Moslem v. United States

Background

Mehdi Moslem and Saaed Moslem jointly moved under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence, to vacate their convictions and sentences. After a three-week trial, both defendants had been convicted of conspiracy to defraud the Internal Revenue Service and conspiracy to commit bank fraud. Saaed Moslem also had been convicted of making false statements to a lender, bank fraud, bankruptcy fraud, and aggravated identity theft. Mehdi Moslem was sentenced principally to 40 months’ imprisonment, and Saaed Moslem was sentenced principally to 96 months’ imprisonment.

The petition raised claims involving alleged ineffective assistance of counsel, inaccurate tax-loss calculations at sentencing, and the denial of counsel during Saaed Moslem’s sentencing proceedings. The petitioners later moved to amend the petition to add claims that counsel should have questioned accountant Stephen Strauhs about continuing to practice after committing crimes and should have objected to unsigned tax returns and recordings made by Strauhs. The court granted the motion to amend.

Claims Not Decided in This Order

The petitioners’ direct appeals were pending in the U.S. Court of Appeals for the Second Circuit. The court declined to address the claims about the tax-loss calculation and the reappointment of counsel because those claims were also being presented on direct appeal and could be resolved from the appellate record.

The court likewise did not decide the ineffective-assistance claims based on counsel’s failure to object to unsigned tax returns and consensual recordings. The appellate court’s decision about whether those exhibits were properly admitted could determine whether those ineffective-assistance claims could succeed. The court held these remaining claims in abeyance and stated that it would address them after the Second Circuit’s decision if the appeals did not resolve them.

Grand-Jury-Misconduct Claim

The petitioners argued that counsel should have moved to dismiss the indictment because the Government allegedly misled the grand jury into treating Strauhs as a coconspirator through 2016, even though he began cooperating with the Government in October 2012. They argued that Strauhs’s cooperation ended the conspiracy and created statute-of-limitations problems.

The court rejected the claim. It found that the petitioners had not shown that the Government told the grand jury that Strauhs remained a coconspirator through 2016 or failed to tell the grand jury that he began cooperating in 2012. The grand-jury minutes showed that the grand jury was informed of Strauhs’s cooperation. The court also held that Strauhs’s withdrawal did not end the conspiracy because Mehdi Moslem and Saaed Moslem continued to conspire with each other. A government informant’s presence does not destroy a conspiracy involving at least two other private individuals.

The court concluded that a motion to dismiss the indictment on this ground would have been denied. Because counsel is not ineffective for failing to make a meritless motion, and because the petitioners could not show prejudice, the claim failed. The court also noted that counsel could reasonably have decided not to pursue a rarely successful motion to dismiss an indictment based on grand-jury defects.

Cross-Examination Claim

The petitioners argued that counsel should have questioned Strauhs about allegedly lying on an application to renew his Certified Public Accountant license by denying that he had been convicted of a crime. The court held that decisions about the scope and manner of cross-examination are generally strategic decisions entitled to substantial deference.

The court found that counsel had already questioned Strauhs about failing to report his conviction to the licensing authority. The jury also knew about Strauhs’s guilty pleas, cooperation, motives, other fraudulent conduct, and false statements. The court concluded that the additional information would have been cumulative impeachment and that, given the substantial impeachment and independent evidence of guilt, the petitioners had not shown a reasonable probability of a different trial result.

Disposition

The court denied the petition insofar as it alleged ineffective assistance based on counsel’s failure to move to dismiss for grand-jury prosecutorial misconduct and failure to cross-examine Strauhs about false statements in his license-renewal application. The remaining claims were held in abeyance pending the direct appeals. The court also stated that no certificate of appealability would issue for the decided claims because the petitioners had not made a substantial showing that a constitutional right was denied.