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Crespo v. United States

United States District Court, D. Connecticut

April 19, 2018

DAVID J. CRESPO, Petitioner,


          Janet C. Hall, United States District Judge


         The petitioner, David J. Crespo (“Crespo”), filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to section 2255 of title 28 of the United States Code on April 28, 2017. See Motion to Vacate, Set Aside or Correct Sentence (“Mot. to Vacate”) (Doc. No. 1). Subsequently, this court appointed counsel to represent Crespo on May II, 2017. (Doc. No. 8). On August 7, 2017, counsel for Crespo filed an Amended Motion to Vacate, Correct or Set Aside Sentence (“Am. Mot. to Vacate”) (Doc. No. 15), which is currently pending before this court.

         Crespo argues that his trial counsel was ineffective for permitting the government to interview the defense's expert witness, Dr. Jay St. Mark, the day before Crespo's sentencing without Crespo's permission to waive the attorney-client privilege. See generally Am. Mot. to Vacate at 11-18. He also argues that his trial counsel was ineffective for failing to cross-examine a government witness, Mark Lewis, at the sentencing hearing about an inconsistency in his statements regarding the price of a painting that the sentencing court relied on in determining intended loss. See generally id. at 19-28. The respondent, the United States (“the government”), opposes Crespo's Motion. See Government's Response to Defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Gov't's Resp.”) (Doc. No. 19).

         For the reasons set forth below, Crespo's Amended Motion to Vacate is DENIED.


         On April 3, 2012, Crespo was arrested on a complaint charging him with mail fraud, in violation of section 1341 of title 18 of the United States Code, and wire fraud, in violation of section 1343 of title 18 of the United States Code, involving the sale of fake Chagall and Picasso artwork. Crespo Criminal Docket, Complaint (Doc. No. 1). Attorney Richard Marquette, who had previously represented Crespo on a retained basis, was appointed to represent Crespo. (Doc. No. 11). On August 8, 2012, a grand jury indicted Crespo on nine counts of wire fraud and three counts of mail fraud. (Doc. No. 15). On September 3, 2013, Crespo pled guilty before Judge Ellen B. Burns to Count Twelve of the Indictment, which charged him with the sale of a purported Chagall lithograph. (Doc. No. 60).

         On June 5, 2014, the final Presentence Report was filed. Crespo Criminal Docket, PSR (Doc. No. 83). On September 9, 2014, Crespo and Attorney Marquette filed a letter objecting to nearly all of the offense conduct detailed in the Presentence Report. (Doc. No. 198-1). In order to resolve Crespo's objections, on December 16 and 17, 2014, Judge Burns held a hearing at which the government called the case agent, three victims, and a second FBI agent who was present for an interview of Crespo. Joint Appendix (“JA”) at 214-613.[1] Crespo called his treating physician and testified himself. Id.

         On January 16, 2015, Judge Burns sentenced Crespo to 57 months of incarceration, followed by three years of supervised release. Crespo Criminal Docket, Minute Entry (Doc. No. 131). Judge Burns also ordered restitution, which would be determined at a later date. Id. Judgment was entered on January 30, 2015 (Doc. No. 132)), and Crespo filed a notice of appeal on the same day (Doc. No. 134). On February 5, 2015, Judge Burns issued a memorandum describing how she had calculated Crespo's guidelines range. JA 734-38. Subsequently, Attorney Marquette withdrew as Crespo's counsel and was replaced by Assistant Federal Defender David Keenan, who represented Crespo at the restitution proceedings and on appeal.

         On July 1, 2015, having been transferred the case after Judge Burns's retirement, the undersigned ordered Crespo to pay $336, 306 in restitution to 12 victims. JA 870-73. Crespo filed a Notice of Appeal challenging the Restitution Order on July 6, 2015. Crespo Criminal Docket, Notice of Appeal (Doc. No. 187).

         On June 1, 2016, the Second Circuit affirmed Crespo's conviction and sentence. United States v. Crespo, 651 Fed. App'x 10 (2d Cir. 2016). The court rejected Crespo's claims that the district court erred in accepting his guilty plea and that the district court erred substantively and procedurally in imposing his sentence. See id. The court declined to resolve Crespo's claim as to ineffectiveness of counsel based on the government's interview of Dr. Jay St. Mark, the defense expert Crespo had retained to assist in his defense at his sentencing. See id. at 15.


         “Because collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal quotation marks omitted). Section 2255 of title 28 of the United States Code permits a federal prisoner to move to vacate, set aside, or correct his sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a) (2016). Therefore, relief is available “under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).

         The petitioner bears the burden of proving he is entitled to relief by a preponderance of the evidence. See Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011). In deciding a section 2255 motion, the court must hold a hearing, “unless the motion and the files and records of the case conclusively show that the plaintiff is entitled to no relief.” 28 U.S.C. § 2255(b). However, a petitioner is not automatically entitled to a hearing, and no hearing is required where a petitioner's “allegations are ‘vague, conclusory, or palpably incredible.'” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). To determine whether a prisoner is entitled to an evidentiary hearing on the motion, the court looks “primarily to the affidavit or other evidence proffered in support of the application in order to determine whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief.” LoCasc ...

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