United States v. Frederick

868 F.Supp.2d 32

UNITED STATES of America

v.Kissone FREDERICK, Defendant.

No. 09–CR–258 (KAM).

United States District Court, E.D. New York.

June 5, 2012.

Carter H. Burwell, Shreve Ariail, United States Attorneys Office, Brooklyn, NY, for Plaintiff.

MEMORANDUM AND ORDER

MATSUMOTO, District Judge:

On December 10, 2009, defendant Kissone Frederick (“defendant”) was convicted by a jury of all counts of a six-count Indictment charging defendant and others for crimes in connection with two Hobbs Act armed robberies and related firearms charges. Presently before the court is defendant's Federal Rule of Criminal Procedure 33 motion for a new trial asserting that he was denied the effective assistance of counsel during pretrial plea negotiations in violation of the Sixth Amendment.

Having considered the appropriate burdens of production and proof, the testimony of witnesses at a hearing conducted on April 12, 2012, the hearing exhibits, the parties' written submissions, and having resolved issues of credibility, the court denies defendant's motion in its entirety for the reasons discussed below.

I. BACKGROUND¹A. Arrest and State Prosecution

On March 14, 2006, defendant was arrested by New York City Police Department officers in connection with the offenses for which he was subsequently convicted in federal court, which are described below. ( See Presentence Investigation Report (“PSR”), Exhibit C to Petition for Habeas Corpus, No. 12–CV–1171,Frederick v. United States (E.D.N.Y. Mar. 9, 2012), ECF No. 2 ¶ 17.) He was separately and previously prosecuted in Brooklyn Supreme Court and pleaded guilty to Attempted Robbery in the Second Degree, for which he was sentenced to five years imprisonment in October 2007. ( Id. ¶¶ 17, 75–76.) On May 7, 2009, defendant was arrested in connection with the instant federal case. ( Id. ¶ 17.)

B. The Federal Charges

On April 24, 2009, a grand jury returned a six-count Indictment charging defendant and others with a conspiracy to commit Hobbs Act armed robbery, attempted Hobbs Act armed robbery, Hobbs Act armed robbery, and three related weapons charges. ( See ECF No. 59, Redacted Indictment (“Indictment”).) ² Specifically, Count One of the Indictment charged defendant with a Hobbs Act Robbery Conspiracy in or about May 2006 in violation of 18 U.S.C. § 1951(a). Count Two charged defendant with an attempted Hobbs Act Robbery on May 14, 2006 of an employee of a cellular phone and check-cashing store located at 787 Rogers Avenue in Brooklyn, New York known as Satellite Communications (the “Satellite Robbery”) in violation of 18 U.S.C. §§ 2, 1951(a). Count Three charged defendant with unlawful use of a firearm in connection with the attempted Satellite Robbery in Count Two in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(i). Count Four charged defendant with a Hobbs Act Robbery on May 14, 2006 of two employees of a gift and greeting card store located at 7005 Avenue U in Brooklyn, New York known as Card Corner (the “Card Robbery”) in violation of 18 U.S.C. §§ 2, 1951(a). Count Five charged defendant with unlawful use of a firearm in connection with the Card Robbery in Count Four in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii). Finally, Count Six charged defendant with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

At defendant's arraignment on May 12, 2009, Ephraim Savitt, Esq. (“Mr. Savitt”) was appointed to represent defendant pursuant to the Criminal Justice Act (“CJA”). Mr. Savitt represented defendant during both pretrial plea negotiations and trial.

C. Trial

A four-day jury trial was held on December 7–10, 2009, during which the government offered extensive testimony by a cooperating witness and co-conspirator who was the getaway driver for the robberies, video surveillance footage and victim witness testimony providing direct evidence that a firearm was used or possessed in connection with the attempted Satellite Robbery, and defendant's sworn statements made in state court during his guilty plea to Second Degree Attempted Robbery for the Card Robbery. See United States v. Frederick, No. 09–CR–258(KAM), 2010 WL 2516368, at *1–3, 2010 U.S. Dist. LEXIS 58560, at *3–8 (E.D.N.Y. June 14, 2010); United States v. Frederick, 702 F.Supp.2d 32, 38 (E.D.N.Y.2009). On December 10, 2009, the jury returned a verdict convicting the defendant on all six counts of the Indictment.

D. Post–Trial Motions

In January 2010, Mr. Savitt filed a timely motion for judgment of acquittal and an alternative motion for a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33, respectively, challenging defendant's conviction on the § 924(c) firearms charge in connection with the attempted Satellite Robbery (Count Three). The court denied the motions on June 14, 2010. See generally Frederick, 2010 WL 2516368, 2010 U.S. Dist. LEXIS 58560, (ECF No. 69, Order dated June 14, 2010).

As discussed in detail further below, the defendant requested new counsel in a pro se letter dated July 4, 2010, which the court granted. ( See ECF No. 70, Letter from Defendant Requesting New Counsel.)

E. The Instant Rule 33 Motion

On March 9, 2012, defendant filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241 in a separate civil proceeding seeking to vacate and set aside the jury verdict based upon the ineffective assistance of Mr. Savitt during pretrial plea negotiations. ( See Petition for Habeas Corpus, No. 12–CV–1171,Frederick v. United States (E.D.N.Y. Mar. 9, 2012), ECF. No. 1.) As an exhibit in support of his habeas corpus petition, defendant filed an affidavit. (Exhibit A to Petition for Habeas Corpus (“Def. Aff.”).)

On March 23, 2012, because defendant had not yet been sentenced, the court converted defendant's habeas corpus petition into a Federal Rule of Criminal Procedure 33 motion for a new trial (the “Rule 33 motion”). ( See Order dated Mar. 23, 2012 (citing United States v. Brown, 623 F.3d 104, 113 n. 5 (2d Cir.2010)).) In addition, the court ordered (1) defendant to show cause why his failure to file the Rule 33 motion within 14 days after the jury verdict on December 10, 2009 amounted to “excusable neglect,” seeFed.R.Crim.P. 33(b)(2), 45(b)(1)(B), which was filed by Ms. London on March 29, 2012 ( see ECF No. 89, Defendant's Response to Order to Show Cause); and (2) Mr. Savitt to file an affidavit in response to defendant's allegations, which was filed by Mr. Savitt on March 29, 2012 ( see ECF No. 90, Attorney Affirmation in Response to Defendant's Allegations in His Habeas Petition (“Savitt Aff.”)). On April 9, 2012, the government filed a response to defendant's response to the order to show cause. ( See ECF No. 96, Government's Letter Regarding “Excusable Delay.”)

On April 12, 2012, the court held an evidentiary hearing on defendant's Rule 33 motion, at which Mr. Savitt was the sole witness. ( See ECF No. 111, Transcript of Apr. 12, 2012 Hearing on Ineffective Assistance (“Tr.”).) The parties subsequently filed post-hearing briefs ( see ECF No. 107, Government's Letter Opposing Pre–Sentencing Ineffective Assistance Claim (“Gov't Mem.”); ECF No. 108, Supplemental Memorandum of Law in Support of Defendant's Rule 33 Motion (“Def. Mem.”)) and replies ( see ECF No. 109, Reply to Government's Brief Opposing Defendant's Rule 33 Motion (“Def. Reply”); ECF No. 110, Government's Letter in Reply to Defendant's Post–Hearing Submission (“Gov't Reply”)).

II. STATEMENT OF RELEVANT FACTS

The following facts are undisputed unless otherwise indicated.

A. The Applicable Statutory Mandatory Minimum Sentences

Based on the two firearms charges in Counts Three and Five alone, defendant is subject to a statutory mandatory minimum sentence of 32 years imprisonment. Specifically, there is a seven-year mandatory minimum term of imprisonment for brandishing a firearm in connection with the attempted Satellite Robbery for Count Three, see18 U.S.C. § 924(c)(1)(A)(ii), and a 25–year mandatory minimum term of imprisonment for a second firearms conviction for Count Five, see18 U.S.C. § 924(c)(1)(C). These seven-year and 25–year mandatory terms of imprisonment must run consecutively to each other and any other term of imprisonment imposed on defendant. See id. § 924(c)(1)(D)(ii).

B. The Government's Plea Offer

In or around October 2009, approximately two months prior to trial, the government extended a plea offer to defendant and provided Mr. Savitt with a plea agreement (the “Plea Agreement”). ( See Tr. 15–19; Def. Hr'g Ex. C (“Plea Agr.”).) ³ Although the Plea Agreement required the defendant to plead guilty by October 12, 2009 (Plea Agr. ¶ 2), Mr. Savitt understood that such date was a “soft date” and that it may be extended (Tr. at 21).

Pursuant to the terms of the Plea Agreement, defendant was required to plead guilty to (1) Count One for the Hobbs Act Robbery Conspiracy, which would subject defendant to a statutory maximum term of imprisonment of 20 years, and (2) Count Five for brandishing a firearm in connection with the Card Robbery, which would subject defendant to a statutory minimum term of imprisonment of seven years to run consecutive to any term of imprisonment imposed on Count One. (Plea Agr. ¶ 1.) The Plea Agreement also contained an estimated sentencing range under the Advisory Sentencing Guidelines of 161–180 months, based on the assumption that defendant was in Criminal History Category V. ( Id. ¶ 2.) This estimated sentencing range included the 84–month mandatory minimum term of imprisonment for Count Five. ( Id.)

On October 12, 2009, Mr. Savitt visited defendant at the Metropolitan Detention Center (“MDC”) to discuss the Plea Agreement and showed defendant a copy of the Plea Agreement. (Tr. 19; Def. Aff. ¶ 3; Def. Hr'g Ex. A at 3.) Mr. Savitt also later provided defendant with a copy of the Plea Agreement. (Def. Aff. ¶ 3.) During his visit with the defendant, Mr. Savitt explained all of the provisions of the Plea Agreement, specifically that defendant ...