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United States v. Keller

United States District Court, Third Circuit

December 6, 2013

JOHN J. KELLER Civil Action No. 12-3766


Juan R. Sánchez, J.

Defendant John J. Keller moves this Court to vacate his conviction and sentence under 28 U.S.C. § 2255 on the grounds he received ineffective assistance of counsel in violation of his Sixth Amendment rights. He also requests an evidentiary hearing on his claims. Keller raises many issues in support of his ineffective assistance claim, attacking his counsel’s performance at trial, sentencing, and on appeal. Despite the breadth of his ineffective assistance allegations, not one finds legal or factual support in the record. Keller’s § 2255 motion will therefore be denied without an evidentiary hearing. See United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (explaining no hearing is required if the record clearly resolves the merits of the § 2255 motion).


Prior to his conviction in this case, Keller was an attorney in private practice in Allentown, Pennsylvania. In 2001, he agreed to represent Tanya Slavinsky in connection with various matters, including the sale of a house in Connecticut that she had inherited from her mother. The sale of the house generated proceeds sufficient to pay Keller’s outstanding bill through February 15, 2002—$27, 000. Keller agreed to keep the remaining proceeds— $300, 000—in a trust account on Slavinsky’s behalf. Shortly thereafter, Keller disbursed $75, 000 at Slavinsky’s request.

By October 23, 2003, the remaining funds in the account—$225, 000—had been exhausted by dozens of checks made payable to Keller, employees of his law firm, his law firm, or others. Keller was indicted on 17 counts of wire fraud, with each check payable to him or his law firm constituting a separate count. On February 11, 2008, the jury found him guilty on 12 of the 17 counts. The district court subsequently sentenced Keller to 57 months on each count to be served concurrently, a three-year term of supervised release, and restitution in the amount of $225, 000. On September 27, 2010, the Third Circuit affirmed his conviction and sentence. Keller filed the instant § 2255 motion on June 27, 2012.


Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody or on supervised release may seek to have his sentence vacated, set aside, or corrected if it was imposed in violation of the Constitution or laws of the United States, or is otherwise subject to collateral attack. The Sixth Amendment right to counsel includes the right to effective assistance of counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 686 (1984). To warrant reversal of a conviction, a convicted defendant must show (1) his counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Id. at 687.

To satisfy the first prong, deficiency, a petitioner must show his counsel’s conduct fell below an objective standard of reasonableness. Id. at 688. When evaluating counsel’s performance, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The mere fact that a tactic has been unsuccessful does not necessarily indicate that it was unreasonable, and a court cannot use the benefit of hindsight to second-guess tactical decisions. Id. at 690; see also Diggs v. Owens, 833 F.2d 439, 444–45 (3d Cir.1987) (“An attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial. Consequently, judicial scrutiny of an attorney's competence is highly deferential.”). Indeed it is “only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel’s performance.” United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).

To demonstrate prejudice, “[t]he defendant must 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. This standard requires the petitioner to show more than “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, those errors must be of sufficient magnitude “to undermine confidence in the outcome” of the trial. Id. at 694. In ruling on a § 2255 motion, a court may address the prejudice prong first “and reject an ineffectiveness claim solely on the ground that the defendant was not prejudiced.” Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir.2006).

At various points throughout his memorandum in support of his § 2255 petition, Keller argues that because his counsel was laboring under a conflict of interest, prejudice should be presumed. As the Third Circuit has noted, however, “[t]he circumstances in which prejudice has been found so likely as to be presumed are very rare.” Vance v. Lehman, 64 F.3d 119, 122 (3d Cir. 1995). Under Strickland, prejudice is presumed “only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 342 (1980)).

Keller’s conflict of interest theory is based on an alleged agreement between defense counsel and the prosecution to cooperate regarding certain evidentiary issues in advance of trial so as to avoid burdening the judge. In a footnote, Keller speculates that his attorney wanted to “go easy” on the judge, who was presiding over his first criminal trial, because Keller’s counsel had another unrelated civil case pending before the same judge. Keller Mem. 25 n.8, ECF 138 at 37. The mere fact that an attorney has more than one (entirely unrelated) case pending before the same judge does not create a conflict of interest. Cf. United States v. Kole, 164 F.3d 164, 176 (3d Cir. 1998) (noting a conflict exists “when counsel cannot use his best efforts to exonerate one defendant for fear of implicating the other”). There is no tension between exonerating Keller and providing effective representation to another client in an unrelated civil matter, even if it were factually true (which, as explained below, it was not) that counsel for the prosecution and defense agreed to assist the judge and avoid evidentiary issues. Because no conflict existed as a matter of law, the Court will not presume prejudice exists when evaluating Keller’s ineffective assistance grounds.

Keller recites a litany of purported attorney errors in an effort to establish an ineffective assistance of counsel claim. Each instance will be addressed individually below, but the collective errors generally fall within the following categories: (1) the failure to challenge the admissibility of recorded conversations between Keller and his former client, Slavinsky, (2) the failure to use whatever means necessary to challenge Slavinsky’s testimony or otherwise attack her credibility, (3) the failure to inform the Court regarding potential juror misconduct, (4) the failure to object to the admission of certain evidence on hearsay grounds, (5) the failure to file a motion to dismiss the indictment, and (6) the failure to make certain arguments during sentencing and on appeal.[1]

Keller and Slavinsky’s recorded conversations were admitted at trial pursuant to the district court’s January 24, 2008, order granting the Government’s unopposed motion to admit the recordings. In the order, the court made certain findings as to the admissibility of the recordings under United States v. Starks, 515 F.2d 112 (3d Cir. 1975). As explained above, no active conflict of interest motivated the decision not to oppose the motion to admit the recordings; therefore, this Court must determine whether the decision was deficient and whether it prejudiced Keller. Keller contends the recordings should have been challenged on three bases: First, the recorded conversations were entered into evidence without the requisite foundation establishing authenticity. Second, the recorded conversations were unfairly prejudicial because they were obtained by deceiving and coercing Keller while he was under duress. Third, the transcripts of the recordings contained errors and other deceptive differences from the audio, and counsel failed to retain an expert to examine the tapes and to prepare an alternate transcript.

Federal Rule of Evidence 901(a) provides the standard for authenticating an item of evidence, and it requires the proponent to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Prior to the adoption of Rule 901(a), the Third Circuit held when the Government seeks to admit tape recordings, it has the burden “to produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings.” Starks, 515 F.2d at 121. There is some question as to whether Starks remains good law following the adoption of Federal Rule of Evidence 901, but the Third Circuit has not overruled the case. See United States v. Toler, 444 F. App’x 561, 564 n.1 (3d Cir. 2011) (finding it unnecessary to address the Government’s argument that Starks was abrogated by Federal Rule of Evidence 901(a) where the Government met ...

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