Slevin v. U.S., 98 CIV. 0904(PKL).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation71 F.Supp.2d 348
Docket NumberNo. 98 CIV. 0904(PKL).,98 CIV. 0904(PKL).
PartiesFrank SLEVIN, Petitioner, v. UNITED STATES of America, Respondent.
Decision Date03 November 1999
71 F.Supp.2d 348
Frank SLEVIN, Petitioner,
UNITED STATES of America, Respondent.
No. 98 CIV. 0904(PKL).
United States District Court, S.D. New York.
November 3, 1999.

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Baumeister & Samuels, P.C., New York City, Robert S. Franklin, of counsel, for Petitioner.

Mary Jo White, United States Attorney, Southern District of New York, New York City, Marc A. Weinstein, of counsel, for Respondent.


LEISURE, District Judge.

Petitioner pro se Frank Slevin is a federal prisoner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255. On September 13, 1999, this Court held an evidentiary hearing to determine whether petitioner received ineffective assistance of counsel during pretrial plea negotiations. For the following reasons, petitioner's § 2255 motion is denied.


The substantive facts and procedural history of this § 2255 petition have been set forth in detail in Slevin v. United States, No. 98 Civ. 0904, 1999 WL 549010, at *1-*2 (S.D.N.Y. July 28, 1999). Hence,

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only those facts necessary for determination of the instant motion are stated here.

On August 16, 1994, petitioner was indicted on ten counts of mail and wire fraud, conspiracy to commit mail and wire fraud, and various other offenses relating to the tendering of surety bonds to private construction contractors. Nine days later, petitioner, represented by Harry R. Pollak, Esq. ("Pollak"), tendered a plea of not guilty. The original indictment was then superseded and redacted, and petitioner was tried on an indictment charging five counts of mail fraud in violation of 18 U.S.C. § 1341, one count of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371. Following a seven-day jury trial before the late Hon. Dominick L. DiCarlo, Senior Judge of the United States Court of International Trade, sitting in this Court by designation, on June 13, 1995, petitioner was convicted on all counts. On December 13, 1995, petitioner was sentenced by this Court to 78 months' imprisonment, followed by three years' supervised release, and a mandatory $350 special assessment.

On December 26, 1995, petitioner filed a notice of appeal. Despite efforts by petitioner to replace Pollak as his appellate counsel, Pollak again represented petitioner in those proceedings. The Second Circuit ultimately affirmed petitioner's conviction and sentence on December 18, 1996. See United States v. Slevin, 106 F.3d 1086 (2d Cir.1996).

Petitioner now seeks § 2255 relief based on allegations that he received ineffective assistance of counsel both during and after his trial and during plea pretrial negotiations. On July 28, 1999, this Court denied petitioner relief on various claims of ineffective assistance. See Slevin, 1999 WL 549010, at *3-*9. However, this Court granted petitioner's request for an evidentiary hearing to explore two issues: "(1) whether petitioner's trial counsel provided ineffective assistance in advising petitioner with respect to the Government's plea offer; and (2) whether there is a reasonable probability that, but for counsel's allegedly erroneous advice, petitioner would have accepted the Government's plea offer rather than proceeding to trial." Id. at *13. After petitioner received the Court's July 28, 1999 Order, but prior to the evidentiary hearing, it was learned that Pollak was recently deceased. See Pet. Mem. at 2.

At the hearing, petitioner called two witnesses: himself and his wife, Margaret Slevin ("Mrs.Slevin"). The Government produced a single witness, Susan Brune ("Brune"), the former Assistant United States Attorney who had prosecuted petitioner and who had allegedly made the plea offer at issue. For the most part, petitioner reiterated the allegations he set forth in his affidavit. See September 13, 1999 Hearing Transcript ("Hearing Tr.") at 15-21. Mrs. Slevin testified that her husband had informed her that he had received a two-year plea offer from Brune, but that Pollak counseled petitioner to reject it because, according to Pollak, petitioner was only facing "two to three years" in prison. See id. at 11-12. Brune described her discussions with Pollak and explained, to the best of her recollection, how she calculated petitioner's plea offer. See id. at 62-84. She acknowledged making the offer, but conceded that she had difficulty recalling its details. See id. at 66-67. Moreover, she stated that she never had any direct discussions with petitioner regarding the plea offer. See id. at 90-91.


I. Petitioner's Claim

Petitioner's sole remaining claim alleges that, during the pretrial plea negotiation process, Pollak drastically underestimated petitioner's maximum potential sentencing exposure. According to petitioner, Pollak advised him that, if convicted, he would receive "a sentence of two to three years." Hearing Tr. at 17. Moreover, Pollak allegedly told his client that "if [he] was a good

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person, behaved [him]self well in jail, the likelihood [was he] would only have one third of the time to do so." Id. at 18. In other words, had petitioner received the three-year sentence Pollak allegedly predicted, he would have only been incarcerated for twelve months. See id. Finally, according to petitioner's affidavit, counsel stated that petitioner "would continue to be at home release [sic] on bond during an appeal that could be taken in the event of a conviction." Pet. Aff. at ¶ 17.1

In fact, as he later discovered, petitioner was facing the possibility of a much more substantial prison term. Petitioner's actual maximum exposure under the relevant statutes, 18 U.S.C. §§ 1341 and 1343, was five years for each of the seven counts on which he was indicted, amounting to a total possible exposure of thirty-five years.2 That exposure, and even the 78-month sentence this Court eventually imposed under the United States Sentencing Guidelines (the "Guidelines", or "U.S.S.G."), were both far greater than either the "two or three years" allegedly predicted by petitioner's counsel or the twelve-month maximum based on "good time"3 that counsel also allegedly advised.

Petitioner asserts that, based on Pollak's alleged erroneous estimate, he decided to reject the Government's proposed plea offer of two years' imprisonment in late 1994.4 See id. at 18-19. At the September 13, 1999 hearing, petitioner offered his version of his conversation with Pollak, in which Pollak allegedly advised him to reject the offer:

Q: What did Mr. Pollak tell you was the plea offer that the [G]overnment had made to you?

A: Two years in jail.

Q: Did you have any further discussion with him about what had been said?

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A: I asked him is two years a normal intelligent plea offer when, as you told me, I am looking at two to three and you advised [me that a] first time criminal would get the lower end, does this make sense?

Q: What did he say?

A: And he said no, it doesn't, your exposure to going to trial is very, very limited.

* * * * * *

Q: Did he give you any recommendation as to whether you should accept or reject the plea offer?

A: He told me to reject the plea offer.

Petitioner further testified that, before deciding to go to trial, he discussed the offer with his wife and "looked at the risk exposure that was there." Id. at 19-20. He also stated unequivocally that, had he been adequately informed of his actual sentencing exposure, he would have accepted the Government's plea offer:

Q: If you had been told at the time by Mr. Pollak or someone on his behalf that the actual exposure, the jail exposure you might have after being convicted at trial would be in the range of six and a half years, would your decision to reject the plea offer have been different?

A: Of course it would have been. Exposure is much too great.

Q: What would your decision have been if you had been told that the reasonable sentence after conviction at trial would be six and a half years?

A: I would have opted to take the [G]overnment's plea agreement.

Q: Why?

A: Triple the time in jail, away from my family, my mother, numerous other personal reasons would just say you have to be nuts to go not to jail for two years versus exposing yourself to six and a half years.

Id. at 20. This statement was corroborated by Mrs. Slevin, who stated that had they been aware of petitioner's actual sentencing exposure, she "would have insisted that he take the plea" because the couple had a young daughter who needed his care. See id. at 12.5

Following petitioner's rejection of the plea offer, the parties traveled to the Carribean to depose several witnesses. See id. at 78-81. Brune testified that she made clear to Pollak that petitioner's plea offer expired at the moment the Government made nonrefundable reservations for the trip. See id. at 81-82. Petitioner, however, maintains that Pollak never informed him that his time to consider the plea offer was restricted. See Pet. Mem. at 5.

The case proceeded to trial in June 1995, at which Pollak offered a meager defense. In response to "two carts worth of evidence and numerous witnesses" presented by the prosecution over seven days, Hearing Tr. at 20, Pollak called no witnesses and did not have petitioner testify before the jury, see id. at 21. Petitioner's entire defense consisted of Pollak's request that the Court take judicial notice of the laws of Anguilla. See id. On June 13, 1995, the jury deliberated for thirty minutes before finding petitioner guilty on all charges. See id. at 21, 95. Petitioner has been incarcerated ever since. See id. at 21.

II. Analysis

The Supreme Court has articulated a two-pronged test to determine whether a criminal defendant received ineffective assistance

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of counsel. See Strickland v. Washington, 466 U.S. 668, 688-90, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance, a habeas petitioner...

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