Ketabchi v. United States

Background

Shahram Ketabchi, also known as Steven Ketabchi, moved under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence based on a constitutional violation. He sought to vacate his convictions after a jury trial for conspiracy to commit wire fraud and conspiracy to commit money laundering. The Second Circuit had affirmed the convictions in October 2020.

Ketabchi argued that his trial counsel was constitutionally ineffective. He claimed that, without counsel’s alleged errors, he would not have been convicted or the court would have granted a judgment of acquittal after trial under Federal Rule of Criminal Procedure 29.

Legal standard

The court applied the two-part test from Strickland v. Washington. Ketabchi had to show both that counsel’s performance fell below an objective standard of reasonableness and that there was a reasonable probability that the alleged errors changed the proceeding’s result. The court emphasized that counsel’s performance receives substantial deference, including a strong presumption that counsel’s choices fall within the range of reasonable professional assistance.

The court also explained that a hearing is required only when the motion and case records do not conclusively show that the prisoner is entitled to no relief. General or unsupported allegations do not require a hearing.

Trial evidence

The court described the government’s evidence as substantial. It included testimony from ten witnesses and more than 300 exhibits, including communications between Ketabchi and his brother and co-conspirator, complaints from fraud victims, records involving chargebacks and sales, financial records, and telemarketing scripts. The court cited evidence that Ketabchi knew customers had been deceived, including evidence that he received complaints from defrauded victims.

Claims of ineffective assistance

Personality-disorder evidence

The court rejected Ketabchi’s claim that counsel should have investigated and presented evidence about his alleged personality disorder and its effect on his mental state. The court credited trial co-counsel Jacob Mitchell’s declaration that the defense knew about Ketabchi’s mental-health issues and made a carefully considered strategic decision not to present them to the jury.

The court also stated that expert testimony might not have been admissible because it could have improperly addressed the ultimate question of whether Ketabchi had the mental state required for the crimes. In any event, the court found that evidence of the diagnosis would not have affected the verdict. Thus, Ketabchi could not show the prejudice required by Strickland.

Ketabchi’s role in chargebacks

The court rejected Ketabchi’s claim that counsel failed to investigate and present evidence showing that his role in handling chargebacks was limited. The court found that counsel understood Ketabchi’s position, made reasonable efforts to investigate his role, and presented evidence and argument that his role was limited.

The defense also called Michael Finocchiaro, whom counsel believed could help distinguish Ketabchi’s conduct and knowledge from those of a more active participant. The court found that counsel followed through on that strategy. It further found that presenting Ketabchi differently or not calling Finocchiaro would not have changed the verdict, so Ketabchi could not establish prejudice.

Prosecution narratives

The court rejected Ketabchi’s claim that counsel failed to investigate and rebut harmful prosecution narratives. The court found that counsel interviewed Ketabchi extensively, Ketabchi testified about his activities, and the defense presented witnesses as part of its effort to challenge the government’s account.

The court found reasonable counsel’s decision not to question Ketabchi’s sister about a photograph that included Ketabchi and a co-conspirator, because doing so might have highlighted the photograph for the jury. The court found no evidence that the defense strategy was unreasonable. It added that even if counsel had made an error, the error would not have affected the verdict because the jury would almost certainly still have found Ketabchi guilty.

Post-verdict motions

The court rejected Ketabchi’s claim that counsel was ineffective for not renewing a Rule 29 motion for acquittal or filing a Rule 33 motion for a new trial, and for not seeking more time to file those motions. Counsel had already moved for acquittal after the government rested, and the court denied that motion after considering the issues. At the end of trial, the court set a 30-day deadline for renewed motions.

The court credited Mitchell’s declaration that counsel made a considered decision not to file or seek extensions for those motions because counsel could identify no potentially meritorious ground. The court agreed that the evidence of guilt was not insufficient and found that Ketabchi suffered no prejudice from counsel’s decision.

Disposition

The court denied Ketabchi’s § 2255 motion. It found that the motion, files, and case records conclusively showed that he was not entitled to relief, so no hearing was necessary. Because Ketabchi had not made a substantial showing that a constitutional right was denied, the court stated that a certificate of appealability would not issue. The court also certified that any appeal from the order would not be taken in good faith.