United States v. Kenner

UNITED STATES OF AMERICA, v. PHILLIP A. KENNER AND TOMMY C. CONSTANTINE, Defendants.

No. 13-CR-607 (JFB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 4, 2019

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, Circuit Judge (sitting by designation):

On July 9, 2015, following a nine-week trial, a jury convicted defendant Phillip A. Kenner ("Kenner") of one count of conspiring to commit wire fraud, in violation of 18 U.S.C. § 1349 (Count One of the superseding indictment); four counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts Two, Three, Four, and Seven); and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Nine).¹ (ECF No. 324.) In addition, the jury convicted defendant Tommy C. Constantine ("Constantine," and together with Kenner, "defendants") of one count of conspiring to commit wire fraud (Count One); five counts of wire fraud (Counts Two through Six); and one count of conspiracy to commit money laundering (Count Nine).

Now pending before the Court is Constantine's motion for a new trial on the basis of ineffective assistance of counsel.² Constantine asserts generally that his retained trial counsel did not adequately prepare for trial, declined to cross-examine an important government witness, was unable to comprehend the business transactions at issue, did not understand and prepare a theoryof defense to the government's theory of prosecution, did not present exculpatory evidence, refused to call witnesses favorable to the defense, and had the defendant prepare the opening statement, questions for witnesses, and summation. (IAC Supp. Br. 7, ECF No. 483.)

For the reasons set forth below, the Court denies the motion without an evidentiary hearing.³ Specifically, having presided over the nine-week trial and having personally observed the performance of counsel (and his in-court interactions with Constantine), it was abundantly clear to the Court that Constantine's trial counsel was conscientious, diligent, thorough, well-prepared, and effective in all aspects of his trial performance, including his jury addresses and questioning of witnesses. The assertion that his performance was below an objective standard of reasonableness is completely without merit based upon this Court's knowledge of the case and observations of trial counsel's performance. Moreover, although Constantine asserts that he was forced to take an active and primary role in the preparation of his defense because of alleged deficiencies in trial counsel's performance, that claim is completely inconsistent with the Court's extensive observations of Constantine's demeanor during the years that this case has been pending (including the trial). In particular, the courtroom dynamics between Constantine and trial counsel throughout the case demonstrated that Constantine's role in the preparation and implementation of his defense strategy (including decisions about questioning of witnesses and jury addresses) was not triggered by lack of effort, preparation, or ability by his trial counsel; instead, based upon the Court's extensive in-court observations, Constantine's role was the product of his personality and his apparent belief that no lawyer could ever understand the facts of what occurred better than he could, and that he (Constantine) could craft a defense strategy more effectively than even the most skilled and diligent attorney. The Court's observations are consistent with the numerous emails between trial counsel and Constantine, which are uncontroverted and reveal Constantine's desire to have a primary role and firm grip over his trial attorney's presentation of evidence and jury addresses. In addition, many of the assertions made by Constantine (such as questions that purportedly should have been put to witnesses and defense witnesses that Constantine believed should have been called) are addressed in exhaustive detail in trial counsel's response to Constantine's allegations, and all fall within matters of strategy that were well within the sound discretion of trial counsel. Similarly, to the extent Constantine points to the drug problems of co-counsel as a basis for his motion, that counsel essentially performed a paralegal role in the courtroom during the trial (as observed by the Court) and any alleged issues with his performance did not undermine in a constitutionally-significant way the overall performance of trial counsel in every aspect of the trial. Finally, even assuming arguendo Constantine were able to demonstrate that trial counsel should have performed in the manner urged by Constantine, there is no indication that any of the alleged errors, either individually or collectively, would have affected the outcome of the trial. In fact, in many instances, Constantine only speculates that some additional witness or line of cross-examination would have been helpful to his defense, in the complete absence of any basisto support those conclusory assertions. In other words, the government presented overwhelming evidence of Constantine's involvement in the charged frauds, including his unlawful diversion of investor funds for personal use. It was that overwhelming evidence, rather than any alleged errors by trial counsel in his trial performance or strategy, that led to Constantine's conviction. Given that the meritless nature of Constantine's claims is apparent from the record (based upon the Court's own observations of trial counsel's performance during the trial, the uncontroverted information contained in emails supplied by trial counsel, and the clear lack of prejudice given the overwhelming nature of the evidence), the Court need not resolve the factual discrepancies in the affidavits (including the substance of certain conversations between Constantine and his counsel) and, in its discretion, denies the motion without an evidentiary hearing.

I. BACKGROUND

A. Evidence Introduced at Trial

The Court incorporates by reference the extensive summary of the trial evidence contained in the October 13, 2017 Order, familiarity with which is assumed.

As noted in that Order, the trial in this action lasted approximately nine weeks, and the evidence consisted of testimony from over 40 witnesses and more than 1,000 exhibits. In light of this voluminous record and the October 13, 2017 Order, the Court will provide a limited overview of the evidence here as it relates to the instant motion.

In brief, the government advanced three theories of fraud at trial pertaining to the Hawaii Project, Eufora, and the Global Settlement Fund ("Global Settlement Fund" or "GSF"). With respect to the Hawaii Project, the government introduced evidence demonstrating that Kenner defrauded several professional hockey players who were clients of his. Those witnesses testified that they contributed money to that endeavor based on Kenner's representations that their investments would finance a real estate development in Hawaii; however, Kenner subsequently diverted his clients' money—without their authorization—to another property development in Mexico that involved Ken Jowdy ("Jowdy"). In addition, witnesses testified that Kenner used several lines of credit in their names to divert money in an unauthorized manner. When Kenner failed to make interest payments, those accounts were closed, and his clients lost the collateral used to secure those lines of credit. Further, and unbeknownst to Kenner's clients, bank records introduced at trial showed that Constantine received money intended for the Hawaii Project. The government also adduced evidence of forged consulting agreements that purportedly justified those payments, as well as an audio recording of a conversation between Kenner and Constantine indicating that they colluded to conceal their fraud.

Similarly, with respect to the Eufora objective, the government demonstrated at trial that Kenner solicited funds from several investors who believed that their money would be used to finance that company. However, bank records and testimony indicated that Constantine converted those investments to cover his personal expenses, such as legal fees, without the investors' authorization. Specifically, the government showed at trial that the transactions underlying the wire fraud charges in Counts Two through Six of the superseding indictment were derived from Eufora investments, and that Kenner and Constantine used that money for unapprovedexpenditures. Contemporaneous text messages between Kenner and Constantine from the relevant period also evinced an agreement by defendants to use Eufora money for their personal benefit.

Finally, several government witnesses testified at trial that Kenner and Constantine convinced them to invest in the Global Settlement Fund because they believed that their contributions would principally finance litigation against Jowdy. However, bank records and testimony again demonstrated that both defendants used GSF funds for personal expenses. In particular, the evidence showed that Constantine covered his rent, various legal expenses, and automotive work with money from the GSF.

B. Relevant Procedural History

By superseding indictment dated April 22, 2015, the government charged Kenner with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 (Count One); conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Nine); and seven counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts Two through Eight). (ECF No. 214.) In addition, the government charged Constantine with conspiracies to commit wire fraud and money laundering (Counts One and Nine) and five counts of wire fraud (Counts Two through Six). (Id.)

Following a trial that began on May 4, 2015 (ECF No. 239), the jury returned a verdict on July 9, 2015 (ECF No. 324). The jury found Constantine guilty on all charges and Kenner guilty on both conspiracy counts. (Id.) In addition, the jury found Kenner guilty on the wire...