MEDIA

January 11, 2008

On Ineffective Assistance, Disclosure Under Walsh Act

Published in: New York Law Journal | volume 239

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Joseph F. Bianco granted habeas relief based on ineffective assistance of counsel. In a child pornography case, Judge Joan M. Azrack rejected defendant’s claim that the government’s conditions regarding access to a copy of his computer hard drive were unconstitutional. And Judge Arthur D. Spatt allowed plaintiff to amend its complaint to include a demand for punitive damages where plaintiff’s tort claims, though arising from breach of an employment contract, were independent of that contract.

Ineffective Assistance

In Schulz v. Marshall, Superintendent of the Walkill Correctional Facility, O6 CV 2875 (EDNY, Nov. 19, 2007), Judge Bianco, granting a habeas petition, held that trial counsel’s failure to interview or cross-examine a key prosecution witness, and to call an available alibi witness, clearly met the high standard for ineffective assistance of counsel, and that the state courts applied that standard in an unreasonable way to the facts of this case.

In 1999, petitioner was found guilty of robbery in the first degree after a jury trial in Suffolk County and sentenced to 11 years’ imprisonment. There were two eyewitnesses at the restaurant, El Classico, where the robbery occurred. One was Mr. Velasquez, the owner and cook; the other was Ms. Ruiz, the waitress. Mr. Velasquez testified that the robber, ‘tall, like 6’2’ and ‘heavy, weigh like 250-275,’ placed a takeout order, which Mr. Velasquez prepared in the kitchen. When he heard Ms. Ruiz screaming, he returned to the dining area. The customer said, ‘Don’t move,’ left the restaurant and, according to Mr. Velasquez, drove off in a car with a ‘T’ and a ‘1’ on the license plate. At trial, Mr. Velasquez identified petitioner as the robber.

Defense counsel undermined Mr. Velasquez’s testimony in several respects. For example, counsel elicited from Mr. Valesquez that the car belonging to petitioner’s roommate, Mr. Tralongo, and previously identified by Mr. Velasquez at a police precinct, had a license plate with neither a ‘T’ nor a ‘1.’

Ms. Ruiz, in her testimony, remembered that the robber was tall and fat. She also stated several times that the robber was not in the courtroom. Defense counsel did not cross-examine Ms. Ruiz.

In cross-examining a police detective, counsel asked about a ‘whole string of robberies’ that had taken place in the precinct. The detective conceded that these robberies were committed by one Mr. Guilfoyle, and that Mr. Guilfoyle and petitioner were both ‘big guys.’

At the close of the prosecution’s case, defense counsel moved to admit a photo of Mr. Guilfoyle, on the ground that his robberies occurred in the same time period and general location as the El Classico robbery. The trial court ruled that counsel had not shown a sufficient ‘nexus’ between Mr. Guilfoyle and the El Classico robbery to admit the photo.

Defense counsel called no witnesses and offered no evidence.

At sentencing, counsel explained that he chose not to call Mr. Tralongo after Ms. Ruiz failed to identify petitioner and his cross-examination of Mr. Velasquez undermined the prosecution’s case.

In 2000 the trial court denied petitioner’s pro se motion to vacate his conviction for ineffective assistance of counsel. Petitioner obtained new counsel in 2002 through the Second Look Clinic at Brooklyn Law School. In support of a motion to vacate based on newly discovered evidence, the defense submitted an affidavit from Ms. Ruiz. The affidavit stated that (a) Ms. Ruiz had never seen petitioner before trial; (b) the robber was taller and fatter than petitioner (as is Mr. Guilfoyle); (c) during her police interview the day after the robbery, Mr. Velasquez, serving as her ‘interpreter,’ pointed to petitioner’s photo and told her to identify him as the robber; (d) in the process, Mr. Velasquez told her that petitioner would ‘come back to hurt [her]’ if she did not help to put him in jail; and (e) after viewing a photo of Mr. Guilfoyle, she was ’90 percent certain’ that he was the robber and ‘certain’ that petitioner was not.

Petitioner submitted an affidavit from his former counsel saying that the prosecutor had denied his request to interview Ms. Ruiz before her testimony. Petitioner also submitted an affidavit from Mr. Tralongo saying that he and petitioner were in their apartment together during the robbery, and that he was present at trial and willing to testify.

The trial court denied the motion to vacate. Petitioner exhausted his appellate remedies. In the New York Court of Appeals, Judge Albeit M. Rosenblatt issued a strong dissenting opinion noting the high possibility of ‘actual innocence.’

In 2006 petitioner sought habeas relief in federal court. Judge Bianco granted an evidentiary hearing, where petitioner testified that his lawyer (now deceased) had told him at trial that there was no need to put on a defense and calling Mr. Tralongo could ‘open doors.’ The state prosecutor testified that defense counsel had never asked her for access to Ms. Ruiz before Ms. Ruiz testified.

In granting the petition, Judge Bianco primarily emphasized counsel’s ‘failure to interview Ruiz prior to trial, since such an interview was reasonably likely to have given rise to admission of the Guilfoyle photograph – as well as other evidence of Guilfoyle’s potential culpability for the El Classico robbery – and there is a reasonable probability the result of the trial would have been different.’ Slip op. 12.

Counsel’s explanations for not interviewing Ms. Ruiz, moreover, were unpersuasive. Even if the prosecutor had actually denied access to the witness, which the prosecutor disputed, defense counsel could have sought the court’s help in securing a pretrial interview. Pursuing the interview would have been ‘risk-free’ and not doing so was a ‘monumental’ mistake. Slip op. 20.

Judge Bianco also found counsel’s ‘wholesale abandonment’ of the alibi defense ‘without adequate explanation’ to be a constitutional defect.

In short, counsel’s conduct fell ‘outside the range of professional competent assistance’ and, given the ‘underwhelming’ evidence of guilt, ‘probably’ affected the verdict. Slip op. 23-25.

Disclosure Under Walsh Act

In United States v. Spivack, 05 CR 98 (EDNY, Nov. 29, 2007), Magistrate Judge Azrack denied defendant’s motion to compel disclosure of the mirror image of the computer hard drive seized from his computer.

Defendant is charged with transporting child pornography by means of a computer and possession of child pornography. Seeking a copy of his computer hard drive, defendant claimed that the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. §3509(m), which governs disclosure in child pornography cases, violates his Sixth Amendment right to effective assistance of counsel and his Fifth Amendment right to due process and equal protection, because it unreasonably restricts access to the services of a forensic computer expert. The government offered to make the hard drive available to the defendant’s team at the U.S. Attorney’s Office in Brooklyn or the Federal Bureau of Investigation (FBI) offices in Manhattan.

The Walsh Act amends Federal Rule of Criminal Procedure 16 in connection with disclosure of child pornography materials. The act provides that all such material shall remain in the custody of either the government or the court, and the court shall deny any request by the defendant to copy the material ‘so long as the Government makes the property or material reasonably available to the defendant.’ Property is deemed ‘reasonably available’ under the statute ‘if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility’ by the defendant, his or her attorney and any defense experts. Slip op. 3.

As to defendant’s due process claim, Magistrate Judge Azrack noted, courts throughout the country have held that the act is constitutional and comports with due process as long as the material is made ‘reasonably available’ to the defense. To satisfy the ‘reasonably available’ requirement the government:

must either give the defense team due-process-level access to the hard drive at a government facility or, if such access cannot be given, the government must give the defense team a copy of the hard drive, satisfying any due process concerns. Slip op 5.

‘Ample opportunity’ is determined on a case-by-case basis. Mere inconvenience to defense counsel does not constitute lack of ‘ample opportunity.’

Magistrate Judge Azrack distinguished United States v. Knellinger, 471 F.Supp.2d 640 (E.D. Va. 2007), the only case in which a court has held that the government did not provide ‘ample opportunity’ under section 3509(m). Knellinger was based on a ‘virtual-child’ defense requiring a specific type of forensic analysis, which was unfeasible at a government facility. But defendant here did not present any virtual-child issues. Nor did defendant provide any factual basis to show that the government had failed to provide ample opportunity. His claim that he had problems of time, equipment and unfettered access did not sufficiently show inadequate opportunity ‘to inspect, view, and examine the material at a government facility.’ Slip op. 8.

Punitive Damages

In Wrap-N-Pack, Inc. v. Kaye, 06 CV 6034 (EDNY, Dec. 14, 2007), Judge Spatt granted plaintiff’s motion to amend its complaint to add a demand for punitive damages arising from claims for breach of fiduciary duty, diversion of corporate opportunities, misappropriation of confidential information and trade secrets, unfair competition and tortious interference with prospective economic advantage.

Plaintiff, a distributor of corrugated cartons and other packaging materials, purchased the assets of BK Supply Co. in January 2000. The purchase contract included a noncompete clause by which defendant Kaye agreed not to compete for three and a half years in New York, New Jersey and Connecticut in corrugated and other paper product businesses. At the same time, Mr. Kaye entered into an executive employment agreement with plaintiff which also contained a noncompete clause and required him to devote his full time to plaintiff to the exclusion of all other businesses.

Plaintiff alleges that during most of the period covered by the noncompete clauses Mr. Kaye supervised, managed and served as acting president of Service Packaging LLC, plaintiff’s customer and competitor. Plaintiff alleges that Mr. Kaye did not inform it that he had become a principal of Service Pack

aging in 2001 or that he was using plaintiff’s property to perform work for Service Packaging.

The issue here, Judge Spatt observed, was whether plaintiff is entitled to offer evidence to support its claims, not whether it would ultimately prevail. Defendant opposed plaintiff’s motion on the ground that, under New York law, punitive damages are not available for contract claims, and the claims here are founded on breach of contract. Plaintiff asserted that Mr. Kaye intentionally and repeatedly breached his fiduciary duty for more than seven years, rising to the level of extreme moral culpability necessary for punitive damages.

In order to establish entitlement to punitive damages when a claim arises from breach of contract, a plaintiff must show: ‘(1) the defendant’s conduct is actionable as an independent tort; (2) the tortious conduct is of an egregious nature; (3) the egregious conduct was directed to the plaintiff; and (4) the conduct is part of a pattern directed at the public generally.’ Slip op. 9. A plaintiff must allege a breach of duty independent of defendant’s failure to fulfill contractual obligations.

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udge Spatt found that the claims of breach of fiduciary duty, misappropriation of trade secrets, and unfair competition could be made against defendant, a disloyal employee, regardless of the existence of the employment contract. As the court also found:

the plaintiff’s tort claims are independent of the parties’ contract and it is not essential that the plaintiff allege a pattern of conduct directed at the public in general to assert a claim for punitive damages here.

Additionally, breach of fiduciary duty claims are an exception to the general rule under New York law that punitive damages are not recoverable for breach of contract claims. Slip op. 15-16.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the January 11, 2008, issue of the New York Law Journal. Copyright © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]