United States v. Basu ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 02-475 (RWR)
)
RAMENDRA BASU, )
)
Defendant. )
____________________________ )
MEMORANDUM OPINION AND ORDER
Petitioner Ramendra Basu moved under 28 U.S.C. § 2255 to
vacate his conviction or correct his sentence arguing that his
counsel provided ineffective assistance while Basu cooperated
with the government. His motion was denied, and he now has filed
an application for a certificate of appealability. Because Basu
has not made a substantial showing that he was denied a
constitutional right, his motion will be denied.
BACKGROUND
The background of this case is discussed fully in United
States v. Basu, 531 F. Supp. 2d 48, 51 (D.D.C. 2008) and United
States v. Basu, Criminal Action No. 02-475 (RWR), 2012 WL
2244875, at *1 (D.D.C. June 18, 2012). Briefly, Basu was an
employee at the World Bank where he entered into an agreement
with a World Bank Task Manager and a Swedish consultant to award
business to the consultant with the understanding that the
consultant would pay kickbacks to the Task Manager. Basu, 2012
WL 2244875, at *1. Basu pled guilty in 2002 to conspiracy to
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commit wire fraud in violation of 18 U.S.C. § 371, and corruptly
using instrumentalities of interstate commerce in violation of
the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-3. Under the
terms of the plea agreement, Basu agreed to cooperate with the
government. Shortly after Basu pled guilty, Assistant Federal
Public Defender Greg Spencer took over Basu’s representation.
In 2005, a Swedish court sought Basu’s testimony at the
consultant’s trial in Sweden. “Basu hoped that Spencer would
travel to Sweden to learn details that could help his case and to
‘document and be witness to [his] cooperation[,]’” but Spencer
did not go. Id. (quoting Mot. to Vacate, Ex. 1, Basu Affidavit
¶ 6). “The testimony Basu heard during the trial in Sweden made
him question whether he had facilitated bribe payments as alleged
in the information to which he pled guilty.” Id. “When Basu
returned to the United States, he learned that a sentencing
hearing had been set, and he ‘went to see Mr. Spencer in his
office and tried to explain to him as best [he] could what had
occurred at the Swedish trial.’” Id. (quoting Mot. to Vacate,
Ex. 1, Basu Affidavit ¶ 9). Basu told Spencer that he wanted to
withdraw his plea. Spencer, though, successfully moved to
withdraw as Basu’s attorney citing Basu’s dissatisfaction with
the representation provided by the Federal Public Defender’s
Office, and new counsel was appointed. Id. (citing Mot. to
Withdraw at 2.) Basu reviewed the testimony from the Swedish
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trial and other pertinent details of the case with his new
attorney who filed a motion to withdraw Basu’s guilty plea. He
argued that Basu was innocent of the charges and that Basu’s plea
was coerced. Basu, 531 F. Supp. 2d at 51. The motion was denied
on the grounds that Basu had voluntarily entered the plea and
that his claim of innocence lacked evidentiary support. The
government declined to file a motion for a downward departure
since Basu had tried to withdraw his guilty plea, and Basu was
sentenced to fifteen months of incarceration. Basu, 2012 WL
2244875, at *1.
Basu filed a motion to vacate his conviction on the ground
that he received ineffective assistance of counsel because
Spencer did not assist him during the term of his cooperation.
Id. at *3. Basu’s sole supporting factual assertion was that
Spencer did not accompany Basu when Basu testified in Sweden.
Id. (citing Mot. to Vacate at 15-17). That motion was denied
because the court found that “Basu’s counsel’s representation did
not fall below an objective level of reasonableness and Basu
suffered no prejudice[.]” Id. at *1. Basu filed a notice of
appeal and has filed with this court an application for a
certificate of appealability. The court of appeals is holding
Basu’s appeal in abeyance pending resolution of Basu’s
application for a certificate of appealability.
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DISCUSSION
A defendant cannot appeal a final order in a proceeding
under 28 U.S.C. § 2255 unless a circuit justice or a judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). “A
certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In order to
satisfy this requirement, the petitioner must demonstrate that
“reasonable jurists could debate whether (or for that matter,
agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
& n.4 (1983)). In particular, where the petition under § 2255
has been denied by the district court on the merits, “[t]he
petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong.” Id.
Basu asserted constitutionally ineffective assistance of
counsel. In order to prove such a claim, a defendant must show
“(1) that counsel’s representation fell below an objective
standard of reasonableness, and (2) that there is a reasonable
probability that, but for counsel’s errors, the result of the
proceeding would have been different.” Basu, 2012 WL 2244875, at
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*2 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984)). When a defendant asserts an ineffective assistance of
counsel claim based on inadequate investigation, the appellant
must “‘show to the extent possible precisely what information
would have been discovered through further investigation[,]’”
United States v. Gwyn, 481 F.3d 849, 855 (D.C. Cir. 2007)
(quoting United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir.
1996)), and whether that information “would have produced a
different result.” Askew, 88 F.3d at 1073 (citations omitted).
Basu’s habeas petition complained just that Spencer did not
accompany Basu to Sweden for his testimony in December 2005.
Now, in seeking a COA, Basu makes new allegations. He now says
that Spencer was ineffective also because Spencer did not in the
two years before that testimony accompany Basu to meetings
connected with his cooperation, or do more to investigate the
details of the charges to which he had pled guilty and the
information he learned in Sweden.
Basu pled guilty to conspiracy and violating the Foreign
Corrupt Practices Act. He pled knowingly and voluntarily and
under oath. He admitted in open court that he committed the
criminal acts that violated those statutes. He sets forth no
legal or factual reason that Spencer should have been on notice
before December 2005 that there was anything further to
investigate in Sweden or elsewhere about the criminal acts Basu
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admitted under oath committing. Nor does Basu make any showing
that meetings connected with his cooperation revealed any
exculpatory information that Spencer should have expected to
learn. Nothing in his current filing reflects the requisite
substantial showing of any act or omission by Spencer that fell
below an objective standard of reasonable professional
representation.
Nor does Basu’s application illustrate how Spencer’s further
investigation would have had an impact on the outcome of his
case. Basu had already pled guilty at the time he returned from
Sweden with the new details he deems important. The only
available recourse was pursuing his motion to withdraw the guilty
plea. Both Spencer and replacement counsel met with Basu about
his new details before his motion was filed. The motion was
denied on the merits. Basu provides no legal rationale or
alternative grounds for reasonable jurists to disagree about
whether any prejudice resulted from Spencer’s alleged failure to
investigate the crimes Basu had already admitted committing or
the information from the trial in Sweden.
CONCLUSION AND ORDER
Basu has not shown that reasonable jurists would disagree or
debate the finding that his counsel’s performance was not
deficient and that Basu did not suffer prejudice. Therefore, it
is hereby
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ORDERED that the petitioner’s application [75] for a
certificate of appealability be, and hereby is, DENIED.
SIGNED this 22nd day of October, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge