Case 1:11-cr-00062-PAC Document 487 Filed 11/02/16 Page 1 of 16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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DONNA LEVY,

Petitioner,
- v. -

11 Cr. 62 (PAC)
16 Civ. 5336 (PAC)

:
:

UNITED STATES OF AMERICA,

Respondent.

:
:

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GOVERNMENTS OPPOSITION TO DEFENDANTS MOTION

UNDER 28 U.S.C. 2255

PREET BHARARA
United States Attorney for the
Southern District of New York
Attorney for the United States of America
Howard S. Master
Assistant United States Attorney
- Of Counsel -

Case 1:11-cr-00062-PAC Document 487 Filed 11/02/16 Page 2 of 16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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DONNA LEVY,

Petitioner,
- v. -

11 Cr. 62 (PAC)
16 Civ. 5336 (PAC)

:
:

UNITED STATES OF AMERICA,

Respondent.

:
:

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GOVERNMENTS OPPOSITION TO DEFENDANTS MOTION
UNDER 28 U.S.C. 2255
The Government respectfully submits the following in response to the motion of Donna
Levy (petitioner or Levy) under Title 28, United States Code, Section 2255, which was filed
on June 6, 2016 (the 2255 Motion).
In the 2255 Motion, Levy does not challenge any of the Courts rulings, nor does she take
issue with any aspect of the representation provided by her prior counsel, Howard Srebnick and
Alex Arteaga-Gomez, Esqs., of the law firm Black Srebnick Kornspan Stumpf, at the three-week
trial that resulted in her conviction or at sentencing. Levys sole allegation is that her prior
counsel purportedly failed to consult with and advise her prior to trial about plea bargaining
and/or cooperation, in particular purported Government-initiated requests to discuss potential
cooperation.
Levys meritless claim is premised on a false, self-serving account of her interactions
with prior counsel, who provided effective assistance to her throughout the proceedings.
Moreover, given that Levy adamantly asserted her innocence throughout trial proceedings and
appeal, and fails even in the current motion to assert that she was prepared to accept
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responsibility for her criminal conduct, she has failed to demonstrate that she suffered any
prejudice as a result of any of the alleged missteps of prior counsel in connection with a plea
offer that she never would have accepted. Accordingly, the Government respectfully requests
that the Court deny the 2255 Motion without a hearing.
BACKGROUND
I.

Levys Crimes
Levy went to trial with her husband, David Levy. The Governments evidence at trial

conclusively demonstrated that the Levys, working with others, orchestrated multiple fraudulent
schemes targeting founders of, and investors in, start-up companies with low-priced stocks (also
known as penny stocks). These schemes were particularly egregious versions of a scheme that
is colloquially known as a pump and dump stock fraud scheme, in which a fraudster seeks to
artificially inflate the price of a stock the fraudster owns in order to sell the stock at an artificially
high price. In the Levys schemes, as set forth in further detail below, the Levys not only sought
to artificially inflate the value of the stocks they held so that they could sell those stocks at a
profit, but also defrauded the companies founders and managers through false promises of
funding and other deceptive practices.
The proof at trial focused principally on three schemes. Two of the schemes, in which
both of the Levys were involved, targeted the companies Cardiac Networks, Inc. (CNWI) and
Banneker, Inc. (BANI). A third scheme, in which David Levy alone participated, targeted the
company Greenway Design Group, Inc. (GDGI). Each of the schemes followed a similar
pattern: First, the Levys identified a private start-up company led by an unsophisticated
businessman who was desperate for financing. Next, the Levys obtained an agreement from the
businessman that in exchange for shares in the company, the Levys would take the company

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public and provide funding and assistance with marketing and investor relations. Then, in
connection with taking the company public, the Levys lied repeatedly and created fraudulent
documents concerning a variety of matters, including their ownership and control of freelytradeable shares in the company. After the company went public, the Levys worked with other
co-conspirators to manipulate the companys stock price so that the Levys could sell the shares
in the company they secretly controlled to duped investors in exchange for millions of dollars in
profits. At the conclusion of the scheme, the companys stock was left worthless.
David Levy played a lead role in communicating with the founders of the start-up
companies and in handling the transactions in connection with taking the companies public.
Donna Levy, working with others, played a lead role in the Levys efforts to manipulate the
companies stock prices so that the Levys could sell their shares at a profit. She employed what
she called a program consisting of several elements, including fraudulent trading activity and
misleading statements, which would temporarily and artificially pump up the price of the penny
stocks, all of which worked in concert to trick unsuspecting investors into buying shares at
artificially inflated prices so that she and her co-conspirators could dump their shares on those
investors at a huge profit. Donna Levy also employed the same fraudulent program as a
promoter-for-hire for stocks in companies that she and David Levy did not control, including
in the company Emerging World Pharma, Inc. (EWPI). In this role, Donna Levy helped
manipulate the stock prices of, and defraud investors in, these companies in exchange for cash or
shares in the companies.
At trial, the Government called sixteen witnesses, including six businessmen who
founded or helped manage companies that were taken public by one or both of the Levys and
who described the lies the Levys told and the harm done to their companies as a result of the

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fraudulent schemes. Three investors in stocks targeted by one or both of the Levys also testified
about why they had been induced to invest in the stocks and the losses they sustained as a result.
The Governments proof also included the testimony of two cooperating witnesses: Cooperating
witness Fotis Georgiadis testified about his participation in the scheme targeting CNWI and in
Donna Levys manipulator-for-hire activities, and also reported on conversations with both of
the Levys concerning the scheme targeting BANI. A second cooperating witness testified
regarding a money laundering scheme related only to David Levy. In addition, the proof
included testimony from law enforcement agents and a regulator, exhibits from a courtauthorized search of the Levys home and a Title III wiretap that captured Donna Levy
orchestrating the scheme concerning EWPI, and extensive business records documenting the
schemes.
II.

Procedural History
Levy, along with ten co-defendants, was arrested on October 5, 2010, on a criminal

Complaint charging her with participating in a conspiracy to commit wire fraud in violation of
18 U.S.C. 1349.1 Levy later was indicted on that charge. In December 2011, a third
superseding indictment was filed adding her husband as a defendant. (Dkt. 134). In June 2012,
a fifth superseding indictment (the Indictment) was filed against Levy, her husband, and one
other defendant. (Dkt. 188). Count One charged both of the Levys with conspiracy to commit
securities fraud and wire fraud, in violation of Title 18, United States Code, Section 371. Counts
Two and Three charged both of the Levys with securities fraud, in violation of Title 15, United
States Code, Sections 78j(b) and 78ff. Counts Four and Five related only to Levys husband.

Complaint, dkt. no. 1. All subsequent references to docket numbers are to the electronic docket
associated with case 11 Cr. 62 (PAC) on this Courts electronic docketing system.
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Count Six charged Donna Levy with conspiracy to commit securities fraud and wire fraud, in
violation of Title 18, United States Code, Section 371. Count Nine charged Donna Levy with
securities fraud, in violation of Title 15, United States Code, Sections 78j(b) and 78ff.2
By the time trial on the Indictment commenced in March 2013, the case against Levy had
been pending for more than two years, and all indicted defendants other than the Levys had
pleaded guilty. Many had been sentenced in open court prior to trial, and some were identified
as cooperating witnesses in the public record. (See minute entry for 6/30/11 and 7/13/11 plea
proceedings concerning co-defendants (marking cooperation agreements as court exhibits). As
reflected by the letter filed by Mr. Srebnick on September 23, 2016 in response to the Courts
order directing him to respond to the allegations in the 2255 Motion (Srebnick Ltr.), despite
the public record of pleas (both by cooperating witnesses and others) and sentencings, Levy
expressed no interest in pleading guilty, no interest in cooperating and no interest in pursuing a
plea bargain. She wanted a trial to rebut the accusations. (Srebnick Ltr. 2). Accordingly, the
Government made no plea offer to Levy, and there were no plea discussions or attempts at
cooperation as trial approached.
Prior to commencement of trial, however, consistent with [his] practice, Mr. Srebnick
explained the options available to [Levy], including plea bargaining and cooperation. He
further explained that the Sentencing Guidelines range would be extraordinarily high given the
losses alleged by the Government; that defendants who plead guilty generally receive a more
lenient sentence than defendants who are convicted after trial; and that cooperation would likely
result in even more leniency. (Id.). Mr. Srebnick further discussed several of the plea bargains

The remaining counts of the Indictment related to a third defendant who pleaded guilty before
trial.
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that had been entered into by co-defendants. Moreover, even though Levy had expressed
aversion to a guilty plea and cooperation, Mr. Srebnick and Mr. Arteaga-Gomez met with the
prosecutors in an effort to persuade them to offer a resolution that would spare Ms. Levy the risk
of a lengthy prison sentence, should she be convicted after trial. The Government responded
that any potential resolution would necessarily involve a guilty plea to one or more charges in
the indictment, with a corresponding advisory guideline range suggesting many years in prison.
After Levys counsel communicated the Governments position to her, she reiterated to both of
[them] that she was not interested in pleading guilty. (Id.).
As a consequence of Levys position, her counsel heavily litigated matters leading up to
and during trial, including filing a motion for severance alleging that Levys husband would
testify as to her purportedly innocent state of mind. (Dkt. 247, 248; Srebnick Ltr. 3). At trial,
Levys counsel presented and vigorously pursued a theory of innocence that she had explicitly
approved of prior to trial. (Srebnick Ltr. 2-3).
Levys theory of innocence failed to sway the jury in the face of overwhelming evidence
of her guilt. She was convicted of all charges filed against her in the Indictment after a single
day of deliberations. (See minute entries for 3/20/13 and 3/21/13 trial proceedings; dkt. 272,
274).
Following her conviction, Ms. Levy inquired with the Government about the possibility
of post-conviction cooperation, to which the Government responded that she would need to
accept responsibility for the crimes with which she had been convicted as a pre-condition of
cooperation. (Srebnick Ltr. 3; see also 2255 Motion 2-3 (admitting that counsel attempted to
pursue cooperation after trial)). After Mr. Arteaga-Gomez communicated the Governments
position to Levy, she expressed no interest in pursuing that course further.

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Levy was sentenced on February 19, 2014, principally to a term of 66 months

imprisonment. (Dkt. 361). Levy appealed the conviction and sentence; the appeal was denied by
the United States Court of Appeals for the Second Circuit, which issued its mandate on
November 17, 2015. (Dkt. 451).
The instant motion followed.
ARGUMENT
In her motion, Levy argues that she was denied effective assistance of counsel due to her
attorneys purported failure to advise her properly prior to trial on the possibility of plea or
cooperation, in particular by failing to advise her properly on the Governments purported
interest in having Levy come in to cooperate. This claim is based on a false account of the
facts and is otherwise meritless.
I.

Applicable Law
A.

Standards for Ineffective Assistance Claims

To prevail on a claim of ineffective assistance of counsel, Levy must first demonstrate

that [her] counsels performance fell below an objective standard of reasonableness in light of
prevailing professional norms, and second, affirmatively prove prejudice arising from
counsels allegedly deficient representation. Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.
2008) (quoting Strickland v. Washington, 466 U.S. 668, 688, 693 (1984)); accord United States
v. De La Pava, 268 F.3d 157, 163 (2d Cir. 2001); United States v. Best, 219 F.3d 192, 201 (2d
Cir. 2000). Only if both elements are satisfied can a defendant demonstrate that counsel was
not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland,
466 U.S. at 687.

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Under the first prong of the Strickland analysis, the reviewing court must indulge a
strong presumption that counsels conduct falls within the wide range of reasonable professional
assistance, bearing in mind that [t]here are countless ways to provide effective assistance in any
given case and that [e]ven the best criminal defense attorneys would not defend a particular
client in the same way. United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting
Strickland, 466 U.S. at 689).
To satisfy the prejudice prong, [t]he defendant must show that there is a reasonable
probability that, but for counsels unprofessional errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 694. It is insufficient to show merely that counsels
errors had some conceivable effect on the result, for not every error that conceivably could
have influenced the outcome undermines the reliability of the result of the proceeding. Id. at
693. In evaluating the reasonableness of counsel's representation, the Court is mindful of the
diversity of the bar and the variety of approaches effective attorneys might employ when dealing
with a particular set of facts. Parisi v. United States, 529 F.3d 134, 141 (2d Cir. 2008). As a
result, the Court applies a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance. Strickland, 466 U.S. at 689. The Court will also consider
the circumstances counsel faced at the time of the relevant conduct and evaluate the conduct
from counsel's point of view. Parisi, 529 F.3d at 141 (ellipsis omitted). Strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable, and even strategic choices made after less than complete investigation do not
amount to ineffective assistanceso long as the known facts made it reasonable to believe that
further investigation was unnecessary. Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (citation
and brackets omitted).

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B.

Ineffective Assistance of Counsel at the Guilty Plea Stage

In the context of plea negotiations, effective assistance of counsel requires that an

attorney convey all plea offers from the Government and provide professional advice
regarding whether or not to accept them. United States v. Brown, 623 F.3d 104, 112 (2d Cir.
2010). Effective professional advice generally includes providing information about the
strengths and weaknesses of the case against [the defendant], as well as the alternative sentences
to which [she] will most likely be exposed. Purdy v. United States, 208 F.3d 41, 45 (2d Cir.
2000). To establish prejudice when ineffective assistance is alleged to have resulted in a failure
to plead guilty, and the defendant is convicted at the ensuing trial, a defendant must show the
outcome of the plea process would have been different with competent advice. Fulton v.
Graham, 802 F.3d 257, 266 (2d Cir. 2015). This requires a three-part showing: (1) but for the
ineffective advice of counsel there is a reasonable probability that [a] plea offer would have been
presented to the court, (2) the court would have accepted its terms, and (3) the conviction or
sentence, or both, under the offer's terms would have been less severe than under the judgment
and sentence that in fact were imposed. Id. (quoting Lafler v. Cooper, 132 S. Ct. 1376, 1385
(2012)).
A prisoners self-serving, post-conviction testimony regarding intent to plead guilty is
generally not sufficient to establish prejudice in the absence of objective supporting evidence.
United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998); Pham v. United States, 317 F.3d 178,
182 (2d Cir. 2003) ([P]recedent requires some objective evidence other than defendant's
assertions to establish prejudice.); Gluzman v. United States, 124 F. Supp. 2d 171, 177
(S.D.N.Y. 2000) (courts have been skeptical of accepting a defendants self-serving, post-

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conviction statements that he would have pleaded guilty if properly advised of the consequences
by his attorney).
II.

Discussion
Levys counsels performance did not fall below an objective standard of reasonableness.

Levy does not assert that the Government ever made a specific plea offer to her; thus, there can
be no claim that Mr. Srebnick failed to convey any offer or advise her on whether to accept that
(nonexistent) offer. See, e.g., Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) (defense counsel
must inform defendants of any potentially favorable offers); Boria v. Keane, 99 F.3d 492, 496-97
(2d Cir. 1996) (defense counsel must give advice on whether to plead, although the ultimate
decision rests with the client). Levy further acknowledges that her counsel did pursue potential
cooperation after she was convicted at trial but prior to sentencing (2255 Motion 2-3), although
her motion fails to address the actual reason why she did not attempt to cooperate with the
Government after trial because she refused to accept responsibility for the crimes with which
she had been convicted as a pre-condition of cooperation. (Srebnick Ltr. 3).
Instead of offering evidence of any plea offer that was offered and not conveyed or that
was improperly rejected, Levy offers the unsubstantiated contention that the Government made a
generalized offer for her to come in and talk, purportedly conveyed via email messages from
the Government that were forwarded to her by counsel, but that her counsel failed to advise her
properly on the offer. (2255 Motion 2). Yet Levy offers none of the emails that she asserts were
sent in support of her post-conviction claim, and Mr. Srebnick directly contradicts the selfserving and unsupported claim in his response to the 2255 Motion, informing the Court that
neither he nor Mr. Arteaga-Gomez had no recollection of any such offers or associated email

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communications, and moreover that a search of his email archives failed to turn up any evidence
of such communications. (Srebnick Ltr. 3).
What Mr. Srebnick in fact did do reflects his diligence and effectiveness as counsel. As
Mr. Srebnick explains, prior to commencement of trial, consistent with [his] practice, Mr.
Srebnick explained the options available to [Levy], including plea bargaining and cooperation.
(Srebnick Ltr. 2). He further explained that the Sentencing Guidelines range would be
extraordinarily high given the losses alleged by the Government; that defendants who plead
guilty generally receive a more lenient sentence than defendants who are convicted after trial;
and that cooperation would likely result in even more leniency. (Id.). Mr. Srebnick further
sought leniency from the Government, but after the Government responded that any potential
resolution would necessarily involve a guilty plea to one or more charges in the indictment,
with a corresponding advisory guideline range suggesting many years in prison, she reiterated
to both of [her counsel] that she was not interested in pleading guilty. (Id.). Further
demonstrating Levys commitment to proceeding to trial, Mr. Srebnick filed motions in the leadup to trial advancing her theory of innocence, and with Levys explicit approval he (as is
undisputed by Levy in her motion), argued vigorously at trial, ultimately unsuccessfully, that
Levy was innocent. (Dkt. 247, 248; Srebnick Ltr. 3). Ineffective assistance in connection with
plea negotiations cannot be established under these circumstances.
Moreover, Levy cannot establish that she suffered any prejudice as a result of counsels
alleged failures, as she must do to warrant relief under Strickland. In particular, Levy fails to
assert, much less demonstrate, that had her counsel properly advised her upon her receipt of the
Governments (non-existent) offer to come in and talk, (a) she would have in fact come in to
talk; (b) she would have provided useful and credible information to the Government in her

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attempts at cooperation; (c) that she would have admitted her own conduct and been prepared to
plead guilty pursuant to a cooperation agreement, despite her consistent and continued belief in
her own innocence; and (d) that the Court would have imposed a lesser sentence on the basis of
her (hypothetical) cooperation. Thus, Levy cannot establish that the outcome of her case would
have been any different even had counsel allegedly advised her properly on the purported offer
to talk. (Srebnick Ltr. 1-2; 2255 Motion 1-2).
As set forth above, establishing ineffective assistance at the guilty plea stage requires
proof that (1) but for the ineffective advice of counsel there is a reasonable probability that [a]
plea offer would have been presented to the court, (2) the court would have accepted its terms,
and (3) the conviction or sentence, or both, under the offer's terms would have been less severe
than under the judgment and sentence that in fact were imposed. Fulton v. Graham, 802 F.3d
257, 266 (2d Cir. 2015) (quoting Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012)). Levy cannot
come close to establishing any of the requirements of this test. Nothing other than Levys selfserving and facially incredible statements support the assertion that the Government emailed
about wanting Levy to come in and talk, and Mr. Srebnicks response to the motion
unequivocally contradicts that claim. Even had such communications been sent (and they were
not), there is no evidence other than Levys self-serving, post-conviction statements that she
would have accepted the purported offer to come in. The evidence points to the opposite
conclusion, given that as Mr. Srebnick explains and Levy does not dispute, she refused to come
in, i.e., attempt cooperation, after trial because it would have required her to accept
responsibility for her conduct. (2255 Motion 3; Srebnick Ltr. 3). Thus, even assuming
(counterfactually) that the Government offered Levy a specific opportunity to cooperate, in the
absence of any evidence that Levy would have actually admitted her own culpability, much less

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provide valuable information to the Government supporting an offer of a cooperation agreement,

Levy cannot establish that but for her counsels purported failures a cooperation agreement
would have been offered by the Government or presented to the court. Fulton, 802 F.3d at 266
(2d Cir. 2015) (internal quotation marks omitted); see also Gluzman, 124 F. Supp. 2d at 178
(Where the government does not offer a plea, and where the client insists that she did not
participate in the crime, a failure successfully to negotiate a plea does not amount to ineffective
assistance of counsel.).
Moreover, given Levys continued assertion of innocence, she cannot demonstrate that
the court would have accepted [the purported cooperation agreements] terms. Fulton, 802
F.3d at 266; see also Gluzman, 124 F. Supp. 2d at 177 (it is difficult to see how she could have
pleaded guilty since her persistent claims of innocence would have rendered highly problematic
her ability to allocute in view of the requirements of Fed. R. Crim. P. 11). Finally, Levy offers
no basis for the Court to conclude that her hypothetical cooperation would have led to a plea to
fewer charges, or that she would have provided sufficiently substantial assistance to warrant a
materially lower sentence even if she had in fact attempted to cooperate, particularly given that
she refused to pursue cooperation even when her counsel sought it out following her conviction
but before sentencing. See id.
Accordingly, Levy cannot establish that either prong of the Strickland test has been
satisfied.
III.

The 2255 Motion Should Be Denied Without a Hearing

Where, as here, the motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief, no hearing is required. 28 U.S.C. 2255(b). In particular,

the Second Circuit has made clear that testimony may add little or nothing to the written

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submissions, permitting the district court to avoid the delay, the expenditure of judicial
resources, the burden on trial counsel and the government, and perhaps the encouragement of
other prisoners to make similar baseless claims that would have resulted from a full testimonial
hearing. Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001). For that reason, allegations
of facts outside the record can be fully investigated without requiring the personal presence of
the prisoner. Id. at 85 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). To
warrant a hearing, the motion must set forth specific facts supported by competent evidence,
raising detailed and controverted issues of fact that, if proved, would entitle the movant to relief.
See, e.g., Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013); Machibroda, 368 U.S. at
494. A district court need not assume the credibility of factual assertions where those assertions
are contradicted by the record in the underlying proceeding. Puglisi v. United States, 586 F.3d
209, 214 (2d Cir. 2009).
In Puglisi, for instance, the defendants Section 2255 motion alleged that his attorney
failed to inform him that conduct for which he had not been convicted could affect his sentence,
thereby causing him to choose not to plead guilty. Id. at 210. The district court, noting that the
defendant had persisted in his claims of innocence and exhibited no intent to accept any
offered plea agreement, denied the motion without conducting a hearing. Id. at 212. The
Second Circuit affirmed, emphasizing that the defendant had failed to demonstrate that he would
have accepted a plea offer if properly advised, and thus could not demonstrate Strickland
prejudice. Id. at 216.
As discussed above, Levys ineffective assistance claims, as in Puglisi, rely on selfserving, conclusory allegations unsupported by the record, and would fail the Strickland
prejudice prong even if true, in view of the generalized nature of her allegations, her admissions,

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and Mr. Srebnicks detailed submission rebutting her claim. Given that Levys self-serving,
post-conviction testimony regarding intent to plead guilty is not sufficient to establish
ineffective assistance in the absence of objective supporting evidence, see United States v.
Gordon, 156 F.3d 376, 380 (2d Cir. 1998); no objective evidence supports Levys claims,
Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); and Levys self-serving and
unsupported claims are contradicted by the credible and corroborated submission of opposing
counsel and the other evidence in the case, no hearing is warranted before Levys claims are
denied.
CONCLUSION
For the reasons stated above, the Court should deny the 2255 Motion without a hearing.
Dated:

New York, New York

November 2, 2016
Respectfully submitted,
PREET BHARARA
United States Attorney
Southern District of New York
By:______/s/__________________________
Howard S. Master
Assistant United States Attorney
(212) 637-2248

Cc: Counsel of record (by ECF)

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