United States v. Kerrigan
| Decision Date | 08 August 2022 |
| Docket Number | 20 Civ. 1493 (JFK),16 Cr. 576 (JFK) |
| Parties | UNITED STATES OF AMERICA v. CHARLES KERRIGAN, Defendant. |
| Court | U.S. District Court — Southern District of New York |
FOR DEFENDANT CHARLES KERRIGAN: Bernard V. Kleinman, LAW OFFICE OF BERNARD V. KLEINMAN, PLLC
FOR THE UNITED STATES OF AMERICA: Benet J. Kearney U.S ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK
Before the Court is Defendant-Petitioner Charles Kerrigan's ("Kerrigan") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255(a). The Government opposes the motion. For the reasons set forth below, Kerrigan's motion is DENIED.
Unless otherwise noted, the following is taken from the parties' submissions, Kerrigan's Presentence Investigation Report ("PSR"), (ECF No. 221), and the transcripts of the plea hearing ("Plea Hearing"), (ECF No. 194), and sentencing hearing (“Sentencing Hearing”), (ECF No 239).[1] In ruling on Kerrigan's request, the Court has considered the arguments advanced in his motion (“Motion”), (ECF No. 302), his memorandum of law in support (“Memorandum in Support”), (Docket No. 20 Civ. 1493, ECF No. 3), his declaration in support (“Declaration”), (Docket No. 20 Civ. 1493, ECF No. 6), the Government's memorandum in opposition (“Memorandum in Opposition”), (ECF No. 327), Kerrigan's reply brief (“Reply”), (ECF No. 328), and affidavits submitted by Kerrigan's trial counsel, (ECF No. 350), and appellate counsel, (ECF No. 349).
Over the course of two days in April 2016, Kerrigan and three other individuals burglarized an HSBC bank in Brooklyn, New York. (PSR ¶ 22.) Accessing the bank's roof from an adjacent building, the burglars used oxygen and acetylene torches to cut through the roof and open the bank's vault.[2](Id.) Approximately six weeks later, Kerrigan and his associates struck again, burglarizing a Maspeth Federal Savings Bank in Queens, New York. (Id. ¶ 45.) In total, the burglars stole approximately $726,000 in cash and an estimated $20,430,755 in valuables held in safety deposit boxes. (Id. ¶ 67.)
On July 26, 2016, Kerrigan and his co-conspirators were arrested in connection with the burglaries. At the time of his arrest, Kerrigan was charged by complaint with two counts of bank burglary, in violation of 18 U.S.C. § 2113(a), and one count of conspiracy to commit bank burglary, in violation of 18 U.S.C. § 371. (ECF No. 1.) Following his initial appearance, Kerrigan was released on bail subject to various conditions. (ECF No. 14.) As relevant here, before Kerrigan was released, he signed an advice of penalties and sanctions form, which explicitly warned him that (1) he could be subject to an additional consecutive sentence if he committed an additional offense while on pre-trial release, and (2) retaliating or attempting to retaliate against a witness is a separate crime that carries a maximum sentence of ten years' incarceration. (Id.) The initial indictment in this case, S0-16-CR-576 (LTS), was filed on August 25, 2016, and charged Kerrigan with two counts of bank burglary, in violation of 18 U.S.C. § 2113(a), two counts of bank theft, in violation of 18 U.S.C. § 2113(b), and one count of conspiracy to commit bank burglary and bank theft, in violation of 18 U.S.C. § 371. (ECF No. 22.)
On October 15, 2017, while on bail, Kerrigan called his then girlfriend, Heather Kornhaber (“Kornhaber”), and demanded that she meet him in person in order to talk about his case. (PSR ¶ 65.) Kornhaber initially attempted to delay the meeting but ultimately agreed to meet Kerrigan after he threatened to drive directly to her apartment. (Id.) The following day, Kornhaber traveled to Kerrigan's apartment with her nine-year-old son. (Id.) Shortly after they arrived, Kerrigan confronted Kornhaber and accused her of “ratting” on him. (Id.) When she denied the accusation, Kerrigan attacked her, punching her repeatedly and chocking her in front of her son. (Id.) During the attack, Kerrigan accused Kornhaber of cooperating with the Government and threatened to kill her and her son. (Id.) Kornhaber's son ultimately called 911. (Id.) When the police arrived, Kerrigan was arrested and Kornhaber was taken to the hospital. (Id.)
On October 30, 2017, Kerrigan was charged in a six-count superseding indictment (“Indictment”) with one count of conspiracy to commit bank burglary and bank theft, in violation of 18 U.S.C. § 371 (Count one); two counts of bank burglary, in violation of 18 U.S.C. § 2113(a) (Counts Two and Four); two counts of bank theft, in violation of 18 U.S.C. § 2113(b) (Count Three and Five); and one count of witness retaliation while on pretrial release, in violation of 18 U.S.C §§ 1513(b)(2) and 3147 (Count Six).[3]
A. Kerrigan's Guilty Plea
On November 2, 2017, the Government sent Kerrigan's attorney a Pimentel letter (“Pimentel Letter”) setting forth the Government's initial position regarding the application of the United States Sentencing Guidelines (“Guidelines”) to Kerrigan's case. (Mem. in Oppo. at 5.) In the Pimentel Letter, the Government stated that Kerrigan's applicable Guidelines offense level was 30. (PSR ¶ 11.) The Government's calculation was based, in part, on the total loss amount from the two burglaries and the Government's determination that Kerrigan did not qualify for a downward adjustment for acceptance of responsibility under to U.S.S.G. § 3C1.1 due to his assault on Kornhaber. (Id.) With an offense level of 30 and a Criminal History Category I, the Pimentel Letter stated that Kerrigan's Guidelines sentence range was 97 to 121 months' imprisonment.
On December 11, 2017, Kerrigan pled guilty, without the benefit of a plea agreement, to all six counts in the Indictment before Judge Katherine B. Forrest.[4] Before accepting his guilty plea, Judge Forrest conducted a plea allocution of Kerrigan. At the beginning of the allocution, Kerrigan stated that his mind was clear and that he understood the purpose of the Plea Hearing. (Plea Hearing Transcript (“Plea Tr.”) at 7:21-25.) In response to Judge Forrest's questioning, Kerrigan confirmed that he had received a copy of the Indictment and that he “had a chance to read through it” and discuss it with his attorney. (Id. at 3:19-21.) He additionally confirmed that he had “enough time to speak with [his counsel] about [his] case and any defenses that [he] may have” and stated that he was “satisfied with [his counsel's] representation.” (Id. at 8:21-9:2.) Judge Forrest also informed Kerrigan of the various constitutional rights he would forgo if he were to plead guilty and confirmed that he understood those rights, as well as the penalties he faced. (Id. at 9:1-26:2.) Regarding the possibility of credit for acceptance of responsibility, the Government noted that even if Kerrigan had not “engaged in the obstructive” assault of Kornhaber, it would still oppose a two-level reduction of Kerrigan's offense level based on his failure to assist the Government in recovering the proceeds of the burglaries. (Plea Tr. at 29:18-30:7.) Judge Forrest, in response, reminded Kerrigan that the court, not the Government, was responsible for calculating the applicable Guidelines range and determining whether a downward departure should be granted. (Id. at 30:816.)
After confirming that Kerrigan understood the implications of a guilty plea, Judge Forrest directed the Government to set forth the elements of the various offenses charged in the Indictment. (Id. at 31:10-11.) With respect to the witness retaliation charge contained in Count Six, the Government stated that it must prove that “the defendant knowingly engaged in conduct or threaten to engage in conduct that caused bodily injury to another person; that the defendant had the intent to retaliate against someone for information that was provided to a law enforcement officer; [and] . . . that the information provided to the law enforcement officer relate[] to a federal offense.” (Id. at 33:12-17.) Judge Forrest then asked Kerrigan to state on the record “what [he] did that makes [him] think [he's] guilty of Counts One through Six.” (Id. at 34:2-4.) In response, Kerrigan admitted to conspiring to commit and committing the two burglaries. (Id. at 34:12-18.) Regarding Count Six, Kerrigan stated (Id. at 34:18-25.) In response to additional questioning from Judge Forrest, Kerrigan admitted that at the time of the assault, he believed that Kornhaber was cooperating with the Government in connection with “the bank robberies.” (Id. at 35:3.) Kerrigan then pled guilty to each of the six counts. Judge Forrest accepted Kerrigan's plea, finding that he understood his rights, including “[his] right to go to trial, [and his] right to a lawyer,” and that based upon his allocution, he was “in fact guilty of each of the crimes charged in Counts One through Six.” (Id. at 39:8-10.)
B. Kerrigan's Sentencing
Prior to sentencing, the United States Probation Department provided Kerrigan and the Government with a Pre-Sentence Report (“PSR”) setting forth its analysis of the Guidelines. As relevant here, the PSR's Guidelines calculation differed from the calculation contained in the Pimentel Letter in three respects. First, due to the receipt of additional claims from victims, the PSR indicated that the total loss amount was “at least $20,430,755.38,” resulting in an additional two-level increase in the offense level calculation for Counts Three and Five. (PSR at p. 31.) Second, the PSR included an additional three-level increase in offense level based on the fact that Kerrigan was on pretrial...
To continue reading
Request your trial