United States v. Velazquez (197 F. Supp. 3d 481, 2016)

MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge

On May 1, 2014, a jury convicted defendant Adam Velazquez (“Velazquez” or “defendant”) of five crimes related to defendant’s participation in a conspiracy to rob drug traffickers and business owners in New York City and Long Island. Velazquez now moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure.

Velazquez asserts, among other things, that he should be granted a new trial based on the ineffective assistance of his trial counsel. Velazquez asserts that his trial counsel made numerous errors, including failing to investigate alibi evidence in the form of cell phone, work, and school records, and failing to introduce evidence that Velazquez did not in fact have a black, four-door sedan in 2009, as the government alleged. For the reasons set forth below, after careful consideration of the parties’ written submissions, the trial record, and the evidentiary hearing, the Court grants the motion for a new trial based upon ineffective assistance of trial counsel.

As a threshold matter, having presided over the trial, it was apparent to the Court that defense counsel was prepared during the course of the trial, conducted thorough cross-examinations of the government’s witnesses, and gave effective opening and closing statements to the jury. There is no doubt that he took his responsibility as defense counsel in this case very seriously, that he is an experienced and talented defense lawyer, and that he used that experience to substantially undermine the government’s case. The effectiveness of certain aspects of defense counsel’s strategy and performance in the courtroom was confirmed by the jury’s decision to acquit the defendant on several counts of the superseding indictment. In short, defense counsel’s effort was apparent, his courtroom performance was effective in many respects, and his professionalism was at the highest level. Thus, the Court emphatically rejects any suggestion by the defendant that his trial counsel was completely lacking in effort or preparation. However, as discussed in detail below, defense counsel’s performance was deficient in several major respects, including failing to develop evidence that would have been highly favorable to the defendant’s case, erroneously entering into a stipulation regarding identifications of his client by two witnesses who did not testify at trial, and engaging in a line of questioning with a cooperating witness that unnecessarily bolstered the credibility of the witness and damaged the defendant’s case. These fail- . ures, in the Court’s view, satisfy the Strickland standard for ineffective assistance of counsel.

First, defense counsel failed to obtain and introduce defendant’s cellular telephone records (including locational information), and additional evidence that would support and explain those records. In particular, defense counsel told his client that he would obtain those telephone records, but then unilaterally decided not to do so because trial counsel believed that such records would be useless given that the records would not confirm that it was the defendant (as opposed to someone else) using the telephone at any particular time and the government was alleging that the robbery crew used “burner” phones. That reasoning was fundamentally flawed in the context of this case, and cannot be attributed to trial strategy, especially where there was no downside to obtaining and reviewing the records. Even though telephone records do not conclusively establish on their face who was using the phone, at a given time, the records can often be used by the government or a defendant, in conjunction with other evidence or information, to strongly support the conclusion that it was the defendant (rather than some other third party) who was using the telephone at the relevant times. In fact, when new defense counsel obtained those records after the trial, the cellphone records and other records (such as college attendance and work records), in fact, provided substantial evidence, among other things, that: (1) defendant was in Manhattan at the time he was alleged to have participated in the 99th Street robbery in Queens and the St. Johns Place robbery in Brooklyn, both on November 23, 2009; and (2) defendant was in Woo-dhaven, Queen's, around the time the 152nd Street robbery was alleged to have taken place in Whitestone, Queens.

Second, defense counsel failed to show his client the government’s proposed trial exhibits prior to the trial, which prevented counsel from learning of favorable evidence to the defense that would have completely undermined one of the government’s only pieces of evidence offered to corroborate the government’s cooperating witnesses. Specifically, among the trial exhibits was Government Exhibit 7, which was a certified DMV document demonstrating that the defendant owned a black four-door sedan. The government argued that this exhibit was strong corroboration of the testimony of a cooperating witness that the defendant and his partner were in a black four-door sedan at the 99th Street robbery on November 23, 2009. The defendant was not shown this record prior to its introduction, and there was evidence that could have conclusively undermined that exhibit. In particular, the DMV record related to 2008 (through the robbery was in November 2009) and, following the trial, based upon information provided by the defendant, new defense counsel was able to obtain uncontroverted proof (in the form of DMV and insurance records) demonstrating that the plates for that black sedan were surrendered and destroyed in June 2008 (over one year prior to the 99th Street robbery) because the defendant had wrecked the car in June 2008. In fact, there was even a reference on Exhibit 7 itself, indicating that the plate had been surrendered in 2008, which apparently neither the government nor defense counsel noticed. In short, it is clear that, if the defendant had been shown that document prior to trial and had time to discuss it with his attorney, counsel would have been able to obtain this evidence that would have definitively undermined the government’s theory that Exhibit 7 established that defendant owned that black sedan at the time of the 99th Street robbery.

Finally, defense counsel entered into a stipulation with the government (Government Exhibit 10) regarding photo arrays that were shown to numerous witnesses during the investigation of the case. A portion of the stipulation was helpful to the defense because it indicated that six co-conspirators in the robbery crew and a robbery victim were each shown photo arrays containing the defendant and failed to identify the defendant. The stipulation, however, also indicated that five individuals positively identified the defendant in the photo arrays. Although three of those witnesses testified at the trial for the government, two of those witnesses never testified at all. Thus, the highly damaging inference from the stipulation was that two non-testifying co-conspirators from the robbery crew had also identified the defendant in connection with the robbery crew (even though their identifications were unrelated to any charged crimes) or, at the very least, had identified the defendant in connection with some other criminal activity. In short, although the Court has carefully considered the explanations offered by trial counsel regarding these issues, the Court cannot attribute any of these decisions to trial strategy, but rather concludes, in each instance, that it was an error by trial counsel. Moreover, the Court believes that, in the aggregate, these errors by trial counsel satisfy the first prong of the Strickland standard.

With respect to the prejudice prong of Strickland, this Court recognizes that a defense lawyer’s failure to obtain phone or car records, even if such records would have been helpful to the defense, does not necessarily mean that such failures affected the outcome of the case. However, having presided over this particular trial, this Court concludes that it is reasonably likely that, had the jury heard this additional evidence (and had the other errors regarding the stipulation and Lovly cross-examination not occurred), the jury would not have convicted the defendant of any of the counts in this weak case. The only substantive robbery for which the jury returned a guilty verdict was the 152nd Street robbery of a drug dealer and (from the verdict sheet and the evidence) it is highly likely that the other counts of conviction (robbery conspiracy, brandishing a firearm, conspiracy to distribute marijuana, and conspiracy to launder money) all arose from the jury’s conclusion that the defendant participated in that robbery of a marijuana dealer, as well as the subsequent splitting of the proceeds from that robbery. The government’s proof for that robbery was based primarily on the testimony of two cooperating witnesses—Martin Lovly (“Lovly”) and Timothy Glass (“Glass”)— whose out-of-court identifications were unusual (to say the least), and whose largely uncorroborated testimony contained numerous, and often troubling, inconsistencies with other proof in the case.

For example, Glass (the leader of this robbery crew who committed over 100 robberies) admitted that he did not know the defendant well and picked out another individual in a photo array as having done robberies with him and, after the circling of that other individual, an arrow was drawn on the array to the defendant to indicate Glass also knew the defendant. In other words, Glass picked out two co-conspirators in the same array. Moreover, Glass testified that he was introduced to the defendant by co-conspirator Gerry Ma-chacek (“Machacek”), whom Glass understood knew the defendant extensively from other criminal activities. However, Macha-cek, who also was a cooperating witness for the government, failed to identify the defendant as someone he knew at all in three separate photo arrays. In addition, Glass’s girlfriend (Teri Bedell), who is also a cooperating witness for the government and is alleged to have participated in the 152nd Street robbery (and the Advanced Dermatology robbery) with the defendant, also did not recognize the defendant in a photo array. Finally, Glass had stated, among other things, that the person known to him as “Rob” or “Alex,” and who the government argued was the defendant (based upon the identification in the array), had the following personal characteristics: (1) he had a scar on his hand from a dog bite; (2) he was “in his early 20s” at the time of the robberies; and (3) he spoke Spanish. However, (1) it is uncontroverted that the defendant has no scar on his hand; (2) it is unconverted that the defendant was over 30 years old at the time of the alleged robberies; and (3) there is no evidence (independent of Glass) that the defendant speaks Spanish. It is clear that, even without the additional evidence that trial counsel did not obtain that would have been helpful to the defense (such as the cell phone records and car information), the jury already had significant issues with Glass’s credibility because they found the defendant not guilty on two substantive counts—the New Jersey warehouse burglary (Count Two) and the Advanced Dermatology robbery (Counts Five and Six)—even though Glass testified extensively as to the defendant’s alleged involvement in those crimes.

The other main cooperator on the 152nd Street robbery, Martin Lovly, also had substantial impeachment issues. Lovely had been involved in dozens of robberies and, when initially shown a photo of the defendant in an array, only identified him as someone he knew from a neighborhood barbershop rather than from a robbery. However, a week later, he positively identified the defendant as having participated in the 152nd Street robbery, even though (1) the robbery had occurred five years earlier, and Lovely had been involved in dozens of robberies; (2) Lovely said he met the defendant only an hour before the crime; and (3) Lovely was on heroin at the time of the robbery. Lovely also incorrectly told investigators that the defendant was a “dark skinned Dominican.”

Thus, given these substantial weaknesses in the government’s case, the Court concludes that it is highly likely that the introduction of the additional evidence in favor of the defense—such as the telephone records, school records, work records, and the evidence regarding the black sedan—would have impacted the government’s case in such a way as to alter the outcome as to each of the counts of conviction. That real and substantial risk of a material impact on the trial’s outcome was further magnified by the error with respect to the stipulation regarding positive identifications by two non-testifying government witnesses. Although the Court gave a curative instruction advising the jury not to consider those identifications by non-testifying witnesses, the Court is troubled by the real possibility that hearing about those identifications could have led the jury to wrongly believe that two non-testifying robbery crew members had also implicated the defendant in robberies, even though that was not true.

The Court has carefully considered the government’s arguments in opposition and finds them unpersuasive. First, the government argues that the additional telephone evidence is hardly conclusive proof that the defendant did not participate in the charged robberies. As an initial matter, the Court finds the telephone records and accompanying additional evidence to be compelling proof that the defendant did not participate in the 99th Street and St. Johns Place robberies on November 23, 2009 because he was in Manhattan. Moreover, as it relates to the 152nd Street robbery, although the exact date and time of that robbery are uncertain, there is testimony in the record from Glass and the robbery victim (and accompanying evidence) to support the defense argument that the robbery took place on January 13, 2009, and there are telephone records that Would support defendant’s position that he was not in Woodhaven at the approximate time the robbery was alleged to have taken place in Woodhaven on that day. Although this evidence is not conclusive proof that the defendant did not participate in the 152nd Street robbery, the test is not “conclusiveness”—rather, the test is whether there is a reasonable probability that, absent the errors, the outcome with the jury tvould have been different. Second, the government correctly notes that much of the additional evidence relates to robberies other than the 152nd Street robbery, including counts of which defendant was acquitted and, thus, argues such evidence is irrelevant to the counts of conviction. However, the Court must consider the “prejudicial spillover” effect that these errors had on the jury’s decision with respect to the 152nd Street robbery. Under the circumstances of this case, the Court finds that the “prejudicial spillover” effect is extremely high. In its summation, the government often spoke of the robbery crew and the charged robberies together, and emphasized the cross-corroboration between the robberies in an effort to bolster its cooperating witnesses on each individual robbery. The Court concludes that there is not only a reasonable probability, but a high probability that, if the jury had heard this additional evidence (including the telephone records and information regarding the black sedan), the government’s credibility (and its reliance on largely uncorroborated cooperator testimony to sustain its burden) would have been so undermined that the jury would not have been able to reach a guilty verdict on any count beyond a reasonable doubt. Finally, the government argues that there was some corroboration of the cooperators’ identifications that has not been impacted by this additional evidence, such as the critical fact that Glass testified that he knew the defendant had a scar from a motorcycle accident, and defendant does have a scar from a motorcycle accident. However, this remaining piece of corroboration is tainted because it is uncontroverted that Glass interacted with other cooperating witnesses in the jail, and there is also evidence that Glass interacted with the defendant in the jail and could have easily learned about the motorcycle accident and scar in the jail, rather than from interactions at the time of the robbery conspiracy.

In sum, the Court emphasizes that it does not conclude that the defendant is factually innocent of the counts of conviction. Instead, the Court concludes that counsel was ineffective under Strickland by, inter alia, (1) failing to obtain telephone and other records (from school and work) that provided the defendant with the ability to argue to the jury that he was elsewhere at the approximate date and time of the charged robberies; (2) failing to communicate with his client regarding Government Exhibit 7, which would have allowed defense counsel to completely undermine the government’s contention that he used the black sedan referenced in Exhibit 7 to commit the 99th Street and St. Johns Place robberies; (3) entering a stipulation that contained positive identifications of the defendant by two individuals who did not testify at the trial at all; and (4) engaging in an erroneous line of cross-examination during the testimony of cooperating witness Martin Lovly that helped the credibility of that witness, and the government’s case, in a substantial way. Moreover, having presided over the trial and having observed the substantial weaknesses in the government’s case, the Court concludes that there is a reasonable probability that, but for these errors, the jury would not have convicted the defendant on any counts. The Court does not overturn a jury’s verdict lightly; however, the Court is firmly convinced that the circumstances of this case require it. Accordingly, the motion for a new trial based upon ineffective assistance of counsel is granted.

I. Background

A. Evidence Introduced at Trial

At trial, the government introduced evidence of defendant’s participation in a conspiracy to rob drug dealers and business owners in New York City, Long Island, and New Jersey. Glass testified that he, defendant, and others committed the following crimes in 2008 and 2009: theft of clothing from a warehouse in New Jersey in late 2008 (see Trial Transcript (“Trial Tr.”) at 423-42); armed robbery of marijuana dealer Christian Olic (“Olic”) at 152nd Street in Queens, New York in January 2009 (see id. at 442-62); armed robbery of a medical office on 188th Street in Queens, New York at the end of January 2009 (the “Advanced Dermatology” robbery (see id. at 464-73); theft of power tools and a pickup truck in Queens in February 2009 (see id. at 473-76); armed burglary of an apartment in Hoboken, New Jersey sometime in 2009 (see id. at 476-80); and armed robbery of the Glen Oaks Bar in Queens, New York in March 2009 (see id. at 480-88). Lovly, also a participant in the 152nd Street robbery, also testified that defendant was involved in that robbery. (See id. at 231-43.) Athanasios Miehaelides (“Michaelides”), another co-conspirator, testified that he observed defendant with Glass shortly after the 152nd Street robbery (see id. at 966-67), and that he saw defendant unloading the truck full of stolen clothing when Glass and his crew returned to Queens after breaking into the New Jersey warehouse in late 2008 (see id. at 971-72). Co-conspirator Kermit Odums (“Odums”) also testified that he, defendant, and others committed an additional armed robbery of individuals at 99th Street in Queens in November 2009 (see id. at 853-86), and that he, defendant, and others participated in the burglary of an apartment in Brooklyn later that day (see id. at 886-92).

The jury also heard evidence concerning the division of the proceeds of these crimes. Glass testified that his crew, in-eluding defendant and Lovly, stole approximately two pounds of marijuana from Olic at the 152nd Street robbery. (See id. at 461-62.) Glass sold the marijuana to Mi-chaelides for approximately $4000, and then Glass paid each participant in the 152nd Street robbery, including defendant, a portion of that money. (See id. at 462.) Glass also testified that, following his theft of power tools and a pickup truck in Queens in February 2009, he sold the power tools for cash, and then divided the cash among his crew (including defendant). (See id. at 474-76.)

B. Procedural Background

Following the presentation of the government’s case-in-chief, defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a). (See id. at 1059.) The Court denied the motion as to Counts One through Seven, stating that “there is no question that there is sufficient proof with respect to each and every element of these, counts one through seven.” (Id. at 1059-60.) Pursuant to Rule 29(b), the Court reserved judgment as to Count Eight, the money laundering conspiracy count. (Id.)

The Court submitted all eight counts of the superseding indictment to the jury. On May 1, 2014, the jury returned a verdict of guilty as to Count One (Hobbs Act robbery conspiracy from April 2008 through April 2010), Count Three (robbery of Olic at 152nd Street in Queens), Count Four (brandishing a firearm during the 152nd Street robbery), Count Seven (conspiracy to distribute marijuana), and Count Eight (conspiracy to commit promotion money laundering). The jury acquitted defendant as to Count Two (the theft of clothing from the New Jersey warehouse), Count Five (the robbery of the medical office in Queens), and Count Six (the firearm charge premised upon Count Five).

Defendant renewed his motion for a judgment of acquittal as to Count Eight on June 9, 2014, which the Court denied in an October 27, 2014 Memorandum and Order.

On August 3, 2015, defendant filed a motion for a new trial under Rule 33 of the Federal Rules of Civil Procedure. On October 26, 2015, the government filed its opposition. After oral argument on November 6, 2015, the Court determined that an evidentiary hearing was necessary to hear testimony from trial counsel (and any other relevant witnesses) regarding the allegations of ineffective assistance of counsel. The Court held an evidentiary hearing over several days: March 31, 2016, and April 20-22, 2016. There was a substantial delay in the scheduling of the hearing because trial counsel, who was a critical witness at the hearing, was unavailable for a substantial period of time due to significant medical issues. After the hearing, defendant’s new counsel asked for several weeks to prepare for post-hearing argument. Thus, the post-hearing argument was heard on June 8, 2016. On June 17, 2016, the government submitted an additional letter in response, to issues raised by the Court at the post-hearing argument. On June 20, 2016, defendant submitted a letter in response to the government’s submission.

C. Evidentiary Hearing

Set forth below is a summary of the testimony at the evidentiary hearing that the Court conducted in connection with defendant’s motion for a new trial based upon ineffective assistance of trial counsel.

1. Detective Holmes

Detective Edwin Holmes testified on March 31, 2016, and April 20, 2016. Detective Holmes worked for 34 years with the Nassau County Police Department, and is currently an investigator with the Nassau County District Attorney’s Office. (Tr. at 4.) Detective Holmes was the case agent and one of the central investigators on the case, though he did not testify at trial. (Id. at 5.) Detective Holmes interviewed all of the cooperators who testified at the defendant’s trial, including Glass, Lovly, Odoms, and Michalides, as well as cooperators who did not testify at trial, such as Terry Be-dell and Gerry Machacek. (Id. at 5-6.) Detective Holmes testified that both Bedell and Machacek failed to positively identify the defendant as a perpetrator in the robberies. {Id. at 6.) Detective Holmes also testified that he helped prepare the cooperators for their testimony at trial. (Id.)

Detective Holmes testified that he believed that he was present for all of the identifications by the informant witnesses in this case. (Id. at 190.) Detective Holmes affirmed his prior testimony from the April 7, 2014 evidentiary hearing that his technique for identifications was “that if I show a photo pack to anyone and they identify no one, I still keep it as a piece of evidence. I’ll write no ID or no identification. I’ll still have the individual who viewed it, sign it, time it, and date it, and make an exhibit of it in case, even though it was not identified,” and that this was his technique in the defendant’s case. (Id. at 210; see also Apr. 7, 2014 Hrg. Tr. at 15-16.) Detective Holmes further testified that, when a witness indicates that he recognizes someone from the photo pack, “I normally have the individual circle the photographs and put his initials in the photograph as well as I will. And I will have him time and date the photograph, usually right within the circle or within that area. And I normally have him, on the bottom he will sign his name in full, as I would. And another law enforcement officer [who] was present and observed the identification process[, h]e will.” (Tr. at 210; see also Apr. 7, 2014 Hrg. Tr. at 16.)

Detective Holmes testified that, when Glass first positively identified the defendant in a photo array on October 5, 2012, he noted the positive identification in his notes and circled the defendant’s picture on the photo array. (Tr. at 211-12.) Detective Holmes indicated on the photo array that Glass referred to the individual in the array as “known to me as ‘Rob,’ he did robberies with me” and as a “friend of Jerry and Alex.” (Id. at 212; Def. Ex. 275.) Detective Holmes further testified that, on December 18, 2012, the defendant was identified as “Rob.” (Id. at 213-14; see also Def. Ex. 208.) Detective Holmes testified that, on April 30, 2013, Glass identified the defendant in a second photo array, which contained a different picture of the defendant, which was taken after he was arrested on January 29, 2013. (Tr. at 215; see also Def. Ex. 280-81.) Detective Holmes stated that the April 30 photo array was done “[w]ith the assistance of the defense attorney” and that Mr. Jenks “wanted another photo pack done” because he believed that the defendant was not the individual identified in the first photo array. (Tr. at 218.) Detective Holmes testified that he circled the fifth image on the photo pack, wrote the date and time on the image, signed it, and had Glass initial it. (Tr. at 219; see also Def. Ex. 281.) Detective Holmes also testified that an arrow was drawn to the defendant’s picture, which was also in the photo array, and that Glass identified both men at the same time. (Tr. at 220; see also Def. Ex. 281.) Detective Holmes confirmed that there was nothing in his notes regarding the photo pack shown to Glass on April 30, 2013, and indicated that the photo pack speaks for itself. (Tr. at 222.) Detective Holmes’s April 30, 2013 notes included details about “Rob” and indicated that, according to Glass, “Rob” had a scar on his hand from a dog bite and a scar on his leg from a motorcycle accident, and both “Rob” and his cousin had pit bulls. (Id. at 223-24; see also Def. Ex. 212.) Detective Holmes confirmed that the description of “Rob” having dog bites and a motorcycle scar prompted the government to take pictures of the defendant. (Tr. at 230.) Detective Holmes testified that he believes that Glass learned that the defendant’s name was Adam Velazquez when Glass saw him at MDC Brooklyn (“MDC”) when the defendant refused to be produced for photographs. (Id. at 245-46.)

Detective Holmes then testified regarding Lovly’s identification of the defendant. Detective Holmes confirmed that, at the government’s October 2, 2013 interview with Lovly, Lovly indicated that he met the individuals he knew as “Rob” and “Alex” through Glass and that they were at the marijuana robbery in Whitestone. (Id. at 238; Def. Ex. 258.) Lovly “described them as being dark skinned Dominicans with thin builds. He just referred to them as the ‘black kids.’ ” (Tr. at 238; Def. Ex. 258.) Detective Holmes testified that, when Lovly was shown the photo pack, he identified the second image, which was a picture of the defendant, and the image was circled. (Tr. at 238-40; see also Def. Ex. 261.) Detective Holmes wrote on the photo pack that there was “no ID positively for the home invasion” but that Lovly “also saw this guy at Ralphie’s barber shop while [he] was looking for Timothy Glass. [He] saw him at Ralphie’s shop after the robbery looking to buy drugs from Glass.” (Def. Ex. 261; see also Tr. 240-42.) Detective Holmes further testified that he met with Lovly again on October 10, 2013, at which point Lovly indicated that, after thinking about it for a week, he was “positive about the identification from the previous meeting” and said that he was “100 percent sure” that the individual identified in the October 2 photo pack was “the guy that did the robbery with' [him.]” (Tr. at 243-44; see also Def. Ex. 262.) Lovly was not shown another photo pack on October 10, 2013. (Tr. at 243.)

With respect to cooperating witness Odoms, Detective Holmes testified that the New York City Police Department (“NYPD”) conducted the photo array on May 27, 2010, in which Odoms identified the defendant by ,a photo of him as a teenager. (Tr. at 247.) Detective Holmes confirmed that he did not do a subsequent photo array with Odoms. (Id. at 248.) Detective Holmes testified that the NYPD had a separate and independent investigation into the defendant, which is how this initial photo pack with the defendant in it came to be made. (Id. at 252.) Detective Holmes testified that Anthony Stravello,- a government source, provided information to the Nassau County Police Department in 2013, which he had previously provided to the NYPD “years earlier.” (Id. at 254-55.)

2. Edward Jenks

Trial counsel Edward Jenks testified on March 31, 2016. Mr. Jenks was appointed to represent defendant on January 29, 2013. (Tr. at 16.)

Mr. Jenks testified that, over the course of his representation, he never had any telephone communications with the defendant, though he spoke “many, many” times with defendant’s brother, Scott Velazquez, approximately “three or more times a week throughout the duration of the case.” (Id. at 30.) Mr. Jenks also testified that, as it “got closer to trial,” in March and April 2014, defendant’s mother, Marilyn, called the office several times. (Id. at 32.) Mr. Jenks testified that Scott Velazquez requested that he be provided with all the paperwork in the case and that paperwork not be sent to defendant, and that, accordingly, he did not send any documents to the jail except for defendant’s plea agreement in February 2014. (Id. at 38-41.) Mr. Jenks testified that the defendant never objected to this arrangement. (Id. at 124.)

Mr. Jenks testified that he met the defendant in the pens in the Central Islip courthouse before or after his appearances, and that the U.S. Marshal’s Service also produced the defendant for private meetings at the courthouse on at least four different occasions, but “maybe more.” (Id. at 42-45, 109-110, 112-13.) Mr. Jenks testified that he reviewed the particular charges and salient portions of the indictment with the defendant. (Id. at 110-11.) Mr. Jenks testified that Scott Velazquez “may have asked [him] once” to visit the defendant, but that he didn’t recall. (Id. at 35.)

Mr. Jenks testified that, when he discussed his case with the defendant, he “really had nothing to say except I don’t know these people. I didn’t do this, and I’m innocent.” (Id. at 44; see also id. at 60.) Mr. Jenks further testified that, when he explained to plaintiff about the New Jersey warehouse burglary charge in the indictment, plaintiff told him that he had never been to New Jersey in his life. (Id. at 45; see also Jenks Decl. ¶ 9.)

Mr. Jenks acknowledged that plaintiff asked him to get cell phone records, but said that he told plaintiff that “they’re basically worthless, the cell phone records, because the cooperators in this case are going to testify that all the defendants used burner phones.” (Tr. at 47; see also id. at 53 (“Detective Holmes had discussions with Mr. Ryan, and the issue of burner phones came up and they told me that nobody used their cell phones.”).) Mr. Jenks further testified that he initially told plaintiff that he was going to subpoena the phone records, but he then changed his mind and determined that “cell phone records are meaningless” because “[a]nybody can have your cell phone.” (Id. at 48.) Mr. Jenks testified that he communicated his decision not to obtain the phone records to the defendant and told him that the plan was to try the case “on reasonable doubt.” (Id. at 116-117; see also Jenks Decl. at ¶ 21.)

Mr. Jenks acknowledged that, by September 5, 2013, he knew the dates on which the crimes allegedly occurred for the substantive counts and for at least one of the counts in the conspiracy, though the dates given by the government were changing until one week before the trial started. (Tr. at 51-52, 64-65.) Mr. Jenks testified that he told the defendant of the dates verbally and also explained the dates to Scott Velazquez. (Id. at 62.) Mr. Jenks also testified that he told the defendant that, because many of the robberies were not reported to law enforcement, it was unlikely they would learn the exact dates of the robberies. (Id. at 67; see also Jenks Decl. ¶ 14.) Mr. Jenks further testified that the defendant told him that he wanted to take a polygraph, which Mr. Jenks told him would not show anything, as well as be put in a lineup, which Mr. Jenks asked to be done. (Tr. at 66.)

Mr. Jenks testified that he did not provide the defendant with, or review with him, the 3500 material or the exhibits for the trial before the trial began. (Tr. at 85, 89-90.) Instead, Mr. Jenks testified that he “told [the defendant] basically what was in [the 3500 material].” (Id. at 89.) Mr. Jenks also testified that, prior to the trial, he had meeting with Scott Velazquez, which lasted approximately an hour or an hour and a half, regarding the exhibits and 3500 material prior to the trial, which Scott Velazquez indicated he would tell his brother about when he saw him. (Id. at 114.)

Mr. Jenks testified that, during the trial, the government repeatedly tried to connect a black, four-door sedan to the defendant. (Id. at 85.) Mr. Jenks further testified that, when they heard this testimony, both the defendant and Scott Velazquez told him that the defendant did not have a black sedan in 2009, and then tried to get Mr. Jenks information about this during the trial. (Id. at 86.) Mr. Jenks also testified that he “attempted to speak to Detective Holmes about the car being destroyed and plates surrendered, and Detective Holmes told [him] there’s no New York State DMV abstract record of the car being destroyed, totaled, salvaged or plates surrendered.” (Id.) Mr. Jenks acknowledged that a DMV motor vehicle printout, admitted into evidence at trial, indicated that the defendant surrendered his car’s plates on June 30, 2008. (Id. at 87; see also Gov. Ex. 7.) Mr. Jenks testified that the defendant “never mentioned a crashed black sedan to [him] in 2008, despite his being told that at the reverse proffer. He mentioned it for the first time at the trial.” (Tr. at 81; see also Jenks Decl. ¶ 48.) However, Mr. Jenks acknowledged that, if the defendant had been shown the trial exhibits before trial, the defendant could have informed him that he did not have the car in 2009. (Tr. at 88-89.)

Mr. Jenks testified that he did not speak with the defendant about whether he spoke Spanish or try to get in evidence that he did not speak Spanish. (Id. at 80, 89.) Mr. Jenks also acknowledged that, in the 3500 material, Glass repeatedly indicated that the defendant had scars from a motorcycle accident as well as from a dog bite, (id. at "90), and that Glass testified at the trial that he knew that the defendant had scars on his face from a motorcycle accident. (Id. at 94.) Mr. Jenks testified that, when this testimony about defendant’s scars came out at trial and the government introduced photographs of the defendant’s scars, there was no discussion with either the defendant or his family about putting in evidence of childhood photographs to rebut Glass’s testimony. (Id. at 102-03.)

Mr. Jenks testified that, prior to trial, Alex Ponze introduced himself as a friend of the defendant and offered his help with the trial, which Mr. Jenks accepted. (Id. at 72.) Mr. Jenks testified that he encouraged Mr. Ponze to talk to the defendant and also gave him an “assignment” during the trial to keep track of inconsistent statements made by the cooperators. (Id. at 72-73.)

Mr. Jenks testified that, when the Glen Oaks robbery was mentioned at trial, the defendant told him that the date of the robbery was his first day of work. (Id. at 118.) Mr. Jenks further testified that during the trial, for the first time, Mr. Ponze provided him with a letter from February 2013, which indicated that the defendant was initiated into Local Union 3 IBEW in July 2009 and was employed by participating employer contractors of the Joint Industry Board since March 2, 2009. (Id.; Gov. Ex. R.) Mr. Jenks testified that, once he obtained this letter, he asked the defendant who they could contact at IBEW to show that he was working and also directed his associate, John Kahn, to call the Joint Industry Board of Electrical Industry to get another letter as to defendant’s time of employment in the union. (Tr. at 120.) Mr. Jenks further testified that they obtained an updated letter concerning defendant’s employment and “entered into a stipulation with the government to show that on the date of the Glen Oaks robbery, which occurred allegedly at 2 a.m., Adam was starting work at 8 a.m. on that day in the city.” (Id. at 121.) Mr. Jenks also testified that he entered into a stipulation with the government “showing the dates [defendant] was working and for what companies.” (Id. at 122.)

Mr. Jenks testified that he discussed the 99th Street robbery, which occurred on November 23, 2009, with the defendant, and the defendant said that he “didn’t do it” but that he did not know where he was on that date. (Id. at 121.) Mr. Jenks testified that he did not receive any information that the defendant had any type of an alibi for the robberies discussed at trial and that, if he had been given that information, he would have investigated it. (Id. at 122.)

3. Scott Velazquez

Defendant’s brother, Scott Velazquez, also testified on March 31, 2016. Mr. Velazquez is a Detective with the New York City Police Department. (Id. at 137.)

Detective Velazquez testified that the defendant obtained the scars on his face from a childhood injury with a swing set, rather than from a motorcycle accident. (Id. at 138-40.) Detective Velazquez testified that, when Glass testified about the source of defendant’s scars during the trial, he told Mr. Jenks that such testimony was inaccurate and that Mr. Jenks knew that the scar was not from a motorcycle accident. (Id. at 174-76.) However, Detective Velazquez testified that he never showed childhood photographs of the defendant with a scar on his face to Mr. Jenks during the trial. (Id. at 177-78.) Detective Velazquez also testified that he had never heard the defendant speak Spanish, even though his wife is from El Salvador, and that the defendant did not speak Spanish at home with his family. (Id. at 141.)

Detective Velazquez testified that he met Mr. Jenks the day of defendant’s arraignment and asked Mr. Jenks for copies of all the paperwork so he could examine them “from an investigative viewpoint” because he and Mr. Jenks agreed that Detective Velazquez might see things “from a different point of view as an investigator.” (Id. at 143.) Detective Velazquez testified that he never told Mr. Jenks not to send paperwork to the defendant or not to review it with the defendant. (Id.-, see also id. at 178-79.) Detective Velazquez stated that he did not understand that he was supposed to be the one to go over the paperwork with the defendant. (Id. at 147, 153.) Detective Velazquez testified that he never met with Mr. Jenks about the 3500 material or otherwise discussed the 3500 material with him, nor was he given a copies of the 3500 material. (Id. at 153.)

Detective Velazquez testified that he told Mr. Jenks on more than one occasion that the defendant wanted to know the dates of the crimes and that Mr. Jenks responded that the dates were “always changing from the government” and “[h]e just didn’t have the exact dates.” (Id. at 148.) Detective Velazquez also stated that Mr. Jenks told his mother that it was not his practice to give his personal telephone number to his clients. (Id. at 146.)

Detective Velazquez testified that he told Mr. Jenks that the defendant wanted to see him “on numerous occasions where we talked in person, we talked on the phone, sometimes during texts.” (Id. at 144.) Detective Velazquez stated that he offered to drive Mr. Jenks to the MDC to visit the defendant on more than one occasion because Mr. Jenks was unable to drive there due to his Parkinson’s disease, but that Mr. Jenks never set a date to go. (Id. at 150-51.) Detective Velazquez also testified that he spoke with Mr. Jenks about driving him to the bars defendant was alleged to have robbed so that Mr. Jenks could “say he was inside the place and be able to understand what they were talking about” but that Mr. Jenks never followed up and requested to be driven to the bars. (Id. at 168.)

Detective Velazquez testified that, on April 29, 2014, Mr. Jenks asked him to request the defendant’s work records to use as alibi evidence because they learned of the date of a crime for the first time during the trial. (Id. at 154-55.) Detective Velazquez stated that he did not know what records were sent because they went to Mr. Jenks, but that they were not entered into evidence. (Id. at 155.) However, Detective Velazquez acknowledged that the stipulation about defendant’s employment with the union was entered into evidence and he did not have anything else that he wished to be put into evidence by Mr. Jenks that was left out. (Id. at 173-74.)

Detective Velazquez testified that his family learned about the government connecting a black Impala to defendant for the first time during the trial. (Id. at 160, 163.) However, Detective Velazquez indicated on cross-examination that he stated in his November 4, 2015 affidavit that he spoke with Mr. Jenks “about the fact that the black sedan had been wrecked and junked, first after the reverse proffer, which occurred in April 2013.” (Id. at 164-65; see also Scott Velazquez Deck ¶ 9.) Detective Velazquez indicated that, during the trial, his family was looking for insurance paperwork and the accident report to show when the car was destroyed and the insurance and plates were surrendered in order to prove that defendant’s car had been destroyed before 2009. (Tr. at 160-61.) Detective Velazquez stated that his family was ultimately able to obtain the insurance proof, but not the accident report because the DMV does not keep accident reports for more than four years. (Id. at 161.) Detective Velazquez testified that, during the trial, the only thing they had to prove the 2008 accident was photographs, which they showed Mr. Jenks during the trial; however, according to Detective Velazquez, Mr. Jenks told him that “it was too late.” (Id. at 162.)'

Detective Velazquez stated that Mr. Jenks changed his position on phone records after the trial and, one month after the trial was over, tried to obtain the phone records. (Id. at 156-57.) Detective Velazquez testified that he texted a Verizon address and Adam’s phone number to Mr. Jenks in June 2014 so that Mr. Jenks could obtain the phone records, (Id.; see also Def. Ex. 41 at line 113.)

4. Manuel Lopez

Manuel Lopez, an electrician with Local Union Number 3, also testified on March 31, 2016. Mr. Lopez testified that the defendant worked under his command for the Roosevelt Hospital project and that the defendant’s first day on the job was the first day of the project. (Id. at 180-81.) Mr. Lopez stated that the defendant never called in sick or arrived late, and that he could not remember specifically if the defendant was late on his first day but “doubtfed] it” because he fires people or brings them up on cjiarges with the union for being repeatedly late and it would “stand out in [his] mind” if someone was late on the first day because “[i]t would hold [him] up from getting the other dozen or so guys started” due to the paperwork done on the first day, (Id. at 182-83.) Mr. Lopez also stated that the defendant told him that he had been hospitalized due to motorcycle accidents and showed him the scar on his chest caused by the accidents. (Id. at 184.)

5. Alex Ponze

Alex Ponze testified on April 20 and 21, 2016. He testified that he and the defendant were “acquaintances” and that he became involved in the case after running into the defendant’s wife, Marcella, at a restaurant in October 2013. (Id. at 257; see also id. at 295.) Mr. Ponze testified that Marcella told him that the defendant had been arrested and asked if she could pass his phone number along to defendant’s mother because she remembered that Ponze was an attorney. (Id. at 257-58.) Mr. Ponze testified that the defendant’s mother, Marilyn Velazquez, started calling him the Monday after he gave Marcella his number and continued to contact him “three or four times a week for a couple of weeks.” (Id. at 258-59.) Mr. Ponze stated that he did not respond to Mrs. Velazquez’s phone calls immediately because he “was working in Brooklyn at the time, and [ ] didn’t know anything about federal criminal law, and [ ] just didn’t want to be a part of it.” (Id. at 258.) Mr. Ponze stated that, ultimately, he “randomly picked up the phone” when Mrs. Velazquez called and, although he told her that he did not want to get involved, he asked her a few questions and thereafter, “stayed in contact with her about the case here and there.” (Id. at 259.) Mr. Ponze testified that, in December 2013, about a month after he started speaking to Mrs. Velazquez about the case, she asked him if he would be willing to set up a Corrlinks account to communicate with the defendant at the jail. (Id. at 259-60.) Mr. Ponze testified that initially he just had “casual” communication with the defendant, “nothing related to legal representation” and that he “really had very little contact” with the defendant and Mrs. Velazquez until March 2013. (Id. at 260-61.)

Mr. Ponze testified that, in the middle of March 2014, he was switching jobs and had a two-week period in which he was not working. (Id. at 261.) Mr. Ponze testified that he told Mrs. Velazquez this, and she asked if he would be willing to come to a status hearing for the defendant on March 25, 2014, and contact Mr. Jenks. (Id.) Mr. Ponze testified that he called and left a message for Mr. Jenks on March 21, to introduce himself, and came to the status hearing on March 25. (Id.) Mr. Ponze testified that he observed the status conference from the gallery and introduced himself to Mr. Jenks at the end. (Id. at 265.) Mr. Ponze testified that Mr. Jenks asked him if he was admitted in the Eastern District and whether he had a secure pass; when he confirmed that he did, Mr. Jenks asked him to go down to the U.S. Marshal’s pens and talk with the defendant. (Id.) Mr. Ponze testified that he went down to the pens without Mr. Jenks and spoke with the defendant for about 30 minutes. (Id.) Mr. Ponze testified that he took notes during the meeting, which he e-mailed to Mr. Jenks the next day. (Id. at 265-66; see also Def. Ex. 135.) Mr. Ponze testified that the defendant wanted to convey to Mr. Jenks that he was “scared and confused. He didn’t really seem to know what he was being charged with, how he was identified. He insisted that he didn’t know any of the co-conspirators on the case” and wanted to know if the Court was “aware of all of these inconsistencies in terms of the identification and just general lack of evidence against him.” (Tr. at 269.) Mr. Ponze testified that the defendant wanted to investigate an alibi defense and specifically look into his cell phone records. (Id. at 269-70; see also Def. Ex. 136.)

Mr. Ponze testified that he visited the defendant for approximately three hours at the MDC on April 4, 2014, and thereafter, sent notes from the meeting to Mr. Jenks. (Tr. at 272; see also Def. Ex. 108-114.) Mr. Ponze testified that the defendant “want[ed] a copy of the 3600 material immediately”, “want[ed] to familiarize himself with everything so he has an idea of where the case is going,” and “want[ed] to know what is being done on his behalf and what steps are being taken to prove his innocence,” including obtaining phone records and taking a lie detector test. (Tr. at 274-75; see also Def. Ex. 109.) Mr. Ponze also testified that the defendant provided his phone number and e-mail addresses so that they could be subpoenaed, which Ponze then provided to Mr. Jenks. (Tr. at 276; see also Def. Ex. 110.) Mr. Ponze testified that the defendant told him that he did not know the dates of the crimes he was alleged to have committed and wanted to know whether “the numerous discrepancies concerning his identification” would be presented to the Court, including the “erroneous assumption” that he has a dog bite on his hand and a tattoo by his foot and the “outdated and possibly doctored photograph used to identify” him. (Id. at 277-78; Def. Ex. 110-11.) Mr. Ponze also testified that the defendant wanted to know who would be called as defense witnesses at trial, what evidence would be presented on his behalf, how he could prepare, and what the strategy was. (Tr. at 279; Def. Ex. 111.)

Mr. Ponze testified that he never received 3500 material or any discovery either before or during the trial, nor did he review any 3500 material with the defendant. (Tr. at 294.) Mr. Ponze further testified that he was not involved in any aspect of trial preparation and was not present for the last three days of trial. (Id. at 294-95.)

Mr. Ponze testified that on, April 24, he told Mr. Jenks that he thought that “Adam must testify,” to which Mr. Jenks responded “Adam can testify. His testimony will be short. His cross risky. They will bring Stravello on marijuana and Adam dealing. They still have two more informants: Odoms and Sacci.” (Tr. at 305; see also Gov. Ex. L.) Mr. Ponze further testified that, although he originally told Mr. Jenks that the defendant “must testify” on April 24, on April 26, he told Mr. Jenks that “Adam does not think it is necessary to testify,” and Mr. Jenks agreed that it was “smart Adam not testify.” (Tr. at 306; see also Gov. Ex. L.)

Mr. Ponze testified that on April 25, 2014, in the middle of the trial, he sent Mr. Jenks an e-mail regarding Machacek’s plea, which he felt was contradictory to Glass’s testimony at trial and could be exculpatory because (1) Machachek stated in his plea allocution that he stood watch outside and the eyewitness stated that only one gunman entered the doctor’s office, whereas Glass testified at trial that both Machcek and the defendant went into the doctor’s office, and (2) the eyewitness to the robbery described the gunman as 5’3‘ and 150 lbs., whereas the defendant is 5’11‘ and 170 lbs. (Tr. at 280-82; see also Def. Ex. 137.) Mr. Ponze testified that Mr. Jenks brought this information to the Court’s attention, and on April 30, the parties stipulated to the Machacek plea. (Tr. at 283.)

Mr. Ponze testified that he never discussed the black car with the defendant, and that he was not at trial for the final two days when the government was trying to link the car to the defendant. (Tr. at 321-22.) Mr. Ponze testified that he was present when the issue of the defendant’s facial scars came up at the trial and remembered the defendant’s family saying that the facial scars were not from a motorcycle accident. (Id. at 323.) Mr. Ponze testified that he remembered “bringing it up to Mr. Jenks, because it seemed like he didn’t know that stuff was going to come into evidence” and that he did not think that Mr. Jenks knew that the defendant had been in two different motorcycle accidents. (Id.) However, Mr. Ponze testified that he was not a part of any discussions regarding childhood photographs of the defendant with his scar. (Id. at 323-24.)

Mr. Ponze also testified as to his cell phone records, which he obtained from Verizon, and summarized his calls with Mr. Jenks, including that Mr. Jenks.first returned his call on March 24, 2014, that he had a seven minute phone call with Mr. Jenks on March 26, after visiting the defendant for the first time, and that on April 24 and 25, he spoke with Mr. Jenks regarding delivering the trial transcripts to the defendant at the MDC and his April 25 visit with the defendant. (Tr. at 284-89; see also Def. Exs. 446-71.)

Mr. Ponze confirmed that, during the trial, in his e-mails to Mr. Jenks, he told him that “I’m with you 100 percent.” (Tr. at 303; see also Gov. Ex. L.) Mr. Ponze testified that, after the trial was over, on May 9, in an e-mail regarding filing a Rule 29 motion, he told Mr. Jenks “As I’ve said repeatedly, the outcome of this case was not indicative of your performance during trial. You did a fine job and going into summation I was confident that we would prevail.” (Tr. at 310-11; see also Gov. Ex. L.) Mr. Ponze confirmed that he told Mr. Jenks that he was doing a “fine job” throughout the trial and that Mr. Jenks promptly responded to the various e-mails Ponze sent him throughout the trial. (Tr. at 316.) Mr. Ponze testified that, when he sent these e-mails, he was not aware whether Mr. Jenks had done any investigation into possible alibi evidence. (Id. at 330.)

Mr. Ponze testified that he sent an email to Mr. Jenks on May 5, 2014, -four days after the trial ended, to relay questions from the defendant, including “[w]hat exactly he was charged with,” “what did the jury find him guilty of,” “[w]hat did the jury not guilty of,” and “when will he be able to review the transcript and the discovery materials so he can prepare his appeal.” (Id, at 328-29; see also Gov. Ex. L.)

6. Adam Velazquez

The defendant testified on April 21 and 22, 2016.

The defendant stated that he started his electrical work in 2006/2007 for a private company and then joined his union on March 2, 2009. (Tr. at 339.) The defendant testified that the electrical union required him to attend work daily, take an electrical theory course after work once a week, and attend college throughout his apprenticeship. (Id. at 340.) The defendant stated that he attended work every day starting March 2, 2009, and began taking college courses at Empire State College in September 2009. (Id. at 340.)

The defendant was arrested at his home on January 29, 2013, as he was getting ready to leave for work. (Id. at 341.) Mr. Jenks was appointed to represent the" defendant the same day, and the defendant testified that they met “very brief[ly]” in the courtroom where Mr. Jenks “read a little bit of the indictment” to the defendant and told him that he would need to enter a plea. (Id. at 342.) The defendant stated that Mr. Jenks never provided him a copy of the indictment either on January 29, or on a later date. (Id.) However, the defendant acknowledged that, when asked by the Court on January 29, whether he saw a copy of the superseding indictment and had sufficient time to review it with his attorney, he said yes. (Id. at 431-32.) The defendant testified that he saw Mr. Jenks again two days later, on January 31, 2013, for a status conference. (Id. at 343.) The defendant testified that he “was hoping to get- a chance to speak with him more” but that, after the status conference, Mr. Jenks sent him downstairs with the prosecutor, Burton Ryan, to give his pedigree information, which made the defendant “a little uncomfortable that [Mr. Jenks] wasn’t coming downstairs with [him].” (Id.)

The defendant described “that it seemed like forever, waiting for [Mr. Jenks] to come visit.” (Id. at 344.) The defendant testified that, after the January status conference, they had a February visit, which he did not initially remember, and then an April visit. (Id. at 344-45.) The defendant stated that in the interim, he tried to contact Mr. Jenks through his family because a Global Tel Link account was necessary in order to make calls from the Nassau County Correctional Center (“NCCC”), where he was housed. (Id. at 345.) The defendant stated that his family put money in the Global Tel Link account so that he could call them, but that Mr. Jenks did not. (Id.) The defendant testified that he “never agreed” for his brother, Scott, to serve as a conduit for communications with Mr. Jenks and “absolutely” expected that he would personally be able to speak with Mr. Jenks. (Id. at 345.)

The defendant did not remember Mr. Jenks bringing the S4 indictment with him when he visited in February, but believes that he did bring it in April; however, the defendant testified that he did not get a copy of the indictment and stated “by the time [Mr. Jenks] left, I didn’t leave with a full understanding of what it was that I was being held for or why I was being charged.” (Id. at 346.) The defendant testified that he and Mr. Jenks also discussed the New Jersey warehouse robbery at the April 2013 visit,, and that Mr. Jenks showed him the photo array that was used to indict him. (Id. at 347.) The defendant testified that because the photo array was a “really bad copy,” he “couldn’t make out what the picture was” and told Mr. Jenks that he “didn’t believe it was me.” {Id.) The defendant told Mr. Jenks that, although the photo array said “known to me as Rob,” he never went by the name of Rob, and also expressed that he was innocent and could not have been in New Jersey because he had never been to New Jersey. {Id. at 347-48.) The defendant also testified that he asked Mr. Jenks to look into “phone records or work records or anything that could show that I was not there,” and stated that Mr. Jenks told him that looking into phone records would be a good idea and that he would do it. {Id. at 348.)

The defendant attended a reverse proffer with Mr. Jenks, Mr. Ryan, and Detective Holmes on April 24, 2013. (Tr. at 348-49.) The defendant testified that Mr. Jenks told him before the meeting to “just listen, and if I had any questions, that I should ask for Mr. Ryan and Mr. Holmes to leave the room so that I could ask a question.” {Id. at 349.) The defendant stated that he remembered Mr. Jenks asking if there was any hard evidence, fingerprints, DNA, or anything concerning phone records, and that Detective Holmes told him that there was nothing,in the records that connected the defendant to the witnesses. {Id.) The defendant also testified that, after the meeting was over, he asked Mr. Jenks to look into his phone records and Mr. Jenks agreed that he would do so. {Id. at 350.) The defendant testified that, after the reverse proffer, he had no further contact or visit with Mr. Jenks while he was incarcerated at the NCCC. {Id.)

The defendant stated that he never personally spoke to Mr. Jenks about a bail hearing, but he reached out to his family “constantly” to ask for a bail hearing throughout the time he was incarcerated at the NCCC. (Id.) The defendant testified that he never saw the government’s March 15, 2013 letter, which argued that he should not be released on bail, and that he did not meet with Mr. Jenk