United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION(Docs. 117 & 132)
Christina Reiss, Chief Judge United States District Court
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
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.)
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.
Factual and Procedural Background.
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
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.
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.
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
Conclusions of Law and Analysis. A. Standard of
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).
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.
Defendant's 2010 Timesheets.
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 ...