Gire v. United States

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

EDWIN J. GIRE, )

)

Petitioner, )

)

v. ) Case No. 19-cv-3079

)

UNITED STATES OF AMERICA, )

)

Respondent. )

ORDER AND OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court is Petitioner Edwin J. Gire’s Motion to

Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.

§ 2255 (d/e 1). Petitioner alleges he received ineffective assistance

of counsel throughout his criminal proceedings, which led to his

guilty plea for unlawfully employing illegal aliens and his guilty

verdict after a bench trial for visa fraud and harboring illegal aliens.

Petitioner also alleges the Government withheld exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). For

the reasons below, the Court DENIES Petitioner’s § 2255 Motion

(d/e 1) and DECLINES to issue a certificate of appealability.

I. BACKGROUND

The criminal investigation into Petitioner’s roofing business’s

H-2B immigration visa petitions became clear when a search

warrant was executed on a building owned by Petitioner’s roofing

company on May 28, 2014. Petitioner and his girlfriend, Kimberly

Young, decided they needed legal counsel. They found Andrew

DeVooght and began working with him to hopefully avoid a criminal

indictment. See, e,g., Transcript (d/e 51) at 170. Once that effort

failed, DeVooght continued defending Petitioner against the criminal

charges until after Petitioner pled guilty to three counts of unlawful

employment of aliens and was found guilty after a bench trial on

January 31, 2018 of four counts of visa fraud and three counts of

harboring illegal aliens. See United States v. Gire, 16-cr-20044-001

(C.D. Ill.) (hereinafter, “Crim.”), Judgment (d/e 133). Petitioner has

now filed this § 2255 Motion, alleging DeVooght’s representation

and advice was constitutionally deficient in numerous regards and

argues his convictions and sentence should be vacated.

A. The I-129 Visa Petition Fraud

Petitioner has been in the roofing business for many years. He

was the owner of his company Gire Construction Inc., (d/b/a Gire

Roofing) until 2011. Crim., Plea Transcript (d/e 69) at 21. In 2011,

he declared bankruptcy and the company dissolved. However, his

girlfriend, Kimberly Young, provided the start-up capital and credit

to open another company under the name Grayson Enterprises

(d/b/a Gire Roofing). Id.; Crim., Transcript (d/e 75) at 985, (d/e

76) at 1091. Petitioner was responsible for managing the new

company’s day-to-day operations, but Young was listed as the CEO

and President. Id.

In March 2011, August 2011, March 2013, and April 2014,

Gire Roofing submitted H-2B visa petitions to receive temporary

workers. The H-2B temporary worker visa program allows U.S.

employers, or their agent, who meet specific regulatory

requirements to bring foreign nationals to the United States to fill

temporary nonagricultural jobs. Individuals or entities seeking to

hire H-2B visa workers are required by immigration laws or

regulations to submit I-129 petitions to the Department of

Homeland Security (DHS).

Petitioner submitted these petitions through attorney Saman

Movassaghi on behalf of either Gire Construction, Inc. (Gire

Construction) or Grayson Enterprises. Attached to each of the four

I-129 petitions were numerous fabricated roofing contracts. For

example, the first I-129 petition at issue (from March 2011) sought

visas for 95 workers and justified the need for these workers by

claiming that Gire Construction had two valuable contracts for

roofing work in Central Illinois: (1) a $1,252,000 contract for work

at a mall near Tuscola, Illinois and (2) a $375,000 contract for work

at a cap-and gown company in Arcola, Illinois. See Crim.,

Transcript (d/e 70) 76, 83-84, 86-90; Gov.Ex. 100. The petition

and the contracts both were signed with the Petitioner’s name.

These projects, however, never existed. Crim., Transcript (d/e 72)

at 374-76, (d/e 74) at 660-64, 670-73. And, while 93 visas were

issued and 93 foreign workers entered the country, the Government

presented evidence that none of these workers worked for Gire

Construction. Crim., Transcript (d/e 70) at 93, (d/e 74) 791-92.

The scheme was similar for the other three petitions that were

filed. The August 2011 Petition requested an extension for the visas

of 20 workers who were already in the country, but they worked for

a different employer (M&M Industrial Services, which is owned by

Terry Metreyeon). Crim., Transcript (d/e 70) at 93-105, Gov. Ex.

200; Memo (d/e 2) at 11. None of these workers ever worked for

Gire Construction.

The March 2013 Petition justified the need for 43 visas by

attaching multiple fabricated contracts that had been signed by

Petitioner, four of which were over $100,000. Crim., Transcript

(d/e 70) at 118-19, 120-23; Gov.Ex.300. The evidence at trial also

showed that Young was aware that Petitioner was seeking workers

to help with Grayson’s roofing business in March 2013. Both

Young and Petitioner corresponded with Movassaghi about the

March 2013 Petition, sometimes using the same Gire Roofing email

address. Crim., Transcript (d/e 72) at 413-14, 426-27, (d/e 75) at

982-84, 1009, 1011, 1051-52, 1072, (d/e 76) at 1096-1100;

Gov.Ex. 302 at 149-50. Petitioner at times gave Young supporting

documents to email to Movassaghi. Id. (d/e 76) at 1097-1100.

However, this time one of the individuals who obtained a visa

as a result of the March 2013 Petition, Cresencio Garcia-Cruz, did

do work for Grayson beginning in July 2013. Crim., Transcript (d/e

73) at 553. Garcia-Cruz continued to work for Grayson until

September 2014 even though his visa expired in November 2013.

Crim., Plea Transcript (d/e 69) at 22; Crim., Transcript (d/e 70) at

127, (d/e 73) at 557. None of the other individuals who obtained a

visa as a result of the March 2013 petition performed any work for

Grayson.

Finally, the April 2014 Petition justified the need for 71 visas

based on more fabricated contracts, one of which was for $2.895

million. Transcript (d/e 70) at 144-45; Gov. Ex. 400. The trial

evidence also showed that these contracts were signed by Petitioner

and that Young sent them to Movassaghi via email. Crim.,

Transcript (d/e 73) at 540-42, 699-703, (d/e 76) at 1123; Gov.Ex.

402 at 22-36.

For the 2011 petitions, Petitioner retained Michael Lombardi of

U.S. Opportunities to help him obtain foreign workers for his visas,

as well as Lombardi’s associate, Kevin Daley. Memo (d/e 2) at 7.

Notably, Lombardi was convicted and sentenced for conspiracy to

commit visa fraud related to another company’s visa petition and

was in prison during the time the 2013 and 2014 petitions were

filed. See Crim., Transcript (d/e 74) at 808. With Lombardi in

prison, Petitioner worked with Daley to obtain workers for the 2013

and 2014 visas. The Government presented evidence that Daley

had re-sold visas on the black market to foreign nationals. See

Crim., Transcript (d/e 73) at 566. The Government also presented

evidence that after the March 2011 and March 2013 I-129 petitions

were submitted, Petitioner and Young received at least two

payments from Kevin Daley. Crim., Transcript at 254, 302-03, 553-

54, 617. Specifically, in June 2011, the petitioner received $2,000

from Daley via a wire transfer to Gire Construction’s bank account.

Id. at 722. In September 2013, Young received $4,000 from Daley

via a wire transfer to her personal account. Id. at 269-71, 773.

Nonetheless, Petitioner has consistently maintained his

innocence, claiming instead that it must have been Lombardi,

Daley, and/or Movassaghi who perpetrated the fraud. At trial,

Petitioner presented evidence of other businesses that had had

fraudulent petitions submitted on their behalf while working with

Lombardi and Movassaghi. See, e.g., Crim., Transcript (d/e 74) at

743-51 (testimony of Teri Borowski who worked for the Polo Club of

Boca Raton and alleged that Lombardi charged his workers illegal

fees and that his signature was forged on a visa related document).

He also presented evidence at trial through Young and others that a

woman working for Daley named “Fatima” was the one emailing

Movassaghi fabricated paperwork for the visas in March 2013,

rather than Petitioner and/or Young. See, e.g., Crim., Transcript

(d/e 75) at 979-989.

B. The Criminal Investigation and Proceedings

The criminal investigation began when the Department of

State discovered that workers who been granted H-2B visas to work

for Gire Roofing had not actually worked for Gire Roofing. Law

enforcement executed a search warrant on May 28, 2014, that

allowed them to search the Gire warehouse in Champaign, Illinois.

In addition to evidence of visa fraud, this search revealed evidence

that illegal aliens were working for Petitioner and being housed in

this warehouse. Crim., Plea Transcript (d/e 69) at 22-23; Crim.,

Transcript (d/e 73) at 555, 564, 621-22, 631-32, (d/e 74) at 724-

25. These individuals included Garcia-Cruz who entered the United

States with a H-2B visa as a result of the March 2013 petition, as

well as Lopez-Constantino and Torres-Hernandez, who both entered

the United States without documentation. Id. Notably, Petitioner

encouraged Torres-Hernandez to apply for an H-2B visa, but his

application was denied. Crim., Plea Transcript (d/e 69) at 23.

Torres-Hernandez continued to work for Grayson after his

application was denied. Id.; Crim., Transcript (d/e 73) at 589-90.

After the search, Petitioner and Young sought legal counsel

with the apparent hopes of avoiding an indictment. See, e,g.,

Transcript (d/e 51) at 170. They found DeVooght. With DeVooght,

they approached the U.S. Attorney’s Office and attempted to explain

how Petitioner did not have the motive to commit the crime. They

also attempted to direct the Government’s investigation to the three

individuals they later placed the blame on at trial: (1) Movassaghi;

(2) Lombardi; and (3) Daley. The U.S. Attorney’s Office requested

that Petitioner waive attorney-client privilege to allow them to speak

to Movassaghi. After being advised to do so by DeVooght, Petitioner

agreed to waive attorney-client privilege.

Ultimately, Petitioner was unsuccessful at avoiding an

indictment for him and his business (although Young was not

indicted). In June 2016, Petitioner was charged in a ten-count

Indictment. See Crim., Indictment (d/e 1). Counts 1 through 4

charged Petitioner with visa fraud in violation of 18 U.S.C.

§§ 1546(a) and 2. Id. Counts 5 through 7 charged Petitioner with

harboring illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).

Id. Counts 8 through 10 charged Petitioner with unlawful

employment of aliens in violation of 8 U.S.C. § 1324a(a)(1)(A) and

(f)(1). Id.

On October 20, 2017, Petitioner appeared before Magistrate

Judge Schanzle-Haskins and pled guilty to the misdemeanor

charges of unlawful employment of aliens, Counts 8-10. The Court

accepted Petitioner’s guilty pleas to Counts 8 through 10 on

November 8, 2017. Crim., Text Order, Nov. 8, 2017.

Shortly before trial, on November 7, 2017, Petitioner waived

his right to a jury trial. Crim., Text Order, Nov. 7, 2017. The bench

trial began the same day and continued until November 15, 2017.

On January 31, 2018, in a written verdict, the Court found

Petitioner guilty of the offenses charged in Counts 1 through 7.

Crim., Verdict (d/e 61). On February 7, 2019, Petitioner was

sentenced to 36 months’ imprisonment on each of Counts 1

through 7, and 2 months’ imprisonment on each of Counts 8

through 10, all to run concurrently. Crim., Judgment (d/e 133) at

3. Petitioner was also sentenced to two years of supervised release

on each of Counts 1 through 7, all to run concurrently. Id. at 4.

C. Section 2255 Motion and Proceedings

On March 25, 2019, Petitioner filed a Motion Under 28 U.S.C.

§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in

Federal Custody (d/e 1) and a Memorandum of Law in Support of

His § 2255 Motion to Vacate Convictions (d/e 2). Petitioner claims

that he received ineffective assistance from his trial counsel and

that the Government failed to acquire and disclose exculpatory

evidence to Petitioner. See Motion (d/e 1), at 4–5. He argues that it

was DeVooght’s ineffective assistance of counsel that led to his

indictment and conviction. He continues to maintain his innocence

of all charges. Specifically, Petitioner alleges ten grounds of

incompetent performance on the part of his counsel (which the

Court has reordered for ease of review):

(1) Advice to plead guilty to unlawful employment

based on misunderstanding of law and with no

benefit to Petitioner;

(2) Advice to waive jury trial based on same

misunderstanding of law;

(3) Failure to advise Petitioner about possible cooperation;

(4) Waiver of privilege without any firsthand

information regarding contents of communications;

(5) Failure to file meritorious motions to suppress;

(6) Failure to retain handwriting expert to offer

powerful exculpatory testimony;

(7) Failure to investigate and/or interview witnesses

who could prove Mr. Gire’s innocence and failure to

acquire other potentially exculpatory evidence;

(8) Failure to request investigative files for key government

witnesses and lead investigator, or to inquire into these

subjects at trial and Government failure to acquire and

disclose such information to the defense;

(9) Calling Ms. Young as trial witness without sufficiently

preparing her to testify; and

(10) Failure to object to inadmissible evidence and improper

argument.

Petitioner argues he was pressured and threatened by DeVooght to

waive his rights. However, he chose to continue on with DeVooght

and follow his advice rather than assert his rights or find an

attorney with more agreeable advice, in part, due to the cost of

finding another attorney.

On November 13 and 14, 2019, a two-day evidentiary hearing

on Petitioner’s § 2255 motion was held. See Transcripts (d/e 51,

52). Petitioner and the Government presented evidence relating to

Petitioner’s ineffective assistance of counsel claims. After the

hearing, the Government filed a response (d/e 56) and Petitioner

filed a reply (d/e 59). The Court also notes the stipulations that

have been filed on the record: d/e 39, 41, 43, 63.

While the Court has not directly ruled on the merits of the

§ 2255 Motion prior to this order, the Court notes that the Court’s

prior orders on Petitioner’s Motions for Release on Bail, see d/e 19,

62, and on Petitioner’s Motion for Production of Exculpatory

Evidence and Discovery, see d/e 30, have already addressed the

merits of most of Petitioner’s claims and found them unlikely to

succeed. For ease of review, relevant portions of those orders have

been incorporated within the analysis here.

II. LEGAL STANDARD

Section 2255, “the federal prisoner’s substitute for habeas

corpus,” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012), permits

a prisoner incarcerated pursuant to an Act of Congress to request

that his sentence be vacated, set aside, or corrected if “the sentence

was imposed in violation of the Constitution or laws of the United

States, or . . . the court was without jurisdiction to impose such

sentence, or . . . the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack.” 28

U.S.C. § 2255(a). Relief under § 2555 is an extraordinary remedy

because a § 2255 petitioner has already had “an opportunity for full

process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.

2007). Accordingly, relief under § 2255 is only appropriate for “an

error of law that is jurisdictional, constitutional, or constitutes a

fundamental defect which inherently results in a complete

miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594

(7th Cir. 2004) (quotation marks omitted). And, while a § 2255

Motion is not a substitute for a direct appeal or to raise arguments

that could have been raised on direct appeal but were not, a “failure

to raise an ineffective-assistance-of-counsel claim on direct appeal

does not bar the claim from being brought in a later, appropriate

proceeding under § 2255.” Massaro v. United States, 538 U.S. 500,

509 (2003).

III. DISCUSSION

A. Petitioner’s Stand-Alone Brady claim is Procedurally

Defaulted.

Petitioner claims that the Government failed to acquire and

disclose exculpatory evidence to Petitioner, in violation of Brady v.

Maryland, 373 U.S. 83 (1963). Under the Supreme Court’s decision

in Brady, the Government is required to “provide a defendant with

exculpatory evidence within the government’s knowledge or control

where the evidence is material either to guilt or to punishment.”

United States v. Hamilton, 107 F.3d 499, 509 (7th Cir. 1997). In

addition to being material to guilt or punishment, exculpatory

evidence is favorable to the accused. See Brady, 373 U.S. at 87.

When the reliability of a witness may be determinative of guilt or

innocence, nondisclosure of evidence affecting the credibility of the

witness falls within the general rule imposed by Brady. Giglio v.

United States, 405 U.S. 150, 154 (1972) (internal quotation marks

omitted).

“Evidence is material to the defense if there is a reasonable

probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Hamilton, 107

F.3d at 509. Evidence is not material merely because a possibility

exists that the evidence may have been beneficial to the defense or

may have affected the outcome of the trial. Id. Accordingly, Brady

“does not require a prosecutor to divulge every scintilla of evidence

that might conceivably inure to a defendant’s benefit.” Lieberman

v. Washington, 128 F.3d 1085, 1092 (7th Cir. 1997).

Here, Petitioner’s Brady claims are intertwined with his

ineffective assistance of counsel claims, but he seeks to raise a

Brady claim independently from the ineffective assistance of

counsel claims as well. Petitioner claims that the Government

violated Brady when it failed to acquire and disclose to the defense

information regarding Government witness Saman Movassaghi and

defense witness Agent David Scharlat.

The Court has already thoroughly explained in a prior order

why the Government’s failure to produce information about defense

witness Agent David Scharlat’s misconduct was not a Brady

violation. See d/e 30. Agent Scharlat was the lead agent

investigating the visa fraud and was the agent who supplied the

affidavit for the search warrant. Prior to Petitioner’s indictment,

Agent Scharlat had been indefinitely suspended for misconduct and

was not called as a witness by the Government. See Crim.,

Transcript (d/e 75), at 936. The U.S. Department of State is

certainly in possession of investigative files that contain additional

information related to the alleged misconduct underlying the state

criminal charges brought against Scharlat, and these files would

have been useful to the defense for impeachment purposes.

However, these documents are not material to Petitioner’s guilt, as

the Court would have found Petitioner guilty on Counts 1 through 7

even if the Court had heard evidence regarding the allegations

against Scharlat that led to his suspension by the U.S. Department

of State. Although Scharlat, at one time, was the case agent on the

investigation into Petitioner’s criminal conduct, Scharlat was

suspended a year before Petitioner was indicted. In addition, the

Government proved its case against Petitioner at trial without

Scharlat’s testimony. Investigative files relating to Scharlat in the

possession of the U.S. Department of State or another federal

agency are not exculpatory. Therefore, Petitioner was not entitled to

the production of those files under Brady.

Accordingly, only Petitioner’s alleged Brady violation regarding

information on Government witness Saman Movassaghi remains.

However, as a stand-alone claim, the Government argues that

Petitioner’s alleged Brady violation is procedurally defaulted.

Generally, constitutional claims that could have been raised on

direct review but were not are procedurally defaulted. See Bousley

v. United States, 523 U.S. 614, 621 (1998); McCoy v. United States,

815 F.3d 292, 295 (7th Cir. 2016); Sandoval v. United States, 574

F.3d 847, 850 (7th Cir. 2009). A constitutional claim that is

procedurally defaulted cannot be raised in collateral review absent a

showing of cause and prejudice or actual innocence. McCoy, 815

F.3d at 295. Notably, to show prejudice under the cause and

prejudice standard a petitioner would need to show the same

prejudice that he would need to show to succeed on his Brady claim

anyway. Accordingly, the focus here is whether cause has been

shown.

Petitioner did not bring his Brady claim on direct review, and,

as this § 2255 Motion alleging his Brady claim was brought prior to

Petitioner withdrawing his direct appeal, he certainly could have

raised the claim. However, Petitioner does not argue that he had

cause for not raising it on appeal. Rather, he argues that Brady

claims enjoy the same status as ineffective assistance of counsel

claims do under the Supreme Court’s decision in Massaro v. United

States, 538 U.S. 500 (2003). In Massaro, the Supreme Court held

that a “failure to raise an ineffective-assistance-of-counsel claim on

direct appeal does not bar the claim from being brought in a later,

appropriate proceeding under § 2255.” Massaro, 538 U.S. at 509.

The Supreme Court reasoned that, absent this rule, appellate

counsel would be pressured to bring ineffective assistance of

counsel claims regardless of merit and that even meritorious claims

would be more efficiently addressed in the first instance by the

district court. Id. at 506.

However, Massero only carved out an exception to the cause

and prejudice rule for ineffective assistance of counsel claims.

Since Massero, district courts in this circuit have continued to

dismiss stand-alone Brady claims for procedural default. See, e.g.,

United States v. Ledonne, No. 3:14-CR-55 JD, 2021 WL 4263753,

at *7 (N.D. Ind. Sept. 20, 2021) (rejecting Brady claim in a 2255

motion for failing to show cause and prejudice for failure to bring

the claim in his direct appeal); United States v. Bloom, No. 18-CV-

6944, 2019 WL 2601357, at *2 (N.D. Ill. June 25, 2019); (same);

Dixon v. United States, No. 217CV00080JMSDLP, 2018 WL

4077023, at *3 (S.D. Ind. Aug. 27, 2018) (same); United States v.

Townsend, No. 14 C 310, 2015 WL 4656723, at *2 (N.D. Ill. Aug. 5,

2015) (same); United States v. Jones, No. 05 CR 81-2, 2009 WL

3762120, at *4 (N.D. Ill. Nov. 9, 2009) (same). At least the Ninth

Circuit has recently done so as well. See United States v. Gibson,

858 F. App’x 211, 212 (9th Cir. 2021), cert. denied, No. 21-7080,

2022 WL 660715 (U.S. Mar. 7, 2022) (finding that if Brady claims

were raised on direct appeal they are barred, and, if they were not,

they are procedurally defaulted and cause and prejudice must be

shown, which the petitioner had failed to do).

While Petitioner has cited cases indicating that Brady claims

are often better left to postconviction proceedings, none of these

cases suggests that the Brady claims at issue in those cases would

not have needed to show cause in order to proceed. See United

States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004) (stating

that Brady claims “may be raised in postconviction proceedings

such as . . . a motion to vacate a sentence under 28 U.S.C. § 2255”

because “[t]hose proceedings permit greater development of the

record”); United States v. King, 150 F.3d 644, 651 (7th Cir. 1998)

(“At our suggestion, defense counsel requested permission to

withdraw the Brady argument in order to preserve it for further

development in a motion under 28 U.S.C. § 2255.”).

Of course, often Brady claims cannot be brought on direct

review because the record is undeveloped. However, it is not just

the undeveloped nature of the record that allows the claim to be

brought on collateral review. Rather, when a petitioner can show

that “the factual ... basis for a claim was not reasonably available to

counsel,” they have shown cause for failing to raise the claim.

Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639 (1986).

Here, the factual basis for Petitioner’s Brady claim was

available at the time of trial. To support his allegation that

materials regarding Movassaghi were withheld, Petitioner points to

an email sent between investigators where one investigator states

“I’m still interested with Movassaghi, although I haven’t been

successful with attaching her to this district to pursue possible

criminal charges.” Ev. Hearing Exhibit 8. However, that document

was included in the discovery tendered by the Government prior to

trial and DeVooght testified that he was familiar with it. See

Transcript (d/e 51) at 128-129. To the extent any additional

evidence exists, the reason it is outside of the trial record is because

counsel did not raise this potential Brady claim before or during

trial. Put another way, the only road to success on Petitioner’s

Brady claim is by first showing that his counsel was ineffective for

not raising the Brady claim at trial. That argument is not

procedurally barred and will be addressed below. As a stand-alone

claim, however, the Court finds that Petitioner was required to show

cause and prejudice for failing to raise it on direct appeal. Because

Petitioner has not done so, his stand-alone Brady claim is

dismissed as procedurally defaulted.

B. Petitioner Has Not Shown His Constitutional Right to

Effective Assistance of Counsel Was Violated.

Petitioner’s core allegations relate to his Sixth Amendment

right to effective assistance of counsel. Strickland v. Washington,

466 U.S. 668, 684-86 (1984). To succeed on an ineffective

assistance of counsel claim, a petitioner must show both that his

attorney’s performance was deficient and that he was prejudiced as

a result. Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir.

2015). Courts, however, must “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 690. A petitioner

must also prove that he has been prejudiced by his counsel’s

representation by showing “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. Absent a sufficient showing of

both cause and prejudice, a petitioner’s claim must fail. United

States v. Delgado, 936 F.2d 303, 311 (7th Cir. 1991).

Here, Petitioner has alleged ten areas where he claims his

counsel provided ineffective assistance, which the Court examines

individually below. As explained below, the Court finds that

DeVooght’s performance was not constitutionally deficient in any

areas and, even if counsel had presented the case as Petitioner now

claims counsel should have, Petitioner was not prejudiced by

counsel’s failure to do so.

1. Counsel’s Advice to Plead Guilty to the Misdemeanor

Counts:

Petitioner claims his counsel was ineffective when he advised

Petitioner to plead guilty to Counts 8 through 10 of the Indictment,

the misdemeanor charges for unlawfully employing illegal aliens.

Determining whether to advise a client to plead guilty involves

defense counsel’s “careful strategic choices in balancing

opportunities and risks.” See Premo v. Moore, 562 U.S. 115, 124

(2011). Petitioner’s counsel believed that the Court would “value

the fact that [Petitioner] plead[ed] guilty to the misdemeanor

charges” in Counts 8 through 10. See Memorandum, Ex. 14. Trial

counsel also thought that Petitioner’s refusal to plead guilty to

those charges would undercut the defense’s credibility, and that

credibility was important to trial counsel, who believed that

Petitioner had a defense to the visa fraud and harboring charges.

Id.

Petitioner argues that his counsel’s reasoning was based on a

misunderstanding of the case law. At the Evidentiary Hearing,

Petitioner called an expert witness who testified that, in his view,

trial counsel’s recommendation that Petitioner should plead guilty

to charges 8–10 was not “objectively competent, reasonable advice.”

Transcript (d/e 51) at 236. Petitioner’s expert also testified that

trial counsel’s strategy appeared to be the result of a “fundamental

mistake” as to the definition of “harboring” in 8 U.S.C.

§ 1324(a)(1)(A)(iii). Id.

After reviewing Petitioner’s evidence, along with the transcripts

from the 2017 trial, the Court does not agree that DeVooght’s trial

arguments regarding the definition of “harboring” in

§ 1324(a)(1)(A)(iii) and the application of that definition to

Petitioner’s case were the result of careless or incompetent legal

work. Rather, the Court finds that trial counsel made a perfectly

reasonable, though ultimately unsuccessful, legal argument in an

attempt to distinguish Petitioner’s actions from the actions of the

defendants in United States v. McLellan, 794 F.3d 743 (7th Cir.

2015) and United States v. Campbell, 770 F.3d 556 (7th Cir. 2014).

In McLellan, the Seventh Circuit held that harboring requires

“inten[t] to safeguard th[e] alien from the authorities,” rather than

“simply providing housing.” 794 F.3d at 750–51. Trial counsel

argued that Petitioner lacked the required intent to safeguard, in

part because there was “no secret” and “no hiding away” of the

aliens whom Petitioner housed. Crim., Transcript (d/e 70), at 52–

53. The Court rejected this argument and declined to accept trial

counsel’s characterization of the holding in McLellan, but not

because of any egregious or unreasonable mistake on the part of

Petitioner’s trial counsel. DeVooght merely advanced a somewhat

plausible interpretation of the relevant binding precedents that was

favorable to his client.

Petitioner argues that the advice to plead guilty was also

unreasonable because it conceded the mens rea element of the

harboring charges (counts 5-7). Petitioner’s contention that trial

counsel ought instead to have argued that Petitioner had no

knowledge that the employees in question were illegal aliens, see

Reply (d/e 59), at 10–11, is precisely the sort of “second-guess[ing]”

of “counsel’s assistance after conviction or adverse sentence”

against which Strickland warns. 466 U.S. at 689. Trial counsel

testified that Petitioner had admitted to counsel that he knew that

the employees were illegal aliens. Transcript (d/e 51) at 181. The

Court finds this testimony credible. As Petitioner alleges in his

reply, counsel still could have argued that the Government had not

met its burden of proof. However, it is also true that Petitioner’s

confession limited the evidence that DeVooght ethically could

present and he was not required to allow Petitioner or other

witnesses to perjure themselves. See Nix v. Whiteside, 475 U.S.

157, 168, (1986) (“[A]n attorney’s ethical duty to advance the

interests of his client is limited by an equally solemn duty to comply

with the law and standards of professional conduct; it specifically

ensures that the client may not use false evidence.”); Winston v.

United States, 175 F.3d 1022 at *3 (7th Cir. 1999) (finding that Nix

held that a counsel’s refusal “to present evidence to bolster

testimony she believed was false” does not deprive a defendant of

his Sixth Amendment right to counsel); United States v. Henkel,

799 F.2d 369, 370 (7th Cir.1986) (recognizing Nix rule that a

defendant is entitled only to ethical representation and has no right

to have an attorney assist him in presenting false evidence); see

also ILCS S. Ct. Rules of Prof. Conduct Rule 3.3 (“A lawyer shall not

knowingly . . . make a false statement of fact . . . to a tribunal . . .

or . . . offer evidence that the lawyer knows to be false.”).

Moreover, there existed ample evidence that Petitioner did

know the employees were illegal aliens, of which counsel was well

aware. Counsel testified that he knew of Torres-Hernandez’s (one of

the individuals Petitioner was charged with illegally hiring and

harboring) grand jury testimony that Petitioner had tried to get him

a visa but was unsuccessful, Transcript (d/e 51) at 181, and knew

of additional testimony that, when an undocumented worker was

unable to get back to the United States, Petitioner had paid money

to have him smuggled back into the United States. Id. at 182. On

this record, nothing suggests that counsel’s advice was

unreasonable or otherwise constitutionally deficient. Accordingly,

the Court finds that Petitioner’s plea was not the result of ineffective

assistance of counsel.

2. Counsel’s Advice to Waive Petitioner’s Jury Trial Right:

Petitioner claims his counsel was ineffective when he advised

Petitioner to waive his right to a jury trial. As a preliminary matter,

trial counsel’s decision to advise Petitioner to waive Petitioner’s

right to jury trial was a strategic choice. See, e.g., Milone v. Camp,

22 F.3d 693, 705 (7th Cir. 1994) (holding that recommendation to

waive jury trial was a “trial strategy”). Petitioner does not dispute

this, and instead attempts to rebut the presumption of competence

by offering evidence of the unreasonableness of trial counsel’s

strategic decision. See Reply (d/e 59), at 18–19. Petitioner argues

that DeVooght advised Petitioner to waive his right to trial by jury in

a forceful, “one-sided,” and “pushing” manner and that this action

made trial counsel constitutionally ineffective. See id. at 17–18. At

the Evidentiary Hearing, Petitioner attempted to corroborate this

claim by calling an expert witness, who testified that in his

professional opinion Petitioner’s trial counsel had not provided

advice and information adequate to allow Petitioner to make an

informed decision about whether to waive his right to jury trial. See

Transcript (d/e 51) at 225–26.

The record shows that DeVooght believed that a bench trial

would likely result in a more favorable verdict than a jury trial and

that this belief was based on considerations such as the ability of a

judge to understand complicated legal arguments that might

confuse a jury, the possibility that a jury would be unsympathetic

towards Petitioner due to the nature of his offenses, and DeVooght’s

subjective evaluation of the likelihood that the specific judge

assigned to Petitioner’s case would issue a favorable verdict. See

Transcript (d/e 51), at 95–96, 99, 112–13, 183–85, and 250–52; see

also Montgomery v. Uchtman, 426 F.3d 905, 913–14 (7th Cir. 2005)

(finding effective assistance of counsel where advice to waive jury

right was based on reasonable belief that jury would be

unsympathetic, or that judge would be less likely to impose the

death penalty than a jury). Furthermore, trial counsel explained

the reasoning behind his recommendation to Petitioner in an e-

mail, as well as in at least one in-person conversation. See Memo

(d/e 2), at Exh. 14; Transcript (d/e 51) at 91–92. The Court finds

that counsel’s evaluation was not unreasonable. The fact that trial

counsel referred to the choice of bench trial as a “no-brainer” and

did not devote equal space in his e-mail to the advantages of a jury

trial is not enough to overcome the strong presumption that trial

counsel acted reasonably. Accordingly, the Court finds that

counsel’s conduct was not deficient when he advised Petitioner to

waive his jury trial right.

3. Counsel’s Failure to Advise Petitioner to Cooperate:

Petitioner argues that DeVooght was incompetent because he

failed to advise Petitioner about possible cooperation with the

Government in its investigation of Daley, Lombardi, and/or

Movassaghi. The Court finds this claim is without merit.

Defense counsel may have an obligation to communicate with the

Government regarding a defendant’s willingness to cooperate. See,

e.g., United States v. Delgado, 936 F.2d 303, 312 (7th Cir. 1991)

(finding no prejudice where petitioner alleged defense counsel failed

to fully communicate with the Government regarding defendant’s

willingness to cooperate), abrogated on other grounds by United

States v. Thompson, 944 F.2d 1331 (7th Cir. 1991).

However, at the evidentiary hearing DeVooght testified that he

“absolutely” discussed with the Petitioner the possibility of

cooperating with the Government. Transcript (d/e 51) at 186.

DeVooght testified that Petitioner told him, “I don’t know nothing.”

Id. at 187. DeVooght told Petitioner that the United States believed

he was protecting Lombardi and Daley. Id. The entire time that

DeVooght represented Petitioner, he never told DeVooght that he

had knowledge of any criminal activity of Lombardi, Daley, or

Movassaghi. Id. at 187-88. The Court finds DeVooght’s testimony

credible. Therefore, Petitioner has not shown counsel’s

performance was deficient because counsel did advise Petitioner

about the potential for cooperation.

Moreover, the Court notes that Petitioner has maintained his

innocence throughout these collateral proceedings, even of the

counts to which he pled guilty. It is unclear what assistance he

believed he would have been able to provide to the Government

under a cooperation agreement. Accordingly, the Court finds

Petitioner has failed to show any prejudice.

4. Counsel’s Advice to Waive Attorney-Client Privilege:

Petitioner alleges that his attorney should not have advised

him to waive his attorney-client privilege with regards to his

immigration attorney, Movassaghi. While the Seventh Circuit has

not provided clear guidance on when a waiver of attorney-client

privilege is a matter of strategy, the Ninth Circuit has held that

such advice can be strategic in nature. See Aguilar v. Alexander,

125 F.3d 815, 819 (9th Cir. 2007) (“To the extent that counsel

urged the waiver [of attorney-client privilege] to preserve [the

defendant’s] opportunity to testify, that decision constituted a trial

strategy and not deficient performance.”). According to Petitioner,

during the course of the Government’s investigation, trial counsel

advised Petitioner to waive attorney-client privilege with the

immigration attorney, Movassaghi, believing that Petitioner’s refusal

to do so would likely result in Petitioner being indicted.

Memorandum (d/e 2), Ex. 22, ¶ 5. At the evidentiary hearing,

DeVooght did not remember using “those words” but confirmed that

he told Petitioner the “Government wasn’t gonna go away,” that they

“would think it odd that we made this decision to [speak with

them]” and then not waive privilege, and that it would “look bad” to

not waive privilege. Transcript (d/e 51) at 70-72; see also, Memo

(d/e 2), at Exh. 11 (2015 e-mail in which trial counsel informs

AUSA that Petitioner waived attorney-client privilege on phone call

with Movassaghi because Petitioner has “nothing to hide.”). The

Court finds counsel’s stated reasons credible and represented a

reasonable strategy.

Still, Petitioner argues that waiving the privilege without at

least talking to Movassaghi was an error. DeVooght testified that

when he spoke with Petitioner he repeatedly emphasized his rule of

“do no harm” and warned him that “if there’s something I need to

know, he needs to tell me.” See Transcript (d/e 51) at 73.

DeVooght testified that he spoke to Petitioner regarding the

potential harm of waiving the attorney-client privilege. Id.

Petitioner confirmed at the evidentiary hearing that he did not

inform DeVooght about any past communications with Movassaghi

that could be a problem. See Transcript (d/e 52) at 305.

Petitioner’s argument, in part, appears to be that DeVooght should

not have trusted Petitioner. While DeVooght could have been more

skeptical of his client and chosen to speak with Movassaghi, the

Court cannot find that it was an unreasonable strategy for

DeVooght to trust his client and proceed with a strategy of

distancing Petitioner from those he was trying to convince the

Government had been the ones committing the fraud. Accordingly,

the Court does not find that DeVooght’s conduct was deficient

based on his failure to speak with Movassaghi prior to advising a

waiver of attorney-client privilege.

Moreover, at the evidentiary hearing, Petitioner conceded that

he did in fact agree to waive attorney-client privilege, although he

asserts that he was “pressured” by trial counsel’s insistence that he

would be indicted if he refused to sign the waiver. Id. at 297, 314.

Accordingly, the Court finds that Petitioner consented to the waiver

of attorney-client privilege. See Ganaway v. United States, 69 F.3d

539 (7th Cir. 1995) (“[W]here defendant agrees to follow a particular

strategy at trial, that strategy cannot later form the basis of a claim

of ineffective assistance of counsel”). Not only did Petitioner fail to

tell his counsel that there could be problematic emails in

Petitioner’s communications with Movassaghi, he affirmatively

consented to the strategy of waiving attorney-client privilege. The

Court finds that Petitioner’s consent to that strategy further bars

his attempt to raise the waiver of his attorney-client privilege with

Movassaghi as a ground of ineffective assistance of counsel now.

The Government also argues that there was no prejudice

because the evidence would have been discoverable absent a wavier

due to the crime-fraud exception. “It is the purpose of the crime-

fraud exception to the attorney-client privilege to assure that the

`seal of secrecy,’ between lawyer and client does not extend to

communications `made for the purpose of getting advice for the

commission of a fraud’ or crime.” United States v. Zolin, 491 U.S.

554, 563 (1989) (citations omitted). In the Seventh Circuit, the

prosecution may seek and obtain in camera review of

communications otherwise protected by the attorney-client privilege

if there exists “enough evidence to support a ‘good faith belief by a

reasonable person’ that such review may reveal evidence

establishing the exception.” United States v. Boender, 649 F.3d

650, 656 (7th Cir. 2011) (citing Zolin, 491 U.S. at 572). Here, the

parties do not dispute that a fraud has been committed: the

contracts attached to the visa petitions were fabricated, the

petitions and contracts that at least purported to be signed by

Petitioner sought workers for his business, and they were filed

through the assistance of Movassaghi. Notably, at the time

DeVooght advised Petitioner to waive privilege, the search warrant

on Petitioner’s warehouse had already been completed. During the

search, law enforcement found copies and/or drafts of the petitions

and contracts that had been filed with DHS and notices regarding

those petitions. See, e.g., Transcript (d/e 71) at 166-171, 174-175.

These facts alone would have been enough evidence to support a

“good faith belief by a reasonable person” that the crime-fraud

exception applied such that an in camera review of the attorney-

client communications between Petitioner and Movassaghi was

authorized pursuant to Zolin and Boender. Accordingly, the Court

also finds DeVooght’s advice to waive attorney-client privilege did

not result in any prejudice even if it were deficient advice.

5. Counsel’s Failure to File a Motion to Suppress:

Petitioner argues that counsel should have filed a motion to

suppress the evidence seized pursuant to the search warrant of

Petitioner’s warehouse. To succeed on an argument that defense

counsel’s failure to file a motion to suppress was ineffective

assistance of counsel, a petitioner must show that “there was both

a reasonable probability that he would have prevailed on the motion

to suppress and a reasonable probability that, if [the evidence] were

suppressed, he would have been acquitted.” Bynum v. Lemmon,

560 F.3d 678, 685 (7th Cir. 2009) (citing Strickland, 466 U.S. at

694); Hicks v. Hepp, 871 F.3d 513, 526 (7th Cir. 2017).

Here, Petitioner argues that the search did not satisfy the

Fourth Amendment’s particularity requirement. The Fourth

Amendment to the United States Constitution provides, in relevant

part, “[n]o warrants shall issue, but upon probable cause, . . . and

particularly describing the place to be searched, and the persons or

things to be seized.” U.S. Const. amend. IV. “[A]uthorization to

search [the entire premises] for evidence of any crime flunks the

particularity requirement.” United States v. Sanchez-Jara, 889

F.3d 418, 421 (7th Cir. 2018). “Warrants that fail to satisfy this

threshold requirement are facially deficient, and executing officers

may not rely on them.” Archer v. Chisholm, 870 F.3d 603, 616 (7th

Cir. 2017).

On May 22, 2014, United States Magistrate Judge David G.

Bernthal issued the warrant to search the Gire warehouse.

Petitioner argues that the search warrant should have been limited

to only evidence of visa fraud. However, Attachment B to the

warrant contained a list of “items to be seized” that included “[a]ny

and all records related to foreign workers.” See Memo. (d/e 2), Ex.

17, May 2014 Warrant and Attachments at 3. The warrant also

allowed seizure of documents that Petitioner claims were unrelated

to foreign workers at all, including “[a]ll shredded documents and

trash, which may contain additional evidence of criminal activity,”

and “[a]ny and all cellular telephones owned or used in connection

with the business of Grayson Enterprises, Gire Construction, Gire

Roofing, or any related entity.” Id.

The Court does not agree that the warrant violated the

particularity requirment. Listing only “evidence of crime” as a

description of the things to be seized does not satisfy the Fourth

Amendment’s particularity requirement and “can only be described

as a general warrant.” United States v. Stefonek, 179 F.3d 1030,

1033 (7th Cir. 1999). However, the warrant here was far more

specific than the warrant in Stefonek, as it listed the specific types

of items which law enforcement believed would have evidence of the

crime of visa fraud. Petitioner does not argue that law enforcement

did not have probable cause to conduct the search or to seize the

items listed. And, evidence of foreign workers logically relates to the

visa fraud crime that law enforcement had probable cause to believe

Petitioner had committed.

Additionally, suppression of the evidence is not warranted

where the alleged error did not cause the harm the policy against

general warrants was meant to prevent: to “make sure that a search

pursuant to a warrant does not invade the property and privacy of

the individual whose premises are to be searched, and property

seized, beyond what is necessary to achieve a valid law enforcement

purpose as determined by a judicial officer.” United States v.

Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999). Petitioner does not

challenge the finding that there was probable cause to conduct the

search.

Moreover, the Court does not agree with Petitioner’s argument

that the search extended beyond what probable cause allowed

because law enforcement seized an I-Pad, three computers, boxes of

miscellaneous documents and papers, various personal

identification documents, and a DVR system. While the search was

broad, “[c]riminals don’t advertise where they keep evidence.”

United States v. Bishop, 910 F.3d 335, 337 (7th Cir. 2018), cert.

denied, 139 S. Ct. 1590 (2019). Accordingly, “a warrant authorizing

a search for documents that will prove a crime may authorize a

search of every document the suspect has, because any of them

might supply evidence.” Id. “It is enough . . .if the warrant cabins

the things being looked for by stating what crime is under

investigation.” United States v. Bishop, 910 F.3d 335, 337 (7th Cir.

2018). In light of Bishop, the Court finds that the search, as

authorized and as conducted, was justified by probable cause.

Petitioner also argues that the law enforcement officers seized

items related to harboring, whereas the affidavit only contained

probable cause to search for visa fraud. However, the items seized

were not outside the scope of the warrant and Petitioner has not so

argued. Law enforcement is not required to ignore evidence of

another crime that is discovered when conducting an authorized

search. Moreover, with regard to the DVR, the agents prudently

sought an additional warrant before conducting a search of the

digital files. See United States v. Lickers, 928 F.3d 609, 619 (7th

Cir. 2019), cert. denied, No. 19-5795, 2019 WL 5150671 (U.S. Oct.

15, 2019) (holding that the application for, and execution of, the

federal search warrant reflected good faith on the part of the federal

agents). Accordingly, Petitioner has not shown that he would have

succeeded on a motion to suppress.

Petitioner also argues that counsel should have moved for a

hearing under Franks v. Delaware, 438 U.S.C 154 (1978) because

the affiant, Agent Scharlat, failed to disclose his alleged

misconduct. However, DeVooght testified that he was not aware of

any sexual assault allegations against the search warrant affiant

until after the trial. See Transcript (d/e 51) at 186. Moreover,

while Scharlat’s misconduct certainly goes to his character,

Petitioner has not articulated how it would have undermined the

credibility of the investigation or the existence of probable cause in

this case.

Because Petitioner has not shown that he would have

succeeded on his motion to suppress, he has not shown that

counsel was deficient or that he suffered any prejudice. See also,

Resnick v. United States, 7 F.4th 611, 622 (7th Cir. 2021) (“As we

have held, counsel does not need to raise meritless arguments”)

(citing Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017)).

Additionally, at the evidentiary hearing, DeVooght testified

that he considered filing a motion to suppress and discussed such a

motion with Petitioner, but counsel concluded that “it would be a

lot of effort for a very little probability of success. And that we had

other issues that we had to really focus on.” See Transcript (d/e

51) at 186. Even if Petitioner had raised a potentially meritorious

issue, the Court credits DeVooght’s testimony that he made a

strategic decision not to pursue a motion that had little probability

of success. Accordingly, Petitioner’s claim of ineffective assistance

based on counsel’s failure to file a motion to suppress is denied.

6. Counsel’s Failure to Retain a Handwriting Expert:

Petitioner argues that his counsel should have retained a

handwriting expert. Whether to retain an expert at trial whose

testimony could have either supported or contradicted a defendant’s

defense is also a matter of strategy. See Harrington v. Richter, 562

U.S. 86, 108 (2011) (“Even if it had been apparent that expert blood

testimony could support [defendant’s] defense, it would be

reasonable to conclude that a competent attorney might elect not to

use it.”). Petitioner claims that trial counsel did not retain a

handwriting expert despite Petitioner stating that the signatures on

the visa applications in question were not Petitioner’s. See Memo

(d/e 2), Ex. 22, ¶ 8. Petitioner claims that trial counsel decided not

to retain such an expert because the burden was on the

Government to prove the signatures were Petitioner’s. Id.

Current counsel for the Petitioner examined DeVooght at the

Evidentiary Hearing, and DeVooght explained his decision not to

call a handwriting expert. He testified that the decision was the

result of extensive consultation with Petitioner and Young and was

made for strategic reasons, including the possibility that such an

action would lead the Government to hire a handwriting expert of

its own. See Transcript (d/e 51), at 87–88.

At the evidentiary hearing, John Breslin testified as a

handwriting expert, but had not reviewed original copies of the

relevant visa petitions at the time. After the evidentiary hearing,

the parties filed a stipulation regarding additional testimony of

Breslin after he had the opportunity to review the original 2014 visa

petition. See Stipulation (d/e 63). Based on that review, Breslin

would now testify, to a reasonable degree of professional certainty,

that the signature on the original 2014 I-129 visa petition was not

Petitioner’s. Id. However, Breslin did not give an opinion as to who

may have signed the petition.

Notably, as the Government highlights, at trial, the

Government presented an email dated March 13, 2013, that Young

wrote to Movassaghi stating: “I won’t be able to get [the petitioner’s]

signature until tonight. Would it be okay for me to sign it since I’m

the owner?” Crim., Transcript (d/e 75) at 1011-12; Gov. Ex. 302 at

95- 97. See also Crim., Transcript (d/e 70, 75, 76) at 119-20, 970,

977, 1091; Crim., (d/e 119-1), Ex. A; Crim., Gov. Ex. 300 at 71;

Gov. Ex. 300 at 134-35. Accordingly, the Government argues that

even with the testimony of the handwriting expert, the evidence still

establishes that Petitioner either signed the fraudulent petitions or

authorized Young to do so on his behalf. See also, 18 U.S.C. § 2

(“(a) Whoever commits an offense against the United States or aids,

abets, counsels, commands, induces or procures its commission, is

punishable as a principal. (b) Whoever willfully causes an act to be

done which if directly performed by him or another would be an

offense against the United States, is punishable as a principal.”).

This Court finds that trial counsel’s strategic decision not to

call a handwriting expert was not so objectively unreasonable as to

deprive Petitioner of constitutionally effective assistance of counsel.

See Strickland, 466 U.S. at 690 (“[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable.”). Petitioner’s counsel did not know

that an expert would find that the signature on the March 2013

petition was not Petitioner’s at the time of trial, and reasons to be

believe that the testimony of a handwriting expert overall may not

be helpful. Moreover, given the evidence at trial regarding Young’s

authorization to sign the petition, the Court does not find that

Petitioner has proven prejudice either.

7. Counsel’s Failure to Interview Additional Potential

Witnesses and Sufficiently Investigate the Guilt of Others:

Petitioner claims that his counsel was ineffective for failing to

sufficiently investigate the responsibility of others he claims are

responsible for the visa fraud. Prior to indictment, at trial, and

now, Petitioner has claimed that he is innocent of the visa fraud

charges and theorizes that the fraud was perpetrated instead by

others, including Lombardi, Daley, and/or Movassaghi. Despite

presenting evidence supporting this defense at trial, Petitioner

claims his attorney did not do enough to investigate and present all

evidence that may have implicated these individuals in the fraud.

Petitioner claims that DeVooght should have: (1) interviewed Daley,

Lombardi, and Movassaghi; (2) had Daley and Lombardi testify at

trial; (3) moved to admit portions of Daley’s grand jury testimony;

(4) presented evidence from additional associates of Daley and

Lombardi; (5) located, interviewed, subpoenaed, or sought to depose

the workers subject to the relevant visa petitions; and (6) elicited

testimony about the Government’s investigation of Daley. Memo

(d/e 2) at 6-12, 16-17.

Trial counsel has a duty to investigate that requires counsel to

either “make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.”

Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052,

2066, 80 L. Ed. 2d 674 (1984). While, “strategic choices made after

thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable [,] . . . strategic choices made after

less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the

limitations on investigation.” Id. at 691. “The consequences of

inattention rather than reasoned strategic decisions are not entitled

to the presumption of reasonableness.” Mosley v. Atchison, 689

F.3d 838, 848 (7th Cir. 2012) (noting the deferential presumption in

that strategic decisions are reasonable “applies only if the lawyer

actually exercised judgment.”).

Petitioner argues that DeVooght should have interviewed

Movassaghi, Lombardi, and Daley. At the evidentiary hearing

DeVooght testified that he, along with Petitioner and Young, made a

collective strategic decision not to interview Lombardi, Daley, or

Movassaghi before trial because they did not believe a discussion

with them would be credible or fruitful. Transcript (d/e 51) at 80.

This decision was based on the information he received from

Petitioner and Young, as well as discovery received from the United

States. Id. at 81. Their strategy was to distance Petitioner from

Lombardi, Daley, and Movassaghi and then to put Lombardi, Daley,

and Movassaghi on trial. Transcript (d/e 51) at 81-83. DeVooght

also did not want to call them as defense witnesses because “we did

not want our case to look like it was dependent on anything these

people had to say.” Transcript (d/e 51) at 171-72.

However, Petitioner argues that DeVooght could not have

exercised any reasonable strategy because he did not know what

their testimony could be. Petitioner points to the Seventh Circuit’s

decision in Mosley, in which counsel had failed to investigate the

potential testimony of alibi witnesses. See Mosley, 689 F.3d at 848

(“If [counsel] never found out what [the potential witnesses’]

testimony would be, he could not possibly have made a reasonable

professional judgment that their testimony would have been

cumulative or bolstered the State’s case and could not have chosen

not to call [the witnesses] as a matter of strategy.”). However,

unlike the alibi witnesses in Mosley, given Petitioner’s defense

theory, interviewing Lombardi, Daley, and Movassaghi would only

have resulted in exonerating evidence to the extent that they

implicated themselves in the crime. DeVooght and Petitioner agreed

on a trial strategy of putting these three individuals on trial. It was

not unreasonable for DeVooght to conclude that speaking with

these individuals prior to trial would not be credible or fruitful.

Nor was it unreasonable not to subpoena Daley or to try and

get his grand jury testimony admitted at trial. As the trial record

shows, the United States had issued a subpoena for Daley. They

were unable to secure his appearance because, according to his

local counsel, he was in a Mexican hospital. Transcript (d/e 51) at

147. While Petitioner argues that counsel should have moved to

admit Daley’s grand jury testimony, counsel testified that he

believed the positives of Daley’s grand jury testimony were

outweighed by the negatives. Transcript (d/e 51) at 149, 173

(noting that Daley’s grand jury testimony was that “Fatima” did not

exist). If DeVooght sought to and successfully admitted Daley’s

grand jury testimony, this would have allowed the Court to review

the entire transcript. See Fed. R. Evid. 106 (doctrine of

completeness). Moreover, counsel testified that some of the positive

facts from his testimony had already been elicited from other

witnesses. Transcript (d/e 51) at 149. For instance, counsel noted

that the “idea that [Daley] had multiple women that worked for him

in the paperwork” had already been elicited from Agent Scharlat.

Id. Accordingly, the Court finds that DeVooght made a reasonable

strategic decision, and was not deficient for failing to get Daley’s

grand jury testimony admitted.

Petitioner also argues that counsel should have presented

evidence from additional associates of Daley and Lombardi.

Specifically, he mentions that counsel declined to present evidence

from Lombardi’s former business partner Bia Molina. Molina had

previously accused Lombardi of misconduct, including misleading

customers, “agreeing not to charge fees, and collecting those

anyways,” and “misrepresent[ing] [their] customers in the I-129

forms submitted to USCIS on their behalf.” Memo (d/e 2) at 11.

However, at the evidentiary hearing, DeVooght testified that he did

speak with Molina and “made the conscious strategic decision not

to put someone on the stand who could take on some water for

their clear bias.” Transcript (d/e 51) at 153. Further, DeVooght

thought that the testimony of Agent Elder, Nina Navis, and Michael

Dominguez covered the same points counsel could make with Bias’s

testimony without the bias issue. Id. Accordingly, again, the Court

finds that DeVooght made a reasonable strategic decision not to put

Molina on the stand.

Petitioner next alleges that counsel’s investigation was

deficient because he neglected to locate, interview, subpoena, or

seek to depose workers subject to the relevant visa petitions.

Petitioner has failed to develop this argument and provide any

evidence of what the workers would have testified to that was not

already in the record nor has he shown how such testimony would

have impacted the outcome of the trial. Accordingly, the Court does

not find that this is a colorable allegation of ineffective assistance of

counsel.

Finally, the Court notes that Petitioner’s claim involving

DeVooght’s failure to investigate and acquire exculpatory evidence

also criticizes DeVooght for not subpoenaing certain records

relating to Movassaghi, Daley, Lombardi, and an e-mail account

(girehumanresrces@yahoo.com), and not thoroughly searching for

companies or their owners who had dealings with Daley, Lombardi,

and/or Movassaghi. See Memo (d/e 2) at 12- 16. The failure to

obtain this exculpatory evidence was thoroughly addressed in the

Court’s Order on Petitioner’s Motion for Discovery of these same

documents. See Order (d/e 30). As part of that motion, Petitioner

sought to subpoena: (1) e-mails or other documents from Daley,

Lombardi, and Molina relating to their involvement with work visa

applications for Gire Construction or any other client; (2) 2011

records from Movassaghi’s e-mail service provider; (3) phone

records associated with Daley’s known phone numbers; (4)

Movassaghi’s phone records and bank records; and (5) records

relating to an e-mail address (girehumanresrces@yahoo.com).

Motion (d/e 11), at 10. However, Petitioner failed to show that any

of this information would have been useful for his case or that some

of these records even existed. Accordingly, the Court held that the

bulk of Petitioner’s subpoena requests represented a fishing

expedition. See Order (d/e 30) at 10. On the merits now, the Court

finds that these speculative arguments regarding what trial counsel

could have investigated are insufficient to show ineffective

assistance of counsel.

With regard to DeVooght’s failure to conduct an investigation

into the origins of the girehumanresources@yahoo.com e-mail

address, the Court already found that Petitioner has not shown how

this evidence would have supported his defense. Petitioner claims

that he did not create or use the e-mail account and that he

informed DeVooght of messages to and from the account, some of

which were electronically signed “Ed Gire.” Gire Aff. (d/e 2-22), ¶

14. However, Petitioner does not explain how he came to learn of

the girehumanresrces@yahoo.com e-mail account and in no way

connects this account to Lombardi, Daley, Movassaghi, or any other

person. Nor does Petitioner claim that the July 2013 e-mail

possibly sent from Mexico relates to any of the visa petitions

underlying Petitioner’s visa fraud convictions or that the email is

signed “Ed Gire.” Further, the fact that an e-mail was sent from

Mexico does not definitively prove that the e-mail was not sent by

Petitioner or someone authorized by Petitioner to send the e-mail.

Petitioner admits that the Government did not use any emails to or

from the girehumanresrces@yahoo.com account against Petitioner

at trial. See Reply (d/e 20), at 19. Moreover, as DeVooght pointed

out at the evidentiary hearing, Petitioner’s known and active work

e-mail was copied on every e-mail sent to or from this account.

Transcript (d/e 51) at 190. Therefore, DeVooght felt it was a better

strategy to cross-examine Special Agent Dan Mancini about his lack

of knowledge or investigation of that account. Id. at 191.

Accordingly, the Court finds that trial counsel made a reasonable

strategic decision not to conduct a further investigation into the

origins of this email address and that Petitioner has not shown any

prejudice from the failure to do so. In summary, the Court finds

that Petitioner has not shown any instance of deficient conduct

related to trial counsel’s investigation.

8. Counsel’s Failure to Request Investigative Files:

Petitioner claims that trial counsel was incompetent for failing

to request investigative files regarding Movassaghi and Agent

Sharlart. These claims relate to Petitioner’s Brady claims discussed

above. However, as explained above and in the Court’s prior order,

d/e 30, the Government was not required to turn over any

investigative files regarding Agent Sharlart, who was called only as

a defense witness. These files would have been useful for

impeachment value only and were not required to be turned over by

the Government. Moreover, because the Court has found that the

investigative files regarding Agent Sharlart would not have changed

the result at trial, the Court finds that Petitioner was not prejudiced

by trial counsel’s failure to request the files or to further inquire

into Agent Sharlart’s misconduct when Agent Sharlart was

testifying.

And, regardless of whether trial counsel should have requested

any investigative files of Movassaghi, Petitioner has not shown that

such files exist so Petitioner could not have suffered any prejudice

for this alleged failure. In a status conference on October 14, 2020,

the Court granted leave to depose Agent Pham regarding his emails

in which he indicated he was “interested” in Movassaghi. See

Hearing Exhibit 8; Hearing Exhibit 9. No further testimony or

evidence regarding this issue has been submitted to the Court, so

the Court presumes that Agent Pham’s testimony did not provide

support for Petitioner belief that files existed.

Nonetheless, in complying with the Court’s discovery order,

the Government did turn over another fraudulent visa petition that

had been submitted by Movassaghi that related to the prior

investigation and prosecution of Lombardi. This petition, filed for

Aramark, was found in the possession of the Department of

Homeland Security (“DHS”), an agency that participated in the

prosecution of Petitioner. See Notice (d/e 34); Hearing Exhibit 34.

Petitioner argues that the Aramark petition is exculpatory.

However, only Lombardi was criminally charged with the fraud

related to the Aramark petition, not Movassaghi. And, at trial, it

was known that Movassaghi worked with Lombardi and submitted

a number of petitions in connection with him. See Crim.,

Transcript (d/e 73) at 525. Notably, DeVooght did introduce similar

evidence. For example, Teri Borowski who worked for the Polo Club

of Boca Raton testified that Lombardi charged his workers illegal

fees and that his signature was forged on a visa related document.

See, e.g., Crim., Transcript (d/e 74) at 743-51. Petitioner does not

explain what impact another such instance would have made. Nor

would it be particularly surprising that there would be other

petitions that Movassaghi submitted that were later found to be

associated with Lombardi’s fraud. Moreover, Petitioner has not

explained how this document is exculpatory or how its failure to be

requested and discovered by trial counsel would have impacted the

outcome of the trial. Accordingly, the Court finds that Petitioner

has failed to show ineffective assistance of counsel for counsel’s

failure to request investigative files and related documents for either

Agent Scharlat or Movassaghi.

9. Counsel’s Alleged Failure to Prepare Ms. Young to Testify:

Petitioner next claims that trial counsel was ineffective

because he failed to prepare Young to testify. This claim requires

little discussion. At the evidentiary hearing, DeVooght testified that

he did prepare her to testify. Transcript (d/e 51) at 144, 189.

Petitioner did not present any evidence to the contrary, and the

Court finds DeVooght’s testimony credible. This claim is denied.

10. Counsel’s Failure to Raise Certain Objections at Trial:

Finally, Petitioner argues that counsel failed to raise certain

objections at trial. However, as the Government highlights, this

was a bench trial and the law presumes that judges are not

influenced by improper evidence bought before them in rendering a

verdict. See, e.g., United States v. Lim, 57 F. App’x 701, 704 (7th

Cir. 2003) (rejecting evidentiary claim, which is “inapposite in a

bench trial, where there is no risk of jury prejudice”); United States

v. Shukri, 207 F.3d 412, 419 (7th Cir. 2000) (“In a bench trial, we

assume that the district court was not influenced by evidence

improperly brought before it unless there is evidence to the

contrary.”); Ashford v. Gilmore, 167 F.3d 1130, 1136 (7th Cir. 1999)

(“[T]he law presumes that judges are not influenced by improper

evidence brought before them.); United States ex rel. Placek v.

Illinois, 546 F.2d 1298, 1305 (7th Cir. 1976)(“[W]hen we have held

that evidence was improperly admitted in a bench trial, we have

refused to presume that the trial judge considered it in reaching his

verdict.”) (citing United States v. Stanley, 411 F.2d 514, 516 (7th

Cir. 1969); United States v. Menk, 406 F.2d 124, 127 (7th Cir.

1969)); Martin v. F.E. Moran, Inc., 2017 WL 1105388, at *4 (N.D.

Ill. Mar. 24, 2017) (“[T]here is a presumption that the court is not

improperly influenced by the evidence brought before it”). Petitioner

has not presented any evidence to rebut this presumption or

otherwise responded to this caselaw in his reply. Accordingly, the

Court finds that this claim must be denied.

*****

While the Court finds that none of the alleged errors qualified

as deficient conduct, the Court also notes that, even had counsel

conducted his investigation and trial strategy in the manner

Petitioner now alleges he should have, Petitioner has not shown

that the result would have been different. The Government

presented overwhelming evidence of guilt at trial. Notably, the

Government presented a theory that Petitioner had learned about

this type of visa fraud scheme from Lombardi and Daley and

knowingly participated with them in the scheme. Accordingly, even

if Petitioner had uncovered and presented additional evidence

regarding Lombardi and/or Daley’s involvement in the fraudulent

scheme, Petitioner has not shown that this evidence would be

exculpatory or otherwise inconsistent with him also being guilty.

Because Petitioner has not shown that counsel’s conduct was

deficient or that he was prejudiced by the alleged errors, the Court

must deny his claim of ineffective assistance of counsel.

IV. CERTIFICATE OF APPEALABILITY

If Petitioner seeks to appeal this decision, he must first obtain

a certificate of appealability. See 28 U.S.C. § 2253(c) (providing that

an appeal may not be taken to the court of appeals from the final

order in a § 2255 proceeding unless a circuit justice or judge issues

a certificate of appealability). A certificate of appealability may

issue only if Petitioner has made a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a

showing is made if “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a

different manner.” Slack v. McDaniel, 529 U.S. 473, 484, 120

S. Ct. 1595 (2000). When a federal habeas petition is dismissed on

procedural grounds without reaching the underlying constitutional

claim, the movant must show “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling.” Id. In light of the Court’s factual findings, including the

Court’s finding that DeVooght’s testimony at the evidentiary hearing

was credible, the Court does not find that reasonable jurists could

disagree with the Court’s findings that Petitioner did not receive

ineffective assistance of counsel or that Petitioner’s stand-alone

Brady claim is procedurally defaulted. Accordingly, the Court

declines to issue a certificate of appealability.

V. CONCLUSION

For the reasons stated above, the Court DENIES Petitioner’s

Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.

§ 2255 (d/e 1). The Court DECLINES to issue a Certificate of

Appealability. Petitioner’s Motion for a Status Conference (d/e 65)

is DENIED as moot. This case is CLOSED. The Clerk is DIRECTED

to prepare the Judgment.

Signed on this 29th day of March 2022.

/s/ Sue E. Myerscough

Sue E. Myerscough

United States District Judge