“Ironically, in light of the fact that he was convicted on the tax-related charges against him, and acquitted on the bank and wire fraud charges handled by Mr. Crandall, Ingersoll claims that Mr. Crandall afforded him ineffective assistance of counsel.”
With a nod to the irony inherent in Steven Ingersoll's January 24, 2017 pro se motion to vacate his 41 month sentence for his March 10, 2015 on two counts of tax fraud and one count of conspiracy, federal prosecutors yesterday (March 20) filed the government's opposition. Ingersoll claimed “ineffective assistance of counsel” regarding his criminal defense attorney, Martin Crandall.
The 14-page response also denied Ingersoll's request for a “certificate of appealability”, a document required for his appeal of a denial of the January 24th motion.
Steven Ingersoll was charged in an April 10, 2014 indictment with conspiracy to commit
bank fraud (count 1), conspiracy to defraud the government and evade the
collection of income taxes (count 2), two counts of wire fraud (counts 3 and 5), and
two counts of income tax evasion (counts 6 and 7).
During his multi-week trial, Ingersoll retained three defense attorneys: Jan Geht, Martin Crandall, and Todd
Of Ingersoll’s three defense attorneys, the trial record reflects that Geht
was the lead counsel on the tax-related offenses because he is a CPA and a former
Department of Justice Tax Division attorney.
Crandall was lead counsel
regarding the bank and wire fraud charges against Ingersoll.
During Ingersoll’s trial, Geht and Crandall generally divided their
workload in ways that were consistent with their different roles in Ingersoll’s
For example, the trial record reveals that Mr. Geht did the cross-examination
of the critical government witnesses regarding the tax charges against Ingersoll,
including Michael Wisniewski, the IRS revenue agent, IRS Special Agent Nicholas
Russo, Mark Taylor, a CPA from Rehmann Robson, James Camiller, a CPA
consulted by Ingersoll, Rebecca Clawson, a CPA for Lake Superior State
University, Marna Wilson, who testified regarding state tax credits, and Sandra
Harrington, an employee of H & R Block.
Crandall, in contrast, did the cross examination of Jason Walbecq and Matthew Scherret, laborers on the Bay City
Academy project that was funded by the Chemical Bank loan underlying the bank
fraud conspiracy charge in count 1, and Randall Kienbaum and Larry VanWert,
representatives of Chemical Bank.
Ingersoll ultimately was acquitted on the charges against him in counts 1, 3
and 5. He was convicted and sentenced on the tax-related charges in counts 2, 6
Ironically, in light of the fact that he was convicted on the tax-related
charges against him, and acquitted on the bank and wire fraud charges handled by
Mr. Crandall, Ingersoll claims that Mr. Crandall afforded him ineffective
assistance of counsel.
The government stated Ingersoll’s “claims of ineffective assistance of counsel must be assessed in light of the well-established legal standards discussed briefly below and the record in this case.”
INEFFECTIVE ASSISTANCE OF COUNSEL
The United States Supreme Court set forth a two-prong test for evaluating
claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S.
668 (1984). To demonstrate ineffective assistance of counsel, a petitioner must
show both that defense counsel’s performance was deficient and that petitioner
suffered prejudice as a result.
In evaluating defense counsel’s performance, Strickland admonishes lower courts: “Judicial scrutiny of counsel’s performance must be highly deferential [and] a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .”
The Sixth Circuit has observed that a defendant “is not entitled to the most canny lawyer available, only an adequate one.”
Even if counsel’s performance is deficient, lower courts must still find prejudice to the defendant before granting relief.
“A court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland, 466 U.S. at 696.
According to government prosecutors, Ingersoll has failed to meet his burden of proof on either prong of the Strickland test.
INGERSOLL'S CLAIMS, THE GOVERNMENT'S RESPONSE
Steven Ingersoll falsely claims that Martin Crandall was ineffective because Crandall supposedly convinced Ingersoll not to testify and because Crandall did not call a forensic accountant (David Hammel) and others to testify.
However, the record contains an extended discussion with all of the defendants
where the prospect of offering additional evidence and the options regarding a
defendant testifying were discussed repeatedly and in detail.
Crandall was the fourth and last attorney to make an inquiry of his client,
Steven Ingersoll. Ingersoll first confirmed that he had listened to the
exchanges between the first three defendants and their attorneys. Ingersoll then acknowledged on the record that “on many occasions”
Ingersoll had discussed with Geht and Crandall his options regarding
testifying on his own behalf, that he understood his choices, and chose not to
Crandall also asked Ingersoll about the discussion between counsel and Ingersoll regarding calling additional defense witnesses, and specifically asked “you’ve thought that through carefully, clearly and decided not to call any further witnesses; is that correct?”
Ingersoll did not dispute Crandall’s assertion, but rather answered, “I understand that, yes.”
It should be noted that it was Crandall who introduced the forensic
accountant, David Hammel, to Ingersoll and Geht. Hammel worked with Geht and Crandall throughout the case. Geht would have been the more likely attorney to examine Hammel
if Hammel had been called as a witness because Hammel’s testimony related to tax
In fact, Geht continued to use Hammel during the lengthy Ingersoll
sentencing process, listing Mr. Hammel as a defense witness likely to be called
during Ingersoll’s sentencing hearing, and sending Hammel’s report to the court
during the sentencing phase of the proceedings in February of 2016, well after Crandall had withdrawn from the case.
In addition, the record shows that Geht told the court on the last day of
proofs that the Ingersoll defense team had one potential witness left and that the
decision to call that witness would depend on the court’s ruling on a requested
modification of the court’s jury instructions.
After further discussion, the court told Geht to call the witness, identified as the board president of the Grand Traverse Academy, for testimony. Geht’s almost immediately thereafter said, “Your honor, we conferred, we’re not going to call that witness.” (More on this tomorrow.)
According to the government, these facts are not raised to cast blame on Geht in any way, since Geht proved himself to be a very able attorney, particularly on tax matters.
these facts demonstrate that “Ingersoll has inaccurately and even falsely chosen to
blame Crandall, to whom Ingersoll is deeply indebted for unpaid legal fees, for
the outcome of Ingersoll’s trial.”
It appears that Ingersoll may trying to use his §2255 motion to establish ineffective assistance of counsel, hoping that such a finding would enable him to defeat Crandall’s right to be paid for the services rendered by Crandall’s firm.
However, the Ingersoll guilty verdicts were the result of Ingersoll’s own misconduct, and not ineffective assistance by any of his retained defense counsel.
More important, however, is that Ingersoll’s claims regarding the decision to
rest his case when he did, after calling two witnesses (Stacy Young and Vickie
Kundinger) and without calling additional witnesses or testifying in his own
behalf, are demonstrably false.
The record demonstrates that Ingersoll made those
decisions, not Crandall acting against the will of Ingersoll or the other counsel
As he has so often done before, Ingersoll has made false and fraudulent representations in his §2255 motion, demonstrating once again that his statements cannot be relied upon by the court.
In his current petition, Ingersoll also complains that Crandall violated
various ethical rules.
Those ethical violations essentially are additional
manifestations of Ingersoll’s willingness to try to have the benefit of the legal
services of Crandall’s firm without paying for those services as Ingersoll had
In reality, as Crandall has explained in his affidavit, Ingersoll benefitted at the time from the conduct that he now claims was
unethical because Ingersoll’s financial arrangements with Crandall allowed
Ingersoll to avoid making appropriate and timely agreed payments for the services
of Crandall’s firm in 2014 and continuing thereafter until Ingersoll’s lengthy
trial was completed.
Notwithstanding Ingersoll’s failure to make payments as agreed for services rendered, Crandall’s firm (Clark Hill PLC of Detroit) did not move to withdraw from representing Ingersoll until July 20, 2015, four months after the jury’s verdicts were returned on March 10, 2015.
Whatever the merits of Ingersoll’s claims of ethical violations, if any, the
fact remains that Ingersoll has not shown that any ethical violations he alleges
against Crandall satisfy both the cause and prejudice standard for ineffective
assistance of counsel.
Ingersoll cannot conflate alleged departures from ethical
standards with ineffective legal representation in a courtroom. There simply is no
connection between the ethical concerns expressed by Ingersoll and Ingersoll’s
The ethical violations alleged by Ingersoll therefore do not provide a
basis for affording Ingersoll relief under §2255.
Yet another claim made by Ingersoll in his §2255 motion is that Crandall was ineffective when conducting cross-examination of Margaret Hackett.
Hackett’s testimony, in its entirety, is found in a mere 12 pages of transcript.
Of those 12 pages, Crandall’s cross-examination covers just six pages.
A review of the Ingersoll trial is useful with regards to this aspect of
Ingersoll’s §2255 motion.
The trial began on February 10, 2015 and concluded on
March 10, 2015.
During that month-long period, there were 15 trial days, ten of
which involved the presentation of evidence by the parties.
During the evidentiary phase of the trial, 32 witnesses testified, some of whom testified on more than one occasion.
Of those 32 witnesses, 29 were called to testify by the government and two were called by counsel for Steven Ingersoll.
In the context of such a long trial with so many witnesses and other items of evidence, the 12 pages of testimony given by Hackett during the trial, and particularly Crandall’s 6 pages of cross-examination, was both brief and relatively insignificant.
A review of the transcript of the testimony actually given by Hackett reveals
that Ingersoll dramatically overstates the significance of that testimony.
It may be
true that Hackett did not distinguish as precisely as Ingersoll might have wanted
the relationship between Ingersoll and his solely-owned management company,
Smart Schools Management or SSM.
However, that distinction had little to no significance because Ingersoll indisputably was the sole owner of and had complete control over SSM, the company that held the contract to operate the Grand Traverse Academy (GTA).
It is also undisputed that by virtue of that status, Ingersoll conducted financial transactions between GTA and SSM.
In addition to Hackett’s testimony being brief and ultimately unremarkable,
at the conclusion of Hackett’s testimony, government’s counsel and the court told
the jury that Hackett’s testimony had application only to the charge in count 1 of
This is significant because count 1 was the bank fraud count on which Ingersoll made a successful mid-trial motion for judgment of acquittal.
Moreover, if as Ingersoll claims, Hackett’s testimony was critical regarding the tax charges against Ingersoll, one would have expected Geht to do the cross-examination of that witness, not Crandall.
Ingersoll has not and cannot establish that the six pages of cross-examination
of Hackett conducted by Crandall resulted in a depravation of Ingersoll’s right
to effective representation of counsel. Ingersoll’s dissatisfaction with that cross examination does not enable him to satisfy the cause and prejudice standards.
Much the same must be said for Ingersoll’s claim that Crandall was
constitutionally ineffective during closing argument.
As the court repeatedly told
the jury, the statements and arguments of counsel are not evidence.
It was evidence, not a constitutionally deficient closing argument, that resulted in Ingersoll’s convictions.
As explained in his affidavit (which will be published tomorrow), Crandall knew well before trial that he
would be the attorney to deliver the opening statement and closing argument on
behalf of Steven Ingersoll. He also repeatedly discussed the defenses to the tax
counts with Ingersoll and Geht and understood those theories.
On the night before he delivered the closing argument,Crandall
consulted with Geht on the points that Geht thought should be covered,
but also spent time alone reviewing trial notes, other materials, and preparing the
Crandall also reviewed the closing argument with Ingersoll
prior to presenting it to the jury and noted that Ingersoll appeared satisfied with it.
Thus, according to the government, Crandall took the appropriate steps to prepare that closing argument.
Based on the evidence presented at trial, Geht recognized that the
evidence was sufficient to convict Ingersoll on the substantive tax charges in
counts 6 and 7 of the indictment. Accordingly, Geht made Ingersoll’s motion
for judgment of acquittal as to counts 1, 2, 3 and 5 of the indictment only.
Nevertheless, the court could have considered on its own whether the evidence on counts 6 and 7 was sufficient to sustain convictions.
Based on the evidence presented at trial, on the day that closing arguments
were presented, Judge Ludington granted Ingersoll’s motion for a judgment of
acquittal as to count 1 and denied the motion as to the remaining counts.
Likewise, based on the evidence presented at trial, not the closing arguments of counsel, the jury found Ingersoll guilty of the tax related charges in counts 2, 6 and 7.
Subsequently, at Ingersoll’s final sentencing hearing, Judge Ludington
stated that he had no reservations about Ingersoll’s guilt of the tax-related counts
on which Ingersoll was convicted.
The fact that Ingersoll has overlooked is that he was not convicted of the
wire fraud charges against him in counts 3 and 5 of the indictment, even though
Judge Ludington considered the evidence sufficient to convict on those charges. (Crandall addressed those counts during his closing argument.)
This fact indicates that Crandall’s closing argument was effective and benefitted Ingersoll in ways that Ingersoll fails to appreciate.
More important, this fact discredits Ingersoll’s claim that Mr. Crandall afforded him ineffective assistance of counsel during closing argument.
It is common for a defendant to blame the performance of defense counsel,
rather than the evidence of the defendant’s illegal conduct created by the
defendant, for the fact that the trial ended in one or more convictions.
not unique in that regard.
What is unique in Ingersoll’s case is that he was
represented at trial by three attorneys that he personally chose to represent him.
Ingersoll has not demonstrated that the joint efforts of those attorneys, nor the
efforts of Mr. Crandall in particular, constituted ineffective assistance of counsel in
accordance with the legal standards discussed above.
Accordingly, the government requested Ingersoll's motion under 28 U.S.C. §2255 be denied without a certificate of appealability.
The government shipped off its response to Ingersoll in his Duluth prison camp, giving him until April 3, 2017 to reply.
Martin Crandall's entire affidavit!