Opinion
No. 03 Cr. 082 (MGC).
September 14, 2004
DAVID RABI, Defendant pro se, Valhalla, New York, DAVID N. KELLEY, United States Attorney, Southern District of New York, Attorney for the Government, New York, New York, Michael S. Schachter, Roberto Finzi, Assistant United States Attorneys.
OPINION
Defendant David Rabi moves for a new trial. He contends that he received ineffective assistance of counsel at his trial. For the following reasons, the motion is denied.
BACKGROUND
Rabi and his co-defendant, Tillie Steeples, were charged with conspiracy and securities fraud arising from their activities as directors of 800America.com, Inc. ("800America"), a company whose stock was publicly traded on an electronic market system administered by the National Association of Securities Dealers. Rabi was represented by Yasmin Cader, an attorney with the Legal Aid Society. At Rabi's trial, the Government presented evidence which showed that Rabi, the chief executive officer of 800America, caused falsified bank statements and other documents to be provided to 800America's independent accountant. The accountant relied on those documents to produce audited financial statements which were filed with the Securities and Exchange Commission ("SEC"). These financial statements, and press releases which publicized their contents, overstated 800America's revenues by millions of dollars. The evidence showed that Rabi also authorized the issuance of hundreds of thousands of shares of 800America stock to on-line brokerage accounts which he and Steeples controlled. Rabi and Steeples then caused the shares to be sold and the proceeds transferred to 800America and its subsidiaries. The evidence also demonstrated that Rabi failed to disclose a prior felony conviction in 800America's public filings, in violation of SEC regulations applicable to officers and directors of public companies.Rabi's primary defense to these charges was that other individuals were responsible for the wrongdoing at 800America. Rabi testified in his own defense, stating, among other things, that his position in the company was a cover for counter-intelligence activities he performed for the State of Israel. These activities necessitated absences from the business, and Rabi was therefore unaware of the financial improprieties occurring at 800America. He testified that he had been set up by others to take the blame for their crimes. The jury convicted Rabi of both counts of the indictment on October 9, 2003.
Steeples had pleaded guilty prior to trial.
Rabi first complained to me of the legal representation he received in a letter dated November 1, 2003. I appointed new counsel to investigate Rabi's claims and, if necessary, to file a motion for a new trial on his behalf pursuant to F.R.Cr.P. 33. Rabi's new lawyer subsequently concluded that he could not, in good faith, file a Rule 33 motion for Rabi on the ground of ineffective assistance of counsel. Rabi filed this motion pro se on June 21, 2004.
DISCUSSION
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both that his attorney's representation was unreasonable under the "prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 460 U.S at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Moreover, the adequacy of the legal representation a defendant receives must be evaluated in light of the case against him. Where "the prosecution has an overwhelming case based on documents and the testimony of disinterested witnesses, there is not too much the best defense attorney can do." United States v. Katz, 425 F.2d 928, 930 (2d Cir. 1970); see also United States v. Sangemino, 401 F. Supp. 903, 905 (S.D.N.Y. 1975).
Rabi's claims of ineffective assistance of counsel fall into three categories. First, he contends that his attorney failed to investigate the case and prepare for trial. Specifically, he claims that he met with Ms. Cader for a total of only two and one-half hours before the trial began, that she failed to learn anything about 800America, and that she refused to seek a continuance in order to prepare more thoroughly for trial.
Rabi fails to articulate how his attorney's investigation of his case and preparation for his trial constituted deficient performance. He does not explain what exculpatory information his attorney would have uncovered during a more thorough investigation. The Supreme Court has noted: "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 460 U.S. at 691. Given the overwhelming evidence of Rabi's guilt, it cannot be said that Ms. Cader's decision not to investigate the case as fully as Rabi wished was unreasonable. Moreover, at no time during the trial did Ms. Cader appear unprepared. Her jury addresses and her cross-examination of the Government's witnesses demonstrated a command of the facts of the case, and her attempt to advocate a defense of nonparticipation in the fraud evinced careful preparation. Rabi's claim that his attorney frequently consulted him regarding what questions she should ask of Government witnesses does not demonstrate lack of preparation. Rather, it suggests that she was careful to ensure that she was not missing any areas of questioning which her client wished her to explore. Rabi has failed to demonstrate that Ms. Cader's attention to his trial fell below prevailing professional standards.
Second, Rabi claims that Ms. Cader failed to rebut unsupported statements made by the Government and failed to object to what Rabi characterizes as a course of misconduct and deception practiced by the Government. He quotes several portions of the prosecution's opening and closing statements and argues that they lacked evidentiary foundation or were otherwise improper. But the Government's jury addresses were amply supported by the evidence. Rabi's protestations of innocence and accusations of wrongdoing by others do not establish that the Government engaged in misconduct. Ms. Cader's failure to make fruitless objections is therefore not deficient performance.See, e.g., Cuevas v. Henderson, 801 F.2d 586, 592 (2d Cir. 1986) (holding that defense counsel's failure to object to prosecution's proper summation did not constitute deficient performance). Furthermore, the record reveals that Ms. Cader made evidentiary objections throughout trial and during the Government's closing arguments. In particular, Ms. Cader vigorously objected to the Government's attempt to introduce evidence of Rabi's prior incarceration and of statements made by Steeples during her plea allocution. Rabi has failed to show that his attorney was inattentive to evidentiary issues.
Third, Rabi argues that his attorney failed to mount any meaningful defense. He contends that her opening and closing statements were too brief and repetitive, that she refused to call witnesses on Rabi's behalf, that she did not cross-examine the Government's witnesses thoroughly, that she refused to prepare Rabi to testify, and that she did not produce evidence which would have contradicted the Government's case. He also contends that she agreed to stipulations which constituted admissions of his guilt and made errors during jury selection.
These claims are without merit. The decisions whether to make an opening statement and whether to call witnesses are ordinarily left to the discretion of the defense lawyer. See United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) ("[T]he decision whether to make an opening statement and when to make it is ordinarily a matter of trial tactics and strategy which will not constitute the incompetence basis for a claim of ineffective assistance of counsel."); id. ("The decision whether to call any witnesses of behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial."). Rabi claims that many of the witnesses he wished to call were the true perpetrators of the fraud at 800America. But extensive evidence at trial supports the jury's determination that Rabi himself was directly involved in the fraud. At any rate, Rabi fails to explain why these individuals would have taken the stand and incriminated themselves in order to exonerate him. While Rabi suggests several questions which his attorney could have asked of some of the Government's witnesses on cross-examination, he offers nothing to show that these questions would have aided his defense. With respect to Ms. Cader's supposed failure to prepare Rabi to testify, given the substance of his testimony, it is likely that Ms. Cader's refusal to prepare him stemmed from her obligation to adhere to the rules of professional responsibility. An attorney cannot be faulted for failing to assist a client in committing perjury. In addition, Rabi has failed to identify with sufficient concreteness the exculpatory evidence which Ms. Cader should have produced at trial and to explain how it would have exonerated him. Accordingly, he has not shown that her failure to present this evidence was deficient performance. Finally, Rabi's complaints with respect to stipulations and jury selection are conclusory allegations which do not indicate that Ms. Cader's representation fell below reasonable professional standards.
With respect to all of these allegations of deficient performance, Rabi fails to satisfy the second prong of theStrickland test. Rabi's claims of prejudice rely on unsupported allegations that the Government failed to prove a conspiracy and that he is innocent. On the contrary, the Government presented overwhelming evidence that Rabi was intimately involved in the fraud at 800America. There is no reasonable probability that additional investigation, preparation, or cross-examination by Ms. Cader would have changed the result.
CONCLUSION
For the foregoing reasons, Rabi's motion for a new trial is denied.SO ORDERED.