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United States v. Grosky


September 22, 2009


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


On July 10, 2009 David Grosky ("Grosky") filed a 28 U.S.C. §2255 ("Section 2255") motion, seeking to vacate his conviction and sentence following his guilty plea to a massive financial fraud that victimized thousands of investors who had purchased stock in Efoora, Inc. ("Efoora"). Grosky, a nonpracticing lawyer who had been Efoora's Chief Executive Officer and Chairman of its Board of Directors during the entire period covered by the multicount indictment, claimed in his Section 2255 motion that he was a "victim" too--in this instance, by suffering constitutionally inadequate representation on the part of his experienced criminal counsel.

This Court promptly issued a July 14 memorandum opinion and order that "grant[ed] Grosky's contemporaneous motion for leave to file a supporting memorandum as to all issues except Ground One on or before September 14, 2009," as well as "order[ing] the United States Attorney's Office to file a response to all aspects of the Motion on or before the same date." On September 14 the United States timely complied with that directive by filing its Government's Response to Petitioner's Motion To Vacate, Set Aside or Correct Sentence--but nothing was forthcoming from Grosky. This Court waited three days beyond the specified due date and, still having received nothing from Grosky, then issued its September 18 memorandum opinion and order ("Opinion") denying (and explaining the reasons for denying) the Section 2255 motions that had been filed both by Grosky and by one of his co-defendants.

Later on the very same September 18 date that the Opinion had been issued, the Clerk's Office delivered to this Court's chambers Grosky's belated filing of a Motion for Leave To File Reply Brief, coupled with a 25-page Legal Memorandum in Support of Petition for Relief Pursuant to 28 U.S.C. §2255 (that dual filing by Grosky had been received in the Clerk's Office on the preceding day (September 17), but the normal procedures in that office--first docketing, then sorting all incoming filings for distribution to the various judicial chambers--typically provide next-day delivery). This Court has reviewed Grosky's submission with care, and it holds that no change is called for in the conclusion reflected by the Opinion.

Some review of the bidding is called for. Grosky entered into his plea agreement and pleaded guilty more than two years ago, on August 27, 2007. This current filing is not Grosky's initial effort at second-guessing--on April 22 of this year he filed a self-prepared Motion for Specific Performance of his 2008 plea agreement. That motion turned out to be based on Grosky's mistaken belief that the government was claiming that the residence that had been conveyed to Grosky's former wife in their dissolution of marriage proceeding was sought to be made the subject of a forfeiture proceeding--it was not.

But what is most significant is not that mistake on Grosky's part, but rather the following express acknowledgment that he made just five months ago in that motion, in his own words, at a time when he was fully aware of all of the things that he now claims evidence constitutional inadequacies on the part of his lawyer:

That prior to the execution of the DEFENDANT's plea agreement, the Government and the DEFENDANT negotiated the terms of the agreement for an approximate 3 month period. Several drafts and re-drafts were exchanged, each time with the DEFENDANT requesting deletions of certain factual allegations which he would not agree to as being factually truthful.

Nor only does that confirm Grosky's active and direct involvement in the negotiation and preparation of the plea agreement, but it squarely undercuts his present effort to discredit his counsel for assertedly having saddled him with the effects of constitutionally deficient lawyering.

It will be recalled that although he acted as a businessman in the Ponzi scheme that he perpetrated with respect to the Efoora investors, Grosky had been trained as a lawyer. Opinion at 3-4 has set out in brief compass the summary of a portion of the extended colloquy that took place at the time that this Court accepted Grosky's guilty plea, with Grosky at that time making express representations and acknowledgments from which he now tries to distance himself. But he has conveniently forgotten his self-prepared effort to enforce the plea agreement in April 2009, only a few months back, when he was unquestionably fully aware of the matters that he now claims constituted constitutionally inadequate representation.

Moreover, Grosky's sentencing proceeding took place on July 14, 2008, just four days short of a year before his Section 2255 filing. Yet Grosky voiced no objection during that intervening year either, let alone seeking to retract his negotiated plea. Although this Court would not presume to "play doctor" in addressing the complex issues of mental health and personal motivations on Grosky's part, one of his current assertions refers to his extensive therapy dealing with such matters--and the United States Probation Office's June 26, 2008 Supplemental Report (received less than a month before Grosky's sentencing) reflects some of Grosky's difficulties in that respect, which appear to have carried forward into his present tendency to provide a revisionist recharacterization of the facts.

Thus Grosky's new submission acknowledges that "the Government's advisory sentencing calculation of over 200 months was, in fact, reasonable" and that "the Court's imposition of a 168 month sentence was reasonable based upon my guilty plea." Yet he continues to point to counsel's asserted delinquency in "fail[ing] to advise me to not agree to a sentence of 144 months in Federal Prison [as] objectively unreasonable"--a position that refuses to live up to the reality that no such reduced sentence was within the government's contemplation or offered to Grosky.

And Grosky's other attempts to muddy up his counsel's work fare no better--for example, he complains extensively about counsel's failure to call as witnesses investors who had not complained of Grosky's conduct. Quite apart from Grosky's reference to that as a "strategic decision" by counsel (normally the antithesis of constitutionally inadequate representation under the Strickland v. Washington formulation), the Government's Mem. 11-12 demonstrates the potential risk from calling such witnesses and the absence of any arguable prejudice to Grosky. And look at the detailed Factual Basis that Grosky expressly admitted in his plea agreement (pages 2 through 6 of which are attached as Ex. A)--things that would not have been shaken by the testimony of individual investors designated by Grosky and his counsel.*fn1 That would have made no difference in the sentence imposed by this Court.

In sum, this Court's view continues to be that Grosky "is suffering the criminal equivalent of buyer's remorse" (Opinion at 2). Its earlier denial of Grosky's Section 2255 motion remains intact.

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