Baran v. United States

160 F. Supp. 3d 591, 2016 WL 145518
CourtDistrict Court, S.D. New York
DecidedJanuary 5, 2016
Docket11-CR-1091 (VM); 15-CV-5493 (VM)
StatusPublished
Cited by7 cases

This text of 160 F. Supp. 3d 591 (Baran v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baran v. United States, 160 F. Supp. 3d 591, 2016 WL 145518 (S.D.N.Y. 2016).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Petitioner Marie Baran (“Baran”) filed this motion pursuant to 28 U.S.C. Section 2255 (“Section 2255”) to vacate, set aside, or otherwise correct her conviction and sentence. (“Motion,” Dkt. No. 800.) Bar-an is currently serving a sentence of sixty (60) months imprisonment after a jury found her guilty of four counts of conspiracy, two counts of health care fraud, two counts of mail fraud, and two counts of wire fraud. Baran claims she was denied [594]*594her Sixth Amendment right to the effective assistance of counsel and requests that her current sentence be vacated or, alternatively, that her case be remanded for an evidentiary hearing. For the reasons discussed below, the Court DENIES Baran’s Motion in its entirety.

I. BACKGROUND1

Baran, a former employee of the United States Railroad Retirement Board (“RRB”), in coordination with Peter Les-niewski (“Lesniewski”), an orthopedic physician, and Joseph Rutigliano (“Rutigli-ano”), a former Long Island Railroad (“LIRR”) conductor and union local president, participated in a longstanding scheme in which LIRR employees conspired to fraudulently obtain federal disability benefits from the RRB.

By superseding indictment (“Indictment”) filed on May 6, 2013 (Dkt. No. 383), the Government charged Baran with the following criminal offenses: (a) conspiracy to commit mail fraud, wire fraud, and health care fraud, in violation of 18 U.S.C. Section 1349 (“Count One”); (b) conspiracy to commit mail fraud, wire fraud, and health care fraud, in violation of 18 U.S.C. Section 1349 (“Count Two”); (c) conspiracy to defraud the RRB in violation of 18 U.S.C. Section 371 (“Count Three”); and (d) conspiracy to defraud the RRB in violation of 18 U.S.C. Section 371 (“Count Four”). Counts 10, 11, and 12 charged Baran with health care fraud in violation of 18 U.S.C. Sections 1347 and 2. Counts 13, 16, and 18 charged Baran with mail fraud in violation of 18 U.S.C. Sections 1341 and 2. Counts 28, 31, and 32 charged Baran with wire fraud in violation of 18 U.S.C. 1343 and 2.2

Joey Jackson of Koehler-Isaacs LLP (“Defense Counsel”) was retained as Bar-an’s counsel and subsequently represented Baran at all proceedings related to this case.

Jury trial against Rutigliano, Lesniew-ski, and Baran commenced on July 15, 2013. (See Dkt. Minute Entry for July 15, 2013.) During trial, twelve (12) counts were dismissed on the -Government’s motion. On August 6, 2013, the jury found all three defendants guilty on all remaining counts. (See Dkt. Minute Entry for Aug. 6, 2013.)

On March 16, 2014, Baran filed a motion to vacate under 28 U.S.C. Section 2255, alleging ineffective assistance of counsel. (Dkt. No. 671.) The Court denied Baran’s motion because she had not yet been sentenced. (Dkt. No. 675.)

The Court sentenced Baran on April 4, 2014 to concurrent terms of sixty (60) months imprisonment on Counts 1, 2, 3, and 4 (conspiracy), Counts 10 and 11 (health care fraud), Counts 13 and 18 (mail fraud), and Counts 28 and 32 (wire fraud) followed by three (3) years of supervised release. (See Dkt. Minute Entry for April 4,2014; Dkt. No. 704.) .

Baran subsequently filed a notice of appeal (Dkt. No. 717) and brief challenging her conviction based on ineffective asso-[595]*595tance of counsel, lack of venue, and a procedurally and substantively unreasonable sentence. The Second Circuit denied Baran’s appeal but declined to decide Bar-an’s ineffective assistance of counsel claims on the ground that resolution of those claims was more appropriate on a motion brought under 28 U.S.C. Section 2255. See United States v. Rutigliano, 614 Fed.Appx. 542, 548 (2d Cir.2015).

Baran then filed the instant Motion. Baran alleges that she was denied her Sixth Amendment right to effective assistance of counsel because Defense Counsel: (1) failed to retain an expert witness to challenge the testimony of the Government’s expert witness, Alton Barron (“Barron”); (2) failed to review medical files related to Baran’s husband and co-conspirator Gus Baran (“Gus Baran”); (3) failed to object to evidence of Gus Baran playing golf in 2013 (“2013 Golf Evidence”); (4) highlighted evidence of Gus Baran’s criminal conduct; (5) failed to preserve certain limiting instructions related to the 2013 Golf Evidence; (6) failed to properly advise Baran that she should retain a medical expert and that Gus Baran should not sit in the courtroom during trial proceedings; and (7) did not possess sufficient federal court experience to effectively serve as Baran’s attorney. (Petitioner’s Brief.)

The Government filed an Opposition to Baran’s motion. (Gov’t Opp.)

II. DISCUSSION

A. APPLICABLE LEGAL STANDARDS

A person in federal custody may move to vacate, set aside, or correct her sentence if it was imposed in violation of “the Constitution or laws of the United States,” or “the court was without jurisdiction to impose such sentence,” or “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. Section 2255(a).

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. U.S. Const. Amend. VI; see also Kimmelman v. Morrison, 477 U.S. 365, 374-75, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001) (“Occasionally, the performance of defense counsel is so dismal that it ripens into the deprivation of counsel altogether and potentially violates the defendant’s Sixth Amendment rights.”). However, criminal defendants asserting ineffective assistance of counsel have a high threshold to meet “in order to deter a baseless attack on the performance of counsel in a last-ditch effort to avoid a conviction or reduce the sentence.” Percan v. United States, 294 F.Supp.2d 505, 511 (S.D.N.Y.2003); see also Kimmelman, 477 U.S. at 382, 106 S.Ct. 2574.

To prove ineffective assistance of counsel, the petitioner must satisfy a two-prong test. First, she must show that “counsel’s representation fell below an objective standard of reasonableness” according to “prevailing norms.”

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Bluebook (online)
160 F. Supp. 3d 591, 2016 WL 145518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baran-v-united-states-nysd-2016.