Ground Three: Ineffective Assistance of Counsel
Failure to object to the Improper/Incorrect Jury Instructions
In this complex, unprecedented case of the Fair Use of Orphan Work, Mr. Gordon has clearly established the improper/incorrect Jury Instructions from the trial, as demonstrated below:
Fair Use/Burden of Proof: The burden of production was fulfilled and the burden of persuasion / proof was then on the Government to ‘disprove’ Mr. Gordon’s fair use claim.
The instruction claiming that the concept of Orphan Works was not recognized by US Copyright law was clearly in error and demonstrated by 17 USC section 108.
Conflict between the Willful Blindness and Fair use Instructions is now established and shown to significantly prejudiced the jury against the Fair Use/Orphan Works defense Mr. Gordon was relying on.
The mail fraud instruction stating fair use was irrelevant is now established to be legally inaccurate, and possibly relevant to the issue of intent in the mail fraud charge.
The combination of these jury instruction errors significantly strengthens Mr. Gordon’s case for ineffective assistance of counsel. Each one represents a violation of his right to a fair trial. But there’s more, so much more:
Failure to object to any of the Prosector’s repeated use of the word, “Stealing”.
Since Mr. Gordon’s former attorney was involved in Pre-trial meeting where the Government’s limited use of the word, “Stealing” was clearly established by the court, his failure to object to the repeated use during and after Mr. Gordon’s testimony was both ineffective assistance and prejudicial to Mr. Gordon. As it was ‘name-calling’ which was forbidden by the court.
Failed to formulate and present a Fair Use / Orphan Works defense and refused to call a copyright expert to testify on the unsettled areas of law relevant to this case.
Mr. Gordon’s case is different because no crime has been proven to be committed. Fair Use of Orphan Works is unsettled law and the mail fraud charge is based on a small percentage of negative reviews and customer complaints.
Mr. Smith, who is Mr. Gordon’s former attorney, refused to contact any of the copyright experts Mr. Gordon repeatedly suggested. For instance, since the investigation started, Mr. Gordon was corresponding with personnel from the Electronic Frontier Foundation (EFF). The EFF is an international non-profit digital rights group which has been involved in many high profile copyright cases and works to protect and strengthen fair use, innovation, open access, net neutrality, and creative freedoms. The representative from EFF said there were many copyright experts who would assist with this unique case, but since Mr. Gordon had representation already, Mr Smith would have to reach out to them.
When Mr. Gordon forwarded the emails to Mr. Smith, he did nothing with them, as far Mr. Gordon knows. Mr. Gordon suggested other known copyright experts for instance, Professor(s) Lawrence Lessig & Barton Beebe from New England colleges. Both had written many law articles on Fair Use, Orphan Works and Copyright in general.
In fact, Professor Lessig was involved in the ill-fated attempts by Congress to fix the orphan works problem. Professor Beebe’s extensive research report, “A Empirical Study of U.S. Copyright Fair Use Opinions” is widely cited in many federal copyright cases as an authoritative source on Fair Use.
If Mr. Smith and his expert, Mr. Joyce, had done so much research, why when Mr. Gordon contacted both Professor Lessig and Professor Beebe will he be incarcerated, both had never even heard of Mr. Gordon’s case.
Section 107 : Due to the words such as in front of the four uses that needed to be evaluated for Fair Use determination, and for the purposes section (criticism, teaching, etc.) opens the door for a less rigid evaluation than presented at trial. For instance, the concept of Orphan Works, Mr. Gordon’s testimony should have been the only time at trial this possibility was mentioned.
Mr. Gordon repeatedly asks Mr. Smith to bring up Orphan Works or at least, call Mr. Joyce, to the stand to explain a correct and entire definition of Fair Use and how it could potentially include Orphan Works. Mr. Smith refused.
Fair Use is a flexible legal concept that as technology and creative uses evolve, any determination should be made on a case-by-case basis. As stated in this supreme court case: “All factors are to be explored, and the results weighed together, in light of the purposes of copyright. “ - Campbell v Acuff-Rose Music, Inc 510 U.S. 569 (1994)
In Authors Guild v HathiTrust, the court deemed Hathitrust’s use of Orphan Works to largely be Fair USe, however, the lack of a Supreme Court review leaves some uncertainty. Since the Fair Use of Orphan Works is still and was at the time of Gordon’s trial unsettled law, that option or use should have been correctly stated to the Jury. The fact that it was not rests with Mr. Gordon’s counsel, Mr. Smith.
Even if Mr. Gordon’s interpretation of the law is proven to be incorrect, all of these “new” factors, including ineffective assistance of counsel, create substantial doubt of willfulness due to the complexity of the law.
Failure to file a rule 29 motion and Judgement notwithstanding the Verdict motion:
Inconsistent Defense Strategy:
During closing arguments, trial counsel acknowledged the prosecution failed to prove the required element of willfulness ("the evidence says, very clearly, he did not...").
This crucial point was not pursued with a Rule 29 motion to challenge the sufficiency of evidence.
This contradiction suggests counsel's performance fell below an objective standard of reasonableness.
Narrow and Inadequate Appeal:
Trial counsel primarily focused the appeal on the narrow issue of willfulness, ignoring other potentially viable avenues to overturn the conviction, despite suggesting them in closing arguments.
Counsel's failure to raise these other arguments may be seen as deficient performance.
Unjustifiable Inaction:
Counsel's declaration stating, "I saw no reason to make a meritless pro forma motion" is inadequate justification for inaction.
Attorneys are obligated to raise potentially viable defenses, even if success is not certain.
Prejudice:
The omission of a Rule 29 motion deprived Petitioner of a potential opportunity for immediate dismissal.
The limited appeal scope may have neglected compelling arguments or procedural failures present in the case.
Due to trial counsel's deficient actions, Petitioner was prejudiced, resulting in a wrongful conviction.
The Failure to file a Judgement notwithstanding the verdict motion after the trial doesn’t fare much better. The Government failed to present sufficient evidence on the element of intent to defraud required under 18 USC 1341. There was no witness testimony or documentary evidence demonstrating the Defendant had a specific plan to deceive or harm any victims.
Trial Counsel failed to file a JNOV motion after the jury's verdict. This omission constitutes deficient performance, as a successful JNOV could have resulted in acquittal on the following charges:
Criminal Copyright Infringement and Mail Fraud
Analysis of Appellate Decision
While the appellate decision upheld the conviction, it's important to note:
The focus was primarily on willfulness, which my attorney conceded in closing arguments.
The standard of review for a sufficiency of the evidence claim is high.
Key points from the decision strengthen a JNOV argument:
The prosecution relied heavily on complaints and bad reviews as evidence of intent to defraud in the mail fraud charge, suggesting a weak evidentiary foundation.
Argument
Mail Fraud - Lack of Intent: There was weak evidence of intent to defraud presented, with the court's own acknowledgment of the issue. There are precedents dealing with intent and fraud, for instance, United States v. Cochran, 109 F.3d 660 (10th Cir. 1997),
The defendant in this case worked for an investment firm which was underwriting municipal bonds. He received a fee from a bank that he did not disclose to the municipality. Because there was no duty to disclose this fee, there was no fraud. The courts cannot create duties, and thus common law crimes if there was no deceit inherent in the defendant’s conduct. Mr. Gordon likewise had no duty to the Mail Order customers.
The prosecution mostly focused on how much money Mr. Gordon made, however, as established in Cochran, Greed and criminal liability are not necessarily synonymous.
Copyright Infringement- Insufficient Evidence: Not all of the elements of copyright infringement were proved beyond a reasonable doubt, that has now been established. The appellate court's language to highlight the high bar for willful violation.
The Appellate words point to the Prejudice in this Case.
The decision, despite affirming the conviction, implies the prosecution's case had vulnerabilities. A JNOV motion would have forced the court to directly assess the evidence's sufficiency for conviction on each element of each crime.
These numerous errors by Counsel just stack up on the Cumulative error side of the equation and point to a serious injustice
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