's petition states two alternative theories alleging the ineffective assistance of counsel. Initially, he argues that his trial attorney, Felix T. Gilroy ("Gilroy") suffered from a conflict of interest based on reasons set forth below. Alternatively, the petitioner contends that he was prejudiced by the ineffective assistance of counsel as a result of Gilroy's failure to raise certain issues either at trial or on appeal.
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