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Case 3:16-cv-01853-SRU Document 1 Filed 11/14/16 Page 1 of 59

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United States District Co or e


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IINITED STATES OF AMERICA, Date: Novemb er 8, 2016
Plaintiff
3:lLocv lSSaCSf-i
Case No.: 3:1 1-cr-00041(SRU)
: ECF Case
V

FRANCIS CO ILLARRAMENDI,
Defendant

MOTION TO VACATE JUDGMEI{T OF CONVICTIOI\


AND SENTEI{CE PURSUAT{T TO 28 IJ.S.C. 2255
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United States v. Illarramendi - Defendant's 2255 Motion
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Contents

1 . List of Authorities Consulted

2. objective and Summary of Grounds for Relief

Statement Regarding Statutory Basis and Related Litigation


a,
J.

4, Statement Regarding Timeliness of Motion

5. Statement Regarding Personal Testimony and


lJnderstanding of Legal Principles

6 Summary Chronological and Factual Background

7 Ground for Relief I: Violation of Sixth Amendment


Right to Counsel of Choice in a
Criminal Proceeding

g. Ground for Relief II: Ineffective Assistance of Counsel

9 Concluding Statement and Prayer for Relief

10. Appendix A: Responses to Form I Questions


Not PreviouslY Addressed
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Authorities Consulted
The following is a non-exhaustive list of authorities consulted in the preparation of this
motion. In the case of authorities cited herein, I have tried to cite the full authority the
first time it appears in the text of the motion and then use the name listed below in ltalcs
for all rrrbsqu.nt mentions of the same case. The list is organized alphabetically
according to the name given in ltalics.

U.S. v. Arteca, 41 1 F. 3d 315, 320 - 2"d Cir' 2005,,'Arteca"

Beard v . Ranks. I59LEd.2d494, r24 S. Ct.2504,2510 -2004,"Bank"


Blackledge v. Allison , 43I, U.S. 63, 74,97 S. Ct' 162l, 52 L, Ed' 2d 136 - 1997 ,"Blackledge"
u. S. v. Blitz, 151 F. 3d 1002, r0r2_9th cir. rgg8,"Blitz"

U.S. v. tre.720 F.3d 126 - 2nd cir 2013, "Bonventre"

Boria v Keane- 99 F.3d 492,496-97 - 2nd Cir. r996,"Boria"

Boykin v. Alabama, 395 US 238,23 L. Ed. 2d274,89 S. Ct. 1109 - 1969,"Boykin"


Brady v. Maryland, 373 US 83, 10 L. Ed. 2d2,15,83 S. Ct. IIg4 - 1963,"Brady"

Brady v. U.S., 397 US 742,25 L. Ed. 2d747,90 S. Ct. 1463 - 1970,'oBrady v. U.5."

U.S. v. Dung Bui,769F.3d 831- 3'd Cfu.2014,"&ui"

Carrion v. Smith, 365 Fed. Appx' 275 - 2nd Cir. 20l0,"Carrion"

Chaidez v. ll.S.. 185 L. Ed.2dI49 ,133 S. Ct. 1103 -2013,"Chaidez"

SEC v. Coates, U.S. Dist. LEXIS 11787 (S.D.N.Y' Aug23,1994),"Coates" '

U.S. v. Colon,220F,3d 48, 5I -znd' Cir. 2000, "Colon"

U.S. v. Cortez.841 F.2d456 , 460-6r - 2"d Cir.1998, "Cortez"

U.S. v. Cosme ,796F 3d226 - 2"d Cir. 2015,"Cosme"

U.S. v. Crandon,IT3 F.3d I22 - 3'd Cir. 1999,"Crndon"

u.S. v. cronic, 466 U.S. 648,656,80 L. Ed. 2d 657,104 S. CT.2039 - 1984, "Cronic"

U.S. v. Day, 969 F. 2d 39, 43 - 3rd Cir. 1992,'oDay"

ilt
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Dixon v. U.S., 548 U.S. I, 126 S. Ct. 2437, 1 65 L. Ed. 2d 299 - 2006, " Dixon"

Freeman v. U.S., 564 US, 131 S. Ct, 180 L. Ed' 2d 5I9 -20lI,"Freeman"
Missouri v. Fryq, 566 US, 132 S. Ct.,176 L. Ed. 2d284 -2010,"Frye"

Arizona v. Fulminante, 499 U.S. 279,310 - 1991 ,"Fulminante"

Gersten v. Senkowski , 426 F .3d 588 - 2nd Cir' 2005, "Gersten"

Gloverv. U.S.,531US 198, 148 L. Ed 2d604,121 S, Ct.696 -2001 ,"Glover"

ll.S. v. ez-Lonez. 548 U.S. 140, 148 -2006,0'Gonzalez-Lopez"

U.S. v. Gordon. 156 F. 3d376 ,280 -2"d Cir.1998, "Gordon"


o'Goss"
U.S. v. Goss ,54g F.3d 1013 - 5tl' Cir. 2008,

Sentencing Guidelines Handbook: Text and Analysis, Roger W. Hines, Jr. et al' (2007 Ed.) -

Handbook

Hanson v. Phillips ,442F.3d789 -2"d Cit,2006,"Hanson"


Hill v. Lockhar1,474IJ.S.52,106 s. ct. 366, 88 L. Ed. 2d203 - 1985, "Hill

Hintonv. Alabama, 188 L Ed2dI,I34 S' Ct. 1081 - 2014,0'Hinton"

Rodriguez v. Hoke, g28 F. 2d 534,538 - 2"d Cir. I99I,o'Hoke"

Homero Gonzalez v. U.S., 553 US 242,728 S Ct. i765, 170 L Ed 2d 616,2008 - "Homero
Gonzalez"

Reoub c of Irao v. AB R et a1.. 920 F. S upp 2d 5I7,2nd Circuit, 2014 - "Iraq"

Knott v. Mabry , 67I F.2d 1208, I2I2-13 - 8tl' Cir. 1982,"Knott"


Kovacs v. U. S., 7 44 F.3d 44' 2"d Cir. 201 4,'o Kovctcs"

U.S. v. Kwan. 407 F.3d 1005 , r}fl-r8 - 9th Cir. 2005, "KwQn"

Substantive Criminal Law, W. LaFave & A. Scott - "LaFQve"

Lafler v. Cooper, 132 S. Ct. 1316, 1378,I82L.Ed' 2d 398 - zj|z,"Lafler"


_
Lindstadt v. Keane ,23g F.3d 191 ,2"d Cir. 2001,"Lindstadt"

Luis v. U.S.,578 US -No. l4-4]g - 2016,"Ll'tis"


IV
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Mask v. McGinnis ,233 F,3d I32,I4I - 2nd Cir. 2000, o'Mas?'

U.S. v. Maurello,76F.3d 1304 - 3'd Cir. 1996,"Murello"

U.S. v. Milste:iq, 401 F. 3d 53, J2 - 2"d Cir. 2005, 'oMilstein"

Moore.v. Johnson,I94F,3d 586, 619 - 5tl' Cir. 1999,"Moore"

U.S. v. Montsanto ,924F.2d1186,2nd Cir'- 1991 ,"Montsanto"

Nix v. Whiteside, 475 U.S. 757,175,106 S. Ct. 988, 89 L. Ed 2d 123 - i986, "Nix"
Padilla v. Kentuckv. 559 US 130 S. Ct.176 L. Ed. 2d284 -20l0,"Padilla"
Pedro Gonzal ez v. U.S.. 722F.3d 1 18 ; U.S. App. LEXIS 3912 -znd Cir.2073 "Pedro Gonzalez"

Peugh v. U.S., 186 L. Ed.2d 84, 133 S. Ct' 2012-2013 -"Peugh"

Pham v. U.S.,3I7 F.3d 178, I82_ 2nd Cit.2003,"Pham"

Porter v. McCollum, 558 US, 130 S. Ct.175 L. Ed. 2d398 -2009,"Porter"

324U.5.806, 814-15, 65

S. Ct. 993, 89 L. Ed. 1381 - 1945,"Precision Instrument"

Purdy v. U.S., 208 F. 3d 41,45 -2"d Cir.2000, "PLtrdy"


U.S. v. Ready, 82 F. 3d 551, 558-59 - 2"d Cir. 1996,"Ready"

Illinois v. Rodriguez , 4g7 tJS l'77 , 11 I L. Ed. 2d I48,1 10 S. Ct.2193 - 1990, "Rodriguez"

Rosemond v. U.S. ,572IJ5,134 S Ct, 188 LEd2d248 -2014,"Rosemond'

U.S. v. Sayakhom, 186 F. 3dg28,946 - 9th Cir' l999,"Sayakhom"

Schneckloth v. Bustamonte , 4I2IJS 218,36 L. Ed. 2d 854,93 S. Ct. 2041 - 7973,"Schneckloth"


Starr Beach Campowners Ass'n" Inc. v . Bovlan. t74 Vf.503, 506, 811 A, 2d 155,160 - 2002,
"Starr Farm"

stouffqr v. Reynolds, 168 F. 3d 1155, 1163-64 - 1Otr' Cir.1999,"StoLtffer"

v.W 466 US 668, 802 L. Ed 2d674,104 S. Ct.2052- 1984,-",Strickland'

Teague v. Lane. 489 US 288 , 103 L. 8d.2d334,l0g S. Ct. 1060, reh den (US) 104 L. Ed' 2d206,
109 S. Cf. ITll -
1989, "Teague"
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Iowa v. Tovar, 541 US 77,I58 L Ed. 2d209,124 S. Ct. 1379 -2004,"Tovar"

U.S. v. Tucker- 716F.2d 576, 579-586,595 - 9th Cir. 1983, "Tucker"

U.S. v. Turk,626F.3d743 -2"d Cir.20I0,"T1ffH'

Ventura v. Meachum , g5'7 F .2d 1048,1058 - 2nd Cir. 2005,'oVentlra"

Gideon v. wainwright,3T2IJS 335,9 L. Ed. 2d799,83 S. Ct. 792,93 - 1963,"[4/ainright"


GFTC v. Walsho Nos. 09 cv 1749 (GBD),09 CV 1750 (GBD),09 CR 722 (MGC), (S.D.N'Y' Mar
9, 2010),'oWqlsh"

Wissins v. Smith. 539 US 510 , 156 L. Ed.2d47l,l23 s. ct.2527 -2003,"Wiggins"

Kytes v. Whitle}',514 U'S. 4|9,434,115 S. Ct' 1555, 131 L. Ed,2d-1995,,,Whitley,,

Wilson v. McGinnis, 413 F. 3d 196 -2nd Cir.2005,"Wilson"

U.S. v. Youngs,687 F 3d 130 -2"d Cit.2012,"Youngs"

U.S. v. Yauri , 5g7 F.3d 130 -2"d Cir.2009,'oYauri"

Johnson v. Zerbst,82L. Ed' 1461-304 US 458-469 - 1938, "Zerbst"

VI
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Objective and Summary of Grounds for Relief


Pursuant to 28 U.S.C. 2255, this motion requests that this Honorable Court

vacate my Judgment of Conviction and Sentence based on the following two

Grounds for Relief

I Constitutional Error derived from the denial of my Sixth Amendment


Right to select counsel of choice in criminal proceedings, due to the
fact that my untainted assets were frozen by a pre-trial Temporary
Restraining Order in contravention of the Supreme Court's
intervening decision in T.uis v. IJ.S. 57 8 IIS - No. 14-419 -2016

II Constitutional Error derived from the deniai of my Sixth Amendment


Right to a Fair Trial due to Ineffective Assistance of Counsel under
the Performance and Prejudice Prongs of Striskland v. Washington
466 668. 802 L. 2d 674. r0 4 S. Ct. 2052 - 1984

Both of these constitutional errors are independently sufficient to merit the


relief requested. However, contrary to the eror of ineffectiveness under
Strickland,, the error contemplated in Luis that supports Ground for Relief I, is a
structural error. As such, the error b dto S

Analysis, because it derived from a constitutional deprivation that affected "the

frumework within which the tral proceed[edJ, rather thctn simply" being"n
itself'- Arizona v. Fulminante 499 IJ.S. 279' 310 -
error in the trial process
lggl. Based on the facts of this Criminal Matter and the inextricably
intertwined civil case described further below, the Court can reach the merits of
this motion and immediately vacate my conviction based on the first Ground for
Relief without any need for further analysis.
vil
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Statement Regarding Statutory Basis and Related


Litigation
I am a person in Federal Custody, currently serving my sentence at the Federal
Correctional Institution Fairton Camp ("Fairton"). I am submitting this motion
Pro Se, seeking to vacate my Judgment of Conviction and Sentence pursuant to
28 IJ.S. C.2255. This is my first such Motion before this Honorable District

Court (the "Court") seeking the relief requested.

This Motion is presented in compliance with Rule 2(c) of the Federal Rules
Governing Filings under 28 U.S.C .2255. It substantially responds to Appendix
Form 1 to said Rules for a Motion to Vacate, Set Aside, or Correct a Sentence
by a Person in Federal Custody ("Form 1"). After providing a general factual
and chronological summary, I have specified below, as required in Form 1,

additional facts pertaining specifically to each of the grounds for relief raised
herein. I have also provided a summary of the main legal basis for each ground.
Appendix A addresses pertinent questions in Form 1 that are not directly
addressed in other parts of this filing.

The five counts of conviction are listed in the Court's Amended Judgement
entered on February 10, 2015 (Doc. 169).I did not go to Trial. I pled guilty, via

Information to all of the Counts of Conviction.

I appealed -y sentence of conviction to the Second Circuit Court of Appeals

(Docket No. 1 5-526). The Sentence was affirmed by the Circuit Court via

Mandate issued on May 11,2016.

vlil
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To my understanding, the only ground raised by appeals counsel was the


reasonableness of the Court's determination of loss without the benefit of an

evidentiary hearing. I have never met or spoken with my appellate counsel;


communicating with him only informally by sporadic inmate email. I did not
participate substantially in the sentencing appeals process and I am not familiar
enough with the process to describe the full grounds of the appeal from a legal
standpoint. I also appealed separateiy to the Second Circuit from the Coufi's
Restitution Order (Docket No. 15-4i60). That appeal is still pending. I have not
participated even minimally in the preparation of said appeal. For various
reasons, including several listed below (See Grounds for Relief I), I filed a
motion with the Second Circuit to hold the Restitution Appeal in abeyance. The
Second Circuit has not responded to said motion. For reasons described further

below, I have not filed a Petition for Certiorari in the direct sentencing appeal at
this time.

This motion incorporates various facts and arguments derived from the
judicial

record and filings in this Criminal Matter, as well as from the inextricably
intertwined civil case filed against me by the Securities and Exchange
commission ("sEc" or the 'ocommission") in the District of connecticut,
presided by the Hon. Janet Bond Arterton (the "SEC Case" - 3:1 1-cv-00078-
JBA)I. Capitalized terms such as the "Relevant Period," the "Receiver," the
"Receivership Companies," the "SEC or Commission," the "NIM," "PDVSA,"
and various others, hold similar meanings as in other filings before this Court,

Prosecution in this criminal Matter


Given the fact that a majority of the allegations and summary information used by the
derive from the SEC Case, the two proceedings are inextricably intertwined, or, to quote the legally-recognized term used by
in my Plea Agreement, the relationship
the SEC in recent Summary Judgment proceedings, are "on all fours." As evident
between both cases is such, that one case cannot be considered or evaluated without taking into account applicable aspects
of the other.

ix
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including, but not limited to, my Restitution Brief (Doc. 190). Given the
Court's famitiarity with the case, some of issues are not treated in-depth.
Further clarification is available at the Court's request.

X
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Statement Regarding Timeliness of Motion


Given the timing of the Supreme Court decision in Luis, which was issued
before finality of my direct appeal, the first Ground for Relief in this motion is
timely raised herein. The rulin g in Luis was pronounced by the Supreme Court
during pendency of my appeal. It is therefore in compliance with the guidelines
for applicability of decisions to cases which have not become final; as
mandated by Supreme Court jurisprudence, most notably Teague v. Lane. 489
IJS 28 L. Ed. 4 109 S 1 060 reh 104 L. 20

109 S. 1-198

The second Ground for Relief is also timely presented well within the one-year
period after sentencing finality allowed for so-called Habeas Motions under 28
IJ.S.C.2 55(f)(1)3.

,lnTeogue,thesupremecourtbarredtheapplicationofnewrulingsinthecollateral reviewofconvictionsthatbecamefinal
beforethoserulingswereannounced. AconvictionbecomesfinalforpurposesofTeaguewhen"theovilablityoldirect
has elapsed or a timely petton hqs
oppeo! hos been exhousted and the time for lilng o petition for o writ of certiorari
in the Summary
bieen finallydecided,,,Beard v. Banks. 159 L Ed. 2d 494. 124 S. Ct. 2504. 2510 - 2004. As described
well before finality of my conviction; its applicability
chronological and ractual eackground, the decision in Luls was rendered
2255(F)(1) and (3), is not in question.
to this criminal Matter, for purposes of 28 U.S.C.
t;;;.;r;frnrotthismotionarebasedonaninterveningSupremeCourtdecisionthatdesignatedastructural violationof
petition for a Writ of certiorari to
constitutional rights, I made the decision to present the instant moton while foregoing a
intent and purposes, the court can evaluate this motion as if
the supreme court with respect to my sentencing appeal, For all
either on the day Mandate ssued, May L1",201'6, or ninety days
the finality of the sentencing appeal had occurred
thereafter, as described in Bonks.

XI
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Statement Regarding Personal Testimony and


Ilnderstanding of Legal Principles
The facts described and statements made throughout this motion are based on
my recollection and belief. Because of my conditions of incarceration, I do not
have fuIl and access to the iudicial record or to most of the

evidenti arv materials suooort this m otion: therefore, I cannot always cite
documents directly. In particular, various facts mentioned are supported by
specific testimony or citations in hearings and filings before this Court and in
the SEC Case, as well as multiple emails and documents that I can not presently
access. If the Court feels that it requires specific documentary proof to support
this motion, I would respectfully request that it provides me with an unrestricted
avenue to gather the evidence and present it via supplemental filings or at a
hearing.

Although in some cases, it may appear, that facts stated in this motion conflict
with my o'solemn cleclarutions n open court caruyng a strong presumption of
verty," Pedro Gonzalez v. U.S. 722 F. 3d 118: U.S. App. LEXIS 3912 - 2"d

Cir.2013 - ouotins Bl kledse v. Alli 431. IJ.S. 63 .74.97 S. Cr. 162 1. 52


L F,d.2d - 1997 I hereby certiff, Pursuant to 18 USC 1746, under penalty
of perjury , that any discrepancies between the statements contained herein and
previous "solemn cleclrtons n open court" are due to my ignorance or
misunderstanding of pertinent facts, statutes andlor jurisprudence at the time
those declarations were made. The facts presented, interpreted and explained in
the foregoing are true and correct to the best of my knowledge, understanding
and belief as of the date of this motion.

xil
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I would also respectfully request that the Court remains aognizant that I am a

first-time defendant who, as one of my previous attorneys, Mr. Alex Hernandez


described at one point in the proceedings was 'ooperating in sort of a fod'
before and throughout the plea and pre-sentencing period. During that time, I
was hard pressed to understand all the nuances of the judicial process. The
Supreme Court has cited the ABA manual of Standards for Criminal Justice
(Defense Function 4-5.2, Commentary, P 202 - 3rd ed. 1993) in stating that
,'many of the rghts of an uccusetl, including constitutionl rights, re suclt

tht only truinecl experts can comprehend their full signlicunce, und un
expluntion to any but the most sophsticeed client would be futle" -
Homero Gonzalez v. U. s. s53 uS 242. 128 S Ct.1765. 170LEd2d6 6. 2008
US LEXIS 3887. This same precedent goes on to state that"numerous choices
uffecting conduct of the triul, including the obiectons to muke, the witnesses
to cll nd the urguments to advance, depend not only on whut is permissible
uncler the rules of eviclence ncl proceclure but upon tcticul considerutions of
the moment ncl the larger strategic plan for traL."

Since sentencin g, after being transferred to Fairton, I have had access to a

library of limited legal materials that I did not have available previously. Using
my layman's understanding of those legal materiais, this motion aims to put
forth a f,rrm legal and factual basis regarding the merits of the relief requested.
Due to my lack of legal training, I beg this Court's latitude when assessing the
statements and contents of this motion both substantively and procedurally'

xill
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Summary Chronological and Factual Background


1. On January 14,2011, the SEC filed a civil complaint against me and various relief
defendants. Said civil complaint gave rise to the inextricably intertwined SEC Case.

2. Contemporaneously to the inception of the SEC Case, in January of 2011, the U'S'
o'after
Attorney's Office ("USAO") and the Federal Bureau of Investigations ('.FBI"),
reviewing the SEC complaint and supporting documentation, began a criminal
investigation" against me (See Government's Sentencing Memorandum - Doc. 158, P.
6)t.

3. On January 28,2011, at the request of the Plaintiff, Judge Arterton, presiding over the
SEC Case, imposed a Temporary Restraining Order (SEC Case Doc. 36; and modified on
2l2lll, Doc. 59, the .'TRO") at the request of the Government. The TRO prohibited me
from disposing of, or using any of my assets for any purpose.

4. Before imposition of the TRO, no was

bv Judse bv the SEC. the USAO or bv the FBI to determine w anv of

zen were

alleged wrongdoing. Moreover, no determination was made by any Coufi, at any point in
the process, as to whether or not the TRO represented a violation of my Sixth
Amendment Constitutional right to hire counsel of my choice to represent me in this
Criminal Matter using my o\ /n, innocent, untainted funds.

5. At the time of the imposition of the TRO, I owned unequivocally untainted assets totaling
approximately $2.0 million derived from the unencumbered value of properties that had
been acquiredwell bfore the Relevant Period. These properties included an apartment in
Caracas, Venezuela purchased in 1999, an apartment in Bethesda, MD purchased in 1996

lt is unclear from the judicial record whether or not the USAO and the FBI took it upon themselves to begin their investigation
1
fact to
or whether they were formally or informally alerted to the matter by the SEC, For purposes of this motion, the important
note, as indicated by the Government itself, is that in both cases, the Plaintiff is an arm or agency of the U.S. Government, and

both processes were contemporaneously set in motion.

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and an apafiment in New York City purchased in 20042, In particular, both the New

York City apartment and the Bethesda apartment are located in two of the nation's most
robust real estate markets and, at the time, could have been rapidly sold or encumbered
to obtain liquidity for my legal expenses. The TRO precluded this possibility.

6. The TRO rendered me effectively indigent at inception of this Criminal Matter and the
SEC Case because it restrained 100% of my assets. Despite my ownership of substantial
untainted assets, because of the TRO, I did not have available, at inception of the
USAO's investigation in this Criminal Matter, any 'ounrestricted assets" to fund my
defense with counsel of my choice. At the time of the imposition of the TRO, I was
represented by a team of attorneys from the New York, New Haven and Washington,
D.C. offices of Bingham, McCutchen LLP ("Bingham"), then an highly-prestigious law
firm3. Bingham had been hired by the Receivership Companies on my behalf, under a
retainer payment of $500,000, in order to serve as counsel in the SEC enforcement action
that later led to the SEC Case and to this Criminal Matter. Once the TRO was set in
place, Bingham informed me that they could not continue to represent me either in the
SEC Case or, more importantly in any possible criminal proceeding, unless I was able to
borrow funds to pay an additional retainer. They estimated this retainer to be at least
$400,000 for the criminal portion of the litigation. As I had no ability to borrow such
a

large suma, and my untainted assets were frozen under the TRO, Bingham was forced to
withdraw from rePresenting me.

, lt is my contention that all of my assets are untainted because certain aspects ofthe case
have both an exonerating effect on
my actions and an invalidating effect on the pDVSA Claim, As the Supreme Court states in luls, for assets to be
ultimately
to occur and it has not yet occurred here, particularly due to
toiteited (or Restitution affirmed), a final and legal conviction has
trajectory of this The lack of validity of the PDVSA claim makes the
the constltutional errors that permeate the case,
and the potentialties of
Receivership companies profitable and eliminates both the applicability of disgorgement or restitution,
assets to alleged wrongdoing.
3
Since that time, gngham dissolved due to various mergers and reorganizations and many of the
attorneys representing me
back then, including Mr, Michael Blanchard, joined world-renowned, Philadelphia-based, firm, Morgan Lewis.
o
parrttt pro.u.ing, in the sEC case, the commission and the Receiver have implied that I would have been able to fund my
in
chosen to hire counsel for
counsel of choice with funds used from my wife's portion of a Connecticut tax refund but that I had
mydefenseincivil casesinstead. Thisisuntrueonmanyfronts;mostimportantof whichisthatsaidfundswerenotrefunded
by connecticut until approximately a year after my guilty plea in this Criminal Matter and were also ultimately deemed frozen
under the TRO,

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7. In the absence of Bingham's continued representation, I evaluated other competent

counsel of my choice to be hired on a contingency basis or with a lower retainer that


could be covered through future loans.s At the time, I was repeatedly told that all possible
competent attorneys required retainers similar to Bingham's due to the complexity of the
case and the need for qualified financial expertise. In effect, because of TRO- I was

onl
pr
T^L- G looo^- ofa ^orcnnql frienrf in
+l"a fimp l\f fhc nqrfner c small frrn nqrfn
t
practice. Mr. Gleason'S representation agreement was based on a maximum fee

of $150,000, plus disbursements, for all phases of both litigations. More importantly,
because I did not have access to my untainted assets due to the TRO, Mr. Gleason agreed

to be paid at a future time, with ptoceeds from loans I was to source from family and
friends. Mr. Gleason was not my counsel of choice and was not paid for with my own,
untainted assets; but instead was the only attorney I could find to represent me under the
circumstances.

8. Upon the advice of Mr. Gleason, whom I subsequently found out was not competent in

terms of subject-matter expertise and legal background for this case, pafticularly as it
pertains to its financial component (See Ground for Relief II below), I entered what I
now know to have been a constitutionally defective plea of guilty before this Court, via
Information, on March l, 20ll'
g. Although my plea agreement referenced the TRO, at the time of my guilty plea, this
Court made no determination of any type regarding my right to use my untainted assets to
hire counsel of my choice; nor, to the best of my recollection, did it inquire into how I
was paying for Mr. Gleason to represent me.

10. For various reasons, including Mr. Gleason's evident lack of knowledge regarding most
key aspects of applicable law, I agreed with the USAO and the FBI to ask Mr. Gleason to

s
Among the firms that I remember were contacted at various points in the litigation I would highlight Jenner & Block;
patterson, Belknap; Hogan, Lovell; Schertler & Onorato; Pepper, Hamilton; and Mitchell, Stein & Muse.

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withdraw from representing me in this process. As I could not afford my counsel of


choice due to the TRO, this Court assigned attorney Alex Hernandez to represent me
under the CJA in early 2012. Subsequently, in November 2012, Mr. Hernandez, citing an
undisclosed conflict, withdrew his representation and was replaced under the CJA by Mr.
Donald Cretella. Similar to Mr. Gleason" Mr. Hernandez. and later Mr. Cretella. were not
my counsel of choice and they were not paid for at the time with my untainted assets6'

1 1. On January 25, 2013, I self-surrendered to the U,S. Marshalls pursuant to an order of this
Court and was incarcerated at the Wyatt Detention Center pending sentencingT. In late
May, 20130 I was moved to the Bridgeport County Correctional Center, where I remained
in custody until my sentencing approximately two years later.

t2.InMarch 2013, based on the impression that Mr. Cretella did not seem to have the time
or knowledge necessary to be an effective advocate, my parents borrowed a limited
amount of funds from a friend and hired Mr. Stephan Seeger, an attorney that had been
recommended to them by an acquaintance. Mr. Seeger replaced Mr. Cretella as my
counsel in this Criminal Matter. Similar to Mr. Gleason, Mr. Seeger agreed to work for
minimal fees, paid with borrowed funds rather than with my own assets, which continued
to be frozen under the TRO. As in the case of my previous attorneys, Mr' Seeger did not
have the necessary expertise for a complex financial case8, was not mv of choice.

and was not paid for with my untainted assets.

13. After more than two years of pre-sentencing detention, I was sentenced by this Court on
January 29,2015 to a period of incarceration of 156 months, followed by three years of

underhill
After Sentencing, at the Restitution Hearing (See Transcript of Restitution Hearing - Doc. L87, Pp. 31-32), Judge
6

in the sEC case, be used


ordered that funds from my assets that were frozen under the TRo, and held in escrow by the Receiver
to reimburse the Court's CJA account for the fees paid to Mr, Hernandez and Mr, Cretella'
t Between the time of my guilty plea and my incarceration I was on release pending sentencing with conditions
that included
curfew and the imposition of a bail bond that was secured by several of the assets that were frozen
electronic monitoring,
pay the costs of electronic monitoring
under the TRo, Despite my situation of effective indigence at the time, I was ordered to
with borrowed funds; I also had to borrow funds for all of my family's significant living expenses n an attempt
to maintain a
semblance of tranquility for my wife and children in the midst of all the legal turmoil'
Defender's office
lt ir a.lling in this matter that, at the time of the removal of Mr. Gleason as counsel, I approached the Public

for the District of Connecticut and was told specifically by Mr, Paul Thomas, then the Head of that office's white Collar Defense
plea of Guilty which clearly had "not provided me any benefits," the case was "too
area, that, apart from having entered into a
it significanttime and expertise which he could not provide.
complex,,to be handled by his office as required

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supervised release. i
timely appealed my sentence to the Second Circuit Courl of
Appeals. Other than the funds borrowed by my parents, which had already been
consumed during the sentencing process, I did not have any way to pay Mr. Seeger any
further fees due to the ongoing restrictions of the TRO. Therefore I filed a request for

appointment of counsel with the Circuit Court. The Circuit Court granted said request and
assigned Attorney Ryan Thomas Truskoski to represent me under the CJA.

14. Shortly after sentencing, on June 15, 2015, this Court held a Restitution hearing; and
subsequently issued a Restitution Order (Doc. 198) on December Il, 2015. I timely
appealed the Restitution Order. Said appeal is ongoing and Mr. Truskoski has been
assigned as my attorney under the CJAe.

15. After completion of the briefing schedule in the sentencing appeal, the Second Circuit
indicated its preliminary decision to affirm my sentence on March 14,2016. Although
Mr. Truskoski withdrew from representing me in the matter at that time, I filed a Pro Se

Petition for Panel Rehearing. On March 30,2016, while said Petition for Rehearing was
pending, the Supreme Court issued its decision in Luis. On May Il, 2016, approximatel)'
months the Second Circuit Court of Appeals denied my
petition for panel rehearing and issued the Mandate affirming my Judgment of
Conviction and Sentence.

16. Given the aoolicabilitv of the intervenins decision in I uis to the facts described herein,

this Habeas Motion under 28 U.S.C. 2255 follows

t
To dutu, even though he was originally assigned to be my attorney in the sentencing appeal more than 18 months ago, I have
never met Mr, Truskoski or spoken to him by phone, Communication between us has been limited to sporadic emails, most of
them through third parties. Given the decision in Lurs and its applicability to this case; and the fact that Mr. Truskoski's
performance has been, in my personal opinion, very unprofessional; I have filed letters with the Second Circuit asking that Mr'
Truskoski be relieved as my attorney and, as stated above, asking for the appeal to be held in abeyance pending resolution of
this Court's evaluation of this motion, The Second Circuit has not responded to my requests.

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Ground for Relief I - Violation of my Sixth Amendment


Right to Counsel of Choice in a Criminal Proceeding
17. As described in the foregoing, the judicial record establishes that the TRO violated my
Sixth Amendment right to be represented by counsel of my choice in this Criminal
Matter.

Summary of Factual Basis for Relief

18. A review of the record, as partially described in the above Summary Chronological and
Factual Background, establishes several facts that support the merits of this Ground for
Relief:

a. At the time of the imposition of the TRO, I was a defendant facing criminal
charges. The imposition of the TRO was done pre-triallO, after the Government
had begun its criminal investigation, but before any interaction between myself
and the USAO and FBL In fact, there was a 39 day period between the

imposition of the TRO on January 28, 2011 and my guilty plea on March 7 , 2011 .

b. The pre-trial restraint of assets, derived form the TRO, included 100% of my
ooinnocent" assets. Neither the Court
assets, including unequivocally untainted or

in the SEC Case nor this Court attempted at any time to determine if any of my
assets were tainted by connection to any alleged wrongdoing. The TRO was an

overreaching, blanket restriction on the use of any assets for any pu{pose and it
effectively prohibited the use of my untainted assets to hire counsel of my choice

to
When using the term "pre-trial" I refer to the fulljudicial process as implied in Luis and in one of its most important
supportingcases,U.s.v.Gonzalez-Lopez,548U.S. I4O,I48-2006. lnLulstherehasbeennotrialoranyotherjudicial
proceeding other than the indictment, ln Gonzqlez-Lopez,there was a full trial which led to a defective and eventually vacated
conviction. ln my case, thus far, there has only been a constitutionally defective guilty plea and its subsequent effects, The
proceedings
term pre-trial encompasses the fulljudicial process before investigation, indictment, commencement of trial
and/or guilty plea. ln this regard, as we detail further below, Gonzalez-Lopez states that the error contemplated here is
among other reasonsr it "affects the framework within which the trial proceeds," and is not "simply an error
structural because,
inthetrial processilself," Gonzqlez-Lopezmakesemphasisonthefactthat"differentattorneyswill pursuedifferentstrategies
withregardtolnvestigationanddiscovery,developmentofthetheoryofdefense,"andothermatters. ltparticularlystates,in
that counseled decisions, including those involving plea barains and
reference to the structural nature of the error, "manv
cooperating with the government, do not even concern the conduct ofthe trial at all,"

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to represent me in this Criminal Matter. Although irrelevant to the question of the


constitutional violation because the Court should have determined the matter at
inception of the process, at the time of the pre-trial imposition of the TRO, as

mentioned above, I owned a signif,tcant amount of untainted assets which I could


l
have used to hire counsel of my choice if they had not been erroneously frozenl
in violation of my constitutional rights.

c. The pre-trial restraint of my untainted assets, derived from the TRO, eliminated
any possibility I may have had to hire counsel of my choice; someone with the
legal knowledge and expertise necessary to represent me in this Criminal Matter.
As a direct result of the TRO, I was not able to retain Bingham, the counsel I was
working with at inception of this Criminal Matter; because I was not allowed to
for their Having no access to my
untainted assets, my only choices were to borrow money to hire an attomey or to
proceed either with court-appointed Counsel or on a Pro Se basis. Moreover, as

established by the judicial record, because I could not borrow sufficient funds to
hire counsel of my choice such as Bingham, I was compelled to hire Mr. Gleason,
who was neither the lawyer I wanted nor capable of effectively representing me.
Mr. Gleason was an attorney whom I was compelled to hire with borrowed funds
during the 39-day period between imposition of the TRO and my guilty plea
because, due to the TRO, I was not allowed to use my untainted assets to hire the
professionally competent, qualified attorney of my choice for this Criminal
Matterl2.

tt Prior to the Second Circuit's position on the determination of whether assets are tainted or untainted, and thus could be
Lurs,
available to hire counsel of choice, is described in U.S. v. Bonventre,72Ot.3d126,2nd Cir- 201-3, which states that if a
defendant demonstrates that the imposition of a an asset freeze will leave him or her without assets to hire counsel of choice,
the defendant should be entitled to a hearing pursuant to U.S, v. Monsanto,924t.2d 1186,2nd Cir, - 1991, ln my case, no
such hearing took place before imposition of the TRO or before my guilty plea.
12
ln recent SEC Case proceedings, the Commission and the Receiver have expressed the view that Mr. Gleason was my counsel
of choice, This is categorically untrue. lt is disingenuous to believe, that any defendant in a complex financial matter, sitting in a
"Mecca" of experienced financial litigators such as the New York City area, would voluntarilv choose to hire an inexperienced
attorney for cut-rate fees if he had the ability to retain a competent attorney, The only plausible explanation for switching from
Bingham to Gleason is that the TRO left me without access to my own untainted assets to hire counsel of my choice,

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19. In summary, the facts are that there was a pre-trial restraint of my untainted assets as a

result of the TRO that prevented me from hiring counsel of my choice to represent me in
this Criminal Matter. As explained further below, based on Luis and its supporting
jurisprudence, particularly Gonzalez-Lopez v. U.S., 548 U.S. 140, 148 - 2006, this is a

immediate of my
judgment of conviction and sentence without Harmless Error Anal)'sis.

Lesal Basis for Relief

20. The primary legal basis for relief in this matter is provided by the Supreme Court
decisioninLuis,Izisstandsfortheunambiguouspropositionthat,,@
of lesitmte. untanted assets needed to counsel of choce violates lhe Sxth
o'the
Amendment." Among both its plurality and concurring opinions, Luis states that
Sxth Amendment denes the Government unchecked power to freeze defendant's
assets bere tral simply to secure potentil forfeiture upon convction. llthout pre-
trl protecton for t lest some of lhe defendant's assets, the Government could
nultfy the rght to counsel of choce, evsceruting the Sixth Amendment's orignl
menng ntl purpos". The Plurality opinion goes on to state that they have found "no
decison of [the Sapreme CourtJ uthorzing unfettered, pre-tral [restrintJ of the
clefendnt's nnocent property - property wth no connecton to the charged crme." As
the record shows, this constitutional violation of my Sixth Amendment right to counsel of
choice took place in this Criminal Matter because of the TRO and the unquestioned
acceptance of that TRO by the USAO and by this Court at inception of the investigative
andjudicial process.

o'sacred" nature of the right to counsel, Luis, based on Gonzalez-


2L Afer describing the
Lopez, establishes that this violation of my Sixth Amendment right to counsel of choice
requires vacating the judgment of conviction and sentence as the only acceptable remedy
due to the structural nature of the error. In Fulminante, the Supreme Court defined a
structural error as one in which the constitutional deprivation is complete because it

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affects "the frmework wthn whch the tril proceeds, rther than smply'o being"un
error n the tril process tself."

22.Twenty-five years after Fulminante, in Gonzalez-Lopez, the Supreme Court was explicit
and detailed in the reasons why a deprivation of a defendant's counsel of choice, such as
the one now defined in Luis, must be considered structural and cannot be subjected to
Harmless Error Analysis. As cited in Luis, the Supreme Court stated in Gonzalez-Lopez
that "deprivton of the rght to counsel of the defendunt's choice s 'complete' when
the defendant s enoneously prevented from being represented by the lwyer that he
wnts, regrdless of the qulty of the representtion he receved," Gonzalez-Lopez

clarified in this regard that "to argue otherwise is to confuse tlte rght to counsel of
choce - which is the right to prtcular lawyer regrclless of compartive
effectiveness - with the rght to effectve counsel - which imposes a bseline
requirement of competence on whtever lwyer s chosen or ppointed."

23. As can be applied to my case, due to the effects of the TRO, Gonzalez-Lopez quoted
Fulminante to state that the deprivation of counsel of choice is a structural error because
it"[soJ affected thefrmework n whch the trl proceedett'that"fthe CourtJ my not
even usk whether lhe error hrmed the defendant", as it is not simply'on error n the
tral process tself." Gonzalez-Lopez emphasizes that "dfferent attorneys wll pursue
dffirent strateges wth regard to investgtion nd dscovery, development of the
theory of defense" and other matters. Finally, in a view that has direct application to my
case, it specif,rcally clarifies that"t s mpossible to know what dffirent choices [otherJ
counsel would have mde, und then to quntfy the mpact of those dffirent cltoces on

the outcome of the proceedings. Mny counseled decisons, ncludng those nvolving
ple bargns and cooperlng with th government. do not even concern the conduct

of the tril at all. Harmless Enor Anlysls n such context would be speculatve
nqury nto what mght hve occurred n an lternate unverse."

24.The circumstances and realities of my case are tailor-made to the Luis and Gonzalez-
Lopez precedents, probably even mole than the defendants in those cases themselves. In

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Luis, it. was generally accepted that the defendant had spent $45 million in allegedly
tainted funds before the freeze was imposed, and yet the Supreme Court recognized that
she had a right to use $2.0 million that she had remaining to hire counsel of choice
because the funds were acquired without any ties to alleged wrongdoing. In Gonzalez-
Lopez, the defendant had actually hired counsel of his choice and yet his conviction was
vacated because additional counsel he wanted to hire was erroneously barred by the court
from aiding his defense. In my case, there had not been any type of pre-trial, properly-
scrutinized process of determination of any alleged taint of any of my assets, and yet I
was not able to use my funds to hire any counsel, let alone someone of my choice, or,
again citing Gonzalez-Lopez,theoolawyer tht I wnted."

25. Apaft from not allowing for Harmless Error Analysis, the Court should take into account
that the error contemplated here prevented me for using what Luis calls a defendant's
"legtmate, untnted assets neetled to retain counsel of choce." The language is
unambiguous in stating that it is the defendant's assets. not the assets the defendant can

borrow or that he can eventually borrow, as was my case. In fact, the dissent opinion in
Luis was parlially based on the possibility that the Defendant could borrow funds to hire
counsel, and thus the structural, constitutional error established by a pre-tri al freeze could
not be considered absolute. The Plurality and Concurring opinions clearly thought
otherwise. The assets referred to by the Majority, as in the case of my assets are
incontrovertibly the defendant's, not assets that belong to someone who lends them to the
Defendant. The record shows that at the time the TRO was imposed, to echo Luis,I
"needed my tegtmte, untanted funds to retn counsel of choce." The TRO took
away that possibility in violation of my constitutional rights.

26. Although the TRO was imposed in the SEC Case, its application to this Criminal Matter
is also contemplated in Luis. Luis articulates that lhe "Government's contingent
oovictm's interest n securing
nteresf in possible future forfeiture, as well as the alleged
resttution," even if important, do not 'oenjoy consttutionul protection. Rther, despte
ther mportnce, compred to the right to counsel of choice, these interests seem to le
somewht further from the heetrt of fair, effectve crmnal iustice system." Financial
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litigation in our system of justice often revolves around the interaction between a

criminal and civil proceeding, such as the SEC Case and this Criminal Matter. Allowing
the Government to freeze assets in the SEC Case, without regard for the constitutional
consequences prohibited by Luis, would circumvent the spirit and letter of the Sixth
Amendment right to counsel of choice that the Supreme Court is seeking to protect with
its decision.

27. As mentioned earlier, Second Circuit jurisprudence contemplates this connection between
asset freezes imposed in a civil case and the need to protect a defendant's Sixth
Amendment right to Counsel of Choice in Criminal Matters. After a remand by the

Supreme Court, in U.S. v. Monsanto , 924 F. 2d 1186, 2nd Cir. - 1991, the Second Circuit

held that "the Ffth nd Sxth Amendments enttle a crmnal defendnt seeking to use
restrnedfunds to hre counsel of choce to an adversariL, pre-truil hearng." More

recently, cases such as U.S. v. Cosme, 196 F 3d 226 - 2nd Cit. 2015, and U.S. v.
Bonventre, 120 F. 3d 126,2nd Cir - 2013 have dealt with the interconnection between

asset freezes in a civil case and the need to secure counsel in an intertwined, parallel
criminal case. Particularly in Bonventre, the Second Circuit states hhat "Dstrict Court's
n ths circuit hvefound that a defendnt may lso hve the rght to Montsanto-lke
herng n the civl context when, as here, the cvl forfeture cton my ffect the
clefentlant's right to counsel n a parllel crminal cuse. See CFTC v, Wlsh, Nos. 09
cv 1749 (GBD), 09 CV 1750 (GBD), 09 CR 722 (MGC), 2010 U.S. Dst. LEXIS 21992,
2U0 IfL 882875, t *2-3 (,S.D.N. Y. Mn 9, 2010); SEC v. Cotes, No 94 Civ. 5361
(KMW), 1994 U.S. Dist. LEXIS 11787, 1994 WL 455558, &t *3 ,S.D.N.Y. Aug 23'
1994)". By citing these cases, Bonventre makes clear that the civil context must be
subordinated to the constitutional protections accorded to defendants in parallel criminal
actions. Based on Luis, these constitutional protections now include the restrictions on
erroneous asset freezes such as the TRO in the SEC Case. Bonventre further stipulates
that, different from several other circuits around the country, the Second Circuit only
requires a defendant to show that, other than the frozen assets, he or she does not own
any other assets with which to hire counsel of choice in order to warrant a Monsanto

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hearing. In my case, the TRO encompassed one hundred percent of my assets, making it
certain that I could not possibly own any alternative assets with which to hire counsel of
choice. The TRO also directed all Receivership Companies, as Relief Defendants, or
anyone who may have possession of any assets thereof, to not dispose of the assets.

Therefore, whatever amount of the retainer paid by the Receivership Companies to


Bingham, on my behalf, could no longer be used to cover my legal fees. As soon as it
was imposed, the TRO precluded me from continuing to have the counsel of choice,
Bingham, who was advising me when the asset freeze was imposed; such that I did not
even have a chance of pursuing a Monsanto hearing because, assuming that I had been
aware of the legal right to do so, which I was not, I did not have funds to hire counsel to
advice me in the process.

28. Even if this Court were to deem that the hearings in the SEC Case which led the
imposition of the TRO determined probable cause for assets to be temporarily restrained,
under Luis that refer onlv to assets connected to anv all sed wronsdoins- and
l3
could the

Statutes contemplate the possibility of freezing so called 'osubstitute" assets "of


equivalent value," as stated in my plea agreement, in order to preserve them for potential
forfeiture or restitution. Luis involved a seizure of these types of untainted assets, such as

mine, that are not directly traceable to alleged wrongdoing. The decision, specifically
limits the boundaries of pre-trial asset freezes by making it a violation of Sixth
Amendment Constitutional rights to freeze thoseoo which
are untainted" ifthey are needed by the defendant to secure counsel ofchoice.

29. From a timing standpoint, the record establishes therefore that in my case, the pre-trail
restraint derived from the TRO created a structural. constitutional error at inception of the
legal process; before any steps that ultimately led to my constitutionally defective guilty

tt With respect to the determination of asset taint, the Government is tasked with carrying the burden of proof at the
Monsanto hearing, At said hearing, as stated in Luls, the Court can make use of long-employed "trocing mechonisms" to make
itsdetermination. lntheSECCase,theReceiverhasimpliedatvarioustimesthatmyassetshavesomehowbeentaintedby
mortgage, tax or maintenance payments made during the Relevant Period. However, the evidence will show, under the light of
any tracing analysis, that the approximately 52,O mllion in untainted value of the assets was (and is) unencumbered, or net of
any payments that may have taken place during the Relevant Period of alleged wrongdoing,

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plea. In this context, every relevant judicial decision subsequent to the TRO must be
reversed. Gonzlez-Lopez states that 'otlte right to select counsel of one's

choice,,.,..,,hs never been cleriveclfrom the Sixth Amendment's purpose of ensurng


fir tral, It has been regrcled s the root meanns of the constitutional suarntee.

As we stated before, Harmless Error Analysis cannot be applied because "where the right
to be sssted by counsel of one's choice s wrongly dened," as defined by Luis has
happened in this case due to the TRO's restriction of my untainted assets, "i!
to TN

@;'
30. To summarize the basis for this first Ground for Relief: the
pre-trial restraint derived

the me

me in this Criminal Matter. Prior to finality of my conviction in this Criminal Matter, the
Supreme Court, in Luis, established that a pre-trial restraint such as the TRO was a
structural violation of the Sixth Amendment riqht to counsel. Because it is a structural
violation, as explaine d in Fulminante and Gonzalez-Lopez, this error cannot be subjected
to Harmless Error Analvsis and merits automatic reversal.

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Ground for Relief II - Ineffective Assistance of Counsel


3 i. As described above, the Supreme Court in Gonzalez-Lopez indicated that Harmless Error
Analysis in the context of the deprivation of a criminal defendant's counsel of choice is a
futile exercise because it concerns wha|"might hve occurred n n lternte universe."
oolternte unveFse," one based on the
This Criminal Matter is a case in which fhat
harmful effects of the erroneous deprivation of my counsel, has actually played out near
to finality. The legal representation I received from attorneys who were not of my choice
has been constitutionally ineffective at all stages of the litigation. Because the right to
counsel of a defendant's choice is the "root mening" of the "constitutonal guarantee,"
the denial of that risht could actuallv be to the denial of the to counsel

ilself, such that any proceeding, including my constitutionally defective change of plea
hearing, in which I was represented by counsel who was not of my choice was equivalent
to a proceeding in which I was not represented b) counsel at all. This would effectively
violate multiple Supreme Court precedent including cases as far back as Gideon v
V/ain 372 US 335. 9 L. 2d799.83 S. Cr. 792 .93 - t963

32.In and of itself, the ineffective assistance of my counsel throughout this process, although
initially derived from the TRO's violation of my constitutional right to counsel of choice,
provides grounds for reversal under applicable legal standards.

33. This Ground for Relief calls for a straightforward application of the Supreme Court's
ineffective-assistance-of-counsel precedents, beginning with Strickland. Strickland
recognizes that the Sixth Amendment's guarantee that "[iJn all crmnal prosecutons,
the ccused shtl enjoy the rght,,.,.to have the Assistance of Counsel for hs defense"
entails that defendants are entitled to be represented by an attorney who meets at least a
minimal standard of competence. Under Strickland, we must "Jirst determine whether
counsel's representution fett below and objectve standrd of reasonbleness"- Padilla
v. Kentucky, 559 US 130 S. Ct. 176 L. Ed. 2d 284 - 2010, quoting what courts have
called the Strickland Performance Prong'

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34. Once we have established, under the Strickland Performance Prong, that attorney

performance was deficient, we can assert ineffective assistance of counsel by showing


thatoothere is a resonuble probbilty tht, butfor counsel's unprofessonal eruors, the
result of the proceeclng would hve been dffirent" - Padilla, quoting what coufts have
called the Strickland Prejudice Prong. Strickland specifically stated that " reasonable
probablty is probblity sufJicent to undermne confidence in the outcome.'o The
Supreme Court further clarified that this is a less demanding standard than "more lkely
thnnot," statinginKylesv. V/hitley,514U.S. 419,434,115 S. Ct. 1555, 131L. Ed.2d

- lpg|
ooa
that clefendant need not show tht counsel's detcient conduct more likely
thun not ltered the outcome n the case." As the record indicates and we detail below,
the representation I have received throughout this Criminal Matter has been ineffective
when viewed in the light of both Strickland prongs.

The Strickland Analysis

35. From a Strickland analysis viewpoint, the main errors in which counsel's performance
fell below objective standards of reasonableness can be broken down as follows:

A. Failures with Respect to the Plea Bargaining or Pre-Trial Process; and,

B. Failures with Respect to the Post-Plea and Sentencing Process, including:

i. Failure to Read and Discuss the Pre-Sentencing Report ("PSR") with the
Defendant and to properly object to provisions of the PSR.

ii. Failure to Account for the non-Applicability of the Federal Rules of


Evidence to Sentencing Proceedings and to Gather, Analyze and Present
Exonerating and Mitigating Evidence during the Sentencing Phase.

iii. Failure to Present Expert Witnesses to Counteract the Government's

Theory of Loss and the Reality of the Affirmative Defenses.

iv. Failure to Evaluate and Present Testimony of Court-Appointed

Psychiatrist Regarding the Affirmative Defenses of Duress and Necessity.

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v. Failure to Properly Prepare for the Sentencing Hearing, Submit Filings on


Time and Object to the Government's "Gain" Calculation'

For each of these errors we present below a summary of the factual and evidentiary bases that
support it from the standpoint of both the Strickland Performance Prong. Subsequently we

present a summary of what effective counsel would have entailed in this case and then we

summarize the Legal Basis for the Strickland Performance Prong. Finally I also provide

thereafter an analysis of the Strickland Prejudice Prong as applicable to the errors described.

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A. Failures with Respect to the Plea Barsainins or Pre-Trial Process

Prior to my guilty plea, Attorney Gleason failed to properly analyze the case and determine
what the comparable expected outcomes could be between pleading guilty or going to trial.
At the inception of our Attorney-Client relationship, after only a brief review of my initial
disclosure of the case, Mr. Gleason immediately contacted the USAO and set up a meeting.
Mr. Gleason asked me to voluntarily disclose to the USAO and the FBI, which was also

present at the meeting, all matters pertinent to my activities in the Receivership Companies.
Before recommending my voluntary disclosure, Mr. Gleason did not consider or discuss with
me the applicability of the affirmative defenses of necessity and duress (the "Affirmative
Defenses") in terms of potential innocence or any other matters that may be mitigating
factors within a trial proceeding. He also failed to disclose potential sentencing
enhancements derived from the actions I was disclosing, and there was no discussion of what

rights I was foregoing by voluntarily disclosing my actions to authorities or to what extent


my disclosure could subsequently be used against me.

Loss ent Prior to my disclosure to authorities, Mr. Gleason did not fully analyze
the fnancial aspects of the case including what turned out to be my mistaken estimates of the
financial condition of the Receivership Companies under applicable legal parameters.

During my disclosure proffers, but prior to my guilty plea, Mr. Gleason failed to inform me
of fundamental, direct consequences of said plea derived from the potential for a sentencing
ool-oss 'When
enhancement due to loss and victims (the Enhancement"). reviewing the plea
agreement submitted by the Government, Mr. Gleason limited himself to showing me the

Sentencing Table or "Grid"14 and to explaining that the sentence would be based on the range
provided by the level mentioned in the plea agreement. Mr. Gleason then explained that the
plea agreement was based on Level i6, minus a 3 point reduction for Voluntary Disclosure

1a
Further confirmation that my understanding of the direct sentencing consequences of my plea was limited to the Sentencing
Table and not the calculation of the Loss Enhancement is provided by my answer to Judge Arterton at a hearing in the SEC Case
on May 25,2011., more than two months after the plea hea ring (SEC Case Doc, 260, P. 355). At that time, the following dia logue
tookplace: Ms,RuaKelly,SECCounsl,asksmeaboutthemaximumtermof imprisonmentpursuanttomypleaagreement
and I answer that "l [couldn't] answer that strictly, what has been conveyed to me is that its about 70 years if it got to be - you
know, there is a column and a line and l'm not;" - Ms, Kelly follow up question - "So on the right side of the line?" I respond,
"l'm sorry" and Judge Arterton interjects, "the grid?" and I respond, "exactly, the grid" and Ms. Kelly states, "so on the far side
of the grid is 70 years; to the best of your knowledge?" to which I respond: "correct, correct."

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and Acceptance of Responsibility, therefore the level would be number 13 and my sentencing

range, using Column I across the top because I am a first time defendant, was 12 to 18

months. Mr. Gleason also indicated that he believed, based on my cooperation with the
Receiver and positive rapport with the USAO, that I would get a maximum of "six months in
jail or maybe even no jail time at all."

At the beginning of his representation, Mr. Gleason asked that I prepare an estimate of what I
(wrongly from a iegal standpoint at the time) estimated to be assets and liabilities of the
Receivership Companies. This erroneous estimate showed what I thought was a financial

loss derived mainly from promised interest and gains or 'orecovery" values for PDVSA
transactions; also the reason why Receivership attorneys presented the Asset Verification
Letter to the SEC during their investigation. Despite having this information, which
unbeknownst to either of us, showed an eroneous estimate of a signif,rcant shortfall between
assets and tiabilities, Mr. Gleason did not bring up the Loss Enhancement. The Loss
Enhancement was never brought up in talks with any party before my plea of guiltyls, nor
was it mentioned in the plea agreement. Neither Mr. Gleason nor anyone else from the
USAO or the FBI thought to ask if I was a\,vare of the existence of a Loss Enhancement even
though the plea agreement stated that I estimated there was a loss. To the best of my
recollection, until aooroximatelv Sentember of 201 2. 18 months alter mv olea of suiltv. I had
not seen the Guideline Instructions on Calculable Loss (Section 1 .1). nor was I

of instructions

Enhancement how that enhancement coul d affect mv sentencel6. In this context, I was

1s
ln the few weeks between my first meeting with the USAO and my guilty plea, I participated in several proffer sessions with
the USAO, the FBl, the SEC and the Receiver. The plea agreement stipulated that I would cooperate with the Receiver and my
understanding was that said cooperation was to ensure that there would ultimately be no loss and all assets were distributed to
valid claimants of the Receivership Companies. My stipulation of a financial shortfall was based on the mistaken premise thatI

owed funds which I later learned I legally I did not owe. However, I also felt that, if the Receiver managed the private equity
assets and the disposal of Cheyne shares correctly, even the promised gains, nterest and value recovery that made up my loss
estimate could be covered, Unfortunately, the Receiver mismanaged the private equity assets which today are worth several
hundred, if not billions of dollars to the current shareholders. Those capitalgains would have gone to the Receivership
Companies'claimantsiftheprocesshadbeenproperlymanaged. lnanycase,Lossfromthestandpointofasentencing
enhancement was not a concept that I ever heard of until well after I had pled guilty.
Sometime around July of 2011, I participated at a proffer session with the Boston regional USAO at which one of the people
16

present mentioned that looking at the loss numbers he estimated that my sentence could be life in prison, By that time I was
more aware of the fact that the Receiver would base his estimates on the NIM and I did not press the issue at the meeting
because I did not understand what it meant, I asked Mr. Gleason as soon as I left the meeting and he responded that "that was

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also never shown how loss was to be calculated, what was included or not included, what
deductions were or any other part of the calculation. As far as I understood from before my
plea and until Mr. Hernandez first showed me a draft of the USAO's sentencing submission,
loss was a concept in the civil context and it only had to do with restitution from my assets in
the case that a loss was actually determined to exist in the SEC Case.

It seems apparent from all that transpired that Mr. Gleason \ilas simply unaware of the

potential for the Loss Enhancement or how to calculate loss under the guidelines. Therefore,
he accepted my erroneous estimates at inception without analyzing them from the legal
viewpoint. Because of this, my enoneous estimates became the'oexpected" loss parameter in
the case and I paradoxically self-incriminated with legally erroneous information.

.A.ffirmative Defenses: V/ith respect to the Affirmative DefenseslT, I was never told, prior to
my plea, and for that matter until after Sentencing, that I was entitled to raise them at trial
and prove them by a preponderance of the evidence standardls. Mr, Gleason only stated that
I should plead guilty and use the Affirmative Defenses as mitigating circumstances at
sentencing. At the time, my interest was in ensuring the least possible public disclosure of
the circumstances that led to the Affirmative Defenses, but if I had known of their
applicability to actually establish my innocence at trial, in combination with the sentencing
exposure of the Loss Enhancement, I would have certainly chosen to proceed to trial.

not right, that the person who said it likely did not know anything about it and that there must be a 'turf-war' between
Bridgeport and Boston, Given my family pressures at the time and the overall situation of permanent shock, the matter
lingered until after Mr. Gleason withdrew and several months had passed with Mr. Hernandez as my counsel'
tt
Th. Srpr.*e Court has explained in Rosemond v, U.S., 572 US, 134 S Ct, 188 L Ed 2d 248,2014, that the defense of necessity
land duressl excuses a violation of law if "the harm which will result lrom complonce with the low is
greoter thon that which
wil! resultfromovolationolit." ln Dixonv. U.S.,548 U.S, 1, 126 5.CT.2437,165 L. Ed' 2d299- 2006, the Supreme Court
decided that affirmative defenses are subject to proof by the defendant who invokes them using a preponderance standard,
18 part
of Mr. Gleason's failures also extended to the comparative process between trial and plea, including the right of
confrontation and the standards that govern the burden of proof. Mr. Gleason never explained the applicability of the
preponderance standard at sentencing rather than the maxim of "beyond a reasonable doubt" that most non-lawyers in our
country grow up hearing about. Although the Court at the plea allocution mentioned the preponderance standard and the non-
applicability of the Federal Rules of Evidence at Sentencing, these were not concepts that, In my then cognitive condition I
could question or distinguish from my general understanding of the legal process. ln all cases, because Mr. Gleason had actually
stated that I was likely to get "a maximum of six months in jail," I was not centered on the sentencing process, but more
focused on ensuring that the clients of the Receivership.Companies were made whole and on trying to maintain a semblance of
status quo for my family in light of the dramatic changes that were happening in our lives'

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Plea Colloquv: The Court proceedings did not cure any of the constitutional defects derived
from my lack of knowledge of the direct consequences of my plea and of the rights to certain
specific defenses that I was foregoing by pleading guilty. From my recollection of the plea
allocution, there were no specific references to the defenses I would be giving up. More
importantly, U.S. Attorney Paul Murphy mentioned that the "amount of loss had not been
determined yet;" as a justifcation for postponing sentencing, but to my understanding, the
postponement of sentencing was to allow more time for cooperation with the Receiver before
finality of the legal process and determination of any potential loss. In the Courl's rapid-fire
set of questions there \,vas no mention of the Loss Enhancement or how it could affect my
sentencing. The Court indicated that the maximum statutory time of incarceration was 70

years, but my understanding was firmly grounded on the determination of the sentence was

based on the sentencing table that Mr. Gleason had shown me and the estimate he had
o'discussion the
provided. My affirmative response to the Court's question regarding
o'Grid" and determining that the sentence
guidelines with counsel" referred to looking at the
would be set by the level 13 derived from what was mentioned in the plea agreement, or
more than likely a better sentence because of my cooperation. The evidence shows that both
before and after my plea I was equally ignorant about the direct consequences of the plea
derived from the Loss Enhancement. Particularly given my state of mind, I was relying on
my attorney and on the other parties in the process to provide me with fair and accurate
advice and information. Nothing in the questions or comments made by the Court or any
other party at the plea colloquy or in pre-plea meetings and discussions, gave me any inkling
to the reality that, by pleading guilty, I was exposing myself to the possibility of life
imprisonment that the USAO and the Probation department ultimately proposed as my
guidelines range at sentencing.

Potential \ilithdrawal of Plea: After Mr. Gleason was no longer my attorney, when I found
out that he had misinformed me about the direct consequences of my plea, I asked Mr.

Hernandez and later Mr. Seeger that I wanted to study the withdrawal of my plea because I
had not been aware of the effects of the Loss Enhancement and the availability of the
Affirmative Defenses at trial prior to making the plea. Mr. Hernandez failed to pursue the

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matter and resigned shortly thereafter citing an undisclosed conflict. Mr. Seeger, despite
telling me he would prepare a motion for my consideration, never did anything and then
refused to attack the plea when given an opportunity to do so by the Court at sentencing.

Evidentiary Basis: Evidentiary support for the facts espoused herein and the validity of the
Affrmative Defenses is available to be gathered and presented to the Court if required. The
materials include: i) electronic mails regarding with Mr. Gleason regarding the plea process
and agreement, ii) the plea agreement; iii) witness statements from individuals with whom I
discussed the potential sentence of incarceration derived from the plea; iv) the transcript of
the plea hearing; and, v) the notes from meetings with the FBI, the USAO, the SEC and the
Receiver.

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B. Failures with to the Post-Plea or Sentenc ins Phase

Apart from the effors listed above with respect to the Pre-Trial or Plea Bargaining phase of
proceedings, counsel's ineffectiveness was also prejudicial to my defense during all
subsequent proceedings. In particular, counsel failed to perform at a reasonable standard of
competence in several key areas of the litigation. These include but are not limitedle:

SR' with the


to of the My review of the PSR was limited to
a five minute reading of its first draft, sent by the Probation Department to Mr.
Hernandez in mid-September of 2012.I did not see any version of the PSR after that
time. In contravention of F. R. of Cr. P. 32((1XA), neither Mr. Hernandez, nor Mr.
Seeger 'oread and discussed the PSR" with me. I was not aware of the importance of
this matter and was in no position to object to Mr. Seeger's representations to the
Court at the time; but would pose for the Court that Mr. Seeger's tentative answers to
the Court at sentencing indicate he was not familiar with the final reporl. After my
"skimming" read of the PSR in Mr. Hernandez's office in20l2,I realized for the first

time in the process that the Loss Enhancement could turn my sentence from Mr.
o'six months" (see above Failures with Respect to the Plea
Gleason's estimated -
Bargaining or Pre-Trial Process) to the PSR draft's estimation of life in prison. My
focus turned to properly disputing the loss, so I agreed with Mr. Hernandez to have a
more thorough review to flesh out objections to the PSR, particularly with regards to
the Loss Enhancement. I explained to Mr. Hernandez in detail why the loss was zero
and what evidence was required to support this view. Mr. Hernandez, without

consultation, filed a letter with the Probation Department and a Motion to postpone
sentencing with the Court in which he effectively contravened my views on loss
because he failed to clearly state my position that loss was zero. Mr. Hernandez also

tt B..urs. of the breadth of ineffective assistance claims contained herein; it is difficult to include all of the occurrences of
attorney errors. Supplementalto the issues mentioned herein, I can provide the Court with multiple other matters which
would qualify for ineffectiveness under Strlcklond.ln particular, I would respectfully request that the Court also evaluate the
ineffectiveness of Mr, Truskoski, my appeals counsel for both for Sentencing and Restitution. The evidence of Mr. Truskoski's
errors is described in the Petition for Panel Rehearing in the Sentencing Appeal Docket and the Motion for Abeyance in the
Restitution Appeal Docket

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failed to present the Affirmative Defenses as mitigating factors. I asked Mr.

Hernandez to correct his filings, but he refused. Mr. Hernandez then resigned, citing
an undisclosed conflict, without following up on the objections. By the time Mr.
Seeger became counsel, approximately six months had passed and I was incarcerated.
I did not see another version of the PSR or discuss it with Mr. Seeger at any time. Mr.

Seeger did'not file additional objections to the PSR or corect the erroneous
objections of Mr. Hernandez. Mr. Seeger also failed, as far as I can assess, to meet
with the Probation Deparlment to discuss objections and thus the Probation
Department likely did not investigate any further or revise the PSR as allowed by F.
R. of Cr. P. 32((3). Although Mr. Seeger objected to the Loss Enhancement at

sentencing and referred to Mr. Hernandez's objections in responses to the Court, he


failed to do so in a documented and effective manner, despite having had almost two
years to meet with the Probation Department and attempt to comply with Rule

32((3). Given the importance of the PSR in the Couft's determination of a sentence
and the independence that the Probation Department has as an officer who works
directly for the Judge, it was substandard to simply ignore the PSR and fail to object
to it in a documented and effective manner. If Mr. Seeger had given me a fair
opportunity to review the PSR and, more importantly, to work in preparing the
objections to the PSR, there is a likelihood that the Probation Department would have
presented a more balanced report to the Court. As it is, the one thing I remember that

struck me about the PSR, from my brief reading in September 2012, was that it

seemed to me like it almost "cloned" the Government's views on loss as expressed in


their submission to the Probation Department - which Mr. Hernandez also showed me
around that time - and did not mention my views on the subject. A comparison of
these documents should bear this reality.

ii. Failure to for the non-Applicabili tv of the Federal Rules o f Evidence to


to t
Mitisatins durins the Phase: In October of 201 4, after the

Government's expert witness, Mr. Brian Ong, had presented his first Affidavit in

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support of the Loss Enhancement, I specifically asked Mr. Seeger if I had a right to

cross-examine (or depose) Mr. Ong as part of the sentencing process. Mr. Seeger
assured me that I would have the right of confrontation during an evidentiary hearing
at sentencing and that said hearing would also allow the defense to present expert
testimony and to scrutinize the evidence. Mr. Seeger failed to clarify that an
evidentiary hearing was a privilege and not a right and that the Court may not grant
one. Wrongly assuming that an evidentiary hearing would be granted and that there
would be ample time to gather the evidence, analyze it and present a defense, Mr.
Seeger failed to then properly present mitigating evidence as part of my sentencing
memorandum and failed to a possible deposition of Mr. Ong prior to
request
sentencing in order to scrutinize his erroneous estimates of loss. Mr. Seeger had
assured me that I would have the chance to analyze all the evidence used by the
Government and Mr. Ong in supporl of their request for a loss enhancement. Mr.
Seeger indicated that he would be filing a motion pursuant to Brady v. Maryland, 373

US 83, 10 L. Ed. 2d215,83 S. Ct. IIg4 - 196320, because he believed, as do I, that


much of the evidence held by the Government and the Receiver was exonerating or
mitigating. Despite my repeated requests, Mr. Seeger failed to request from the
Prosecution key exonerating information with respect to the Loss Enhancement,
including, but not limited to: i) a clear breakdown of the assets which the Receiver
alleges to have recovered and their provenance; ii) a clear breakdown of the valuation
of the Cheyne shares and of certain Private Equity assets and of the processes
whereby they were divested from the Receivership Companies; iii) a detail of the
historical cash flows attributed to PDVSA and its affiliated entities during the
relevant period, including the deductions made by the Receiver under NIM to reach
their allowed amount under the Distribution Plan; iv) expert reports used by the

Receiver in his evaluation of the Venezuelan market and legal applicability to

'o ln Brody,the Supreme Court held that "the suppression by the prosecution of evdence favorable to an accused upon
request violqtes due process where the evdence is moterial either to guilt or punishment, rrespective of the good fath or
bqd aith o the prosecution." Although only peripherally germane to this motion, I would point out for the Court that the
Government refused to share exculpatory evidence after the Restitution hearing and would also pose that the "Prosecution" in
this case should include the SEC and the Receiver, and also be extensive to the evidence they should be able to secure from
PDVSA.

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PDVSA's c1aim21; v) full disclosure and proof of PDVSA's payments in Venezuelan


Bolivars, under the Assignment Agreements that gave rise to its claim rights; and, vi)
the collateral agreements, signed prior to discovery, which directly pledged assets of
the Receivership Companies that were structured through intercompany loans, to
support repayment of investor funds. As the record supports and would be proven
under the slightest evidentiary scrutiny, all of this evidence would have completely
eroded the Government's theory of loss when viewed under an expert's reading of the

Sentencing Guideline instructions (See next point - Failure to Present Expert


Witnesses). In addition, the proper gathering and analyzing of evidence, including
electronic communications that gave light of the true valuation of the Private Equity
assets at Discovery and their relationship to the Asset Verification Letters would have
shed light on the veracity of my revised testimony regarding my initial understanding
of loss. In this manner, all three of the Government's supporting pillars for the Loss
Enhancement would have been in doubt.

iii. Failure to Present Exoert Witnesses to Counteract the Government's of Loss


and the Realitv of the Affirmative Defenses: In preparation for what I thought would
be an evidentiary hearing, I put Mr. Seeger in contact with one of the leading public
credit and financial markets legal experts in Venezuela, Attorney Marco Penaloza.
Attorney Penaloza was for many years the lead counsel at Venezuela's Ministry of
Finance and had developed the legal framework of Venezuela's financial markets,
particularly as it applies Venezuelan Bolivar/U.S. Dollar Arbitrage Transactions that
are key to evaluating the PDVSA Claim in terms of loss calculation. Although Mr.
Seeger secured from Mr. Penaloza responses to a detailed questionnaire which

" At the hearing held in the SEC Case to request the approval of the Receiver's Plan of Distribution, the Receiver misled Judge
Arterton regarding the consideration provided to the Venezuelan market and legal parameters that govern the valuation and
validity of the pDVSA Claim. The evidence that said statements were not accurate was provided several months later by Mr.
Ong's admission at the Restitution Hearing regarding the lack of Venezuelan expertise on the Receiver's team, or the lack of
knowledge of how much PDVSA paid for its claim rights; and also by the fact that when I requested specific information
regarding expert work done on the Venezuela parameters of the claim in order to prepare my Restitution Brief, I was informed
by the prosecution, in no uncertain terms, that "neither the Receiver nor the U,S. Government have any materials referent to
Imy] request" (See Doc 1,90, Appendix A). Effectively, the materials do not exist because the Receiver never did the work
necessary to properly consider the matter, even though he told Judge Arterton in open court that he had, lf Mr. Seeger had
gathered and researched this information as I requested before sentencing, the single most important component of the
Government's loss argument would have been unavailing as supportfor a the Loss Enhancement,

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describes the legal and market reasons that dispute the Receivet's valuation of the
PDVSA claim, Mr. Seeger did not present this important evidence at Sentencing, nor
did he ask Mr. Penaloza to testify in order to counteract Mr. Ong's erroneous
affidavit. As Mr. Ong himself testified months later at the Restitution Hearing,
"without the value of the PD VSA Claim. there is no loss," (See Transcript of
Restitution Hearing, Doc. 187). Mr. Penaloza's testimony and written report
incontrovertibly negates the Receiver's valuation of PDVSA's claim, without which
the Government's theory of loss, according to its own expert witness, falls apart. In
addition, during our preparation for Sentencing, Mr. Seeger asked my parents to
borrow $5,000 to pay a financial accountant and stated that he was also securing the
services of an expert on the Affirmative Defenses to support my evidence of duress
and necessity. Despite being paid, the financial accountant only met with me once
and he never produced any materials and did not testify on my behalf, and neither did
any other witnesses on any other matters.
1V of
Regarding the Affirmative Defenses of Duress and Necessity: As described by Mr.
Hernandez and Probation Ofircer Nicole Owens during a hearing before the Court in
August of 2012,I followed court-mandated psychiatric evaluation and counselling
during several months. Prior to Sentencing, I agreed with Mr. Seeger that the

psychiatrist who treated me, Dr. Campagna, had important insight into my state of
mind during the Relevant Period and that he could testify to the influence that my
situation of duress and necessity had on my actions. To my knowledge, Mr. Seeger
failed to seek out Dr. Campagna or ask him to testify. Dr. Campagna's testimony
would have been important to underpin the mitigating effect of the Affrrmative
Defenses, same as ithad been with respect to the subject matter of the August 2012
hearing.
V Failure to Pronerlv for the Sentencins Hearins. Su Filinss on Time and
)s (( ))
: Overall, the failures presented above

exhibit an unfortunate failure to properly prepare for Sentencing. Despite having


almost two years to mount a defense, Mr. Seeger failed to gather evidence, analyze it

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with expefts, present it in a cogent manner and take steps to dismount the
Government's positions even though the evidence and the judicial record amply
support my positions. Although Mr. Seeger showed he had actually considered all of
my arguments and attempted to craft them into a cogent Sentencing submission, the
fact that the Defendant's Memorandum was submitted eight days late did not allow
for us to reply to the Government's response, particularly as it referred to the
estimations of my alleged "Gain" which ultimately underpinned the Court's
imposition of the Loss Enhancement. The Sentencing Transcript gives credence to the
reality that Mr. Seeger was woefully unprepared for sentencing. Mr. Seeger states at
Sentencing that he ooneeded more time" (despite having had two years and six
continuances), was not able to proffer to the simplest questions from the Court and
had not properly studied the applicability of the Sentencing Guideline instructions
with respect to the Loss Enhancement or the o'Gain" proxy (see What Would Have
Represented Effective Counsel). Moreover, he could not respond to certain premises
that were patently illogical such as the contention that, because the Receiver had
already discounted over 70o/o of the original sworn claims, the other 300/o "must have
been right" and then allowing that argument to stand even though immediately
thereafter an additional 30% of the remaining claims were shown to be erroneous due
to the Cheyne share valuation. Most importantly, because he had failed to gather and
analyze the evidence he failed to present for the Court the signed collateral
agreements from all partners at the Receivership Companies. These signed collateral
agreements entered into in December of 2010, well before Discovery, evidenced that
pledged collateral was backing up the liabilities owed to any clients or investors. He

also failed to present the additional documentation evidencing collateral "otherwise


provided" to PDVSA with respect to the overall value of their expected returns.

36. A review of the evidence, including electronic communications, hearing transcripts and
filings in the judicial record, will show that none of these errors were merely due to a
strategic decision or choice by counsel with respect to the best way to mount a defense.
In all cases, the evidence indicates that these were errors due to poor performance derived

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either from a deficiency in a failure in judgment when


professional competence,
evaluating the defense strategy, or from circumstances dictated by each particular
attorney's caseload or personal circumstances. In particular, as we show further below
(see Legal Basis for the Strickland Performance Prong), there is simply no reason for
any attorney, in any case, to strategically decide to not inform his client of key facts
necessary to make judicial decisions, not scrutinize the prosecution's evidence, not call
expeft witnesses that would undercut the prosecution's case, or not cite applicable
exonerating law or circumstances. V/ithout attempting to cause any personal affront to
the attorneys involved, the fact is that, even if they just made mistakes, or had abad day,
their assistance in my case was legally ineffective from any viewpoint.

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What Would Have Reoresented Effective Assis e of Counsel

37. All cases have specific or particularized issues that affect their development. In this case,
a somewhat complex, cross-border and multi-currency financial mattet, counsel's
performance should be measured by the ability and diligence employed to understand the
key parameters of the financial context and to study, marshal and compile resources that
will allow him or her to mount an effective defense; including applicable statues and
jurisprudence, evidentiary materials; and experl testimony. The following is a brief
summary of the reasonable effort that effective counsel would entail in this parlicular
Criminal Matter. This summary is not exhaustive, nor does it seek to answel all of the
questions or objections the Court may have with respect to whether or not the facts
described herein meet the Strickland tests. Nevertheless, it gives a limited flavor with

which to help determine the reasonable probability that the outcome of this Criminal
Matter would have been different if counsel had met the standard of competence required

under the Strickland Performance Prong.

Pre-Trial anrl Plea Ba Phase : At the inception of this case, competent counsel

should have determined what my risks were in pleading guilty versus going to trial. He
should have studied my views on the financial standing of the Receivership Companies.
He should have determined if they were informed by principles of sentencing loss or by
other premises. He then should have studied the sentencing guidelines with respect to the
Loss Enhancement and discussed the calculation of loss under the guidelines with
someone who had expertise in the matter; then he or she should have sat down with me
and explained what factors dictated loss in order to determine if there really was a loss

and what my true sentencing exposure was. Competent counsel would also have studied
the applicabitity of jurisprudence to the validity and valuation of the estimated PDVSA
Claim and evaluated the strength of a defense at trial that was based on a full and fair
opporlunity to litigate the Affirmative Defenses by a preponderance standard to a jury of
my peers. Depending on the results of this preliminary analysis, and without
consideration of the financial restrictions faced by going to trial instead of pleading
guilty, counsel would have helped me make an informed, knowing and intelligent
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decision regarding whether to plead guilty or proceed to trial based on the law and on all
the information available. Finally, if it was decided that pleading guilty was the preferred
course of action, competent counsel would have sought an agreement with the

Government that minimized, inasmuch as possible, the sentencing exposure of the plea.

Sentencinq Phase: With respect to the Sentencing Phase, counsel should have started by
gathering the evidence necessary to contest the Prosecution's case. The Government had

submitted an initial estimate of loss from the Receiver to the Probation Department and
Defense counsel in October of 2013; atthal time, competent counsel would have filed a
Brady motion or other type of evidentiary request asking for the various evidentiary
materials discussed above and including, but not limited to: i) the Pledged Collateral
Agreements; ii) a List of Alleged Receiver Recoveries and their Provenance; iii) a Lbl-Af
Cash Flows for PDVSA and all of its affiliates: iv ) the Foundational Documents.
Indentures" B v-Laws and Offerine of the Recei n Comnanies to
undermine the allegations of misappropriation; v) the Disclosure of the method of
payment used by PDVSA to acquire their claim rishts and any repofis of consultation

with Venezuelan expefts which would have dispelled the Receiver and Mr. Ong's
testimony; and, vi) the lof ue of the to confirm
the overvaluation of the PDVSA claim in that regard, allowing also to dispel the
Prosecution's proposition that Mr. Ong's affidavit "must be right" because the Receiver
already reduced the claims by more than seventy percent.

Competent counsel would have also studied jurisprudence to undermine the value of
PDVSA's claim including the Second Circuit precedent in Republic of Iraq v. ABB et al.

- 920 F, Supp ,2nd Circuit, 2014, which states that "Sovereigns,.,..cannot escape
2d 517

the consequences of ther representatives' governmentl misconduct;" and would have


reviewed cases such as U.S. v. Goss,54g F.3d 1013 - 5'h Cir. 2008 or U.S. v. Turk, 626
F. 3d 743 - 2"d Cir. 2010, which underpin my views on collateral pledged or otherwise
provided not being limited to collateral directly pledged by the defendant. In connection
with this analysis, competent counsel would have consulted the Sentencing Guidelines
Handbook: T and Analvsis. Roser Vy'. ines- .Tr. et a1.- which is used as a tool of

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guidelines interpretation by multiple circuits across the country. At sentencing, when

questioned by the Court, competent counsel could have presented the pledged collateral

agreements he would have secured via the Brady motion, and also could have cited from
the 5tr' Circuit's decision in Goss, which states that"the government might &rgue tht a
ctefenclnt s not enttled to credt for pledgecl collateral unless he himself ws the
pleclger of the colluteral. However, ths interpretaton of the Applction Note t3l(E)(i)
woulcl be contrary to...,the Commisson's generally stted net loss approach, nd to
common sense." Handbook at 330.

Armed with this evidence and jurisprudence, a competent attorney would have selected
the experts with respect to the Affirmative Defenses, the Venezuelan Legal and Market
Framework, the doctrines of Unclean Hands22 and In Pari Delicto and the interpretation
of the Sentencing Guidelines. He or she would have presented for the Courl and for the
Probation Department a cogent, supported pleading requesting an Evidentiary Hearing,
well before the sentencing date; or alternatively, would have requested the approval from
the Court to have witnesses supply expert reports and testify at sentencing. Even if
denied by the Court, he would have submitted the expert reports and the copies of the
evidentiary materials with the Sentencing submission and he would have worked with the
experts to supplement his own understanding of the case. Moreover, armed with the

evidence and the expert opinions, he would have requested from the Court authority to
depose Mr. Ong before sentencing or to cross-examine him at Sentencing. Moreover, in
preparation for sentencing, competent counsel would have used all of these materials,
reports and jurisprudence to present a detailed objection with respect to the PSR,
promoting compliance by the Probation Department of the mandate of F. R. of Cr. P. 32.
Finally, at sentencing (or if granted, at the Evidentiary Hearing), competent counsel

would have anticipated that there would be debate over the interpretation of the

" Euid.n.. of pDVSA's Unclean Hands in the claims process is not in dispute. An expert on the matter would have shown for
the Court that it drectly affects pDVSA's claim validity and thus fully erodes loss in this case under the Supreme Court's long-
standing maxim that "the doctrine of tJnclean Hands is for more thdn a mere banality. lt is o self'mposed ordinonce thot
closes the doors of equity to one tainted with inequitobleness or bod fath relqtve to the mdtter n which he seeks relief,
however improper may hve been the behovior of the Defendont," - Precision lnstrument Mfg. Co. v' Automotive
Maintenance Machinerv Gg., 324 U'S. 806, 8L4-15, 65 S. Ct. 993, 89 L. Ed, 1381 - 1945'

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guidelines credits against loss. After thoroughly researching each item with the
jurisprudence and sources cited, and relying on a Guidelines Expert, competent counsel
would have presented the defendant's position under the light of the Rule of Lenity,
which requires interpreters to resolve ambiguity in criminal laws in favor of the

defendants. A thorough review of the Handbook and the consultation of the expert on the
Guidelines would also have allowed competent counsel to better underpin the defense
regarding key concepts, apart from the collateral issue, such as defendant's gain, services
23.
rendered, proximate loss causation and money returned Particularly regarding this last

concept, a guidelines.expert could have shed light on error of the Prosecution's view that
I had not "returned" money to the clients of the Receivership Companies. A guidelines

expert would have testified that the funds returned to PDVSA during the relevant period,
were in fact "money returned" and subject to netting under the guidelines and the
Receiver's NIM. A guidelines expefi would also have testified that because the funds
and assets were in the Receivership Companies at Discovery and before the Receiver was
oorecover" any assets. Before the Receiver was
appointed, the Receiver in fact did not
appointed, the assets were in the books of the Receivership Companies for the benefit of
the clients and counterparlies; and after the Receiver was appointed the situation was
exactly the same. At all times, the assets were in the possession, name and benefit of the
clients and counterparties that became the claimants. An expeft would have underlined
that the Prosecution's view defied common sense because it would require every bank

and investment company to shut down and return its depositor or client's money in order
to avoid being looked at as having caused a loss under guideline standards. The assets in
the Receivership Companies that were needed to cover all principal amounts legally and
validly owed were not lost, or dissipated or transferred to someone else's ownership. An

23
Research into these areas would haVe uncovered additional avenues of defense such as the various circuit decisions that
establish thal"volue moy be rendered even omd lroudulent conduct," - U.5. v. Savakhom, 186 F, 3d 928, 946
* gth Cir. 1999'
ln U.S. v. Maurello ,76t.3d 1304 - 3rd Cir. 1996, the Third Circuit examined the guidelines as applied to an analogous situation
a nd cautioned that "to the extent thqt the unouthorzed services provided by defendant hove not hormed their
recipients, but
to the contrqry hove benelited them, we conclude thot defendont's base offense level should not be enhanced." ln the case of
pDVSA's claim, the undisputed factthatthey received gainstotaling more than 5600 million duringthe relevant period, an
amount that dwarfs the allowed value of their claim, was not taken into account by the Receiver under the NlM, or by the Court
at sentencing, ln this latter instance it was directly because Mr. Seeger had not requested and presented the proper
documentary proof of those gains, Even if one were to use only the statutory fund fees to account for the value of services
rendered, the reductions to Mr. ong's alleged loss amount would be significant.

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expert would have testified, in view of the documentary evidence that they were, at all
times, in the ultimate name of the eventual claimants and thus available to be distributed
before Sentencing, sure evidence of zero loss under the guidelines in a case such as this
one in which the Court based itself on the concept of actual loss.

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Leeal Basis for Relief under the Strickland Perforltance Ptong

38. Having examined both the actual performance of counsel throughout this case and some
of the things that competent counsel would have done better (or have done at all), we can
analyze the legal basis for relief under the Strickland Performance Prong. The errors

detailed above, particularly when compared to what competent counsel would have
accomplished, paint an indisputable picture of ineffective assistance of counsel. Multiple
Supreme Court and Circuit precedents have historically recognized compliance with the
Strickland Performance Prong with just one factor that shows ineffectiveness. In this
case we have listed several key areas in which attorneys failed to achieve a reasonable
level of competence. The jurisprudence on this matter is vast and supports multiple
avenues of discourse. In the interest of brevity, I cite only some of the key aspects of
support for this particular case.
39. With respect to the right to effective counsel in the Pre-Trial or Plea Bargaining phase, it
was established most prominently in Hill v. Lockhart, 414 U.S. 52, 106 S. Ct. 366, 88 L.

Fd. 2d 203 - 1985, in which the Supreme Court set forth that claims of ineffective
assistance of counsel could be applied to the plea bargain context. More recently, in
Padilla the Supreme Court thoroughly discussed the duties of counsel in advising a client
with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea,

based on a plea offer, should be set aside because counsel misinformed the defendant
about the immigration consequences of the conviction, even though it was clear that
immigration consequences were collateral and not di . In addition,
Paditla stated that"the negotton of plea bargain is u criticuf'stage for ineffective-
assistance purposes, and kno and vol
supersedes counsel's errors - Padilla as referred to in Missouri v. Fr)'e, 566 US,
132 S. Ct., 176 L. Ed. 2d284-2010.
40. In Frye, with respect to this critical importance of effective counsel during the plea
process, the Supreme Court pointed out the "smple reality thut 97 percent of federal

convictions nd 94 percent of state convctons re the result of guilty ples. Ple


bargains hve become so central to today's criminal justce system tht defense counsel

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must meet responsblites n the plea brgn process to render the dequate assstnce
of counsel that the Sixth Amendment requres at crtical stages of tlte crminal
process."
41. Having established that the pleading phase of a criminal trial requires effective assistance
of counsel, the legal basis to establish that counsel in this matter did not meet the
Strickland Performance Prong can be derived from multiple Supreme Court precedents.
As far back as Johnson v. Zerbst,82L.Fd. 146I-304 US 458-469 - 1938 the Supreme

Court held that "court's must indulge every resonble presumption ginst wiver of
fundamentl constitutional rigltts." Since then, the Supreme Court has been
"unyelding in [itsJ nstence thut il defendant's waver of his tral rgltts cnnot be
given effect unless it is 'knowing' nd 'intelligent'." - Illinois v. Rodriguez, 497 US 177 ,

11 1 - 1990. In Schneckloth v. Bustamonte , 412 US 218,


L. Ed. 2d 148, 1 10 S. Ct. 2793
36 L, Ed. 2d 854, 93 S. Ct. 2041 - 1973, the Supreme Court noted thal l'the Zerbst
requrement had been applied to the 'waiver of trl rghts n trial-type situations' and
to gulty pleas, whch [itJ sid must be 'crefully scrutnized to determine whether the
ccused knew and understood all the rights to whiclt he would be entitled at trl'."
42,For a plea to be knowing and voluntary, the Supreme Court set forth in McCarthy v.

United States, 394 US 459,466,22L. Ed. 2d 418, 89 S. Ct. 1166 - 1969 that a plea
"cflnnot be truly voluntary unless the defendnt possesses un understandng of the law
n reltion to the facts." In my case, I did not have an understanding of the law in
relation to the facts of the case inasmuch as I was not aware of the exculpatory effects of
the Affirmative Defenses and I did not know what was legally considered loss and how
the Government's a Loss Enhancement could affect my sentence.
43. Additionally,pleasarewaiversofconstitutionalrightswhichBradyv.U.S.,39TUST42,
25 L.F,d.2d747,90.S. Ct. 1463 - 1970, states "not only must be voluntry, but must be

knowing, ntelligent cts done wth sufJicent awureness of the relevant circumstunces
nd likely consequences." In Brady v. US., the Supreme Court also clarified that for a
plea to be knowing and voluntary, the defendant must be'fully awre of [tsJdirect
consequences." Although the Supreme Court does not appear to have clearly defined
which consequences of a guilty plea are direct and which are collateral, the Second

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Circuit has explained in Wilson v. McGinnis, 413 F. 3d 196 - 2"d Cir. 2005 that "direct
consequences" ate those that have a "deJinite, immedte and lrgely aatomatc effect
on the rnge of defendnt's punishment."
44. Second Circuit case law also confirms that counsel has a professional obligation to
adequately inform a client about the considerations that are relevant to his or her decision
to accept or deny a plea bargain. The Second Circuit recognized in Boria v. Keane, 99 F.
o'the decson whetlter to plecl guky or contest
3d 492, 496-97 - 2rrd Cir. 1996 that

crmnl charge is ordnarily the most importnt single decson in crimnal


case,...[ndJ counsel must give the clent the benefic of counsel's professionl ctclvice
on ths cruceil clecon," In this context, in U.S. v. Gordon, 156 F. 3d376,280 -znd
Cir. 1998, the Second Circuit affirmed the district court's finding of ineffective

assistance, ruling that counsel's performance fell below an objective standard of

reasonableness because, when advising his client about whether to accept a proposed
oogrossly
plea, counsel - as Mr. Gleason did in my case - underestimted defendant's
potentul sentencing exposure." The Second Circuit acknowledged that this was an error
that related to a"key consicleratonfor a defendant n mking an informed decision",
stating that "knowledge of the comprative sentence exposute between standing trial
nd cceptng plea offer wll often be crucl to the decision whether to pled guilty"

- Gordon, as cluoted in United States v. Day, 969 F. 2d 39, 43 - 3rd Cft. 1992. In my
case, Attorney Gleason's failure to properly advise me of the sentencing exposure I faced
when pleading guilty made it impossible for me to enter a knowing, intelligent and
voluntary plea. As I detail further below (see Strickland Prejudice Prong), if I had been
aware of its sentencing consequences, I would not have entered a plea of guilty.
45. V/ith respect to the Post-Plea or Sentencing Phase, legal precedents support findings of
ineffective counsel with respect to all of the errors listed above, Most notably, in a case
that also applies here to the Pre-Plea Phase described above, I would cite Supreme Court
precedent in Hinton v. Alabama, 188 L Ed 2d I, 134 S. Ct. 1081 - 2014 ("an attorney's
ignorance of fundamental to hs cse combned with h falure to
point of law that is

perform berc reserch on tht point is quntessential exumple of unresonable


performance under Stricklnd'). Other Supreme Court precedent is also applicable

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herein, including Porter v. McCollum, 558 US, 130 S. Ct. 175 L. Ed. 2d 398 - 2009
(o'counsel ignored pertnent avenues for nvestigton of whiclt he should hve been
awre"); and Wiggins v. Smith, 539 US 510, 156 L. Ed. 2d 471, 123 S. Ct.2527 -2003
as quoted in Porter ("counsel fell sltort of professional standsrds for not expnding
ther investgation beyond the presentence investigaton und flmitedJ records").
Second Circuit precedent includes Gersten v. Senkowski, 426 F. 3d 588 - 2nd Cir. 2005
("Counsel's ewors resulted in counsel foregoing presentton of evdence tltat would
hve cast serious doubt on the vercity of tlte alleged vctim's testimony n ts

entrety"); and Lindstadt v. Keane,23gF.3d 191 ;2"d Cir.200I, which cites various

cases that constitute ineffectiveness, including V/illiams v. Washington, 59 F 3d 673,


679-682 - 7th Cir. 1995 ('fture to nvestgate ancl present mitigting evclence tlurng
sentencng hearing constituted neffective ssistnce"); Knott v. Mabry, 671 F . 2d 1.208,
I2l2-I3 - 8th Cir. 1982 ("counsel,..,.ineffectve for flng to consuh n expert where
'there s substntial contrdcton in a gven urea of expertise or where counsel is not
sufficently versed in techncal subject matter") and U.S. v. Tucker, 716 F . 2d 516,
579-586,595 - 9'l' Cir. 1983 (*n a complexfraud case, it shoulcl have been obvious to a
competent lawyer that tlte assstnce of n accountant wos necessry").
46. Even if this Court were to individually assess that one factor or another is not strong
enough to fully overcome the Strickland Performance Prong standard on its own, the

Second Circuit has stated in Lindstadt that a Court "need not decde whether one or
nother or less than ull of [the eruors] would suffice becuse Strcklnd directs [courtsJ
to look t the 'totlity of the evdence before the judge or jury,' keepng n mincl thctt
some errors have.,.,. pervsve effect on the nferences to be drwnform the eviclence,
ltering the entre evidentary pcture." In Lindstadt, the Second Circuit goes on to state
that it "therefore consders the emors n the aggregte." The Circuit panel then cites
various precedents from its own cases and other circuits to support this position. These
include Moore v. Johnson , Ig4 F.3d 586, 619 - 5th Cir. 1999 ("holcting that court shoulcl

exumne cumulcttive effect of enors committed by counsel ucross both the tril and
sentencing" phases); Stouffer v. Reynolds, 168 F.3d 1155, 1163-64 - 10th Cir. 1999
("tken lone, no one nstnce estoblishes deJicient representation, However,

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cumulutively, each failure underscores a fundamental lck of formulation and


rlrection n presenting coherent defense"); and Rodriguez v. Hoke ,928 F.2d 534, 538

- Cir. 1991 (noting that since the defendant's "clum of ineffectve ussstance of
2nd

counsel can turn on the cumulatve effect of all of counsel's actions, ll lts allegatons
of neffectve assstance should be reviewed togetlter")'

47 .Inthe present case, when considering my claim of Ineffective Assistance of Counsel from
the standpoint of the Stdckland Performance Prong, I would ask the Court to consider all
these cases when evaluating the fact that the failures of my various attorneys. As stated

above, these failures to inform me of the consequences of my plea; determine the

applicability of Affirmative Defenses at trial; consult experts; conduct relevant research;


and request copies of the evidence relied on by the prosecution, among many others, were

surefire signs of performance that fell well below reasonable standards of professional
competence.

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The Strickland Preudice Prong

48. Having established the factual and legal basis required under the Strickland Performance
Prong, we can turn our attention to the Strickland Prejudice Prong.

49.In order to satisfy the prejudice prong with respect to a claim focusing on a plea of guilty,
ooa
Hill states that defendnt must show resonable probablity tltat, but for counsel's
erroFs, he would not have pleded guilty and would hve insisted in going to trL,"
Recently, the Supreme Courl appears to have broadened this standard in Frye, indicating
thato'to estublsh prejudce it is necessry to show resonble probability tht the end
result of the crmnl process would hewe been more fuvorble by reuson of a ple to
lesser clrrge." In Kovacs, the Second Circuit has echoed this Frye standard by
considering the immigration consequences of a plea. Kovacs states that prejudice occurs
if it is shown that "but for counsel's unprofessionul eruors, there was resonble
probblity tht the petitoner could hve negotled a ple tht dd not mpact his
immigrton status otr tht he would hve litigatecl an vailable clefense."

50. As I have mentioned above, the facts and the judicial record in this case indicate that I

was not aware of the direct consequences of my plea and of the Affirmative Defenses I
could have litigated to exonerate me from the allegations. If I had been aware of these
legal realities, particularly my sentencing exposure to life in prison versus the "six
months" in jail indicated by Mr. Gleason, I would have chosen to go to trial. The
Supreme Court has recognized in Blackledge, basing itself on various precedents, that,
"although the ple or sentencng proceeding record constitutes aformidable brrier to
collaterl attack on a guilty ple, that brrier is not insurmountuble, nd in
dminsterng the writ of hbe&s corpus,federal courts cannotftrrly dopt a per se rule

excludng all possblity tht a defendant's representtions at the time of hs guilty plea
were so much the product of suclt fctors as msunderstnding, duress, or
msrepresenttion by others as to mke tht plea consttutionally nadequte for basis

of mprsonment." Blackledge goes on to state that, when a defendant's post plea


declarations, such as my multiple statements in this case, are not'opalpably incredble" or

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"ptently frvolous or false," they must be scrutinized and not denied credence if they
o'ndicate exactly wht the terms
[of the msdormtonJ wete, s well as when and by
whom it httd been made."

51. In my case, the record is at least mute as to whether there was any information provided
regarding my sentencing guideline exposure to the Loss Enhancement, an error that the
Supreme Court has considered meritorious of invalidating a plea; Boykin v. Alabama,
395 US 238,23 L.8d.2d274,89 S. Ct. 1709 -1969 (itwas'oreversble eruor.,..where
the record did not disclose that the defendant voluntrly nd understandingly enterecf'
a plea). Although this Court may consider that it informed me of the maximum sentence

I could face and this would be a way of curing the failure of Mr. Gleason and others to
inform me of my plea's sentencing exposure, the Supreme Court in Freeman v. U.S., 564
US, 131 s. Ct, 180 L. Ed. 2d 519 - 201 1 echoes other precedent in stating that "normally,
judge will use the Gudelnes rnge as the starting point in tlte analyss ncl mpose a

sentence wthin tlte rnge." A broad body of Supreme Court and Second Circuit
jurisprudence on this subject, some cited herein, suggests that, for purposes of Rule 11

compliance in terms of a plea of guilty, a defendant should have full, intelligent


knowledge and understanding of the true sentencing exposure with respect to his
wrongdoing from a Guidelines standpoint. Otherwise, if every defendant thought that he
would receive the maximum penalty in consecutive sentences for his offense, the plea
bargaining process ahd its benefits to the administration of justice would be rendered
dead on arrival.

52. The Second Circuit has in fact set a stringent threshold to meet the Strickland Prejudice
Prong for guilty plea challenges. This case meets that standard on all points. In U.S. v.
Arteca, 411 F. 3d 31 5,320 - 2nd Cir. 2005, the Second Circuit reaffirmed four factors to
be considered by the courts in determining whether a defendant would have proceeded to
trial rather than plead guilty: a) weather the defendant knew that the advice he was
receiving was incorrect; b) whether pleading guilty provided a benefit in sentencing; c)
whether the defendant advanced any basis for doubting the strength of the government's
case; and, d) whether the government would have been free to prosecute the defendant on

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counts in addition to those he pleaded guilty. In my case, none of these issues preclude
vacating my plea because: a) I could not have reasonably known, given my lack of legal
training and my status as a first-time defendant, that the information Mr. Gleason
provided was wrong; b) the Loss Enhancement sought by the government led to a

guideline range of life in prison irrespective of whether I received the three-level benefit
of voluntary disclosure and acceptance of responsibility, and there was no guarantee that
the cooperation with the Receiver would be beneficial at sentencing; c) the government's
evidence and case would have rested fully on the inextricably intertwined SEC Case,
which, in turn would not have progressed without a trial if I had not pleaded guilty; and
d) even if the government had brought additional charges, they would still have been with
a lower base level and any sentencing enhancements derived thereof would have still
been outstripped by the proposed, erroneous Loss Enhancement. Finally, if the ultimate

dispute had been over versions of the Loss Enhancement, there is a likelihood that the
Government would not have offered a plea at all, and the process would have led to a
trial, irrespective of other factors. In those circumstances, common sense would indicate
that there is no plausible reason why any defendant, facing life in prison by pleading
guilty versus life in prison by going to trial, would chose not to go to trial and litigate all
of his available defenses, before a jury of his peers, under the protections of the beyond a

reasonable doubt standard.

53. V/ith respect to a claim of ineffective assistance at sentencing, the defendant must show a
reasonable probability that, but for counsel's substandard performance, he would have
receivedaless severe sentence. InGloverv. U.S.,531US 198, 148 L. Ed 2d604,121 S.

Ct. 696 - 2001 the Supreme Court clarified that "utltorty does not suggest tht ct

mnimul amount of ddtonal time in prson cannot constitute prejudce, Quite to the
contrry, our jurisprudence suggests tht any amount of ctual iail time has Sixth
Amenclment sgnficnce." In my case, I was sentenced to at least eleven years of
additional jail time that, but for counsel's ineffectiveness, would not have been warranted
under the guidelines. Although the Court might feel that it would have imposed the same
sentence irrespective of the Guidelines range that would have resulted if the Loss

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Enhancement had not been applied, that would have opened appellate avenues to attack
the sentence because of reasonableness standards. At Sentencing, this Court imposed a

sentence below the guidelines it had calculated. It is unlikely that an upward depafture of
eleven years, once the Loss Enhancement had been disproven would have been the
outcome of a fair and thorough sentencing process in which I had been advised by
competent counsel.

54. In summary, the ineffectiveness of counsel in these proceedings, from their inception or
pretrial phase to the ongoing sentencing and post-conviction phase, forged defective and
prejudicial outcome that does not reflect the principles embodied in the constitutional
right to a fair trial that should be accorded to a defendant under the protections of the
Sixth Amendment.

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Concluding Statements and Request for Relief


55. The foregoing has attempted to paint as clear a picture as possible of the multiple
constitutional errors that have plagued the Criminal Matter. Although derived from the
TRO in the inextricably intertwined civil case, my assets were placed under a pretrial
restraint in violation of the Supreme Court's mandate in Luis, This pretrial fteeze
precluded me from selecting and retaining counsel of my choice to represent me in this
Criminal Matter. The Supreme Courl has now indisputably determined that this is a

structural error that merits immediate reversal of a conviction, without the court being
allowed to subject the merits of said reversal to Harmless Error Analysis. Furthermore,
the subsequent effects of substandard and ineffective representation by counsel who was
not of my choice, both at the pretrial or pre-plea as well as sentencing phases of the
litigation, further eroded my constitutional rights and eliminated any reasonable

possibility that the trial could proceed in a fair and just manner.

56. Whereby, in light of the foregoing and taking into account all of the circumstances and
I respectfully request that the Court grant this motion and
legal basis described herein,
issue an Order vacating my constitutionally-defective Judgment of Conviction and
Sentence in compliance with the mandate of 28 U.S.C. 2255.

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I hereby certify, under penalty of perjury, that all of the personal statements contained herein are

true and correct to the best of my recollection, understanding and belief as of this date. The
present document was given at Fairton on November 8, 2016.

Francisco Illarramendi, Pro-se


Federal Reg ID: 20402-014
FCI - Fairton Camp
Post Office Box 420
Fairton, NJ 08320

CERTIFICATE OF SERVICE

I, Francisco Illarramendi, hereby certify that on 11 / 8 I 16 the foregoing was served by


United States First Class Mail on all parties to the litigation (if any) that do not receive
notification from the Court's Electronic Notification System'

Francisco Illarrarnendi, Pro Se

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Appendix A: Responses to Various Form 1

Questions

The following responds to questions raised in Form 1 that are not addressed

directly in other portions of this filing:

1 . In response specifically to Question 13 on Form 1, I have not yet presented

as an appeal any of the grounds in this motion before any federal court. I

have not filed any other Habeas or indirect appeals motions, petitions or

applications concerning this judgment of conviction in any coutl. There

have been no post-conviction proceedings regarding any of the Grounds for

Relief presented herein; all of the Grounds for Relief are being raised for the

first time. In the case of Ground for Relief I this is because its main basis is

an intervening Supreme Court decision. In the case of Ground for Relief II

the issues were not raised on Direct Appeal because appeals counsel stated

by email they had to be raised indirectly under a motion pursuant to 28

U.S.C. 2255. To my knowledge, as of this date, there have been no hearings

or any type of evidentiary review of any of the facts presented herein or any

other evaluation by any court of the merits or basis for either of the Grounds

for Relief.
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2. In response specifically to Question 14 on Form 1, the only appeal currently

pending in relation to the Judgment of Conviction is the above-mentioned

appeal of the Court's Restitution Order. At present, a petition for Certiorari

to the Supreme Court has not been filed in the sentencing appeal, in order to

allow the District Court to resolve the merits of this motion, as it is partially

based on an intervening Supreme Court decision that has direct applicability

to this case.

3. In response to Questions 16 and 17 onForm 1,I was sentenced on the same

day on all the Counts of Conviction. The Judgment of Conviction was based

on a Government Information and derived from my Guilty Plea. I do not

have any other sentence to serve or complete for the judgment I am

challenging. I do not have any prior convictions.