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United States v. Weisinger

United States District Court, D. Vermont

June 21, 2017



          Christina Reiss, Chief Judge United States District Court

         This matter came before the court for a review of the Magistrate Judge's December 7, 2016 Report and Recommendation ("R & R") (Doc. 132), wherein he recommended that the court deny the 28 U.S.C. § 2255 motion filed by Defendant Benjamin H. Weisinger. Defendant seeks a reduction of his below-Guidelines sentence of 216 months imprisonment based on his claim of ineffective assistance of counsel before and during his jury trial in violation of the Sixth Amendment. (Doc. 117.) The government opposes the motion. On August 29, 2016, Defendant's trial attorney, Assistant Public Defender David L. McColgin, filed an affidavit addressing the arguments Defendant raised in his § 2255 motion.

         On January 3, 2017, Defendant objected to the R & R's conclusion that he failed to establish that Attorney McColgin's representation was ineffective. Rearguing the same issues raised in his § 2255 motion, he contends that Attorney McColgin: (1) subpoenaed the incorrect timesheets; (2) failed to recall a witness so that additional impeachment evidence could be presented; (3) erroneously failed to object to expert witness testimony; (4) improperly withheld evidence during the trial; and (5) refused to present certain evidence at trial, thereby "discouraging" Defendant from testifying in his own defense. (Doc. 133 at 3.)

         Defendant is self-represented. The government is represented by Assistant United States Attorney Paul J. Van de Graaf and Assistant United States Attorney Wendy L. Fuller.

         I. Factual and Procedural Background.

         Defendant was charged in a Second Superseding Indictment with one count of producing child pornography, two counts of receiving child pornography, and one count of possessing child pornography. On April 5, 2013, a jury in the District of Vermont found Defendant guilty on all counts. The jury's verdict reflected the evidence at trial that Defendant induced the minor victim to make a video of herself engaging in sexually explicit conduct and send it to him. The video was contained in an electronic file, and the victim testified that she had recorded the video and sent it electronically to Defendant's email address pursuant to his instructions. Forensic evidence corroborated the minor victim's testimony.

         Attorney McColgin filed a post-verdict motion for acquittal of judgment on all four counts. On June 25, 2013, the court granted his motion in part and vacated Count Four of the Second Superseding Indictment on the basis that possession of child pornography is a lesser included offense of receipt of child pornography where, as here, the offenses are based upon the same image and the same date range.

         On September 3, 2013, the court held a sentencing hearing during which Attorney McColgin successfully argued that the use-of-computer enhancement under U.S.S.G. § 2G2.1(b)(6)(B)(i) was not warranted. Defendant's advisory Guidelines sentencing range was thus 235-293 months. The court sentenced Defendant to a below-Guidelines term of imprisonment of 216 months for each count of the Second Superseding Indictment to run concurrently, followed by a term of supervised release often years.

         Approximately two weeks after sentencing, Attorney McColgin filed a notice of appeal, alleging the court committed several errors before and during trial. The Second Circuit rejected all of Defendant's appellate issues and affirmed the court's judgment.

         II. Conclusions of Law and Analysis. A. Standard of Review.

         A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir.1999). The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. Thomas v. Am, 47'4 U.S. 140, 150(1985).

         To successfully allege ineffective assistance of counsel, Defendant must satisfy the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984). He must show (1) that counsel's performance was so deficient that "the identified acts or omissions were outside the wide range of professionally competent assistance[, ]" and (2) that the deficient performance so prejudiced his defense that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 690, 694. "The [ineffective-assistance-of-counsel] claim must be rejected if the defendant fails to meet either the performance prong or the prejudice prong." Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011).

         B. Defendant's 2010 Timesheets.

         According to Defendant, Attorney McColgin should have obtained timesheets from his employment in 2010 because that evidence would have impeached the victim and exonerated him. Both Attorney McColgin and the government contend that timesheets obtained from Defendant's employer from October of 2011 did not establish ...

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