                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
____________________________
                              )
UNITED STATES OF AMERICA,     )
                              )
          v.                  ) Criminal Action No. 02-475 (RWR)
                              )
RAMENDRA BASU,                )
                              )
          Defendant.          )
____________________________ )

                        MEMORANDUM OPINION

     Petitioner Ramendra Basu filed a motion under 28 U.S.C.

§ 2255 to vacate his conviction, or to correct his sentence,

arguing that his counsel provided ineffective assistance while he

cooperated with the government.   Because Basu’s counsel’s

representation did not fall below an objective level of

reasonableness and Basu suffered no prejudice, his motion will be

denied.

                            BACKGROUND

     The background of this case is discussed fully in United

States v. Basu, 531 F. Supp. 2d 48 (D.D.C. 2008).   Briefly, Basu

was an employee in the Consultant Trust Funds Office of the World

Bank from 1996 to 2000, with the exception of three months in

late 1997.   In mid-1997, Basu entered into an agreement with a

World Bank Task Manager and a Swedish consultant to award

business, funded by the World Bank’s trust funds, to the Swedish

Consultant with the understanding that once the funds were

released to the Swedish Consultant, the Swedish Consultant would
                                 - 2 -

pay kickbacks to the Task Manager.       Throughout 1998, Basu

facilitated bribe payments by arranging meetings between the Task

Manager and the Swedish Consultant in London, England.      Basu also

knowingly agreed to facilitate payment to a Kenyan government

official that would be used to corruptly influence the official

to hire an American consultant, a business associate of Basu, to

perform work on an urban transport project.      Basu, 531 F. Supp.

at 51.

        Basu pled guilty to a two-count information charging

conspiracy to commit wire fraud in violation of 18 U.S.C. § 371,

and corruptly using instrumentalities of interstate commerce in

violation of the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-

3.   Under the terms of the plea agreement, Basu was required to

cooperate with the government.    (Mot. to Vacate at 1-2.)       Shortly

after Basu pled guilty, Basu’s attorney, Sean Grimsley, left the

Federal Public Defender’s Office, and Assistant Federal Public

Defender Greg Spencer entered an appearance on Basu’s behalf.

(Id.)    Basu alleges that

      Mr. Spencer and I had little if any interaction with
      regard to my cooperation. In September or October 2005
      I got a call from the Swedish Court requesting me to go
      to Sweden. I do recall speaking at one time with
      Mr. Spencer who told me that I was requested to give a
      deposition (testify) at the Swedish consultant’s trial.
      Prior to my departure he told me that he was not going
      to accompany me.

(Mot. to Vacate, Ex. 1, Basu Affidavit (“Basu Aff.”) ¶ 6.)        Basu

hoped that Spencer would travel to Sweden to learn details that
                                 - 3 -

could help his case and to “document and be witness to [his]

cooperation.”   (Id.)    The testimony Basu heard in Sweden made him

question whether he had facilitated bribe payments as alleged in

the information to which he pled guilty.    (Id. ¶ 8.)   When Basu

returned to the United States, he learned that a sentencing

hearing had been set, and he “went to see Mr. Spencer in his

office and tried to explain to him as best [he] could what had

occurred at the Swedish trial.”    (Id. ¶ 9.)   During that

conversation, Basu told Spencer that he wanted to withdraw his

plea, and Spencer said he would withdraw as Basu’s attorney.

(Id.)   Spencer did move successfully to withdraw and for new

counsel to be appointed, citing Basu’s dissatisfaction with the

representation provided by Grimsley and the Federal Public

Defender’s Office.   (Mot. to Withdraw at 2.)   Basu reviewed with

his new attorney the Swedish testimony and other pertinent

details of the case, and his new attorney filed a motion to

withdraw Basu’s plea, arguing that Basu was innocent of the

charges and that his plea was coerced.    Basu, 531 F. Supp. 2d at

51.   (See also Basu Aff. ¶ 10.)   The motion to withdraw was

denied on the grounds that Basu voluntarily entered the plea and

that his claim of innocence lacked evidentiary support.       Basu,

531 F. Supp. 2d at 51.    Basu’s actions caused the government to

decline to file a motion for a downward departure (Govt.’s Sent’g
                               - 4 -

Mem. at 5), and Basu was sentenced to fifteen months

incarceration.

     Basu has filed a motion to vacate his conviction on the

ground that he received ineffective assistance of counsel.1    In

the alternative, Basu seeks to have his sentence corrected to

reflect a period of incarceration to which he believes he would

have been sentenced had he not received ineffective assistance of

counsel.   (Mot. to Vacate at 9.)

                            DISCUSSION

     In a § 2255 motion, the petitioner can move to “vacate, set

aside, or correct the sentence” if the sentence was “imposed in

violation of the Constitution or laws of the United States[.]”

28 U.S.C. § 2255(a).   The petitioner bears the burden of proving

the violation by a preponderance of the evidence.    United States

v. Pollard, 602 F. Supp. 2d 165, 168 (D.D.C. 2009).    An

evidentiary hearing does not need to be held when “‘the motion

and the files and records of the case conclusively show the

prisoner is entitled to no relief.’”     United States v. Horne, No.

99-3080, 2000 WL 60246, at *2 (D.C. Cir. Jan. 4, 2000) (quoting

28 U.S.C. § 2255) (noting that it is within the court’s



     1
       The D.C. Circuit rejected Basu’s claim on direct appeal
that Grimsley provided ineffective assistance. (See Mot. to
Vacate, Ex. 3, D.C. Circuit Mandate and Judgment.) Basu lays no
blame at the feet of counsel who replaced Spencer. (See Mot. to
Vacate at 22-23.) Thus, it is in effect only Spencer’s
representation that is under attack.
                               - 5 -

discretion whether to hold a hearing when it is the same court

that presided over the petitioner’s criminal proceedings); see

also United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998)

(suggesting that a hearing is unnecessary if a motion to vacate

on the ground of ineffective assistance of counsel fails “to

allege sufficient facts or circumstances upon which the elements

of constitutionally deficient performance might properly be

found” (internal quotation marks and citation omitted)).

     In order to prove ineffective assistance of his counsel,

Basu must show (1) that counsel’s representation fell below an

objective standard of reasonableness, and (2) that there is a

reasonable probability that, but for counsel’s errors, the result

of the proceeding would have been different.     Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984).     Concerning the

first prong, the petitioner must show that counsel did not

provide reasonable service under the “prevailing professional

norms” given the circumstances.    Id. at 688.   Those norms can be

measured by “an attorney’s ethical duties, including those which

require counsel to bring skill and knowledge to the case and to

provide zealous representation.”   Best v. Drew, Criminal Action

No. 01-262 (RWR), 2006 WL 2035652, at *3 (D.D.C. July 18, 2006).

Counsel’s performance is evaluated on the basis of how counsel

would have viewed it at the time without the benefit of

hindsight.   Strickland, 466 U.S. at 689.   As to the second prong,
                               - 6 -

a reasonable probability is a “probability sufficient to

undermine confidence in the outcome.”   Strickland, 466 U.S. at

694; see also United States v. Bowie, 198 F.3d 905, 908-09 (D.C.

Cir. 1999) (noting that a reasonable probability “can be less

than 50.01%”).

     The Sixth Amendment right to effective assistance of counsel

attaches at the initiation of judicial proceedings against the

defendant, Maine v. Moulton, 474 U.S. 159, 170 (1985), and it

applies to every “critical stage of the prosecution.”   Kirby v.

Illinois, 406 U.S. 682, 690 (1972) (internal quotation marks and

citation omitted).   Plea bargaining is unquestionably a critical

stage of the proceedings.   See Padilla v. Kentucky, 130 S. Ct.

1473, 1480-81 (2010) (“Before deciding whether to plead guilty, a

defendant is entitled to ‘the effective assistance of competent

counsel.’” (quoting McCann v. Richardson, 397 U.S. 759, 771

(1970))).   However, neither the Supreme Court nor the D.C.

Circuit appears to have decided whether the post-plea bargaining

cooperation period also constitutes a critical stage.   The Ninth

Circuit has concluded that it does, on the ground that a motion

to depart based on substantial assistance can have a significant

impact upon a defendant’s ultimate sentence.   See United States

v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003); see also

Tinajero-Ortiz v. United States, 635 F.3d 1100, 1105 n.4 (8th

Cir. 2011) (citing Leonti and “assum[ing] without deciding that
                                 - 7 -

the potential cooperation phase is a ‘critical stage’ of criminal

proceedings to which the Sixth Amendment right to counsel

applies”).   Assuming that the right to effective assistance of

counsel applies to the cooperation phase of criminal proceedings,

the petitioner nonetheless has failed to demonstrate that he is

entitled to the relief he seeks.

      Basu argues, citing Leonti, that he was “completely denied

his right to consult with counsel over a three year period of his

cooperation.”   (Mot. to Vacate at 14 (emphasis in original).)

During the cooperation process, an attorney assists a defendant

by “facilitating communication between the defendant and the

government, attending proffer sessions, ascertaining the

government’s expectations and whether the defendant is satisfying

them, communicating the client’s limitations to the government,

and establishing a record of attempts to cooperate.”    Leonti, 326

F.3d at 1119.   In Leonti, the defendant claimed “to have received

little to no assistance from [his attorney] during the period he

was attempting to render substantial assistance to the

government.”    Id. at 1121.   The defendant’s attorney appeared not

to have attempted to ascertain “what the government wanted from

[the defendant], or how his cooperation might be carried out.”

Id.   Moreover, the defendant alleged that the attorney failed to

facilitate his cooperation with the government after federal

agents communicated to the defendant concerns about his
                                 - 8 -

cooperation.    Id.   The court summarized the defendant’s

allegations as suggesting that his attorney “never did

anything to make it more likely that [the defendant] would in

fact be able to provide substantial assistance.”     Id. (emphasis

in original).

     Although Basu argues that he received none of the

assistance the Leonti court posited a defendant should receive

while cooperating, his sole factual assertion regarding Spencer’s

allegedly deficient performance is that Spencer did not accompany

Basu when Basu testified in Sweden.      (Mot. to Vacate at 15-17.)

Basu does not assert that Spencer failed to facilitate

communication with the government, or that Spencer failed to

ascertain the government’s expectations of Basu.     Rather, Basu

admits that Spencer contacted him and told him that he was

“requested to give a deposition (testify) at the Swedish

consultant’s trial.”    (Basu Aff. ¶ 6.)   Nor does Basu allege that

Spencer failed to communicate to the government any impediment to

Basu’s cooperation, or to keep a record of Basu’s attempted

cooperation.    Basu provides no authority for the proposition that

Spencer’s performance was deficient merely because he did not

accompany Basu to Sweden.

     Even if Basu could demonstrate that Spencer’s performance

was deficient, Basu cannot show that he suffered prejudice.     The

suggestion that if Spencer had been present when Basu testified
                               - 9 -

in Sweden, Spencer could have counseled Basu differently

regarding withdrawing his plea (Mot. to Vacate at 15-16) is

entirely speculative, particularly in light of the fact that Basu

and Spencer did meet and discuss after Basu returned from Sweden

the testimony that he heard there (Basu Aff. ¶ 9).    Moreover,

after Spencer withdrew, Basu received advice from his new

attorney regarding withdrawing his plea and how that could result

in a higher sentence.2   (Id. ¶¶ 10-11.)   Nonetheless, Basu still

decided to move to withdraw his plea, and he provides no basis

for concluding that this decision would have been different had

Spencer accompanied him to Sweden.     Thus, Basu cannot demonstrate

that there is any probability that the outcome of the proceedings

would have been different.

                             CONCLUSION

     Basu has not shown that his counsel’s performance was

deficient or that he suffered prejudice.    Therefore, his motion

to vacate on the basis of ineffective assistance of counsel will

be denied.   An appropriate Order accompanies this Memorandum

Opinion.




     2
       These discussions also would seem to cure any potential
deficiency in Spencer’s representation, as Basu consulted with
two different attorneys regarding the testimony Basu heard in
Sweden before Basu made any decision that had a material impact
on the sentence he received.
                         - 10 -

SIGNED this 18th day of June, 2012.



                           __________/s/_______________
                           RICHARD W. ROBERTS
                           United States District Judge
