Bayard v . United States 11-CV-301-SM 2/7/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Serge E . Bayard

v. Civil N o . 11-cv-301-SM Opinion N o .

United States of America

O R D E R

Petitioner was convicted by a jury of using an unauthorized

access device with the intent to defraud (

(a)(2))

and aggravated identity theft (18 U.S.C. § 1028A). He was

sentenced to three years in prison. His conviction and sentence

were affirmed on direct appeal, and he now seeks relief pursuant

to the provisions of

.

As a preliminary matter, the court notes that petitioner has

moved to amend his petition. The government does not object and

has fully addressed each of the four claims advanced in that

amended petition. Accordingly, the motion to amend (document n o .

4 ) is granted.

Petitioner assigns the following errors in support of his

amended petition. First, he says the court erred in denying his

motion for judgment of acquittal and, relatedly, that his

appellate counsel provided ineffective representation to the extent he failed to raise and brief that issue in his direct

appeal. Next, he says his trial defense counsel provided

ineffective assistance by failing to object to impeachment

evidence on Fed. R. Evid. 608(b) grounds and, relatedly, that his

appellate counsel likewise provided ineffective assistance when

he also failed to challenge that evidence on similar grounds.

Background

For several years petitioner resided with Dorothy Shovan, an

elderly and increasingly ailing woman whom he befriended. He

became, functionally if not formally, the woman’s care-giver and

companion, assuming responsibilities such as buying food and

paying her bills. To allow Bayard to purchase household items

and to pay her bills, M s . Shovan authorized him to use her credit

cards. In 2008, Shovan’s health deteriorated substantially; she

suffered from severe dementia and was hospitalized. On July 2 5 ,

2008, she died.

In August of 2008, Bank of America reissued one of Shovan’s

credit cards. Petitioner opened the letter containing the

reissued card (which was addressed to the now deceased Shovan).

He took possession of the card, activated i t , and used it for his

own benefit. He made several retail purchases and, “[i]n e-mail

correspondence, [he] told a resort representative [in New

2 Zealand] that he wanted to pre-pay [for a vacation] using a

credit card that belonged to his ‘cousin,’ who [petitioner]

identified in a subsequent e-mail as Shovan.” United States v .

Bayard,

9 , 61 (1st Cir. 2011). Petitioner charged

approximately $3,185.00 to Shovan’s Bank of America account.

At trial, petitioner claimed, in general, that his use of

the credit card was not “unauthorized,” as he had Shovan’s

specific authorization to use her credit cards. Anticipating

that defense, the prosecutor sought leave to introduce evidence

showing that petitioner had applied for and obtained a different

credit card, from J.P. Morgan Chase, in Shovan’s name, at a time

when she was unarguably incapacitated, and that he also used that

card after she died. The prosecutor argued that the Chase card

evidence was probative on the issues of petitioner’s intent and

absence of mistake relative to his use of the Bank of America

credit card.

The court ruled that the probative value of that evidence,

presented in the government’s case-in-chief, was substantially

outweighed by the risk of prejudice, but did not rule out

admission of that evidence for a different purpose. After

petitioner unequivocally testified under oath that he was

3 authorized to use all of Shovan’s credit cards, the prosecutor

sought to impeach him with the Chase card evidence.

Petitioner’s counsel (petitioner represented himself until

after trial began, and then asked stand-by counsel to assume the

defense) objected on grounds that the Chase card activity

amounted to propensity evidence (Fed. R. Evid. 404(b)), and its

probative value was substantially outweighed by the risk of

unfair prejudice (Fed. R. 4 0 3 ) . The prosecutor countered that

the Chase card evidence was now admissible under Fed. R. Evid.

608(b) to impeach petitioner’s credibility with respect to his

general claim of authorization. The court, after balancing

probative value and prejudicial effect (Fed. R. Evid. 4 0 3 ) ,

allowed the prosecutor to ask petitioner about the Chase card

activity, but also offered petitioner a contemporaneous limiting

instruction to the jury. Petitioner declined the limiting

instruction — an entirely reasonable tactical decision.

During the trial, petitioner moved for judgment as a matter

of law, in part on grounds that the evidence was insufficient to

permit a beyond-a-reasonable-doubt finding that he “used” the

Bank of America card to the extent necessary to support a

4 conviction.1 Petitioner asserted that, because he did not

“swipe” the card to pre-pay the New Zealand resort, he did not

“use” it within the meaning of the statute. That motion was

denied, and appellate counsel did not pursue it on direct appeal

(nor did petitioner pursue it in his separately-filed pro se

appellate brief). The court of appeals did not address that

specific argument because petitioner did not appeal the denial of

his motion for judgment of acquittal. Bayard, 642 F.3d at 6 5 ,

n.6.

Discussion

The petition rests principally upon claims of ineffective

assistance of appellate counsel. To establish ineffective

appellate assistance, petitioner “must first show that his

counsel was objectively unreasonable.” Smith v . Robbins,

(2000). That standard is difficult to meet

because, to be effective, “appellate counsel . . . need not (and

should not) raise every nonfrivolous claim, but rather may select

from among them in order to maximize the likelihood of success on

appeal.”

. And, even if a petitioner makes that

showing, he must still “show a reasonable probability that, but

1 Petitioner’s local retail purchases using the card fell below the statutory threshold of $1,000 or more during any one- year period,

(a)(2). The cost of the New Zealand vacation charged to the account, however, brought the total above the jurisdictional amount.

5 for his counsel’s unreasonable failure to [raise a particular

issue], he would have prevailed on his appeal.” Id. at 285.

Applying this variant of the ineffective assistance test

(see Strickland v . Washington,

(1984)), courts

“presume that the result of the proceedings on appeal is

reliable, and . . . require [petitioner] to prove the presumption

incorrect in his particular case.” Robbins,

.

“Generally, only when ignored issues are clearly stronger than

those presented, will the presumption of effective assistance of

counsel be overcome.” Gray v . Greer,

4 4 , 646 (7th Cir.

1985). Although it is “still possible to bring a Strickland

claim based on counsel’s failure to raise a particular claim,”

the Supreme Court has made it clear that satisfying the first

part of Strickland requires petitioner to show that the ignored

issues were “clearly stronger than issues that counsel did

present.” Robbins,

.

As noted, petitioner’s motion for judgment of acquittal was

premised in part on the argument that, because he did not

physically “swipe” the credit card when he used it to pre-pay his

New Zealand vacation bill, his “use” of the card did not come

within the prohibitions described in

(a)(2) and

6 1028A(a)(1).2 That appellate counsel did not pursue that

argument, choosing instead to challenge the jury instructions and

evidentiary rulings of some consequence, was not objectively

unreasonable.

Petitioner’s trial claim that “use” of a credit card within

the controlling statutes’ meaning is limited to “swiping” was a

non-starter. Indeed, credit cards are commonly “used” without

“swiping” the magnetic strip through a card reader — cards are

surrendered for imprinting; account numbers and security codes

are read from cards to merchants over the phone; and those same

numbers are referenced when sending billing information over the

internet. In this case, petitioner told the New Zealand

proprietor that he was going to use a credit card that belonged

to his cousin to pay his bill, and subsequently he told the

booking representative in New Zealand that he would be using a

card in his “cousin’s” name [i.e., Shovan’s]. It was perfectly

clear from the evidence that an amount well over the statutory

threshold was then billed by the New Zealand resort to the

2 Section 1029(a)(2) punishes “[w]hoever . . . knowingly and with the intent to defraud . . . uses one or more unauthorized access devices” while Section 1028A(a)(1) punishes “[w]hoever, during and in relation to [a violation of section 1029(a)(2), among others], knowingly . . . uses, without lawful authority, a means of identification of another person . . . .” (emphasis supplied).

7 account associated with the intercepted Bank of America credit

card.

Petitioner intercepted Shovan’s mail; took possession of her

credit card without authority; activated the card without

authority; told the New Zealand resort he was using Shovan’s

card; and charged his New Zealand vacation costs to Shovan’s

account. See Trial Transcript Day Three, A.M. Session, p p . 67-

69. On that evidence, the jury could certainly find, beyond a

reasonable doubt, that he “used” Shovan’s credit card without

authority. Appellate counsel’s decision to leave the sufficiency

of the evidence unchallenged hardly constituted objectively

unreasonable representation.

Even if counsel was not free to select other issues to

pursue in lieu of the sufficiency claim, still, petitioner has

not shown prejudice. Had he raised the issue on appeal, the

outcome would not have been different. The evidence presented

was more than sufficient to support the jury’s verdict on each

count. And, petitioner’s hoped-for legal construction of the

term “use” as being strictly limited to “swipe” with respect to

credit cards, is simply incorrect.

8 Petitioner also challenges the court’s ruling on his trial

motion for judgment of acquittal. That claim is without merit.

And, because he did not raise it on appeal, it has been

forfeited.

Finally, petitioner asserts ineffective assistance of trial

and appellate counsel claims with respect to an evidentiary

issue. He says his trial counsel and appellate counsel should

have objected to and challenged evidence related to the Chase

card that was used to impeach him. Specifically, he complains

that his trial and appellate counsel did not explicitly invoke

Fed. R. Evid. 608(b) when addressing the underlying evidentiary

issue at trial and on appeal.

Trial counsel and appellate counsel raised and pursued that

evidentiary issue — they did object to and did challenge the

admissibility of the Chase card evidence, both at trial and on

appeal. This court considered the issue at trial and exercised

its discretion to allow limited cross-examination for impeachment

purposes. That ruling was within the court’s discretion. The

appellate argument focused on a Rule 404(b) analysis, which the

court of appeals referred to as “misguided,” because Rule 608(b)

provided the correct rule of decision. But the court of appeals

did consider the issue, addressed it on the merits, correctly

9 applied the “abuse of discretion” standard of review, and

affirmed the ruling below.

An argument invoking Rule 608(b), or its provisions, or

related standards, would not, as petitioner suggests, have had

any effect, and would not have led to a different result. The

Court of Appeals, after all, considered the substance of the

admissibility issue, applied the correct Rule 608(b) standard,

found no abuse of discretion, and held that admitting the

impeaching Chase card evidence did not constitute prejudicial

error entitling petitioner to any relief.

There was no ineffective assistance of counsel with respect

to that issue — counsel, both at trial and on appeal, pursued the

issue, but did not prevail on the merits. Neither counsel acted

in an objectively unreasonable manner and petitioner suffered no

prejudice as a result of any alleged failure on counsel’s part.

To the extent petitioner alludes to other possible claims in

his petition, they are, largely for the reasons given in the

government’ response, without merit.

10 Conclusion The amended petition (document no. 21) is denied. The court declines to issue a certificate of appealability, but petitioner may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. See Rule 11, Federal Rules Governing Section 2255 Proceedings. The Clerk of Court shall enter judgment in accordance with this order and close the case.

SO ORDERED.

______________________ Steven J.^McAuliffe Chief Judge February 7, 2012

cc: Serge E. Bayard, pro se Donald A. Feith, AUSA

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