I write today on tax criminal, Paul Daugerdas, who has been the subject of many postings on this blog. (See here.) After exhausting all of his conviction and other post-conviction remedies, Daugerdas in 1918 tries one other “hail Mary” shot in the form of a motion “to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255.” Daugerdas v. United States (SDNY Dkt 18cv152, Entry No. 48), Memorandum and Order dated 2/16/21, TN here & CL here). As with his other efforts to avoid or mitigate his convictions, this one fails.
Daugerdas’ failed effort included the common use of the ineffective assistance of counsel allegation and other “blunderbuss” claims. Basically, the Court rejected Daugerdas’ claims that his counsel, both trial and appellate, met the standards for effective assistance of counsel within the broad range of reasonable strategic decisions made in the course of trial and appeal. The Court also rejected other claims, including a Marinello claim to his § 7212(a), tax obstruction, conviction. See Marinello v. United States, 584 U.S. ___, 138 S. Ct. 1101 (2018).
This is a fairly standard disposition of such claims. The following caught my eye.
1. Daugerdas claimed that his trial counsel failed in advising him to execute pre-indictment extensions of the criminal statute of limitations. One of his arguments was that he received no consideration for the extension and therefore, as a contract, the extension was unenforceable as a matter of basic contract law. The Court rejected that argument (see pp. 9-10). The Court’s holding appears to be based on one holding and one notion: (1) as recited in the extensions, Daugerdas did receive consideration in the DOJ’s forbearance to indict immediately without the extension and the extension gave him more opportunity to argue against indictment and marshal his case for trial when indicted; and (2) in any event, possibly, a waiver of the statute of limitations is a unilateral waiver rather than a contract, thus requiring no consideration under contract law (this second holding is, stated cautiously (“Under this view”), in a footnote, p, 10 n. 4). My comments are:
- The second holding, a standard and routine one for extensions of the civil statute of limitations under § 6501(c)(4) is, I and my former partner have argued, wrong. John A. Townsend & Lawrence R. Jones, Jr., Interpreting Consents to Extend the Statute of Limitations, 78 Tax Notes 459 (1998), here. The problem is that there is too much water under the bridge on this spurious notion to ever correct it. (Regardless, the Court, usually meticulous, miscites the name of a key case, Stange v. United States, 282 U.S. 270 (1931)).
- As I said, § 6501(c)(4) applies only to civil statute extensions. I am not sure that authority which was based on an early version of § 6501(c)(4) (since materially changed as we note in the article), could affect criminal statute extensions. The cases cited by the Court in the footnote are civil cases which all go back to the notion cited above which now is mainstream even if erroneous. and I am not sure that authority would govern in criminal cases.
- In all events, I can’t imagine that any defense counsel would advise a client to extend the statute of limitations unless there was something for the defendant in the extension. So, I would imagine that a court considering such a contract consideration claim for a criminal statute extension would not be able to find consideration, at least in terms of considering an ineffective assistance of counsel claim.
2. Daugerdas also raised Marinello arguments. The Court held (pp. 15-16) that the argument was procedurally defaulted because he could have raised the Marinello-based argument before on the direct appeal. Even though Marinello had not been decided by the direct appeal, the underlying argument could have been made (just as Marinello’s lawyers and others before Marinello made them in courts of appeals). Daugerdas also failed to show prejudice (see below in discussing the Government’s response).
3. I was curious as to why this motion filed in 2018 was only being decided in 2021. So, I took a look at the docket entries in CourtListener, here. I didn’t see anything on quick review that answered that question, but did find the following:
- Daugerdas early filed a motion for the court to supervise in a hearing his trial counsel’s testimony regarding his waiver of the attorney-client privilege with respect to the claim of ineffective assistance of counsel. In a brief order here (worth reading), the Court denied that motion. See Dkt. 13 here. Readers will recall that an ineffective assistance claim waives the attorney-client privilege for communications relevant to the claim.
- Daugerdas filed a reply to the Government’s answer to his initial motion. See Dkt. 31, here. He engages on the Marinello issue at pp. 9-13. Nothing particularly startling there, except he does charge the following: “The Respondant [sic] gleens [sic], pleasurizes, takes the above language from the Marinello decision.” I’m not sure exactly what message that conveys since the definitions I found did not seem to fit, but it is cute.