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Tuesday, March 21, 2017

MAKE YOURSELF COMFORTABLE IN DULUTH FOR THE NEXT 41 MONTHS, STEVE. YOU'RE NOT GOING ANYWHERE!: Government Files Its Opposition To Steven Ingersoll's January 24, 2017 Motion To Vacate Conviction

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.  

BACKSTORY

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 Skowronski. 

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 defense. 

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 and 7. 

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 testify. 

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 issues. 

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. 

Rather, 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 representing Ingersoll. 

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 originally agreed. 

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 convictions. 

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 the indictment. 

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 closing argument. 

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. 

Ingersoll is 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.

COMING TOMORROW

Martin Crandall's entire affidavit!

2 comments:

  1. Stay in prison, do the time and consider yourself lucky to have stolen millions from the GTA - and you have no plans to pay back the district. You are a common thief - and, know no shame for your lack of integrity.

    ReplyDelete
  2. Thank you for your great research, Miss Fortune. Can't wait until you post Mr. Crandall's entire affidavit.

    ReplyDelete