The issue of ineffective assistance of counsel was first raised regarding Hosseinipour’s attorney, who is her brother-in-law, in Motions 29 and 33. These motions requested a new trial on that basis or sought an evidentiary hearing due to the substantial evidence presented to the Court. Ultimately, the District Court denied both the motion for a new trial and the request for an evidentiary hearing. As the reason for the denial, the Court cited direct communications with Hosseinipour, in which she acknowledged the risks of proceeding to trial after a plea deal was offered. However, this communication never actually occurred.
Additionally, the Court justified its denial by stating that the lack of experience of Mr. Manning, Hosseinipour’s attorney, was mitigated by the involvement of more experienced attorneys representing her co-defendants. It is important to note that these attorneys were not hired to defend Hosseinipour. Her defense as a distributor—without any corporate ties to I2G and lacking access to corporate records—required a distinct and unique defense, which she was denied.
The 6th Circuit Court of Appeals ordered the release of Hosseinipour while her appeal is pending, noting a substantial likelihood that a legal issue could result in a different or overturned sentence. Hosseinipour was released from the Marianna prison camp for women in October 2023 after serving eight months in prison. After her release, she was much better able to work with her attorney, Kenyon Meyer, partner with Dinsmore and Shohl in the Louisville Office, on her appeal.
The request for the release of Hosseinipour and Barnes pending appeal to the Sixth Circuit is provided below, including the 6th Circuit release order.
During the oral arguments that followed, Honorable Judge Kethledge of the 6th Circuit questioned the prosecution about whether they acknowledged the potential abuse of discretion in light of the substantial evidence presented by Hosseinipour. The judge pointed out that the denial by the District Court was based on a “Frye Hearing” that had never actually taken place. In response, the government stated that it did not believe there was an abuse of discretion. They further indicated that even if the appeals court approved the evidentiary request, it was likely that Hosseinipour would have to return to prison.
We are including the rebuttal argument regarding the ineffective assistance used in Hosseinipour’s appeal. Additional items supporting the issue of ineffective assistance will be uploaded to this blog article.
From the Direct Appeal and Rebuttal Arguments presented in Hosseinipour’s Appeal
I. HOSSEINIPOUR’S TRIAL COUNSEL WAS INEFFECTIVE AND CONSTITUTIONALLY DEFICIENT.
Hosseinipour appeals the denial of her Rule 33 motion. “Rule 33’s ‘interest of justice’ standard allows the grant of a new trial where substantial legal error has occurred.” United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010). “A violation of [defendant’s] Sixth Amendment right to effective assistance of counsel clearly meets this standard.” Id. Rule 33’s broad standard does not require reversible error. Id. The Sixth Circuit has left open whether a Strickland light analysis applies where a defendant appeals a motion for a new trial based on ineffective assistance of counsel. United States v. Arny, 831 F.3d 725, 731 (6th Cir. 2016). Habeas relief and Rule 33 motions are different. Castro v. United States, 540 U.S. 375, 383 (2003); Tibbs v. Florida, 457 U.S. 31, 38 n.12 (1982)(courts interpret Rule 33 standard broadly). The plain language of Rule 33 requires a lighter standard than Strickland. Eberhart v. U.S., 546 U.S. 12, 13 (2005)(“Federal Rule of Criminal Procedure 33(a) allows a district court to ‘vacate any judgment and grant a new trial if the interest of justice so requires.’”).
Alternatively, under Strickland, “a defendant must show (1) ‘that counsel’s representation fell below an objective standard of reasonableness’ and (2) that ‘counsel’s performance [was] prejudicial to the defense.’” Munoz, 605 F.3d at 376 (quoting Strickland v. Washington, 466 U.S. 668, 671 (1984)). Defendants are entitled to effective representation of competent counsel at every stage of the proceedings, including plea negotiations. Lafler v. Cooper, 566 U.S. 156, 162 (2012). To justify reversal, defendant must have suffered prejudice, shown by “a reasonable probability” “sufficient to undermine confidence in the outcome” of the proceeding “that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 671.
The Court may address an ineffective-assistance-of-counsel argument on direct appeal “‘when the existing record is adequate to assess properly the merits of the claim.’” United States v. Hynes, 467 F.3d 951, 969 (6th Cir. 2006) (quoting United States v. Franklin, 415 F.3d 537, 555-56 (6th Cir. 2005)). Here, the record is adequate, and the court improperly denied Hosseinipour a new trial and an evidentiary hearing on this issue, finding the record did not support her claim.
Trial counsel, Wayne Manning, provided ineffective assistance of counsel requiring reversal. In the court’s first criminal trial with multiple defendants, Hosseinipour was represented by her brother-in-law, a recent graduate of Thomas M. Cooley Law School. (See, e.g. R. 678, #8022, 8033; R. 578-2, #5426). Manning had relatively no experience in criminal law and had limited experience in trying a criminal case. (R.578-1, #5427). Despite assuring Hosseinipour that he could represent her and that the Government would never try the case against her, Manning offered her no assistance whatsoever, and the decisions he made often prejudiced her more than they helped her. Against this landscape, Hosseinipour’s conviction must be reversed.
The court specifically held:
On the first day of trial, the court inquired as to pretrial plea negotiations between the United States and Hosseinipour in accordance with Missouri v. Frye, 566 U.S. 134 (2012). As with all Defendants, the court confirmed that any plea offer had been communicated to Hosseinipour by her attorney. The court also inquired whether she: (i) had sufficient time to discuss the plea offer with her attorney; (ii) understood the potential penalties if convicted; (iii) comprehended the terms of the plea offer; (iv) knew the differences in any potential penalties between the plea offer and a potential guilty verdict; and (v) had decided to proceed to trial. Because of her affirmative responses, the court found that Hosseinipour had knowingly chosen to proceed to trial notwithstanding the potential risks.
(R.630, #6164). However, the court did not pose those questions. (R.630, #6164). And, Hosseinipour naturally did not answer those questions. (R.630, #6164). The court’s denial of Hosseinipour’s argument on ineffective assistance was simply erroneous.
Further, Manning’s representation was constitutionally deficient during plea bargaining when he
- told Hosseinipour the case against her would not go to trial (R.578-1 ¶ 5, 8, 15);
- told Hosseinipour she would not be found guilty or go to jail (id. at ¶ 8);
- did not explain the elements of the charges against Hosseinipour (id. at ¶ 6);
- did not explain the sentencing guidelines and told Hosseinipour that jail was not a possible penalty (id. at ¶ 7–8, 15);
- failed to learn and understand the purpose of a proffer agreement so as to properly advise Hosseinipour when she received requests from the prosecution to meet (id. at ¶ 9–13);
- told Hosseinipour she would commit perjury by pleading guilty (id. at ¶ 15);
- consulted Hosseinipour’s co-defendants’ counsel about whether she should accept the government’s plea offer, and followed their self-serving advice (id. at ¶ 18–19);
- failed to tell Hosseinipour the prosecutor asked if she was willing to accept a plea offer after the March Meeting (id. at ¶ 38); and
- ignored Hosseinipour’s instructions to contact the prosecution regarding a plea deal (id. at ¶ 39–40).
These were not tactical decisions by Manning but disregard for duties based on ignorance. See Strickland v. Washington, 466 U.S. 668, 688–89 (1984). Manning had no relevant experience (R.578-2, ¶ 10–11, 13), and he failed to adequately counsel because he was naively confident the charges would be dropped and the case would never go to trial (R.578-1, ¶ 3, 5, 8, 15).
An attorney’s decision to “avoid preparing a defense that might ultimately prove unnecessary” is not reasonably effective representation, serving only the attorney’s interest to not work. Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001). A defense counsel’s failure to investigate and provide adequate assistance because the counsel did not expect the case to go to trial is not the result of reasoned professional judgement or a decision based on trial strategy. United States v. Laird, 591 F. App’x 332, 337 (6th Cir. 2014) (“O’Briant admitted that she failed to interview any witnesses (including the ones she subpoenaed) or conduct any investigation because she expected the case to result in a plea deal.”).
Leading up to trial, Manning only filed me-too motions and did not do any preparation because he did not believe the Government would try the case. Finally, in his first “substantive” motion, Manning wrote “Hosseinipour notes that she is of Middle Eastern descent, Defendant Anzalone is Italian, Defendant Dvorin is Russian, and Defendant Syn is Korean causing this case to be seen as a possible racial profiling case also.” (R.386-1, #2957). Ignoring the legal issues with Manning’s musing, it is a factually incorrect position as Hosseinipour is Caucasian. (R.578-1, #5421). In that motion, Manning argued that Hosseinipour did not actually make $900,000, but he did not offer any proof at trial to show that Hosseinipour made less money.
Manning’s performance at trial repeatedly demonstrated ineptitude and not conscious tactical decisions. Manning failed to question the defense’s key witness to rebut Keep because he did not tell the court he had questions for the witness. (R.691, #9878). He also failed to ask the other defense expert a question because he thought the court might be annoyed with him, and he had questions for Anzalone the main witness against Hosseinipour that were never asked. (R.691, #9880, 9884). Hosseinipour wrote out 150 questions for Anzalone that Manning did not ask. (R.578-1, #5422). During Agent McClelland’s testimony, Manning asked if this was still the part where he could not object. (R.700, #10606). Manning’s lack of objections were not a strategic decision but because he thought he could not object. The court’s irritation for Manning was that he was not ready when it was his turn, (R.691, #9879) and the court would make sua sponte objections when its patience with Manning was running out (R.688, #9091; R.689, #9180). The court called Manning “redundant,” “[u]npolished,” and “disorganized.” (R. 675, #7834). Manning thought he could not argue the statute of limitations defense to the jury, and he had to be told by undersigned counsel that he could. (R.690, #9646). Manning told the court to proceed with testimony; even though, he had not finished reviewing 302s because the Government failed to provide him with them the night before. (R.688, #8965). Manning would just start testifying on cross, so the court felt compelled to say “this actually goes for all the attorneys… what the attorneys say is not evidence, so you need to ask a question.” (R.689, #9173).
Manning abdicated[1] his duties to his client and advocated to the court that “[t]he main thing was I didn’t want it to be brought up where it could be used for reversal of an appeal.” (“R.671, #7425.”). He then doubled down on that position: “It was just a matter of– it was a matter of I’m trying to do my best to make sure there’s no reversal on appeal of anything.” (R.571, #7439). Had the court and Government not agreed that one objection counts for all, Manning would had it his way because he raised almost no objections, leaving very few non-plain-error appealable issues. Manning’s inexperience, ignorance of the law, and basic misunderstanding of trial and evidence principles fell well below an objective standard of reasonableness. See Washington v. Hofbauer, 228 F.3d 689, 704–05 (6th Cir. 2000).
While attorneys are entitled to a presumption that their conduct was reasonable, it is well established that “[t]he failure of an attorney to inform his client of the relevant law clearly satisfies the first prong of the Strickland analysis.” Byrd v. Skipper, 940 F.3d 248, 258 (6th Cir. 2019) (quoting Hill v. Lockhart, 474 U.S. 52, 62 (1985)); see also Strickland, 466 U.S. at 689 (discussing presumption that counsel acted within accepted range of conduct).
An attorney’s failure to provide guidance or correct advice regarding possible sentences a defendant faces has supported a finding of objectively ineffective assistance in the Sixth Circuit. Smith v. United
States, 348 F.3d 545, 553–54 (6th Cir. 2003) (citing Moss v. United States, 323 F.3d 445, 474 (6th Cir. 2003); Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001); U.S. v. Day, 969 F.2d 39, 43 (3d Cir. 1992)).
Like the attorney in Byrd, Manning never informed Hosseinipour of the elements of the offenses with which she was charged, nor did he tell Hosseinipour what evidence the government had against her, nor did he analyze the sufficiency of such evidence. (R.578-1, #5418). Also, like Byrd, Manning never reviewed the sentencing guidelines with her or discussed concepts like amount of loss, enhancements, departure, variances, or guilty pleas. Specifically, Manning never explained that the government’s amount of loss theory would skew the potential guideline ranges. Nor did Manning explain that a conviction may also result in other guideline enhancements. He also failed to explain that she would lose any potential credit for acceptance of responsibility.
Hosseinipour was entitled to receive this information from her attorney at the outset of their relationship. Instead, and again, much like the attorney in Byrd, Manning let Hosseinipour spend years under the false impression that the charges against her would be dropped. He never suggested that trial, a guilty verdict, or jail were possible until trial was imminent, Hosseinipour was without a developed defense, and Manning was scared she would fire him. Then, at that point, yet again mirroring the deficient representation found in Byrd, Manning ignored Hosseinipour’s interest in pleading guilty.
Courts also find the “failure to perform legal research to be ineffective performance by an attorney.” United States v. Lopez-Chavez, 757 F.3d 1033, 1041 (9th Cir. 2014); Howard v. United States, 743 F.3d 459, 468 (6th Cir. 2014)(“Counsel cannot blunder into court without having performed basic research and preparation.”). Here, Manning did not have access to a paid legal research service and did no legal research. His briefs include no cases except for ones he copied from other briefs. Plagiarism cannot make up for a lack of research and preparation.
After a defendant establishes her counsel failed to meet the objective standard of reasonableness, she must also “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. “[T]he essential question is whether better lawyering would have produced a better result.” Ward v. United States, 995 F.2d 1317, 1321 (6th Cir. 1993). Here, Hosseinipour would have had a different result with experienced, competent, professional counsel.
The prejudice is apparent. Prejudice can be presumed. The Supreme Court permits the presumption of prejudice where there was a “complete denial of counsel.” Bell v. Cone, 535 U.S. 685, 695 (2002). Here, Hosseinipour was never advised of the elements of the crimes she was charged, never received sentencing information, was not apprised of the evidence the Government had against her, and was represented by an attorney who did not understand how the plea bargain process worked despite the fact that more than 95% of defendants plead. Additionally, going into trial, counsel for Hosseinipour failed to review the evidence and did not perform legal research regarding the elements of a pyramid scheme. This was a complex case where research was paramount. Conspiracy to commit securities fraud was charged, and Hosseinipour’s counsel did not understand the difference between securities law and secured transactions. (R.691, #9766).
As has been explained, Hosseinipour had no defense because her counsel did provide her one. Hosseinipour’s counsel did not meaningfully subject the Government’s case to an adversarial test. Bell, 535 U.S. at 695. Hosseinipour’s counsel focused on charging decisions and brought in extraneous information that was not exculpatory and hurt Hosseinipour more than it helped. This also allows for prejudice to be presumed.
Even if it is not presumed, Hosseinipour was prejudiced. A plea deal that would result in no prison sentence was rejected and the prosecutor’s repeated inquiries about whether Hosseinipour would accept a plea offer were not communicated to her after the March Meeting; Manning also ignored her requests to contact the prosecution about a deal. (R.578-1 ¶¶ 38–40.) Manning’s failure to provide informed legal advice prevented Hosseinipour from accepting a deal without prison time. (R.578-2, ¶ 18.)
In the context of plea bargaining, the second prong of the Strickland test requires a defendant show a “reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler v. Cooper, 566 U.S. 156, 162–64 (2012). An attorney’s failure to provide information about possible sentence exposure supports a finding that a defendant was not able to make an intelligent decision about whether to enter into a plea deal, and thus that the results of the proceeding would have been different but for the ineffective assistance of counsel. Id.
Importantly, a defendant’s knowledge of a plea offer, assertions of innocence, and predisposition to reject a plea are not enough to establish that a defendant would not have accepted a plea. Smith v. United States, 348 F.3d 545, 551–53 (6th Cir. 2003). Even more, the Sixth Circuit has held that a defendant’s professions of her innocence and desire to be acquitted especially do not support a finding that the defendant would not have pled guilty when the defendant was misinformed by counsel’s “faulty advice,” since the defendant has no reliable metric to assess the possible outcomes of pleading guilty or going to trial. Byrd v. Skipper, 940 F.3d 248, 258–59 (6th Cir. 2019). Here, Hosseinipour did not receive the information that her counsel was required to provide her. Instead, she was told she could not plead because that would be perjury. If she had plead guilty, she likely would have receive probation. At minimum, she would have received a shorter sentence. Thus, she was prejudiced.
“The right of a defendant to testify at trial is a constitutional right of fundamental dimension and is subject only to a knowing and voluntary waiver by the defendant.” United States v. Webber, 208 F.3d 545, 550 (6th Cir. 2000). “The defense counsel’s role is to advise the defendant whether or not the defendant should take the stand, but it is for the defendant, ultimately, to decide.” Id.
Here, the court instructed Hosseinipour and her counsel that Hosseinipour’s counsel was “driving the boat” as it relates to whether Hosseinipour would testify. (R.700, #10681). Thus, the court improperly interfered with Hosseinipour’s right to testify and chilled the exercise of that right as Hosseinipour was led to believe that her trial counsel could make the final call.
The court was on notice that Hosseinipour “definitely says she’s testifying… no matter what I tell her, she’s not going to listen to me about it.” (R.700, #10681). Thus, it had an independent duty to inquire about whether Hosseinipour wanted to testify. The court’s failure to confirm whether Hosseinipour wanted to testify after being told that she did further supports reversal. Hosseinipour was deprived the chance to provide exculpatory testimony, and there is a reasonable probability that she would not have been convicted if the jury could have heard from her.
It was the court’s impression that without Anzalone’s testimony, “these convictions might not have happened.” (R.675, #7855). Anzalone was the critical witness. The Government called him “invaluable.” (Id. at #7857). The court may no other findings as to the evidence against Hosseinipour. (See R. 630, #6167). The Government misused Anzalone’s guilty plea to prove Hosseinipour’s guilt. With effective counsel, Hosseinipour could have prevented the Government from using Anzalone’s guilty plea as substantive evidence and equating Anzalone’s guilt with Hosseinipour’s guilt. Further, Hosseinipour wrote out 150 questions to ask Anzalone, and Manning did not use them. He recognized that there were questions he did not ask. Overall, Anzalone’s testimony was relatively favorable as he said that Hosseinipour did not intend to hurt anyone, and he did not know they were do anything wrong. A better lawyer could have built a defense from his exculpatory statements. Additionally, there were numerous exhibits entered into evidence where only a snippet of audio was played, but the videos had great exculpatory value. Because Manning struggled with the technology and did not have a strategy, he did not use those to prove Hosseinipour’s innocence. (See U.S. Exhibit 155, 20:45-21:00; U.S. Exhibit 144, 20:45-21:21:25; US Exhibit 178, 8:40-8:45; US Exhibit 178, 16:21-16:30). Hosseinipour’s counsel did not retain an expert and did not ask any questions to defense’s expert who rebutted Keep because he failed to get the court’s attention. Additionally, Hosseinipour’s counsel forgot he had a copy of Hosseinipour’s statements to Sauber, so he was never able to use them at trial. Hosseinipour’s counsel could have introduced exculpatory statements from Hosseinipour to support her credibility, and he failed to do so because he forgot about it.
Viewed together, the result would have been different if Hosseinipour received effective counsel.
II. THE COURT ABUSED ITS DISCRETION IN DENYING A HEARING.
At minimum, the court abused its discretion when it denied a motion for a hearing on Hosseinipour’s ineffective-assistance argument. This Court simply “require[s] a defendant to produce at least a modicum of evidence in support of a request for an evidentiary hearing on a motion for a new trial based on ineffective assistance of counsel.” United States v. Allen, 254 F. App’x 475, 478 (6th Cir. 2007).
The court abused its discretion by denying the motion based on this incorrect finding. A defendant is required to produce only a “modicum of evidence in support of a request for an evidentiary hearing on a motion for a new trial based on ineffective assistance of counsel.” United States v. Allen, 254 F. App’x 475, 478 (6th Cir. 2007). The three affidavits attached to Hosseinipour’s motion more than meet this hurdle.
Additionally, the court abuses its discretion when it relies on clearly erroneous facts. Here, the court refused to hold a hearing based on its recollection of the trial and the record. (R.630, #6162, fn.1). The court recalled that it had asked Hosseinipour Frye questions on the record and that she answered those questions affirmatively.[2] (R.630, #6164). However, the court did not pose those questions. (R.630, #6164). And, Hosseinipour naturally did not answer those questions. (R.630, #6164). Thus, the denial of the hearing was based on an erroneous finding of fact and necessarily warrants reversal. See United States v. Jones, 980 F.3d 1098, 1112 (6th Cir. 2020)(“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”). Not only was the order plainly factually erroneous, it was also legally erroneous. The court relied on the standard of review for habeas petitions of state-court convictions to reject Hosseinipour’s arguments. (See R.630, #6363 fn.2).
In addressing the prejudice bar, the court failed to address whether Hosseinipour was prejudice by not having effective counsel regarding whether to plead guilty. Instead, in only addressing whether her counsel’s performance at trial prejudiced her, the court determined that there was substantial evidence of Hosseinipour’s involvement in the scheme, so she could not satisfy the prejudice prong. As with the rest of the court’s order, the reasoning here is similarly faulty. Involvement in the Emperor program is not a crime. Moreover, participation in a scheme to defraud is not a crime. The court’s analysis omits (1) whether the scheme was fraudulent, (2) whether she knowingly participated in the scheme, and (3) whether she did so with the intent to defraud. Finding no prejudice based on this analysis was plainly an abuse of discretion.
Hosseinipour met the burden of offering a modicum of evidence in support of her request for an evidentiary hearing, and the court abused its discretion in denying her request.
[1] The use of the word abdicated is not meant to imply that Manning was meeting his duties to his client prior to this colloquy.
[2] The court’s reliance on facts that simply did not occur to deny Hossineipour’s motion for acquittal and a hearing and then force her to begin serving her sentence while her appeal was pending is deeply troubling. This Court subsequently ordered Hosseinipour released while the appeal is pending.
Ineffective Assistance: Rebuttal Arguments for Hosseinipour
VIII. HOSSEINIPOUR’S TRIAL COUNSEL WAS INEFFECTIVE AND CONSTITUTIONALLY DEFICIENT.
The plain language of Federal Rule of Criminal Procedure 33(a) and Supreme Court precedent provide that the standard for a new trial is if the interest of justice so requires. Eberhart v. U.S., 546 U.S. 12, 13 (2005). Imposing a different standard based on the type of argument (i.e. ineffective assistance) cannot be reconciled with that plain language. The Court should not depart from Rule 33’s language.
In response to Hosseinipour’s motion for a new trial, the Government argued that the court should not hold a hearing on her claims of ineffective assistance of counsel. (R.583, #5489.) To this Court, the Government now argues that a hearing is necessary but should be dealt with in a habeas petition. (GovBr.137.) The Government had the opportunity to oppose the sworn statements in the record or offer evidence to oppose such claims but chose not to do so. (See R.583.) The Government offers no support for the theory that the Court should not grant a new trial based on a properly supported motion. Indeed, the Supreme Court has rejected the position that ineffective assistance of counsel claims “must be reserved for collateral review.” Massaro v. U.S., 538 U.S. 500, 508 (2003). Instead, the Government seeks to benefit from its strategic decision to oppose an evidentiary hearing and now argues that one is necessary. (Compare GovBr.137 with R.583;#5489.) The Government should not be permitted to take advantage of errors it invited.
The authority cited by the Government that it is not typical for ineffective assistance claims to be first litigated on direct appeal is inapplicable. Here, Hosseinipour raised the issue before direct appeal. She properly raised the issue in the district court where every opportunity existed to create a more fulsome record. But the Government opposed this, and the court erred by refusing to hold a hearing. Hosseinipour was entitled to litigate her motion for a new trial in district court.
In any event, “governing precedent holding that a ‘self-serving’ affidavit is not inherently incredible.” Martin v. United States, 889 F.3d 827, 833 (6th Cir. 2018); Pola v. United States, 778 F.3d 525, 535 (6th Cir. 2015)(“an affidavit is not incredible just because the asserted facts favor the affiant.”). The sworn affidavits remain uncontroverted, and the Government does not take specific issue with any of the facts in the affidavit. Thus, they are competent evidence that support reversal and a new trial.
A. Hosseinipour’s counsel was ineffective at the plea stage.
The Government does not oppose the merits of Hosseinipour’s argument that her counsel was ineffective at the plea stage. Instead, it only argued that the Court should require her to file a habeas petition because the record is incomplete. (GovBr.138.)
But the record established that her counsel was ineffective. The uncontroverted record provides that Hosseinipour’s counsel (1) did not explain the elements of the charges, (2) did not explain sentencing guidelines or that jail was possible, (3) did not advise about the proffer process, and (4) did not contact the Government about a plea after his client instructed him to do so. (R.578-1.) It also shows that Hosseinipour was advised that the Government would not try the case against her, that she would not go to prison, and that she could not plead guilty because it would be perjury. (Id.)
The Constitution requires effective assistance at the plea stage: “‘[W]hen the Government chooses to enter into plea negotiations, the Constitution requires that defendants receive effective assistance in navigating that crucial process.’” Gilbert v. U.S., 64 F.4th 763, 771 (6th Cir. 2023)(quoting Rodriguez-Penton v. U.S., 905 F.3d 481, 489 (6th Cir. 2018)). “That means accurate advice regarding sentence exposure.” Gilbert v. U.S., 64 F.4th 763, 771 (6th Cir. 2023). “A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available.” Smith v. U.S., 348 F.3d 545, 552-53 (6th Cir. 2003). The record shows that Hosseinipour did not receive that. (R.578-1,#5418;R.578-3.) Counsel’s performance was deficient, and Hosseinipour was prejudiced. “[A] defendant may be prejudiced when his counsel’s errors deprived him of the opportunity to make a fully informed choice during the plea process.” Rodriguez-Penton v. U.S., 905 F.3d 481, 488 (6th Cir. 2018); Gilbert v. U.S., 64 F.4th 763, 771 (6th Cir. 2023)(“prejudice may lie where a petitioner demonstrates that counsel’s deficient performance infected his decisionmaking process, and thus undermine[d] confidence in the outcome of the plea process.”).
Hosseinipour’s case is also “cut-and-dried.” Byrd v. Skipper, 940 F.3d 248, 259-60 (6th Cir. 2019); U.S. v. Pender, 514 F. App’x 359, 361 (4th Cir. 2013)(where a beneficial plea agreement would have been available, counsel was ineffective for unreasonably failing to pursue plea). The prejudice component just requires that Hosseinipour show that it is likely that she could have obtained a more favorable outcome but for her counsel’s errors. Byrd, 940 F.3d at 259. The record shows that but for her counsel’s ineffective assistance, a sentence without a term of imprisonment was available. (R.632; R.578-2,#5427.) Sauber’s notes confirm that the Government “left the plea agreement documents with Hosseinipour.” (R.583-1,#5491-92.) The plea agreement included a supplement that the Government would advocate for no prison time. The Government “tried very hard to get Ms. Hosseinipour in the same position as Mr. Anzalone, and that is, to be testifying at trial.” (R.675,#7856.) The Government would have “advocated very strongly for a sentence of probation for Mr. Anzalone.” (Id. at #7856-57.) Thus, Anzalone, a more culpable defendant, received a deal for probation, which further supports the deal Hosseinipour would have received. The court has accepted the Government’s sentencing recommendations on guilty pleas in this case, including the recommendation of probation for Jason Syn, who as a participant, profited the most from I2G. (R.796; R.802; see also R.784,#11756; R.789.) Hosseinipour asked her counsel to approach the Government about a plea agreement, and he refused. (R.578-1,#5421.) The record demonstrates that with effective counsel, Hosseinipour would have reached a resolution involving probation. The current record supports Hosseinipour’s ineffective assistance claim.
B. Manning was ineffective at and in preparation for trial.
Manning’s pretrial performance similarly was ineffective. Manning did not prepare for trial because he thought the charges would be dismissed. An attorney’s decision to “avoid preparing a defense that might ultimately prove unnecessary” is not reasonably effective representation, serving only the attorney’s interest to not work.” Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001). His failure to investigate and interview witnesses because he thought the charges would be dismissed caused Hosseinipour to be unable to mount a defense. A defense counsel’s failure to investigate and provide adequate assistance because the counsel did not expect the case to go to trial is not the result of reasoned professional judgment or a decision based on trial strategy. U.S. v. Laird, 591 F. App’x 332, 337 (6th Cir. 2014).
Given the unclear line that divides pyramid schemes and MLMs, expert testimony was critical, but Manning did not retain an expert to testify as a defense witness. Indeed, he did not even subscribe to a platform for him to perform legal research despite the complex legal issues at play. (R.578-1,#5418.) This left Manning without any cases to support Hosseinipour’s defense during the pendency of the trial. (R.683,#8588-89.) His “failure to perform legal research [was] ineffective performance by an attorney.” U.S. v. Lopez-Chavez, 757 F.3d 1033, 1041 (9th Cir. 2014); Howard v. U.S., 743 F.3d 459, 468 (6th Cir. 2014)(“Counsel cannot blunder into court without having performed basic research and preparation.”). Further, Manning failed to review discovery and did not even know that he had a copy of Hosseinipour’s 302. Taken together, Manning’s failure to understand the charges, research the legal issues, investigate the facts, interview witnesses, and review discovery left Hosseinipour without a complete defense. His performance was deficient, and the prejudice cannot be understated. The Government’s proof against Hosseinipour was razor thin (if that). With a competent attorney, Hosseinipour would have had a trial strategy, and that trial strategy would have led to her acquittal.
During trial, Manning was also ineffective. Manning called I2G a pyramid and an investment. (R.511,#4841,4854; R.683,#8656.) Manning assumed if the Government called I2G a pyramid scheme that it was conclusive and the jury would find a pyramid scheme. (R.692,9967.) Manning did not understand the difference between securities and secured transactions. (R.691,#9766.) Manning could not even come up with thoughts about whether an Emperor package was a security because he did not “have a lot to say about this as far as it being a security or not.” (R.683,#8589.) Manning’s inability to use courtroom technology prevented him from presenting the video evidence that was critical to Hosseinipour’s case. (See R.690,9414; R.692,#9879; R.701,#10951.) The prejudice from this deficiency was extreme. Manning had contemporaneous statements from Hosseinipour where she was trying to drive customers to the casino, encouraging others to do the same, letting them know that they would earn money from their efforts, and discussing the I2G Touch. (10/27/2023CD, US Ex.144, 20:32-21:27, 12:40-12:45; 10/27/2023CD, US Ex.152, 41:40-44:45, 11:30-13:35; 10/27/2023CD US Ex.151, 24:42-26:18; 10/27/2023CD, US Ex.144, 31:30-34:28, 34:28-38:30; 10/27/2023CD, US Ex.178, 16:21-16:30.) Without putting Hosseinipour on the stand, Manning had the ability to use his client’s own statements to show her innocence, and he failed to do so because he could not work the courtroom technology. It was not a strategic choice. Instead, it was deficient performance, and it caused Hosseinipour’s contemporaneous statements that showed she did think the sale of Emperor packages was a pyramid scheme not to be played to the jury, which was the key issue to her defense.
Manning’s deficient and prejudicial performance did not stop there. Manning’s lack of understanding of how objections worked permitted inadmissible evidence to be introduced. “And are we still into this where I can’t object because it has nothing to do with Ms. Hosseinipour?” (R.700, #10606.) Manning was unaware that he could argue that the claim was barred by the statute of limitations. (R.690,#9646.) Manning also did not know how to cross-examine witnesses. (R.689, #9173). Manning did not want to create appealable issues. (R.671,#7425, 39.)
Time and time again, the record shows that Manning did not know what to do. It conclusively shows that he did not know what a security is. Manning did not even question Warren, the defense’s rebuttal expert on securities law. The failure to ask questions was not strategic; instead, it was caused by Manning’s failure to get the Court’s attention that he had not questioned the witness. (R.578-1,#5422.) There was no attempt at a defense. The Government argues that the record is insufficient because it “does not provide information why [Manning] ‘chose to take the actions [he] took.’” (GovBr.136.) But there is evidence regarding the decisions that counsel made. He was driven by the naïve hope that that the Government would dismiss the charges at some point during the trial. But that is not a strategic decision; it is simply ineffective assistance. This falls well below the performance guaranteed by the Constitution, and it plainly led to Hosseinipour’s conviction. Hosseinipour even alerted the court’s staff of the issues. (R.578-1,#5423.) Manning then told her that she could not take it to the court and that it would be a terrible thing to do. (R.578-3,#5430.)
The Government contends, and the court accepted, that Hosseinipour’s Sixth Amendment right was not violated because counsel for the co-defendants crossed witnesses, and Manning filed me-too motions to their substantive motions. (R.630,#6164; GovBr.140.) However, “[t]he essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant.” Wheat v. U.S., 486 U.S. 153, 159 (1988)(emphasis added). Neither Barnes’ counsel, nor Maike’s counsel were advocating on Hosseinipour’s behalf. Instead, they were only representing their respective clients at the trial. The defenses put on for other defendants cannot cure the lack of a defense provided by Hosseinipour’s counsel. U.S. v. Hall, 200 F.3d 962, 967 (6th Cir. 2000)(Sixth Amendment guarantees undivided loyalty). At trial, Hosseinipour did not make any knowing waiver of her right to counsel and did not agree that she would only receive the defense that was being presented by counsel for Barnes and Maike.
Hosseinipour argues in her initial brief that Manning’s performance was prejudicial and deficient because he failed to investigate the facts, perform legal research, prepare for trial, review discovery, file a motion to sever, ask Warren questions, know he had his client’s MOI, allow his client to testify (in addition to the court’s improper statement that Manning was driving the boat on the decision), and alert the court that he had been fired by Hosseinipour. The Government made no response to these arguments. This warrants reversal.
At most, the Government argues that the result would not have been different because of certain evidence. Hosseinipour has explained why this evidence is not probative of her knowledge that I2G was a pyramid scheme or of any misrepresentation to a purchaser of an Emperor package. The Government’s brief shows the paucity of evidence against Hosseinipour and actually supports rather than refutes the notion the result would have been different if she had received the counsel guaranteed by the Sixth Amendment.
C. At a minimum, the court erred by not holding a hearing on the ineffective assistance of counsel issue.
Alternatively, the failure to hold a hearing was an abuse of discretion. Hosseinipour presented a modicum of evidence, so a hearing was required. U.S. v. Allen, 254 F. App’x 475, 478 (6th Cir. 2007). A hearing “is required unless the record conclusively shows that the petitioner is entitled to no relief.” Campbell v. U.S., 686 F.3d 353, 357 (6th Cir. 2012). The Government does not offer any support for the notion that a district court can deny an evidentiary hearing where a defendant files a properly supported motion. Thus, a hearing was required.
Further, a court abuses its discretion when it relies on clearly erroneous facts. U.S. v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015). Here, the court’s factual findings have no support. (R.630,#6164.) The Government properly concedes as much. (GovBr.138 fn.5.) Because Hosseinipour and the Government agree that the court’s decision rested on clearly erroneous facts, reversal is required.