Schlesinger v. United States, 09-CV-4278 (ADS)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtARTHUR D. SPATT
Docket Number09-CV-4278 (ADS)
Decision Date06 February 2012


09-CV-4278 (ADS)


February 6, 2012



Andrew J, Frisch, Esq.
Attorney for the petitioner

Jeremy L. Gutman, Esq.
Attorney for the petitioner

Loretta A. Lynch, United States Attorney
for the Eastern District of New York
Attorneys for the respondent
By: Richard T. Lunger, Assistant United States Attorney

SPATT, District Judge.

Nat Schlesinger ("Schlesinger" or "the petitioner") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, seeking to vacate or set aside his conviction and sentence on the ground that he received ineffective assistance of counsel. For the reasons discussed below, Schlesinger's petition is denied.

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On May 15, 2006, a jury convicted Nat Schlesinger on twenty-eight counts of mail fraud conspiracy, substantive mail and wire fraud, money laundering conspiracy, and substantive money laundering, arising out of, among other acts, a series of five fires dating back to 1987 that occurred at a clothing factory in the Williamsburg section of Brooklyn that was owned and maintained by Nat Schlesinger and his brother Jack Schlesinger. Schlesinger was also convicted of arson in connection with a December 31, 1998 fire at the factory ("the December 31, 1998 fire"), in violation of 18 U.S.C. § 844(i), and for the use of fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1). Specifically, the jury convicted Schlesinger of deliberately causing the fire in the factory on the night of December 31, 1998 for the purpose of submitting a false and inflated insurance claim.

Presently before the Court is Schlesinger's fourth attempt to collaterally attack his arson conviction. The facts of this case and the testimony at the trial were extensively recounted in the Court's decision on Schlesinger's motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 ("Rule 29"), United States v. Schlesinger ("Schlesinger I"), 372 F. Supp. 2d 711 (E.D.N.Y. 2005), and his third motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 ("Rule 33"), United States v. Schlesinger ("Schlesinger II"), 438 F. Supp. 2d 76 (E.D.N.Y. 2006).

On October 5, 2009, Schlesinger brought the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Schlesinger alleges that his defense counsel at trial, Douglas Burns, Esq. and Randy Zelin, Esq. ("trial counsel") were constitutionally ineffective because they failed to: (1) investigate the arson; (2) challenge the testimony of Thomas J. Russo and Fire Marshal Bernard Santangelo ("the arson experts" or "the government's experts") at a Daubert

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hearing based on their use of the "negative corpus" methodology; (3) conduct meaningful cross-examination of the arson experts and/or call a defense expert to refute the arson allegations.

By way of background, "'[n]egative corpus,' short for negative corpus delicti, is fire investigator shorthand for the determination that a fire was incendiary based on the lack of evidence of an accidental cause." 5 Faigman, Kaye, Saks & Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony § 39:65 (2011–12 ed.) ("Modern Scientific Evidence "). The National Fire Protection Association ("NFPA") is an international nonprofit that now, among other things, promotes codes and standards "intended to minimize the possibility and effects of fire and other risks." National Fire Protection Association, Codes & Standards, (last visit February 2, 2012). In 1992, the Technical Committee on Fire Investigations issued NFPA 921, a "Guide for Fire and Explosion Investigations" ("NFPA 921"). Under the version of NFPA 921 applicable at the time of Schlesinger's trial, the guidelines set forth certain circumstances under which an investigation method known as "process of elimination" could be used to determine the cause of a fire. Specifically, the 2004 version of NFPA 921 provided:

18.2.1 Any determination of fire cause should be based on evidence rather than on the absence of evidence; however, when the origin of a fire is clearly defined, it is occasionally possible to make a credible determination regarding the cause of the fire, even when there is no physical evidence of the ignition source available. This finding may be accomplished through the credible elimination of all other potential ignition sources provided that the remaining ignition source is consistent with all known facts.
18.2.3 Elimination, which actually involves the developing, testing and rejection of alternate hypotheses, becomes more difficult as the degree of destruction in the compartment of origin increases, and it is not possible in many cases. Whenever an investigator proposes the elimination of a particular system or appliance as the ignition source on the basis of appearance or visual observation, the investigator should be able to explain how the appearance or

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condition of that system or appliance would be different from what is observed, if that system or appliance were the ignition source for the fire.

NFPA 921 (2004). The most recent version of NFPA 921 issued in 2011 differentiates its process of elimination from negative corpus methodology, defining negative corpus as "[t]he process of determining the ignition source for a fire, by eliminating all ignition sources found, known, or believed to have been present in the area of origin, and then claiming such methodology is proof of an ignition source or which there is no evidence of its existence". NFPA 921, § 18.6.5 (2011). In addition, the 2011 edition explicitly rejects the use of negative corpus to classify the cause of a fire, stating:

This process is not consistent with the Scientific Method, is inappropriate, and should not be used because it generates un-testable hypotheses, and may result in incorrect determinations of the ignition sources and first fuel ignited. Any hypotheses formulated for the casual factors (e.g., first fuel, ignition source, and ignition sequence), must be based on facts. Those facts are derived from evidence, observations, calculations, experiments, and the laws of science. Speculative information cannot be included in the analysis.


The focus of this petition is trial counsel's failure to investigate accidental causes of the fire and to effectively challenge Russo and Santangelo's reliance on a "negative corpus" methodology, rather than the guidelines set forth in NFPA 921, to reach the conclusion that the December 31, 1998 fire was incendiary. In support of his petition, Schlesinger attached his own affidavit, as well as affidavits from Abraham Weiser and Louis Pfeifer, identifying additional information trial counsel could have obtained about other possible sources of the fire. In addition, Schlesinger encloses affidavits from purported arson experts John J. Lentini, David Smith, and Dennis Smith.

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Because it is directly relevant to the instant petition, the Court briefly recounts the trial testimony of Russo, the electrical engineer James Pryor, Santangelo and Weiser as stated in Schlesinger II, the only difference being that all references to the "the defendant" have been changed to "the petitioner". In addition, the Court summarizes the affidavits submitted in support of the petition.

A. Trial Testimony

1. Testimony of Thomas J. Russo and James Pryor

The primary investigation with regard to the December 31, 1998 fire was conducted by Thomas J. Russo of Russo Consultants, a cause and origin expert hired by Atlantic Mutual Insurance Co. ("Atlantic Mutual"). This company was retained to investigate and ascertain the origin and cause of the fire that occurred at the petitioner's factory on December 31, 1998. Russo had 24 years of prior experience both as a New York City Firefighter and Fire Marshal. On January 7, 1999, Russo first went to the scene of the fire at the factory to investigate, at which time he conducted a physical inspection of the premises. Russo determined that the origin of the fire was in the shipping area on the third floor.

Russo then investigated the cause of the fire. The on site inspection revealed that there were no appliances, candles, machinery, chemicals, smoking material, or heating units in the area of origin. He also determined that the entire building was secured when the fire department arrived in that all of the locks on the entrances to the factory were forced open by the fire department, and by reviewing the reports of the fire department indicating the use of force to gain entry to the building.

In order to assist his investigation, Russo hired James Pryor, an electrical engineer, to review the electrical system in the area of origin. The electrical engineer testified that he

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determined that there were no electrical faults which could have caused the fire. Pryor testified that he inspected the circuit breaker panel which provided service to the area of the fire, as well as the wiring and lighting in the area of the fire. Pryor ruled out electrical causes for this fire. Russo also conducted witness interviews...

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