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UNITED STATES v. MOSKOVITS

June 24, 1993

UNITED STATES OF AMERICA
v.
ALEXANDER EUGENIO MOSKOVITS



The opinion of the court was delivered by: LOUIS H. POLLAK

 Pollak, District J.

 June 24, 1993

 Having conducted an evidentiary hearing to resolve issues of material fact pertaining to defendant Alexander Moskovits' motion to vacate his judgment of conviction and sentence pursuant to 28 U.S.C. § 2255, I now conclude that Moskovits' trial was critically infected by unconstitutional error and that a new trial is in order.

 What follows incorporates my findings of fact and conclusions of law.

 I.

 On February 12, 1993, I filed an opinion holding that defendant's § 2255 petition was not an abuse of the writ and ordering an evidentiary hearing to resolve various disputed factual issues raised by that petition. United States v. Moskovits, 815 F. Supp. 147 (E.D. Pa. 1993). That opinion sets out in some detail the procedural history of this case, as well as the substance of Moskovits' § 2255 petition. Rather than repeat that detailed recital here, I will confine myself to setting forth the most salient aspects of this case's history.

 In August 1991, I granted Moskovits' Rule 35/§ 2255 motion and vacated Moskovits' sentence. See United States v. Moskovits, 784 F. Supp. 183 (E.D. Pa. 1991). Moskovits' sentence had been enhanced on the basis of his prior conviction in Mexico, and I decided that Moskovits' trial counsel, Robert Simone, Esq., had provided constitutionally ineffective assistance of counsel during sentencing by failing to inquire into the validity of Moskovits' Mexico conviction (a conviction that, I concluded, was flawed, from an American due process perspective, for the reason that Moskovits had received no meaningful legal representation at critical stages of the proceedings). In the § 2255 petition presently before this court, Moskovits' principal contention -- and the only issue on which an evidentiary hearing was ordered *fn1" -- is that his trial counsel also provided ineffective assistance at trial by failing to inquire into the validity of the Mexican conviction before advising Moskovits that this conviction would more than likely be used for impeachment purposes if Moskovits testified. *fn2" In the February 1993 opinion ordering an evidentiary hearing, I first rejected the government's claim that Moskovits had abused the writ by not including this challenge to the validity of his conviction in his previous motion brought pursuant to Rule 35 and § 2255. Then, I decided that Moskovits' ineffective assistance claim warranted an evidentiary hearing. Noting that it was well-settled at the time of the trial (1988) that a prior conviction obtained in violation of a defendant's due process rights cannot be used to impeach that defendant, see Loper v. Beto, 405 U.S. 473, 483, 31 L. Ed. 2d 374, 92 S. Ct. 1014 (1972), I determined that Moskovits stated a claim of ineffective assistance of counsel at trial because Mr. Simone's asserted failure to pursue the issue of the validity of the Mexican conviction when advising Moskovits whether to testify was arguably no less egregious than his failure to research the validity of that conviction as a basis for sentence enhancement.

 At the evidentiary hearing, which took place on April 12 and 13, 1993, the defense called two witnesses: (1) Milton Grusmark, Esq., Mr. Simone's co-counsel in the Moskovits trial, and (2) Mr. Moskovits himself. The government called one witness, Mr. Simone, and cross-examined both of the defense witnesses. What must now be decided is whether, at the evidentiary hearing in April, defendant satisfied his burden of establishing, by a preponderance of the evidence, that (1) counsel's failure to research the validity of the Mexican conviction and counsel's advice that the conviction would likely be used to impeach Moskovits "fell below an objective standard of reasonableness," and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 688, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In the February opinion ordering an evidentiary hearing, I reasoned that Strickland 's prejudice prong broke down into two propositions, each of which Moskovits would have to establish at the evidentiary hearing: "(1) that if Moskovits had known that he could not be impeached with a prior conviction obtained without the assistance of counsel at critical phases of the proceeding, it is reasonably probable that he would have chosen to testify; and (2) that without his trial testimony, his trial was rendered unfair and the verdict rendered suspect." 815 F. Supp. at 154. Therefore, what is now for me to address is: (1) whether counsel's failure to inquire into the admissibility of the Mexican conviction was constitutionally deficient; (2) whether it is reasonably probable that Moskovits would have testified but for this advice; and (3) whether Moskovits' failure to testify undermines confidence in the outcome of his trial.

 II.

 The Adequacy of Representation

 The testimony adduced at the evidentiary hearing confirmed what Moskovits' attorneys had indicated previously in affidavits, see e.g., Defendant's Mem. in Sup., Exh. B (Grusmark Aff.) at P 4; 784 F. Supp. at 186: that Mr. Simone and Mr. Grusmark did not research the underlying circumstances of the Mexican conviction or the admissibility of that conviction, but rather assumed that the conviction was valid and admissible were Moskovits to take the stand. Specifically, Mr. Grusmark testified that although presented with a copy of the Mexican judgment of conviction prior to trial -- a document which nowhere indicated that Moskovits had been represented by counsel -- and although the government had intimated prior to trial that it might use the Mexican conviction to impeach Moskovits, he never investigated, prior to trial or during trial, whether Moskovits had in fact been represented by counsel during the Mexican proceedings. Nor did Moskovits' counsel file a motion contesting the admissibility of the Mexican conviction. Instead, Mr. Grusmark and Mr. Simone advised Moskovits that, if he testified, the jury would likely learn about his prior conviction and that this would imperil his defense.

 In ruling on defendant's earlier challenge to his sentence, I was faced with a similar issue-- whether the failure of Moskovits' counsel to research the validity of the Mexican conviction and to file a motion contesting its validity was objectively unreasonable, when that conviction was to be used as a basis for enhancing Moskovits' sentence. There, I concluded that Mr. Simone's failure to investigate the validity of the Mexican conviction and failure to file a relevant motion was "not compatible with minimal professional standards" because "an attorney has an obligation, that cannot be avoided or delegated to others, to make sure when it comes to sentencing that the ingredients asserted by the government to be essential ingredients that call for sentence enhancement of a significant nature, are well-founded." Moskovits, 784 F. Supp. at 186. At the time of Moskovits' trial, it was settled that an uncounseled conviction cannot be used for sentence enhancement, see United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), and it was equally well-settled that such a conviction cannot be used for impeachment, see Loper, supra. Further, an attorney has a responsibility, no less demanding than the aforementioned obligation to investigate the basis of a proposed sentence enhancement, to evaluate the admissibility of threatened impeachment material -- especially impeachment evidence as critical as a prior conviction -- so as to offer the defendant informed advice as to whether he or she should take the stand (as well as to insure that, if the defendant does take the stand, he or she is not impeached with inadmissible material). Therefore, on the face of things, it is difficult to see why, if counsel's failure to ascertain whether the Mexican conviction could be used for sentencing enhancement was an unprofessional error, the failure to investigate whether that conviction could be used for impeachment purposes did not also fall below an objective standard of reasonableness.

 The government, while acknowledging that counsel's failure to research the validity of the Mexican conviction was error, offers two principal reasons why counsel's conduct was not an unprofessional error in the special Strickland sense. First, the government points out that Moskovits, although he sensed that there was something wrong with the Mexican conviction *fn3" and knew before the trial that his conviction could be used against him, failed to volunteer relevant facts about the conviction that would have prompted his trial counsel to investigate those proceedings. Therefore, according to the government, "it was not objectively unreasonable for trial counsel to not research the validity of the Mexican ...


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