United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT, DISTRICT JUDGE.
his bench trial, defendant Pieter Roor filed a motion to
appoint new counsel, which the Court has construed as a
motion for a new trial on ineffective assistance of counsel
grounds. (Doc. 139.) For the following reasons, the Court
DENIES Roor's motion.
an international criminal fraud case. In February, following
a three-day bench trial, the Court found Roor guilty of two
counts of wire fraud and one count of conspiracy to commit
wire fraud. The gist is that the Government introduced a
crushing amount of evidence that Roor and his ex-wife
operated ponzi schemes out of their home in the Netherlands,
and many people in the United States-including in the
Southern District of Illinois-fell prey to those schemes.
Roor was represented by a court-appointed attorney at trial,
but it is worth noting that this was Roor's third
court-appointed counsel-Roor moved to fire his first
attorney, and his second attorney moved to withdraw following
“fissures” between himself and Roor.
(See Docs. 76, 109.) Roor-before sentencing-now
wants to fire his third attorney and generally alleges that
his trial was infected by that attorney's failure to
provide him with competent representation. (See
generally Doc. 139.) The Court appointed Roor a fourth
attorney for the sole purpose of litigating this motion and
held an evidentiary hearing on the matter on June 5, 2018.
Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. This right to assistance of counsel encompasses
the right to effective assistance of counsel.
McMann v. Richardson, 397 U.S. 759, 771, n. 14
(1970) (emphasis added); Watson v. Anglin, 560 F.3d
687, 690 (7th Cir. 2009). A party claiming ineffective
assistance of counsel bears the burden of showing (1) that
his counsel's performance fell below objective standards
for reasonably effective representation, and (2) that this
deficiency prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 688-94 (1984); United
States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011);
Wyatt v. United States, 574 F.3d 455, 457 (7th Cir.
2009); Fountain v. United States, 211 F.3d 429, 434
(7th Cir. 2000). A defendant can bring an ineffective
assistance of counsel claim in a motion for a new trial,
United States v. Taglia, 922 F.2d 413, 417 (7th Cir.
1991), and courts in most cases must hold an evidentiary
hearing on the matter. United States v. Simpson, 864
F.3d 830, 834 (7th Cir. 2017).
satisfy the first prong of the Strickland test, the
petitioner must direct the Court to specific acts or
omissions of his counsel. Wyatt, 574 F.3d at 458.
The Court must then consider whether, in light of all of the
circumstances, counsel's performance was outside the wide
range of professionally competent assistance. Id.
The Court's review of counsel's performance must be
“highly deferential . . . indulg[ing] a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 689; accord Wyatt,
574 F.3d at 458. Counsel's performance must be evaluated
keeping in mind that an attorney's trial strategies are a
matter of professional judgment and often turn on facts not
contained in the trial record. Strickland, 466 U.S.
at 689. The Court cannot become a “Monday morning
quarterback.” Harris v. Reed, 894 F.2d 871,
877 (7th Cir. 1990).
satisfy the second prong of the Strickland test, the
plaintiff must show that there is a reasonable probability
that but for counsel's unprofessional errors, the result
of the proceedings would have been different, such that the
proceedings were fundamentally unfair or unreliable.
Jones, 635 F.3d at 915; Fountain, 211 F.3d
at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th
Cir. 2006). “A reasonable probability is defined as one
that is sufficient to undermine confidence in an
outcome.” Adams, 453 F.3d at 435 (citing
Strickland, 466 U.S. at 694).
has not satisfied the Strickland test. In a similar
vein to Simpson, 864 F.3d at 834, Roor argues that
there are 26 witnesses that he wanted to call at his bench
trial, but his attorney failed to make the appropriate
arrangements-therefore meaning his attorney's performance
fell below an objective standard of reasonableness. At the
evidentiary hearing, Roor provided a list of these witnesses
and claimed that he sent the same to his trial counsel on
November 20, 2017. (Def.'s Ex. 1.) The list only contains
the name of each witness, their country of origin, and their
profession or relation to Roor-such as “business
associate, ” “member, ” and
“sister.” For example, one entry reads
“Michael Meyers - U.S.A. - Member.” Roor said
that he told his attorney to send the list to Roor's
sister in the Netherlands to get more information on each
witness. Roor also said that the attorney should do it soon,
because people in the Netherlands go “on
holidays” in the winter, so his sister may not be as
readily available later on. Roor's attorney sent
Roor's sister the list in early January, and nothing ever
came of it.
not ineffective assistance of counsel. First of all, Roor
provided a list of 26 people to his attorney that did not
have a shred of contact information on it. Roor told his
attorney to instead contact his sister about the list-which
the attorney did-and the attorney cannot be faulted that
Roor's family went on holiday and did not assist in
Roor's defense to the degree that Roor desired. Although
“[t]he Constitution does not oblige counsel to present
each and every witness that is suggested to him, ”
counsel must still “investigate the various lines of
defense available in a given case.” United States
v. Berg, 714 F.3d 490, 499 (7th Cir. 2013) (citing
Wiggins v. Smith, 539 U.S. 510, 521-23 (2003));
see also Simpson, 864 F.3d 830, 835. Roor's
counsel did exactly that, and thus satisfied the first prong
of the Strickland test.
even more damaging to Roor's argument is the nature of
the people on his list. Some of these proposed witnesses were
business associates of Roor that may have been arrested as
co-conspirators in this case upon their entry into the United
States, and Roor even admitted at the evidentiary hearing
that one of them “would never come to America, because
he's afraid to be arrested.” Another person on the
list is Roor's ex-wife Heleen Roor-Potman, whom the
Government indicated is not even allowed to enter the United
States again because she already pled guilty to a felony in
this very same case as a co-conspirator. Another group of
proposed witnesses appear to be victims of Roor, and they
have common names like “Michael Myers” with
absolutely no contact information that would allow anyone to
discern whom they are. And another group of witnesses are
simply character witnesses.
Court noted in its findings of fact and conclusions of law,
the evidence of guilt in this case was absolutely crushing.
So pursuant to the second prong of the Strickland
test, there is no chance that these proceedings would have
ended differently if these witnesses appeared. Most of
them-especially the co-conspirators may have been afraid to
come and the victims-likely would have hurt
Roor's case. And the character witnesses would have had
no bearing on the proceedings at all.
is one more reason why Roor's motion fails. As the Court
pointed out at the evidentiary hearing, Roor has been
incredibly active and involved in litigating his case. He
fired his first two attorneys, sent multiple letters to the
Court (which the Court was forced to strike), and has been
very vocal at nearly every hearing this Court has held. So
the morning of trial, the Court explained to Roor the Seventh
Circuit's recent opinion in Freeman v. Pierce,
878 F.3d 580 (7th Cir. 2017), which dealt generally with a
criminal defendant's right under the Sixth Amendment to
proceed pro se. The Court did that to ensure that Roor wanted
to proceed to trial with his attorney ...