Gary Lefkowitz v. United States

Citation: Not availableDocket: 04-1696

Court: Court of Appeals for the Eighth Circuit; May 3, 2006; Federal Appellate Court

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Gary Lefkowitz, along with his company, Citi-Equity Group, faced conviction for multiple counts including mail fraud, wire fraud, income tax fraud, bankruptcy fraud, obstruction of justice, and managing a continuing financial crimes enterprise, leading to a sentence of 293 months in prison. His initial conviction was partially reversed on appeal, but upon remand, the district court re-imposed the same sentence. Lefkowitz's subsequent motion for relief under 28 U.S.C. § 2255 was largely rejected by the district court, which deemed many claims procedurally defaulted and denied relief without an evidentiary hearing. The Eighth Circuit granted a certificate of appealability on two specific issues: whether limitations on funding for expert accountants violated his Sixth Amendment rights to effective counsel, and the applicability of recent Supreme Court rulings (Blakely and Booker) to his case. Lefkowitz's additional arguments exceeded the scope of the certificate and were mostly procedurally defaulted. The review was confined to the granted issues, leading to an affirmation of the lower court's decisions. The district court had previously appointed counsel under the Criminal Justice Act, but Lefkowitz failed to comply with financial obligations for his defense, impacting the funding for necessary expert witnesses, which he argued compromised his rights to due process and effective assistance of counsel.

The district court denied Lefkowitz's motion regarding expert fees in a December 7, 1995, order, addressing Fifth and Sixth Amendment issues. On direct appeal, Lefkowitz claimed due process was violated when his accountant expert fees were limited to $169,000, a claim rejected on the grounds that he had sufficient resources for an adequate defense. He did not appeal a related Sixth Amendment argument presented in the district court. Lefkowitz later contended that the denial of $300,000 for accounting experts resulted in "court-induced" ineffective assistance of counsel, relying on precedents predating Strickland. This claim is procedurally defaulted for two reasons: it was not raised on direct appeal despite being available, and it essentially reiterates a due process claim already rejected in prior proceedings. Although ineffective assistance claims can be raised if adequately developed, this particular claim was already decided, and the court concluded that any ineffectiveness was due to Lefkowitz’s own failure to fund his defense, not a lack of available CJA funds. Additionally, the district court ordered Lefkowitz to reimburse $316,693 for his defense costs, which reaffirmed that any funding issues arose from his personal financial decisions. Lefkowitz's various other claims of ineffective assistance were deemed outside the scope of the certificate of appealability. He also argued that his sentencing violated his Sixth Amendment rights as interpreted in Blakely and Booker, leading to a revision of the appeal's second question regarding the applicability of Booker.

The court ruled that the "new rule" established in Booker does not apply retroactively to criminal convictions finalized before its announcement, meaning it does not provide relief to movants in collateral proceedings, as established in Never Misses A Shot v. United States. Consequently, Lefkowitz is not entitled to relief on Question 2. Additionally, Lefkowitz's briefs present various arguments that are not valid Booker issues but rather reiterate points made in previous cases, Lefkowitz I and Lefkowitz II. Specific examples include claims that elements of his conviction under the continuing financial crimes enterprise statute were not proven beyond a reasonable doubt and that the district court violated the unanimous jury principle when resentencing him after a partial overturn of his conviction. The district court had already thoroughly addressed these issues, and the current court declines to reconsider them as they exceed the scope of the certificate of appealability. Therefore, the judgment of the district court is affirmed.