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United States v. Alatrash

United States District Court, Sixth Circuit

September 23, 2013

United States of America, Plaintiff,
v.
Faisal Alatrash, Defendant.

Memorandum of Opinion and Order

PATRICIA A. GAUGHAN, District Judge.

INTRODUCTION

This matter is before the Court upon defendant Faisal Alatrash's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 148). For the following reasons the motion is DENIED.

FACTS

Defendant, Faisal Alatrash, was convicted by a jury of various counts in connection with his role in a bribery scheme while acting as Project Manager for the Greater Cleveland Regional Transit Authority. Defendant appealed to the Sixth Circuit, which affirmed his convictions in all respects. Defendant now moves for collateral review on the grounds that his counsel was ineffective both at the trial and appellate stages. Each argument will be addressed in turn.

ANALYSIS

In order to succeed in establishing ineffective assistance of counsel, petitioner must demonstrate that "(1) his attorney's performance was outside the range of competence demanded of attorneys in the criminal context, and (2) the professionally unreasonable performance prejudiced him." Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998). Judicial scrutiny of attorney performance is highly deferential and "a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Strickland v. Washington, 466 U.S. 668, 689 (1984). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. In other words, "defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. Thus, only "strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent deny a criminal defendant the effective assistance of counsel." United States v. Medved, 905 F.2d 935, 942 (6th Cir. 1990)(citations and quotations omitted).

1. Adequacy of investigation

Defendant argues that counsel was ineffective in failing to interview all of the potential defense witnesses. According to defendant, his attorney did not interview: Joe Calabrese, Michael Cuddy, Dale Griffis, Emmanel Hazidrosos, Will Rivera, Waheed Tadross, Michael Vitt, and Randy Young. As an initial matter, it appears that defendant is incorrect with respect to at least two of these witnesses. Defendant's own affidavit establishes that the investigator retained by defense counsel interviewed Waheed Tadross (ECF 149-2 at PageID 2091 ¶5) and that counsel himself interviewed Michael Vitt ( Id. At PageID 2137). According to defendant, these witnesses would have testified that "in all of their years of involvement with [defendant], never once did they directly or indirectly suspect or know of [defendant] acting in an unethical or illegal manner in the administration of RTA construction projects." In addition, defendant believes these individuals would have testified that defendant did not intend to bribe anyone. Defendant further claims that these witnesses would have testified as to defendant's intent regarding L&J Cleaning and the legitimacy of the business.

Upon review, the Court agrees with the government that trial counsel's performance did not fall below the Strickland standard in declining to interview these witnesses. As an initial matter, the Court is not convinced that most of this evidence would be admissible in any event. There is no indication that any of these witnesses would be competent to testify regarding defendant's intent as to the bribery charges or the use of L&J Cleaning. Moreover, even if these individuals could have testified regarding defendant's lack of criminal behavior in other projects, the Court finds that no prejudice resulted. At best, the evidence tenuously showed that sometimes defendant did not act in a criminal manner. Accordingly, any alleged failure to interview these witnesses caused defendant no discernable prejudice.[1]

This same reasoning applies to defendant's argument that counsel's performance was deficient for failing to call certain witnesses at trial. In essence, defendant generally argues that the information addressed above would have assisted him in his defense had witnesses been called to so testify. Defendant relies specifically on the witness interview report of Gregory Johnson. According to defendant, Johnson would have testified that he and defendant had an intimate working relationship and never once did Johnson suspect defendant of pressuring contractors. In addition, defendant claims that Johnson would have testified "as to the reputations of Nick Iafigliola" and that "[defendant] lacked the specific intent to commit a bribery offense" as it relates to L&J Cleaning. Defendant makes similar arguments with respect to other witnesses not called by the defense. Upon review, however, the Court finds that this specific information is likely inadmissible for the same reasons discussed above. For example, defendant argues that Johnson would have testified that he never suspected defendant of pressuring contractors. His lack of criminal conduct in one instance, however, does not negate criminal conduct in a different instance. Moreover, Johnson would not have been permitted to testify that defendant "lacked the specific intent" to commit a crime. In all, the Court cannot say that the decision not to call Johnson or the other witnesses identified by defendant fell "outside the range of competence demanded of attorneys in the criminal context." Accordingly, the Court rejects defendant's argument.

Moreover, counsel for defendant avers that he believed that testimony from defense witnesses and from defendant himself would harm the cause. Rather, counsel and defendant, along with defendant's family, discussed whether to put on a defense or, instead, rest on the government's failure to meet the burden of proof. This decision was made without regard to admissibility issues. The Court cannot say that this decision fell below the Strickland standard.

In his reply brief, defendant argues that had he known that much of the "good acts" testimony would be inadmissible, he would have accepted the government's plea offer. As an initial matter, this argument is raised for the first time in a reply brief. Regardless, however, the argument lacks merit. Counsel for defendant avers that he discussed with defendant general admissibility issues and the fact that no decision would be made as to whether to call witnesses until late in the case. Counsel indicates that defendant was adamant that he would not consider a plea because he did not commit the crime. This is consistent with an email defendant sent to counsel regarding closing arguments. Defendant inquired as to whether counsel could inform the jury that "[defendant] was offered a plea agreement and turned it down because he knew he was innocent." This is inconsistent with defendant's new argument that he would have accepted a plea had he known about admissibility issues that might later arise.

Defendant also complains because counsel chose not to call his relatives as witnesses to explain cash bank deposits made into defendant's bank account. According to defendant, his relatives would have testified that they brought cash with them from Syria and gave the cash to defendant. Defendant claims this would undercut the government's argument that the unexplained cash deposits were the result of bribes. The Court agrees with the government, however, that this strategic decision falls short of establishing a constitutional violation. According to the government, there are no currency reports supporting the influx of cash from Syria. As such, the witnesses would have been subject to a difficult cross-examination which may have led to credibility issues or self-incriminating testimony. Moreover, as noted in the affidavit provided to ...


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