1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 

v. 

NGOZI POLE, 

 Defendant. 

Crim. Action No. 09-354 (EGS) 

MEMORANDUM OPINION

I. Introduction 

On February 1, 2011, Defendant Ngozi Pole (“Mr. Pole”) was 

convicted by jury of five counts of wire fraud in violation of 

18 U.S.C. § 1343 and one count of theft of government property 

worth more than $1,000 in violation of 18 U.S.C. § 641. See 

Verdict Form, ECF No. 54 at 1-3.1 He was sentenced to twenty 

months incarceration and ordered to pay $75,042.37 in 

restitution. See J., ECF No. 102 at 2, 5. Mr. Pole appealed, and 

on December 20, 2013, the Court of Appeals for the District of 

Columbia Circuit (“D.C. Circuit”) remanded various claims of 

ineffective assistance of trial counsel, as well as the Court’s 

restitution order, for further proceedings. See United States v. 

1 When citing electronic filings throughout this Memorandum 

Opinion, the Court cites to the ECF header page number, not the 

original page number of the filed document. 
2 

Pole, 741 F.3d 120, 123, 129 (D.C. Cir. 2013). Following the 

D.C. Circuit’s decision, Mr. Pole filed a motion for a new 

trial, alleging that his trial counsel committed several errors 

that “either individually or collectively” require a new trial. 

See Def.’s Mot., ECF No. 139 at 3. 

While this motion was pending, the Court settled a series 

of disputes between the parties regarding the proper scope of an 

evidentiary hearing on Mr. Pole’s motion, see United States v. 

Pole, No. 09-354, 2021 WL 5796518 (D.D.C. Dec. 7, 2021);2 and it 

then referred the matter to Magistrate Judge Zia M. Faruqui for 

a hearing and recommendation for the disposition of Mr. Pole’s 

motion, see Min. Order (Dec. 21, 2021). Magistrate Judge Faruqui 

issued a Report and Recommendation (“R. & R.”), recommending 

that the Court deny Mr. Pole’s motion for a new trial based on 

ineffective assistance of counsel. See R. & R., ECF No. 193 at 

1. Mr. Pole raises several objections to the R. & R. See Def.’s 

Objs. to R. & R. (“Def.’s Objs.”), ECF No. 195. 

Upon careful consideration of Mr. Pole’s pending motion, 

the R. & R., the objections and response thereto, the applicable 

law, and the entire record herein, the Court hereby ADOPTS IN 

PART Magistrate Judge Faruqui’s R. & R., see ECF No. 193; and 

DENIES Mr. Pole’s Motion for a New Trial, see ECF No. 139. 

2 The Court’s Memorandum Opinion and Order, dated December 7, 

2021, is docketed at ECF No. 182. 
3 

II. Background3

A. Factual Background 

From 1998 to 2007, Mr. Pole served as Senator Edward M. 

Kennedy’s (“Senator Kennedy”) Washington, D.C. office manager. 

Pole, 741 F.3d at 123. During that time, he served under four 

chiefs of staff: (1) Gerard Kavanaugh (“Mr. Kavanaugh”); (2) 

Mary Beth Cahill (“Ms. Cahill”); (3) Danica Petroshius (“Ms. 

Petroshius”); and (4) Eric Mogilnicki (“Mr. Mogilnicki”)—and one 

interim chief of staff, Michael Myers (“Mr. Myers”). Id.

As office manager, Mr. Pole was responsible for submitting 

“payroll action authorization” forms (“PAAs”), “which raised or 

lowered the salaries of office employees.” Id. “According to the 

government, [Mr.] Pole needed approval from [Senator] Kennedy or 

the chief of staff for any salary adjustments, but neither the 

Senator nor the chiefs of staff regularly reviewed PAAs prior to 

submission.” Id.; see also R. & R., ECF No. 193 at 1-2 (“[T]he 

ultimate authority to approve said raises and bonuses belonged 

to the chief of staff, superseded only by the Senator.”). 

Mr. Pole was also responsible for maintaining current 

information on the office’s budget, including projected expenses 

and projected surpluses or deficits, and serving as the office’s 

3 This Background section closely tracks the factual sections in 

the R. & R., see ECF No. 193 at 1-6; and in the D.C. Circuit’s 

opinion deciding Mr. Pole’s appeal, see United States v. Pole, 

741 F.3d 120, 123-24 (D.C. Cir. 2013). 
4 

point of contact for the Senate Disbursing Office, “which sent 

periodic updates about how much money the office had left to 

spend.” Pole, 741 F.3d at 123. “Because Senator Kennedy wanted 

the office to spend every last cent every fiscal year, [Mr.] 

Pole was responsible for . . . making recommendations about how 

to reach the magic zero-balance point.” Id.

Because of a surplus at the end of fiscal year 2002, Mr. 

Pole devised a plan for spending down the budget by awarding 

annual bonuses to himself and other staffers, even though it was 

against Senate rules. See R. & R., ECF No. 193 at 2 (citing U.S. 

Senate Rule 41). “His plan took advantage of a Kennedy office 

practice, condoned by the Senator and chiefs of staff,” to award 

annual employee bonuses and exit bonuses, notwithstanding the 

official Senate ban, so long as the Senator or the chief of 

staff gave approval. Pole, 741 F.3d at 123. However, using his 

role in the PAA submission process, Mr. Pole granted himself and 

others various “bonuses that neither the Senator nor the chief 

of staff authorized.” Id. at 124. Mr. Pole continued this 

practice of awarding bonuses until January 2007, when he gave 

himself an exit bonus before leaving to take a new position as 

Senator Sherrod Brown’s deputy chief of staff. Id. In total, Mr. 

Pole “awarded himself $77,608.86 in unapproved bonuses.” Id.

Mr. Pole casually mentioned his exit bonus to Mr. 

Mogilnicki, the Senator’s then chief of staff, which led Mr. 
5 

Mogilnicki to review payroll records for all employees. Id. Upon 

“[r]ealizing the extent of [Mr.] Pole’s scheme,” he contacted 

Gregory Craig (“Mr. Craig”), the Senator’s former senior aide 

and counselor, and together they confronted Mr. Pole on January 

26, 2007. Id.; see Trial Tr. (Jan. 19, 2011), ECF No. 82 at 

95:25-96:9. Mr. Craig testified that during this confrontation, 

Mr. Pole defended his actions by claiming that he was “entitled” 

to the salary raises and that he could have earned more money 

working in the private sector. Pole, 741 F.3d at 124 (citing 

Trial Tr. (Jan. 25, 2011), ECF No. 86 at 58:1-20 (testimony of 

Mr. Craig)). Towards the end of this interaction, Mr. Mogilnicki 

testified that Mr. Pole offered to pay the money back and that 

he said: “If that’s what it takes to, you know, to get this 

behind me, I’ll see if I can –- if I can pay the money back.” 

Trial Tr. (Jan. 19, 2011), ECF No. 82 at 104:6-9. Ultimately, 

Mr. Craig and Mr. Mogilnicki referred the matter to the FBI, and 

Senator Brown dismissed Mr. Pole. Pole, 741 F.3d at 124. 

B. Procedural Background 

Following the FBI investigation, Mr. Pole was charged with 

five counts of wire fraud in violation of 18 U.S.C. § 1343 and 

one count of theft of government property worth more than $1,000 

in violation of 18 U.S.C. § 641. See Indictment, ECF No. 1 at 2-

12. During Mr. Pole’s ten-day jury trial in January 2011, during 

which Rudolph Acree (“Mr. Acree”) served as his trial counsel, 
6 

see Notice of Attorney Appearance, ECF No. 2 at 1; “the basic 

dispute was over whether [Mr.] Pole knew he needed authorization 

to award bonuses[,]” Pole, 741 F.3d at 124. Because of “Senator 

Kennedy’s instruction to spend the budget to zero and the 

absence of clear rules and procedures, [Mr.] Pole maintained 

that he had implicit authority to spend down the budget however 

he saw fit.” Id.; see also R. & R., ECF No. 193 at 4 (explaining 

that the basis for Mr. Pole’s claimed authority to issue the 

bonuses without prior approval stemmed from “past practice” and 

because “he received little input from his bosses on how exactly 

to spend down the budget”). 

The government contested this account and used Mr. Pole’s 

own statements and testimony from all four chiefs of staff 

indicating both that Mr. Pole “knew that he needed approval for 

salary adjustments” and that none of the chiefs of staff had 

ever authorized Mr. Pole to make the bonus payments he awarded 

himself.4 Pole, 741 F.3d at 124; R. & R., ECF No. 193 at 4. In 

defense, Mr. Acree cross-examined the government’s various 

witnesses, argued objections, and presented testimony from six 

witnesses, including Mr. Pole, who testified in his own defense. 

See R. & R., ECF No. 193 at 4-5; Trial Tr. (Jan. 26, 2011), ECF 

4 Michael Myers, who served as Senator Kennedy’s interim chief of 

staff for three months, also testified but did not offer 

testimony about Mr. Pole’s authority to award bonuses. Gov’t’s 

Opp’n, ECF No. 142 at 1 n.1. 
7 

No. 87 at 3:1-10. Mr. Acree’s “main defense was that Mr. Pole 

believed he had the authority to spend the budget down to zero”—

in other words that he had acted in good faith and had not 

intended to defraud or steal from the government. See R. & R., 

ECF No. 193 at 5-6; Def.’s Objs., ECF No. 195 at 8. 

Ultimately, the jury convicted Mr. Pole on all five counts 

of wire fraud and on the one count of theft of government 

property. See Verdict Form, ECF No. 54 at 1-3. The Court then 

sentenced Mr. Pole to twenty months in prison, followed by three 

years of supervised release, and ordered him to pay $75,042.37 

in restitution—the full amount of money the government alleged 

he stole in unapproved bonuses to himself, $77,608.86, minus 

$2,566.49 that Mr. Mogilnicki managed to recover through the 

Senate Disbursing Office. See J., ECF No. 102 at 2-3, 5; Pole, 

741 F.3d at 124, 127. Mr. Pole began serving his sentence on 

July 27, 2012, see Second Consent Mot. to Modify Conditions of 

Release to Allow Travel, ECF No. 111 at 1; and on April 19, 

2016, the Court granted his motion for early termination of 

supervised release, see Min. Entry (Apr. 19, 2016). 

Mr. Pole appealed his conviction, challenging three 

evidentiary rulings and arguing that he received ineffective 

assistance of counsel and that the Court miscalculated 

restitution. Pole, 741 F.3d at 124. The specific ineffective 

assistance of counsel claims Mr. Pole raised on appeal were: 
8

that [his] trial counsel should have (1) 

produced unredacted copies of [Mr.] Pole’s 

budget memos; (2) ‘through documentary 

evidence and additional discovery or 

otherwise’ demonstrated that ‘[Mr.] Pole 

routinely issued exit bonuses without specific 

chief of staff approval’; (3) ‘demonstrate[d] 

that [Mary Beth] Cahill instructed [Mr.] Pole 

to spend the budget to zero, or to impeach her 

testimony that she did not do so’; and (4) 

attempted to impeach [Danica] Petroshius by 

introducing evidence about employee bonuses

she denied issuing and by ‘question[ing] [Ms.] 

Petroshius regarding a memoranda from [Mr.] 

Pole’ containing budgetary information she 

claimed never to have received.

Id. at 126 (citation omitted). On December 20, 2013, the D.C. 

Circuit rejected Mr. Pole’s evidentiary challenges and remanded 

his ineffective assistance claims. Id. at 129. As to the 

restitution order, the D.C. Circuit concluded that this Court’s 

factual findings about the duration of Mr. Pole’s scheme to 

defraud were insufficient to support the restitution amount, and 

it vacated and remanded “the restitution order for further 

proceedings consistent with [its] opinion.” See id. at 127-29.

On May 4, 2015, Mr. Pole filed a motion for a new trial, in 

which he raised the ineffective assistance of counsel claims 

that were remanded by the D.C. Circuit, as well as several new 

ineffectiveness claims. See Def.’s Mot., ECF No. 139. The 

ineffective assistance claims asserted for the first time in 

this motion are that trial counsel: (1) should have presented a 

good faith defense but did not; (2) failed to object to the 
9

admission of Mr. Mogilnicki’s testimony regarding Mr. Pole’s 

offer to repay the unapproved bonuses, thereby neglecting to 

properly consider Federal Rule of Evidence 408 governing 

compromise offers and negotiations; (3) failed to object to the 

admission and use of Mr. Pole’s oath of office in the 

government’s closing argument; (4) failed to call James McCarthy

(“Mr. McCarthy”), who was issued a bonus by Mr. Pole, to testify 

that he did not consider Mr. Pole a friend, thereby disproving

the government’s “central” argument at trial that Mr. Pole only 

awarded bonuses to himself and office friends; and (5) failed to 

call Kathleen Kruse (“Ms. Kruse”), who was also issued a bonus 

by Mr. Pole, to testify that she informed Ms. Petroshius of the 

bonus she received, thereby impeaching Ms. Petroshius’ testimony 

on the issue of whether she knew about high year-end bonuses. 

See id. at 2-3, 16-24; see also R. & R., ECF No. 193 at 6 

(explaining that most of Mr. Pole’s ineffective assistance of 

counsel claims allege “that Mr. Acree failed to object to 

testimony, introduce evidence, or impeach” witnesses).

The government filed its opposition to Mr. Pole’s motion 

for a new trial on June 15, 2015, see Gov’t’s Opp’n, ECF No. 

142; and Mr. Pole filed his reply on August 3, 2015, see Def.’s 

Reply, ECF No. 144. The Court ordered an evidentiary hearing on 

Mr. Pole’s motion “[i]n the interest of having the most complete 

record upon which to render its decision,” see Min. Order (Apr. 
10

18, 2017); Min. Order (May 26, 2017) (setting the evidentiary 

hearing for November 14, 2017); but due to various disputes 

between the parties regarding the proper scope of the hearing 

and the extent of the Court’s authority to rule on some of Mr. 

Pole’s claims, see, e.g., Joint Status Report, ECF No. 176 at 1-

7; and to allow the Court time to resolve those disputes, the 

evidentiary hearing was vacated, see Min. Order (Nov. 12, 2017). 

Thereafter, on January 16, 2018, Mr. Pole filed a supplement to 

his motion for a new trial based on allegedly newly discovered 

evidence of prosecutorial misconduct. See Def.’s Suppl. Mot. New 

Trial, ECF No. 168. He simultaneously filed a petition for a 

writ of coram nobis “on the grounds that he received 

constitutionally ineffective assistance of counsel in violation 

of the Sixth Amendment and/or that the government committed 

prosecutorial misconduct before and during [his] trial.” See 

Def.’s Pet. Writ Coram Nobis, ECF No. 169 at 1. 

On December 7, 2021, the Court concluded that it could 

“consider the entirety of Mr. Pole’s motion for a new trial 

during the upcoming evidentiary hearing, but [that] it [could] 

not consider the contents of Mr. Pole’s supplement as it was 

untimely filed.” Pole, 2021 WL 5796518, at *1, *11. The Court 

also denied Mr. Pole’s petition for a writ of coram nobis. Id.; 

see Order, ECF No. 181 at 1. The Court then referred the matter 

to Magistrate Judge Faruqui to conduct an evidentiary hearing 
11

and issue a recommendation regarding the disposition of Mr. 

Pole’s motion for a new trial. See Min. Order (Dec. 21, 2021). 

On April 7, 2022, Magistrate Judge Faruqui conducted the 

evidentiary hearing, during which Mr. Acree testified about his 

trial representation of Mr. Pole, including his “strategic 

reasons for objecting (or not) to testimony, introducing (or 

not) evidence, and impeaching (or not) a witness.” R.& R., ECF 

No. 193 at 6; see Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 

24:22-88:23. During the hearing, Mr. Acree explained his 

objection strategy, noting that “there are definitely times” 

when he could but would not object in a trial, for example when 

doing so would “highlight a piece of evidence for the jury that 

would be problematic” or would “make [him] seem afraid of” a 

piece of evidence, and if the evidence in question would be 

“helpful” and “not harmful” to the defense. See Hearing Tr.

(Apr. 7, 2022), ECF No. 188 at 52:20-53:23. He further explained 

that his “strategy” or “philosophy” “at any trial” entails not 

necessarily “trying to get [his] objections right or wrong,” but 

reacting in ways that will “help [him] win[.]” Id. at 54:6-18. 

Additionally, Mr. Acree “testified that he had an open line of 

communication with Mr. Pole” and always discussed strategy and 

major decisions with him. R.& R., ECF No. 193 at 6 (citing 

Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 43-48). 
12

Following the evidentiary hearing, the parties submitted 

their proposed findings of fact and conclusions of law. See ECF 

Nos. 189 & 190. On September 9, 2022, Magistrate Judge Faruqui 

recommended that the Court deny Mr. Pole’s motion for a new 

trial based on ineffective assistance of counsel. See R. & R., 

ECF No. 193 at 1, 26. On November 22, 2022, Mr. Pole submitted 

his objections to the R. & R., see Def.’s Objs., ECF No. 195; to 

which the government responded on December 2, 2022, see Gov’t’s 

Resp., ECF No. 196. Mr. Pole’s objections are now ripe and ready 

for the Court’s adjudication.

III. Standard of Review

A. Objections to a Magistrate Judge’s Report and 

Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b), a party 

may file specific written objections once a magistrate judge has 

entered a recommended disposition. See Fed. R. Civ. P. 72(b)(1)-

(2). A district court “may accept, reject or modify the 

recommended disposition[.]” Fed. R. Civ. P. 72(b)(3); see also

28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, 

reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.”). A district 

court “must determine de novo any part of the magistrate judge’s 

disposition that has been properly objected to.” Fed. R. Civ. P. 

72(b)(3). “If, however, the party makes only conclusory or 
13

general objections, or simply reiterates his original arguments, 

the [c]ourt reviews the [R. & R.] only for clear error.” 

Houlahan v. Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) 

(citation and internal quotation marks omitted). “Under the 

clearly erroneous standard, the magistrate judge’s decision is 

entitled to great deference and is clearly erroneous only if on 

the entire evidence the court is left with the definite and firm 

conviction that a mistake has been committed.” Buie v. Dist. of 

Columbia, No. 16-1920, 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 

2019) (citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 

2009) (internal quotation marks omitted)).

Objections must “specifically identify the portions of the 

proposed findings and recommendations to which objection is made 

and the basis for objection.” LCvR 72.3(b). “[O]bjections which 

merely rehash an argument presented [to] and considered by the 

magistrate judge are not ‘properly objected to’ and are 

therefore not entitled to de novo review.” Shurtleff v. EPA, 991 

F. Supp. 2d 1, 8 (D.D.C. 2013) (citation omitted).

B. Motion for a New Trial Based on Ineffective Assistance 

of Counsel

The Sixth Amendment to the United States Constitution 

guarantees criminal defendants the right to effective assistance 

of counsel. See U.S. Const. amend. VI. Claims of ineffective 

assistance of counsel are governed by a two-step standard set 
14

forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984). To succeed, a defendant must show 

both deficient performance by his attorney and prejudice to the 

trial outcome. Strickland, 466 U.S. at 687. Strickland requires 

a party claiming ineffective assistance of counsel to show that: 

(1) “counsel’s representation fell below an objective standard 

of reasonableness . . . [measured] under prevailing professional 

norms[,]” (the performance prong); and (2) the “deficiencies in 

counsel’s performance [were] prejudicial to the defense” (the 

prejudice prong). Id. at 688, 692. 

To establish deficient performance, the defendant “must 

identify the acts or omissions of counsel that are alleged not 

to have been the result of reasonable professional judgment.” 

Id. at 690; see also United States v. Cronic, 466 U.S. 648, 666, 

104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (requiring defendants 

to “point[] to specific errors made by trial counsel”). To 

establish prejudice, the defendant must show “a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Strickland, 

466 U.S. at 694. The defendant thus bears the burden of proof as 

to both prongs, and a “[f]ailure to make the required showing of 

either deficient performance or sufficient prejudice defeats the 

ineffectiveness claim.” Id. at 687, 700. Furthermore, in 

deciding such a claim, courts need not “approach the inquiry in 
15

the same order” or “address both components of the inquiry if 

the defendant makes an insufficient showing on one.” Id. at 697.

“Judicial scrutiny of counsel’s performance must be highly 

deferential[,]” and the defendant must overcome “a strong 

presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance; that is, the defendant 

must overcome the presumption that, under the circumstances, the 

challenged action ‘might be considered sound trial strategy.’” 

Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. 

Ct. 158, 100 L. Ed. 83 (1955)). “[E]very effort” must therefore 

“be made to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel’s challenged conduct, 

and to evaluate the conduct from counsel’s perspective at the 

time[,]” as the “benchmark” for a successful ineffective 

assistance of counsel claim is that “counsel’s conduct so 

undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just 

result.” Id. at 686, 689. Ultimately, “[u]nder established law, 

it is very difficult for a convicted defendant to prevail on a 

claim of ineffective assistance of counsel[.]” United States v. 

Moore, 703 F.3d 562, 574 (D.C. Cir. 2012).

IV. Analysis

Mr. Pole advances nine ineffective assistance of trial 

counsel claims, four of which were remanded by the D.C. Circuit, 
16

see Pole, 741 F.3d at 126; and five of which were raised for the 

first time in his motion for a new trial before the Court, see

Def.’s Mot., ECF No. 139 at 2-3, 16-24. Mr. Pole argues in his 

motion that each of the nine alleged failures by Mr. Acree 

“standing alone, [are] sufficient to provide [Mr.] Pole with a 

new trial[,]” and that in addition, their cumulative effect 

“plainly warrants vacating [Mr.] Pole’s conviction.” Id. at 24. 

Magistrate Judge Faruqui rejected all of Mr. Pole’s claims

and concluded that he did not receive ineffective assistance of 

counsel. See R. & R., ECF No. 193. First, Magistrate Judge 

Faruqui rejected Mr. Pole’s claim that Mr. Acree failed “to 

present a good faith defense” and “request a good faith jury 

instruction” because he concluded that “the underpinnings of Mr. 

Acree’s defense was . . . good faith reliance by Mr. Pole[,]” 

and that the jury instructions adequately explained the concept 

of good faith. See id. at 9-12. Second, Magistrate Judge Faruqui 

rejected Mr. Pole’s claims that Mr. Acree failed to object to or 

introduce testimony, instead determining that Mr. Acree’s

failures to object to Mr. Mogilnicki’s testimony on Mr. Pole’s 

offer to repay the unapproved bonuses and the government’s use 

of Mr. Pole’s oath of office in its closing argument, and his 

failure to call Mr. McCarthy as a witness, could all be deferred 

to as strategic, non-prejudicial choices. See id. at 12-17. 

Third, Magistrate Judge Faruqui rejected Mr. Pole’s claims that 
17

Mr. Acree’s decisions not to impeach the testimony of Ms. Cahill 

and Ms. Petroshius, including by calling Ms. Kruse to testify 

for the purpose of impeaching Ms. Petroshius, were ineffective

because he concluded that choosing not to impeach or call 

certain witnesses is “sound trial strategy” rather than 

prejudicial or deficient performance. See id. at 17-20. Lastly, 

Magistrate Judge Faruqui rejected Mr. Pole’s claims that Mr. 

Acree was ineffective for not using and introducing into 

evidence unredacted copies of Mr. Pole’s budget memoranda and 

employment history transcripts, allegedly showing that Mr. Pole 

“routinely issued exit bonuses without specific chief of staff 

approval,” because he determined that these decisions were nonprejudicial and “sound trial strategy.” See id. at 20-24.

Mr. Pole “objects to each of the R. & R.’s conclusions” and 

claims that the R. & R. is most critically erroneous with regard 

to: (1) its findings that Mr. Acree’s “failures to make certain 

objections were ‘strategic[;]’” (2) its failure “to grasp the 

central issue at trial, which [was] whether Mr. Pole believed he 

needed approval from his bosses to issue bonuses” in an effort 

to spend down the budget, specifically exhibited by its improper 

conclusion that Mr. Pole was not prejudiced by Mr. Acree’s 

failure to use and introduce into evidence unredacted budget 

memoranda and employment transcripts; and (3) its failure to 

consider the cumulative effect of Mr. Acree’s alleged errors at 
18

trial. Def.’s Objs., ECF No. 195 at 21-22. Mr. Pole also takes 

issue with the R. & R.’s recommendation that this Court’s 

original $75,042.37 restitution order be confirmed. Compare R. & 

R., ECF No. 193 at 24-26, with Def.’s Objs., ECF No. 195 at 45-

46. The government responds that Mr. Pole’s objections “are 

simple regurgitations of arguments he has already made and fail 

to accurately consider the trial record and Mr. Acree’s credible 

testimony at the April [7], 2022 evidentiary hearing.” Gov’t’s 

Resp., ECF No. 196 at 1. The Court first addresses in turn Mr. 

Pole’s various objections to Magistrate Judge Faruqui’s 

conclusions as to Mr. Acree’s trial performance before turning 

to Mr. Pole’s objection to Magistrate Judge Faruqui’s conclusion 

as to the proper restitution amount.

A. Magistrate Judge Faruqui Did Not Err in His Conclusion 

That Mr. Pole Did Not Receive Ineffective Assistance 

of Counsel

1. Mr. Acree Was Not Ineffective for Not Lodging 

Certain Objections During Trial

The Court first addresses Mr. Pole’s objections to 

Magistrate Judge Faruqui’s conclusion that Mr. Acree’s failures

to lodge certain objections during trial, specifically to: (1) 

the admission of Mr. Mogilnicki’s testimony on Mr. Pole’s offer 

to repay the unapproved bonuses; and (2) the government’s use of 

Mr. Pole’s oath of office during its closing argument, were 

“strategic” decisions entitled to deference under Strickland. 
19

Def.’s Objs., ECF No. 195 at 22. He argues that the R. & R. 

ignores evidence that these failures were not “decisions” 

because Mr. Acree stated in a sworn declaration and testified 

during the evidentiary hearing that he did not realize he had a 

legal basis to make those objections. Id. at 22, 24, 27. As a 

result, Mr. Pole argues that “[t]rial counsel could not possibly 

have ‘deci[ded]’ not to lodge an objection of which he was 

completely unaware[,]” and that even if these errors could be 

considered “strategic,” they were “objectively unreasonable.” 

Id. at 22. The government responds that Magistrate Judge 

Faruqui’s labeling of these alleged failures as “strategic 

decisions” was correct and consistent with the trial record and 

Mr. Acree’s testimony. Gov’t’s Resp., ECF No. 196 at 2. Because 

the Court agrees with Mr. Pole that the R. & R. does not

consider Mr. Acree’s sworn declaration where he admitted that he 

“had no strategic reason for not objecting to Mr. Mogilnicki’s 

testimony regarding Mr. Pole’s offer to [re]pay the money” or 

“to the government’s use of” his oath of office in its closing 

argument, see Def.’s Hearing Ex. 220, ECF No. 186-1 at 10-12 ¶¶ 

7, 10-11 (admitted into evidence during the April 7, 2022 

evidentiary hearing); the Court reviews de novo these two 

objections.

“Criminal defendants do not have a right to perfect 

assistance of counsel, but to ‘reasonably effective 
20

assistance.’” United States v. Gibson, 577 F. Supp. 2d 317, 324 

(D.D.C. 2008) (quoting Strickland, 466 U.S. at 687). “There are 

countless ways to provide effective assistance in any given 

case[,]” and “[e]ven the best criminal defense attorneys would 

not defend a particular client in the same way.” Strickland, 466 

U.S. at 689. Therefore, trial counsel’s “strategic decisions . . 

. are entitled to a ‘strong presumption’ of reasonableness[,]” 

especially since “[d]efense lawyers have ‘limited’ time and 

resources, and so must choose from among ‘countless’ strategic 

options.” Dunn v. Reeves, 594 U.S. 731, 739, 141 S. Ct. 2405, 

210 L. Ed. 2d 812 (2021) (quoting Harrington v. Richter, 562 

U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (some 

internal quotation marks omitted)). As a result, strategic 

decisions can be “particularly difficult because certain tactics 

carry the risk of ‘harm[ing] the defense’ by undermining 

credibility with the jury or distracting from more important 

issues.” Id. (quoting Harrington, 562 U.S. at 108).

Although the strategic choices of a defendant’s counsel are 

presumed to be “sound trial strategy” absent the defendant 

successfully rebutting this presumption, id.; Strickland, 466 

U.S. at 689; “‘strategic choices made after less than complete 

investigation are reasonable’ only to the extent that 

‘reasonable professional judgments support the limitations on 

investigation[,]’” Wiggins v. Smith, 539 U.S. 510, 512, 123 S. 
21 

Ct. 2527, 156 L. Ed. 2d 471 (2003) (quoting Strickland, 466 U.S. 

at 690-91). However, “strategic choices made after thorough 

investigation of law and facts relevant to plausible options are 

virtually unchallengeable[.]” Strickland, 466 U.S. at 690. As 

such, “even if there is reason to think that counsel’s conduct 

‘was far from exemplary,’ a court may still not grant relief if 

‘[t]he record does not reveal’ that counsel took an approach 

that no competent lawyer would have chosen.” Dunn, 594 U.S. at 

739 (quoting Burt v. Titlow, 571 U.S. 12, 23-24, 134 S. Ct. 10, 

187 L. Ed. 2d 348 (2013)). 

a. Mr. Mogilnicki’s Testimony Regarding Mr. 

Pole’s Offer to Repay the Unapproved Bonuses 

Mr. Pole’s first objection centers on testimony from Mr. 

Mogilnicki, the final chief of staff under whom Mr. Pole worked 

and the government’s first witness in its case-in-chief. See

Trial Tr. (Jan. 19, 2011), ECF No. 82 at 7:2-23. Mr. Mogilnicki 

testified about the January 26, 2007 meeting in which he 

confronted Mr. Pole following his discovery of the unapproved 

bonuses scheme. See id. at 92:9-96:9. Mr. Mogilnicki also asked 

Mr. Craig, “a former Kennedy staffer[ and] a very experienced 

and skilled lawyer,” to attend the meeting as “reinforcements,” 

i.e., “a lawyer to ask for . . . an independent view of what was 

happening here.” Id. at 93:3-4, 95:7-11. During his testimony, 

Mr. Mogilnicki recounted the various reasons Mr. Pole gave to 
22 

try to explain discrepancies between spreadsheets he had created 

detailing bonus/salary amounts and the Senate Disbursing 

Office’s account of the amount of money he was actually paid. 

See id. at 96:15-19, 97:20-98:14, 101:6-17. One explanation Mr. 

Pole gave was that “he had been told by prior chiefs of staff 

that the Senator wanted to get to zero on the budget, so if 

there was extra money, he should just spread it around.” Id. at 

98:11-14. According to Mr. Mogilnicki, Mr. Pole also explained 

that he felt “entitled” to the money because he was “underpaid” 

and his previous requests for raises were rejected. Id. at 

101:18-102:2. Additionally, Mr. Mogilnicki testified that 

“[t]here came a time in that conversation when [Mr. Pole] 

offered to try to pay the money back. He said, ‘If that’s what 

it takes to, you know, to get this behind me, I’ll see if I can 

. . . pay the money back.” Id. at 104:6-9. When asked what his 

“understanding” of that offer was and what he took it “to mean,” 

Mr. Mogilnicki testified: 

You know, that was when I lost my last hope 

that this wasn’t what it seemed to be. I -– 

you know, I went to the meeting thinking maybe 

there was an explanation, but that sort of –- 

that was the –- that was sort of the last straw 

in my mind as to whether he had actually taken 

the money or not. I couldn’t imagine someone 

who had an honest right to that money would 

offer to pay it back. That didn’t make sense. 

Id. at 104:17-105:2. Mr. Pole argues that Mr. Acree’s failure to 

object to Mogilnicki’s testimony on: (1) Mr. Pole’s offer to 
23 

repay the money, and (2) Mr. Mogilnicki’s understanding of that 

offer, or what Mr. Pole argues was testimony about “the moment

[Mr. Mogilnicki] became convinced of Mr. Pole’s guilt[,]” was 

ineffective assistance of counsel because Mr. Acree did not 

properly consider Federal Rule of Evidence 408, which governs 

the admissibility of evidence pertaining to compromise offers 

and negotiations. See Def.’s Objs., ECF No. 195 at 7-8, 23-27; 

Def.’s Mot., ECF No. 139 at 16-18. 

 On remand from the D.C. Circuit, Mr. Pole’s post-conviction 

counsel interviewed Mr. Acree and obtained a declaration from 

him in which he stated: “I had no strategic reason for not 

objecting to Mr. Mogilnicki’s testimony regarding Mr. Pole’s 

offer to pay the money back under Federal Rule of Evidence 408. 

I did not consider the applicability of Rule 408 during Mr. 

Pole’s trial.” Def.’s Hearing Ex. 220, ECF No. 186-1 at 11 ¶ 7. 

In addition, during the evidentiary hearing before Magistrate 

Judge Faruqui, Mr. Acree testified that he did not consider Rule 

408 in his analysis of these two contested portions of Mr. 

Mogilnicki’s testimony, and that if he had “know[n] that [Rule] 

408 is saying that [Mr. Mogilnicki’s testimony regarding his 

understanding of Mr. Pole’s repayment offer] doesn’t come in,” 

then he “probably would have had that part taken out[.]” See

Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 86:20-87:21. 
24

However, Mr. Acree also testified that he was not concerned 

about the admission of Mr. Mogilnicki’s testimony on Mr. Pole’s 

offer to repay the money enough to object because he did not 

think it detrimentally “impact[ed]” his “arguments in the case,” 

see id. at 54:19-58:11, 74:5-17, 81:2-12; which focused on 

positively depicting Mr. Pole’s character and his desire “to act 

in the best interest of the office” rather than “steal money[,]” 

id. at 56:1-2, 22-25. Mr. Acree further testified that from his 

perspective, Mr. Pole’s offer to repay the money “wasn’t 

inconsistent with who he was and how he acted throughout, which 

is what we were trying to portray.” Id. at 58:2-4. Instead, Mr. 

Acree saw Mr. Pole’s offer, not with “a negative attached to” 

it, but rather as demonstrating Mr. Pole’s realization that his 

actions had not aligned with what the office “wanted [him] to 

do,” and that he would try to fix his mistake by repaying the 

money. See id. at 56:22-58:11 (“In that moment, at a minimum, I 

didn’t see it as something that was harmful or problematic.”). 

Mr. Acree also testified that not objecting to this line of 

testimony aligned with his strategic “philosophy” to “listen” 

and “respond” to the evidence as he sees “fit, in terms of 

winning and losing[.]” Id. at 58:16-21.

Based on this testimony, Magistrate Judge Faruqui concluded 

that Mr. Acree’s “decision not to object to [Mr. Mogilnicki’s] 

testimony was part of his strategy to show Mr. Pole’s good 
25

character[,]” and that although it was “debatable” whether Mr. 

Pole’s offer to repay the money “constituted a settlement 

negotiation under Rule 408[,]” it was irrelevant “because Mr. 

Acree made a reasonable strategic decision to admit” the

testimony as part of his “sound trial strategy.” R. &. R., ECF 

No. 193 at 13-14. However, the R. & R. did not consider Mr. 

Acree’s sworn declaration admitting that he had “no strategic 

reason for not objecting to Mr. Mogilnicki’s testimony” under 

Rule 408. Def.’s Hearing Ex. 220, ECF No. 186-1 at 11 ¶ 7. 

Although Mr. Acree’s testimony indicates that there was some 

strategic reasoning for not objecting to the contested parts of 

Mr. Mogilnicki’s testimony, his declaration clearly indicates 

that this “strategy” failed to consider Rule 408. As a result, 

the Court begins its analysis of this ineffective assistance of 

counsel claim by determining whether Mr. Pole’s offer to repay 

the money was inadmissible under Rule 408.

Federal Rule of Evidence 408 states that evidence of 

“furnishing, promising, or offering . . . a valuable 

consideration in compromising or attempting to compromise” a 

“disputed claim” and “conduct or a statement made during 

compromise negotiations about [that] claim” are not admissible 

“either to prove or disprove the validity or amount of [that] 

disputed claim . . . .” Fed. R. Evid. 408(a). In other words, 

Rule 408 excludes evidence of compromise offers and negotiations 
26

when the evidence is offered to prove a defendant’s “liability” 

or guilt for a “disputed claim.” See id. (“Committee Notes on 

Rules—2006 Amendment”). “Offers to settle are excluded even if 

no settlement negotiations follow[,]” and since Rule 408 is 

“meant to promote settlements[,] . . . [i]f one party attempts 

to initiate negotiations with a settlement offer, the offer is 

excluded from evidence even if the counterparty responds: ‘I’m 

not negotiating with you.’” United States v. Davis, 596 F.3d 

852, 859 (D.C. Cir. 2010) (citing Fed. R. Evid. 408 advisory 

committee’s note (1972 proposed rule)), rehearing en banc 

denied, 711 F.3d 174 (D.C. Cir. 2013). In sum, for Rule 408 to 

apply, “an actual dispute must exist, preferably some 

negotiations, and at least an apparent difference of view 

between the parties as to the validity or amount of the claim.” 

MCCORMICK ON EVID. § 266 (8th ed.). 

In the R. & R., Magistrate Judge Faruqui stated that Mr. 

Pole’s offer to repay the money “may not have been a settlement 

offer under Rule 408 because Mr. Pole was not negotiating a 

disputed civil claim when he made the statement, nor was he in 

plea negotiations with a prosecutor.” R. & R., ECF No. 193 at 13

n.3. However, in United States v. Davis, 596 F.3d 852 (D.C. Cir. 

2010), the D.C. Circuit concluded that “[t]he 2006 amendment to 

Rule 408 . . . made clear that the rule applie[s] to both civil 

and criminal proceedings” so as to bar the use of a defendant’s 
27 

compromise offer and statements in negotiation, except when 

permissibly used “to prove the defendant’s attempt to obstruct a 

criminal investigation.” Id. at 860. 

Here, Mr. Pole was never charged with obstruction, and at 

the time of his conversation with Mr. Mogilnicki, “there was no 

date identifying the beginning of a criminal investigation,” or 

evidence that Mr. Pole “knew of any criminal investigation when 

he talked to” Mr. Mogilnicki, nor did Mr. Mogilnicki testify 

that he thought Mr. Pole was trying to “bribe” him with the 

repayment offer. See id. As such, the Court concludes that Mr. 

Pole’s offer “to get this behind” him and “pay the money back,” 

and Mr. Mogilnicki’s accompanying testimony that this offer was 

“the last straw in [his] mind as to whether [Mr. Pole] had 

actually taken the money or not[,]” Trial Tr. (Jan. 19, 2011), 

ECF No. 82 at 104:6-9, 20-24; were inadmissible “as evidence of 

[Mr. Pole’s] knowledge of his own guilt, which is to say his 

‘liability[,]’” see Davis, 596 F.3d at 860-61 (“Consciousness of 

guilt proves ‘liability’ for a disputed claim under Rule 

408(a).”). As Mr. Pole explains, Mr. Mogilnicki’s testimony of 

his understanding of Mr. Pole’s repayment offer “was important 

because it was the moment when he believed Mr. Pole was 

conscious of guilt, because he ‘couldn’t imagine that someone 

who had an honest right to that money would offer to pay it 

back.’” Def.’s Objs., ECF No. 195 at 25 n.1 (emphasis in 
28

original). Rule 408 should therefore have barred the use of this 

testimony for the purpose of establishing Mr. Pole’s guilt.

Mr. Pole directs the Court to the D.C. Circuit’s decision 

in Davis to support his argument that Rule 408 should have 

prohibited Mr. Mogilnicki’s testimony on his offer to repay the 

money, and that Mr. Acree’s failure to object was both deficient 

performance and prejudicial. See Def.’s Mot., ECF No. 139 at 17-

18; Def.’s Objs., ECF No. 195 at 25-27. Despite “similar” facts, 

Magistrate Judge Faruqui declared Davis inapposite here because 

of a differing “posture,” as Davis involved the D.C. Circuit’s 

conclusion that “the district court erroneously allowed 

testimony of [a] repayment offer over defense counsel’s 

objections.” R. & R., ECF No. 193 at 13 n.3. The Court 

disagrees, instead concluding that Davis dictates that Mr. 

Mogilnicki’s contested testimony was prohibited under Rule 408, 

and that Mr. Acree should have objected to its admission. 

In Davis, the defendant, Mr. Davis, was accused of stealing 

over a period of years from the fraternity for which he served 

as national treasurer. 596 F.3d at 853-54. At trial, the new 

treasurer of the fraternity, Mr. Hammock, testified about a 

conversation he had with Mr. Davis in which he confronted Mr. 

Davis after evidence of his misconduct surfaced. Id. at 854, 

859. Mr. Davis responded by asking what it would “take to make 

this go away” and offered to repay a portion of the money he had 
29 

stolen from the fraternity. Id. at 859. The D.C. Circuit 

concluded that this was an offer to compromise a claim that “was 

disputed as to validity or amount,” as Mr. Davis did not confess 

to taking the fraternity’s money but rather tried to provide an 

explanation for his actions, which Mr. Hammock in turn rejected. 

Id. Because the government had sought to introduce Mr. Davis’ 

settlement offer to prove his guilt, contrary to Rule 408’s 

direction, the D.C. Circuit concluded that the district court 

abused its discretion in permitting Mr. Hammock’s testimony over 

defense counsel’s objection, and it vacated his convictions and 

remanded for further proceedings. Id. at 860-61. 

Here, Mr. Pole similarly offered to repay the unapproved 

bonuses to put the situation “behind” him, but he never 

confessed to stealing the money and tried to provide Mr. 

Mogilnicki with explanations for the discrepancies in the salary 

and bonus spreadsheet numbers, which Mr. Mogilnicki ultimately 

rejected. See Trial Tr. (Jan. 19, 2011), ECF No. 82 at 104:6-9, 

105:3-8. The “validity” of the claim was therefore “disputed” at 

the time Mr. Pole made his repayment offer, especially since Mr. 

Mogilnicki ensured that a lawyer, Mr. Craig, attended the 

meeting as legal “reinforcements,” and thereafter suspended Mr. 

Pole, taking away his key and remote access to his computer. Id.

at 104:10-16; see, e.g., Weems v. Tyson Foods, Inc., 665 F.3d 

958, 965 (8th Cir. 2011) (stating that “a dispute need not 
30

‘crystallize to the point of threatened litigation’ for the 408 

exclusion rule to apply . . . so long as there is an ‘actual 

dispute or difference of opinion’ regarding a party’s liability 

for or the amount of the claim,” which was evidenced by the 

employee being placed on administrative leave and offered a 

separation agreement). As a result, introducing Mr. Pole’s offer 

as evidence of his guilt was prohibited by Rule 408.

Thus, although the “posture” of this case is different from 

Davis because Mr. Acree never objected to the now contested 

parts of Mr. Mogilnicki’s testimony, Davis dictates that Mr. 

Acree “performed deficiently in failing to challenge [compromise 

offer] testimony by [Mr. Mogilnicki] that violated Rule [408].” 

United States v. Glover, 872 F.3d 625, 633 (D.C. Cir. 2017). The 

“requirement[s] of Rule [408] on which the objection[]” should 

have been based were “clear,” and therefore, Mr. Acree “was 

deficient for not raising the issue,” or at a minimum 

considering it. Id. at 634. As Mr. Acree has stated, he “did not 

consider the applicability of Rule 408 during Mr. Pole’s 

trial[,]” Def.’s Hearing Ex. 220, ECF No. 186-1 at 11 ¶ 7; and 

had he known the parameters of Rule 408, he “probably would have 

had” parts of Mr. Mogilnicki’s testimony “taken out” from the 

record, Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 87:17-21. The 

Court therefore disagrees that “it does not matter if Mr. Pole’s 

offer was protected by Rule 408” because Mr. Acree has admitted 
31

that his “strategic” thinking on this testimony did not extend 

to considering the requirements of this applicable evidentiary 

rule. R. & R., ECF No. 193 at 13 n.3; see also Def.’s Objs., ECF 

No. 195 at 26 n.3 (contending that the R. & R. “mischaracterizes 

the record, since trial counsel never testified that he had 

‘several reasons’ not to object [to Mr. Mogilnicki’s testimony]—

the reason was that he just did not consider Rule 408”). 

Accordingly, the Court concludes that objectively

reasonable trial counsel assistance “under prevailing 

professional norms[,]” Strickland, 466 U.S. at 687-88; requires 

familiarity with and consideration of the Federal Rules of 

Evidence, and Mr. Acree’s failure to consider a relevant rule 

constituted deficient performance, see, e.g., United States v. 

Soto, 132 F.3d 56, 59 (D.C. Cir. 1997) (requiring defense 

counsel to have “familiarity” with the structure and content of 

the federal Sentencing Guidelines and concluding that ignorance 

of a relevant Guideline provision can amount to ineffective 

assistance of counsel); United States v. Carthorne, 878 F.3d 

458, 469 (4th Cir. 2017) (concluding that “counsel’s failure [ ] 

to demonstrate a grasp of the relevant legal standards” can 

amount to deficient performance). 

Having concluded that Mr. Acree “performed below the 

constitutional standard” in failing to consider Rule 408 when 

deciding whether to object to the contested portions of Mr. 
32

Mogilnicki’s testimony, the Court next considers whether Mr. 

Pole was “prejudiced by this deficiency.” Glover, 872 F.3d at 

634. Mr. Pole argues that “[i]t defies belief that the jury 

would not have been swayed by Mr. Mogilnicki’s testimony” on Mr. 

Pole’s repayment offer and his impressions of the “significance” 

of that offer, and that the admission of this testimony was 

therefore “extremely prejudicial.” Def.’s Objs., ECF No. 195 at 

26; Def.’s Mot., ECF No. 139 at 18. The government responds that 

Mr. Pole’s “offer of repayment pales in comparison to the 

overwhelming evidence of [his] guilt before the jury[,]” and 

that “when considered alongside all the evidence, [Mr.] Pole’s 

statement that he could pay the money back could not have 

affected the jury’s verdict.” Gov’t’s Opp’n, ECF No. 142 at 16. 

The R. & R. does not address Strickland’s prejudice prong in its 

analysis of this ineffective assistance of counsel claim, so the 

Court does so for the first time here.

Based on Mr. Mogilnicki’s remaining permissible testimony, 

in addition to the strength of the testimony from Senator 

Kennedy’s other chiefs of staff all “indicating that [Mr.] Pole 

knew that he needed approval for salary adjustments[,]” Pole, 

741 F.3d at 124; the Court concludes that the jury would have 

convicted Mr. Pole “even absent the problematic testimony by” 

Mr. Mogilnicki, Glover, 872 F.3d at 634. Specifically, Mr. 

Mogilnicki testified that “it was clear from [his] conversation 
33 

[with Mr. Pole] that he didn’t have authorization to make” 

changes related to the awarding of bonuses and that it “was 

clear that [Mr. Pole] had . . . done what he felt like doing.” 

Trial Tr. (Jan. 19, 2011), ECF No. 82 at 105:3-8. Mr. Mogilnicki 

further testified that neither he nor Senator Kennedy authorized 

Mr. Pole to award himself bonuses and that what Mr. Pole did 

“was so incredibly inconsistent with the work [they had] done 

together to get these bonuses just right that it was . . . clear 

to [him] that this was . . . something [Mr. Pole] did on his 

own[,]” as opposed to something he had claimed the implicit or 

explicit “right” to do. Id. at 105:9-106:12. In addition, Ms. 

Petroshius testified that while she was chief of staff, Mr. Pole 

never had authority to authorize bonuses. Trial Tr. (Jan. 24, 

2011), ECF No. 85 at 5:2-7, 40:14-25. She stated that she had no 

reason to believe that Mr. Pole did not understand his role at 

the office or that only the Senator and chiefs of staff could 

approve bonuses, as she never told Mr. Pole to spend around the 

budget surplus without talking to her first. Id. at 41:22-42:19, 

93:12-17. Likewise, Ms. Cahill testified that when she was chief 

of staff, she also never told Mr. Pole that he had authority to 

spend down the budget on his own. Trial Tr. (Jan. 21, 2011), ECF 

No. 84 at 47:16-21. All of this testimony regarding what Mr. 

Pole calls “the fundamental issue”—whether he could have 

reasonably believed he had authority to spend down the budget by 
34 

awarding bonuses without authorization, Def.’s Objs., ECF No. 

195 at 8; was provided separately from Mr. Mogilnicki’s 

testimony on Mr. Pole’s offer to repay the money, see Trial Tr. 

(Jan. 31, 2011), ECF No. 121 at 18:1-4 (noting in the 

government’s closing that Mr. Pole “repeated [the] claim that he 

was just spending down the budget” but later “admitted that no 

one ever told him to pay bonuses out on his own”). 

That Mr. Mogilnicki had “sterling credentials” and was one 

of the government’s main witnesses, see Def.’s Objs., ECF No. 

195 at 26; does not negate “the quantity of evidence” that 

existed independently of his inadmissible testimony, Glover, 872 

F.3d at 635; see Gov’t’s Opp’n, ECF No. 142 at 10-12 

(summarizing “the overwhelming evidence” that Mr. Pole “knew 

that he did not have authority to award bonuses without approval 

from [a] [c]hief of [s]taff[,]” which includes Mr. Pole’s “own 

statements” in “extensive correspondence” such as emails and 

memoranda to the chiefs of staff). In addition, the Court is not 

persuaded by Mr. Pole’s argument that the harm here is “greater 

than it was in Davis,” Def.’s Objs., ECF No. 195 at 26; as the 

D.C. Circuit in Davis declined to assess, sua sponte, whether 

the error to admit Mr. Davis’ compromise offer over trial 

counsel’s objection was “harmless,” 596 F.3d at 861. 

Thus, although the jury may have been “swayed” to some 

degree by Mr. Mogilnicki’s testimony, Def.’s Objs., ECF No. 195 
35 

at 26; even if Mr. Acree “had made the objections that [Mr. 

Pole] now, in hindsight, insists were essential, there is no 

reasonable probability that the results [of his trial] would 

have been any different[,]” United States v. Thomas, 797 F. 

Supp. 19, 25 (D.D.C. 1992); see also Strickland, 466 U.S. at 693 

(explaining that “[e]ven if a defendant shows that particular 

errors of counsel were unreasonable, . . . the defendant must 

show that they actually had an adverse effect . . . on the 

outcome of the proceeding[,]” not just “some conceivable 

effect”). In fact, “any single failure to object usually cannot 

be said to have been error unless the evidence sought is so 

prejudicial to a client that failure to object essentially 

defaults the case to the state.” Lundgren v. Mitchell, 440 F.3d 

754, 774 (6th Cir. 2006). To the contrary, it is plausible that 

Mr. Mogilnicki’s testimony aided the jury in seeing Mr. Pole in 

a positive light. For example, although Mr. Acree stated that he 

had no strategic reason for not considering Rule 408, he also 

testified that his thought-process on not objecting to Mr. 

Mogilnicki’s testimony stemmed from his belief that Mr. Pole’s 

repayment offer aligned with his strategy to positively depict 

Mr. Pole’s character and desire “to act in the best interest of 

the office,” rather than an intention to steal money. Hearing 

Tr. (Apr. 7, 2022), ECF No. 188 at 56:1-2, 22-25, 58:2-4. 

Regardless, Mr. Mogilnicki’s testimony on Mr. Pole’s offer to 
36 

repay was “limited to a small portion of the trial[,] . . . took 

place on the very first day in the morning, and then was not 

discussed again.” Id. at 19:20-20:6. It is not reasonably 

probable that “after ten days of trial, during which the 

government presented an overwhelming amount of evidence against 

Mr. Pole,” that “this short testimony about the offer to repay 

could have impacted the jury’s verdict.” Id. at 20:7-11. 

Ultimately, because the Court concludes that Mr. Pole has 

not met his burden in showing that the decision reached by the 

jury “would reasonably likely have been different absent [Mr. 

Acree’s Rule 408] errors[,]” and because he has not shown “that 

counsel’s errors were so serious as to deprive [him] of a fair 

trial,” it rejects Mr. Pole’s ineffectiveness claim regarding 

Mr. Acree’s failure to object to certain portions of Mr. 

Mogilnicki’s testimony. Strickland, 466 U.S. at 687, 696.5

5 Mr. Pole newly argues in his objections that “the government 

capitalized on counsel’s error” regarding Rule 408 “in its 

closing argument, directly referencing the meeting between Mr. 

Pole and Mr. Mogilnicki as the moment Mr. Pole was ‘caught.’” 

Def.’s Objs., ECF No. 195 at 27. The Court finds this argument 

misleading, as the portions of the government’s closing using 

the word “caught” do not reference Mr. Mogilnicki’s testimony on 

Mr. Pole’s offer to repay the unapproved bonuses or his 

impressions of that offer. See, e.g., Trial Tr. (Jan. 31, 2011), 

ECF No. 121 at 9:8-13, 12:15-18, 17:16-18:4, 26:5-27:6, 74:4-12, 

77:17-21, 80:1-9, 94:17-23. In fact, the government’s closing 

never once mentions Mr. Pole’s offer to repay the money. 
37 

b. The Government’s Use of Mr. Pole’s Oath of 

Office in Its Closing Argument 

Mr. Pole’s second objection centers on the government’s use 

of his oath of office in its closing argument at trial. Def.’s 

Objs., ECF No. 195 at 27-29. The government began its closing by 

displaying Mr. Pole’s signed oath of office on the courtroom’s 

projector and reading it aloud to the jury in its entirety: 

I, Ngozi Pole, do solemnly swear or affirm 

that I will support and defend the 

Constitution of the United States against all 

enemies, foreign and domestic; that I will 

bear true faith and allegiance to the same, 

that I will take this obligation freely 

without any mental reservation or purpose of 

evasion, and that I will well and faithfully 

discharge the duties of the office on which I 

am about to enter, so help me God. 

Trial Tr. (Jan. 31, 2011), ECF No. 121 at 8:2-9; Def.’s Hearing 

Ex. 220, ECF No. 186-1 at 11 ¶ 8. The prosecutor then told the 

jury that Mr. Pole “violated that oath time and time again . . . 

by stealing, by lying, by using the Senator’s office as his own 

personal bank.” Trial Tr. (Jan. 31, 2011), ECF No. 121 at 8:14-

18. The parties dispute whether the oath of office was admitted 

into evidence at trial, as the government’s final exhibit list 

indicates that it was admitted as the government’s Exhibit 2 on 

January 19, 2011, but the trial transcripts do not reflect its 

admission. See Gov’t’s Opp’n, ECF No. 142 at 18 n.11; Def.’s 

Mot., ECF No. 139 at 18 n.6; Def.’s Objs., ECF No. 195 at 11, 27 

n.4. Mr. Acree has stated that he does “not specifically recall 
38

whether [the] Government’s Exhibit 2 was admitted into 

evidence[,]” and that “[i]f it was admitted,” he did “not recall 

objecting.” Def.’s Hearing Ex. 220, ECF No. 186-1 at 11 ¶ 9.

Nonetheless, the R. & R. concluded that Mr. Acree’s 

“decision not to object” did not constitute ineffective 

assistance of counsel because it was “strategic” and should not 

be “second-guess[ed].” See R. & R., ECF No. 193 at 14-16. As 

noted, the R. & R. did not consider Mr. Acree’s sworn 

declaration obtained by Mr. Pole’s post-conviction counsel, in 

which Mr. Acree admitted that he “had no strategic reason for 

not objecting to the government’s use of unadmitted evidence in 

its closing argument[,]” and that to the extent the oath of 

office was admitted at trial, he “had no strategic reason for 

not objecting to its admission under Federal Rules of Evidence 

401 and 403.” Def.’s Hearing Ex. 220, ECF No. 186-1 at 11-12 ¶¶ 

10-11. The R. & R. also made no findings regarding the 

admissibility of the oath of office, instead stating that “the 

admissibility of this evidence is debatable, but ultimately 

irrelevant.” R. & R., ECF No. 193 at 14. 

The Court disagrees with the R. & R., as “the merits of the 

underlying claim,” here being the admissibility of certain 

evidence, “control the resolution of the Strickland claim 

because trial counsel cannot have been ineffective for failing 

to raise a meritless objection.” Zapata v. Vasquez, 788 F.3d 
39

1106, 1112 (9th Cir. 2015) (citation and internal quotation 

marks omitted); accord United States v. Marshall, 946 F.3d 591, 

596 (D.C. Cir. 2020) (concluding that counsel’s performance 

cannot be deficient if objecting “would have been meritless 

under the applicable legal standard”). Thus, the Court begins 

its analysis of this second objection by assessing Mr. Pole’s 

argument that Mr. Acree’s performance was deficient because “the 

admission of the oath was improper” under Rule 401 for being 

“irrelevant” and under Rule 403 for being “unduly prejudicial” 

and causing “confusion of the issues.” Def.’s Objs., ECF No. 195 

at 27; Def.’s Mot., ECF No. 139 at 20.

In making closing arguments, “a prosecutor has an 

obligation to avoid making statements of fact to the jury not 

supported by proper evidence introduced during trial[.]” United 

States v. Moore, 651 F.3d 30, 51 (D.C. Cir. 2011) (citation and 

internal quotation marks omitted). “The sole purpose of closing 

argument is to assist the jury in analyzing the evidence,” and 

thus, in closing, “counsel may not refer to, or rely upon,

evidence unless the trial court has admitted it.” Id. at 52-53

(citations and internal quotation marks omitted). Although the 

government’s final exhibit list indicates that Mr. Pole’s oath 

of office was admitted as Exhibit 2, the Court is persuaded by 

both Mr. Pole’s and the government’s acknowledgements that the 

trial record never indicates “when and how [Mr. Pole’s] oath of 
40

office was admitted[,]” see Gov’t’s Opp’n, ECF No. 142 at 18 

n.11; Def.’s Objs., ECF No. 195 at 27 n.4; into concluding, for 

the purposes of this motion, that the oath was not properly 

admitted into evidence. Accordingly, the Court considers whether 

Mr. Pole’s oath of office would have been admissible had it been 

objected to and considered at trial. 

The Court is persuaded by the caselaw provided by Mr. Pole 

that had the issue been raised at trial, it would have excluded 

the use of Mr. Pole’s oath of office as evidence by the 

government. For example, in United States v. Jefferson, 623 F. 

Supp. 2d 678 (E.D. Va. 2009), the District Court for the Eastern 

District of Virginia determined in a multi-count bribery, RICO, 

money laundering, and honest services wire fraud prosecution 

that the defendant’s congressional oath of office, which 

included the phrase, “I will well and faithfully discharge the 

duties of the office on which I am about to enter[,]” was 

inadmissible. Id. at 680-81. Without considering the defendant’s 

Federal Rule of Evidence 403 objection, that court concluded 

that the oath was irrelevant and therefore inadmissible under 

Rules 401 and 402 because the government had failed to explain 

how the oath had “‘any tendency to make the existence of any 

fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the 

evidence.’” Id. at 681 (quoting Fed. R. Evid. 401). 
41 

Similarly, in a case involving two American Samoan public 

officials on trial for federal procurement fraud, another judge 

from this court determined that the American Samoa oath of 

office must be excluded as irrelevant under Federal Rules of 

Evidence 401 and 402. Order, United States v. Sunia, No. 07-225 

(RBW) (D.D.C. Dec. 28, 2009), ECF No. 194 at 1-2. In Sunia, the 

government sought to introduce the oaths for the purpose of 

“asserting that the defendants’ knowledge of and actions 

inconsistent with their oaths . . . ma[de] it more probable that 

they possessed the requisite criminal intent[,] . . . [and] that 

the structuring of the procurement documents was the result of 

their fraud[.]” Id. at 1 (citation and internal quotation marks 

omitted). However, the district court judge concluded that there 

was “nothing in the plain language of the American Samoa oath 

that [would] make[] it ‘more probable’ that the defendants 

possessed the requisite criminal intent to be found guilty of 

the crimes alleged,” as “the oath of office itself [did] not 

proscribe or compel any specific behavior on the part of the 

defendants.” Id. at 2 (citing Cole v. Richardson, 405 U.S. 676, 

678 n.1, 684, 92 S. Ct. 1332, 31 L. Ed. 2d 593 (1972)). Because 

“a fact-finder could not possibly infer from the oath that the 

defendants knew that any specific behavior was unlawful[,]” the 

judge deemed the fact that the defendants had taken the oath 

upon assuming office irrelevant and thus inadmissible. Id. at 3. 
42 

Following the reasoning in Jefferson and Sunia, the Court 

concludes that Mr. Pole’s oath of office should have been 

excluded as irrelevant evidence because it does not “proscribe 

or compel any specific behavior on the part of” Mr. Pole in 

terms of spending down the budget or otherwise conducting his 

job duties. Id. at 2. Equivalent to the oath in Jefferson, Mr. 

Pole’s oath of office includes the following phrase: “I will 

well and faithfully discharge the duties of the office on which 

I am about to enter . . . . ” Trial Tr. (Jan. 31, 2011), ECF No. 

121 at 8:7-9. The oath’s plain language thus has no bearing on 

whether Mr. Pole could have known it was unlawful for him to 

spend down the budget by awarding bonuses without approval, and 

it therefore could not have “any tendency to make a fact [of 

consequence in determining the action] more or less probable 

than it would be without the evidence[.]” Fed. R. Evid. 401(a)-

(b). The government argues that there was “nothing impermissible 

about [its] use of [Mr.] Pole’s oath” because it was evidence 

that “‘is essentially background in nature[,]’” see Gov’t’s 

Opp’n, ECF No. 142 at 16-17 (quoting Fed. R. Evid. 401 advisory 

committee’s note); but for the above reasons, the Court 

disagrees, concluding instead that because the oath was not 

relevant, it was also inadmissible. See Fed. R. Evid. 402. 

The Court next considers whether Mr. Acree’s failure to 

object to the government’s use of Mr. Pole’s inadmissible oath 
43

of office in its closing argument was objectively unreasonable 

and therefore deficient performance. “Generally, a tactical 

decision by counsel to [with]hold an objection at trial is not 

deficient[,]” United States v. Browne, 619 F. Supp. 3d 100, 112-

13 (D.D.C. 2022) (citations omitted); and whether to object 

during a closing argument is often viewed as “‘a matter of trial 

strategy, which is ill-suited to second-guessing[,]’” R. &. R., 

ECF No. 193 at 14 (quoting Richie v. Thaler, No. H-11-3674, 2012 

WL 1067224, at *14 (S.D. Tex. Mar. 28, 2012)). Although Mr. 

Acree has testified that “it can be a loud thing when you object 

during a closing” and that his general strategy focuses on 

objecting during a closing argument only to something he feels 

is “problematic,” which he did not think was the case for the 

oath of office, see Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 

53:24-54:5, 60:9-24, 61:22-62:11 (“I just didn’t see what impact 

[the oath] had on what was at issue in the case.”); he has also 

stated in a sworn declaration that he had “no strategic reason” 

for not objecting to: (1) the government’s use of the oath as 

“unadmitted evidence” in its closing argument; and (2) the 

admission of the oath under Federal Rules of Evidence 401 and 

403, Def.’s Hearing Ex. 220, ECF No. 186-1 at 11-12 ¶¶ 10-11. 

This statement therefore disproves the R. & R.’s conclusion that 

Mr. Acree was “clear” in that “his decision not to object was 

strategic.” R. & R., ECF No. 193 at 14.
44

The Court finds the evidentiary record to be conflicting, 

since although Mr. Acree testified to some “strategic” thinking 

behind why he did not think there was a legal need to object to 

the government’s use of Mr. Pole’s oath of office in its 

closing, he has also stated that this thinking did not extend to 

considering the admissibility of the oath under Rules 401 and 

403. Although there is a strong presumption in favor of trial 

counsel’s decisions to withhold objections, including to 

statements “in a prosecutor’s summation,” see, e.g., Browne, 619 

F. Supp. 3d at 112-13; Bussard v. Lockhart, 32 F.3d 322, 324 

(8th Cir. 1994); Zapata, 788 F.3d at 1115; Mr. Acree’s failure 

to consider the admissibility of the oath of office thereby 

enabled the government to impermissibly refer to evidence that 

the trial court never admitted in the first place, see Moore, 

651 F.3d at 53. There is therefore some credence to Mr. Pole’s 

argument that Mr. Acree performed below an objective standard of 

reasonableness “under prevailing professional norms,” see Def.’s 

Objs., ECF No. 195 at 27-28; Strickland, 466 U.S. at 688; 

especially since he failed to object to inadmissible evidence 

due to failure to consider the applicable Federal Rules of 

Evidence on not one, but two occasions, see supra section 

IV.A.1.a.; Browne, 619 F. Supp. 3d at 112 (“[A] constitutional 

defect occurs when counsel repeatedly fails to object to 

inadmissible evidence or misapprehends the law.”). 
45 

Regardless, given the contradictory record, the Court need 

not decide Strickland’s deficient performance prong here because 

it concludes that even if Mr. Acree’s failure to object to the 

use of Mr. Pole’s oath of office in the government’s closing was 

faulty, Mr. Pole has not shown a reasonable probability that 

“but for” this error, the result of his “proceeding would have 

been different.” Strickland, 466 U.S. at 694. 

First, although Mr. Pole refers to the government’s use of 

his oath of office as “the centerpiece of its closing argument,” 

see Def.’s Mot., ECF No. 139 at 19; Def.’s Objs., ECF No. 195 at 

28; the Court’s review of the trial transcript indicates that 

references to the oath are “limited to relatively small portions 

of” the government’s entire closing argument, Moore, 651 F.3d at 

54. Although the government began its summation by reciting Mr. 

Pole’s complete oath of office, it never referenced the oath 

again throughout the remainder of its closing argument. See

Trial Tr. (Jan. 31, 2011), ECF No. 121 at 8:2-29:15. Neither did 

the government list the oath among the types of “evidence in 

this case” that the jury should consider in deliberating, 

including “the testimony, the e-mails, the memos, [and] the 

charts,” which it argued demonstrated that Mr. Pole was “guilty 

beyond a reasonable doubt of all counts.” Id. at 29:8-14. As 

such, assuming the government impermissibly referenced evidence 

not admitted during trial in the beginning of its closing, this 
46 

misconduct—not objected to by Mr. Acree—was limited in nature, 

as opposed to a situation where “[i]nadmissible evidence and 

highly inflammatory statements c[o]me rolling in unimpeded 

throughout the trial in such a pervasive manner [so] as to 

undermine the soundness of the jury verdict.” Moore, 651 F.3d at 

54 (citation and internal quotation marks omitted). As the D.C. 

Circuit has stated, “absent consistent and repeated 

misrepresentation to influence a jury, [i]solated passages of a 

prosecutor’s [closing] argument . . . do not reach the same 

proportions of severe misconduct” that, not objected to, is 

likely to “impermissibly and prejudicially interfere with the 

jury’s ability to assess the evidence.” Id. (citations and 

internal quotation marks omitted).6

6 Magistrate Judge Faruqui also cited the D.C. Circuit’s opinion 

in United States v. Moore, 651 F.3d 30, 51-55 (D.C. Cir. 2011), 

in concluding that “closing arguments rarely satisfy the second 

Strickland prong.” R. & R., ECF No. 193 at 16. In his 

objections, Mr. Pole argues that “Moore is wholly inapposite” 

because it reviewed a prosecutorial misconduct claim based on 

improper opening and closing arguments, as opposed to a Sixth 

Amendment claim involving the same. Def.’s Objs., ECF No. 195 at 

28. He further argues that Moore is irrelevant here because 

“prosecutorial misconduct claims are reviewed for ‘substantial 

prejudice,’ which is not the standard under Strickland.” Id. The 

Court rejects this argument because prosecutorial misconduct 

claims and Sixth Amendment claims involving trial counsel’s 

failure to object are often interrelated. In fact, all of the 

cases to which Mr. Pole cites following his rejection of Moore, 

see id.; discuss an ineffective assistance of counsel claim in 

the context of a failure to object to prosecutorial misconduct, 

see, e.g., Hodge v. Hurley, 426 F.3d 368, 377 (6th Cir. 2005) 

(holding that “a failure to object to prosecutorial misconduct 

can amount to ineffective assistance of counsel”); Zapata v. 
47 

Second, the Court instructed the jury prior to the 

beginning of summations that closing arguments “are not 

evidence” and are only “intended by the attorneys to be a 

summation of what the attorneys believe the evidence shows.” 

Trial Tr. (Jan. 31, 2011), ECF No. 121 at 7:14-18. Following the 

completion of summations, the Court told the jury that during 

deliberations, it could “consider only the evidence properly 

admitted in trial[,]” which consisted of “the sworn testimony of 

the witnesses, the exhibits that were admitted into evidence, 

and the facts and testimony stipulated to by the parties.” Id.

at 98:6-10. The Court then instructed the jury on the essential 

elements of the charged offenses—wire fraud and theft of 

government property—and the requirement that the government 

prove each element beyond a reasonable doubt. Id. at 106:12-

111:10. Despite the Court’s “cautionary instructions to the 

Vasquez, 788 F.3d 1106, 1122-24 (9th Cir. 2015) (concluding that 

defense counsel’s failure to object to the prosecutor’s 

misconduct during closing, which included “inflammatory, 

fabricated and ethnically charged epithets,” constituted 

ineffective assistance of counsel); Girts v. Yanai, 501 F.3d 

743, 756-60 (6th Cir. 2007) (assessing whether prosecutorial 

misconduct during closing, in conjunction with trial counsel’s 

failure to object, warranted a new trial). In addition, in 

Moore, the D.C. Circuit stated that “review of allegedly 

improper prosecutorial arguments is for substantial prejudice 

where the defendants lodged an objection, but [that courts must] 

apply the plain error standard where they failed to object.” 651 

F.3d at 50. Since Mr. Acree failed to object to the government’s 

improper use of Mr. Pole’s unadmitted oath of office in its 

closing argument, the higher “substantial prejudice” standard 

would not have applied, contrary to Mr. Pole’s argument. 
48 

jury” at the beginning of closing arguments and its “clear, 

concise, careful” instructions on the elements of the 

substantive offenses, United States v. Jackson, 627 F.3d 1198, 

1213 (D.C. Cir. 1980); Mr. Pole argues that the use of the oath 

in the government’s closing implied to the jury that it should 

“hold [him] to a higher standard than other defendants who do 

not take such oaths” and “suggest[ed] to the jury that it should 

convict [him] for violating his oath, as opposed to convicting 

him only after carefully considering the elements of wire fraud 

and/or theft[,]” Def.’s Mot., ECF No. 139 at 20. 

However, because “[a] jury is presumed to follow a trial 

court’s instructions[,]” Jackson, 627 F.3d at 1213 (citing 

Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S. Ct. 

448, 9 L. Ed. 2d 357 (1963)); and because the Court has 

concluded that the oath of office was irrelevant in proving the 

elements of the charged offenses, the Court agrees with the 

government that the use of the oath in its closing argument “was 

hardly a linchpin of [its] case” that could have “caused the 

jury to hold [Mr.] Pole to a higher standard than other 

defendants or to convict him simply for violating the oath[,]” 

Gov’t’s Opp’n, ECF No. 142 at 18; see Strickland, 466 U.S. at 

693 (noting that just “some conceivable effect” on the trial 

outcome is insufficient to establish prejudice). 
49 

Finally, “[t]here was a wealth of additional evidence of 

guilt” in Mr. Pole’s case that also indicates that Mr. Pole has 

failed to prove prejudice regarding his oath of office. See R. & 

R., ECF No. 193 at 15-16. Testimony from all four chiefs of 

staff that Mr. Pole did not have, nor was ever given, authority 

to award himself unapproved bonuses, combined with his 

acknowledgement that “no one ever told him to pay bonuses out on 

his own,” see Trial Tr. (Jan. 31, 2011), ECF No. 121 at 18:1-4; 

is strong evidence negating the reasonableness of whether he 

could have “understood” and believed that he had authority to 

award bonuses on his own accord, Def.’s Objs., ECF No. 195 at 

29; see Gov’t’s Opp’n, ECF No. 142 at 26 (explaining that this 

“unequivocal[]” chief-of-staff testimony “[w]ith respect to 

actual authority,” coupled with Mr. Pole’s “own words and 

actions,” such as his budget memoranda and other correspondence 

requesting chief-of-staff review and approval of his recommended 

bonus and salary adjustments, “confirm that he did not have the 

authority to issue bonuses on his own, and he knew it”). 

The Court therefore concludes that there is “no ‘reasonable 

probability’ that a better closing argument without [the oath of 

office] defects would have made a significant difference” in the 

outcome of Mr. Pole’s trial. Smith v. Spisak, 558 U.S. 139, 151, 

130 S. Ct. 676, 175 L. Ed. 2d 595 (2010); see also Glover, 872 

F.3d at 635 (balancing “the quantity of evidence” against the 
50 

appellants and “the minimal impact” of the error to conclude 

that there was no prejudicial impact in counsel’s failure to 

object); Strickland, 466 U.S. at 696 (“[A] verdict or conclusion 

only weakly supported by the record is more likely to have been 

affected by errors than one with overwhelming record support.”); 

cf. Hodge v. Hurley, 426 F.3d 368, 386-87 (6th Cir. 2005) 

(finding a reasonable probability of prejudice when the failure 

to object occurred in “a close case at the trial level”). 

Accordingly, the Court rejects Mr. Pole’s ineffectiveness claim 

regarding Mr. Acree’s failure to object to the government’s use 

of his unadmitted oath of office in its closing argument. 

2. Mr. Acree Was Not Ineffective for Not Using and 

Introducing Certain Pieces of Evidence During 

Trial 

The Court next addresses Mr. Pole’s objections regarding 

the R. & R.’s alleged misapprehension of “the core issue at 

trial,” specifically in relation to its conclusions that Mr. 

Acree was not ineffective for not using or introducing into 

evidence copies of Mr. Pole’s unredacted budget memoranda and 

employment history transcripts obtained by Mr. Pole’s postconviction counsel from the U.S. Senate, reflecting the salary 

histories of various former employees of Senator Kennedy. See

Def.’s Objs., ECF No. 195 at 13, 17, 22, 29-38. 

The Court begins by assessing the “backdrop” issue of 

whether Magistrate Judge Faruqui incorrectly “grasp[ed] the 
51

central issue” of Mr. Pole’s trial, id. at 22, 32; which as 

stated by the D.C. Circuit, was “whether [Mr.] Pole knew he 

needed authorization to award bonuses[,]” i.e., whether “he 

reasonably believed he had authority to award himself unapproved 

annual bonuses[,]” Pole, 741 F.3d at 124, 127. Thus, as Mr. Pole 

contends, the “central issue” was what he “understood about his 

authority, not whether he actually had authority.” Def.’s Objs., 

ECF No. 195 at 30 (emphasis in original). At one point in the R. 

& R.’s analysis, Magistrate Judge Faruqui states that the “issue 

at trial was . . . about whether Mr. Pole had the authority to 

issue bonuses without chief of staff approval.” R. & R., ECF 

No. 193 at 21. In addition, in the factual and procedural 

background section, the R. & R. “makes a passing assertion that 

‘Mr. Pole understood that he needed final approval from the 

chief of staff for all bonuses[,]’” Def.’s Objs., ECF No. 195 at 

31 (quoting R. & R., ECF No. 193 at 4); and that “everyone 

understood that [the bonuses] process required approval by the 

chief of staff[,]” R. & R., ECF No. 193 at 4. The Court agrees 

with Mr. Pole that these statements are problematic specifically 

because they speak conclusively, early on in the R. & R., “on 

the issue that was critical to Mr. Pole’s guilt or innocence” at 

trial. See Def.’s Objs., ECF No. 195 at 30-31.

However, the Court’s review of the R. & R. does not 

indicate that it is entirely permeated by the same error. For 
52

example, in summarizing the details of Mr. Pole’s trial, 

Magistrate Judge Faruqui writes that “Mr. Acree’s main defense 

was that Mr. Pole believed he had the [implicit] authority to 

spend the budget down to zero.” Id. at 5-6 (emphasis added). In 

addition, the R. & R. discusses Mr. Acree’s good faith defense 

strategy at trial, which aimed to show that Mr. Pole’s “specific 

intent was not to steal,” but rather that he reasonably believed 

he was “compl[ying] with what the Senator wanted.”7 See id. at 9-

7 Mr. Pole challenges—in a footnote—Magistrate Judge Faruqui’s 

rejection of Mr. Pole’s claim in his motion for a new trial that 

Mr. Acree was ineffective for failing “to pursue a good-faith 

defense . . . , including the failure to request a jury 

instruction on good faith.” Def.’s Objs., ECF No. 195 at 30 n.6.

He objects to the R. & R.’s statement that “Mr. Acree’s strategy 

at trial was to show that [Mr. Pole’s] specific intent was not 

to steal, but rather to ensure the office complied with what the 

Senator wanted[,]” R. & R., ECF No. 193 at 9; as he argues if 

evidence existed indicating that the Senator approved of Mr. 

Pole’s actions, then “presumably the government would not have 

tried this case[,]” Def.’s Objs., ECF No. 195 at 30 n.6. The 

Court is unpersuaded by this argument and agrees with the 

reasoning behind Magistrate Judge Faruqui’s determination that 

Mr. Acree’s defense “in essence was a good faith defense” that 

sought to negate the specific intent elements of the charged 

crimes, i.e., that Mr. Pole did not intend to defraud or steal 

from the government. R. & R., ECF No. 193 at 10; Gov’t’s Opp’n, 

ECF No. 142 at 8; see United States v. Pole, 741 F.3d 120, 124 

(D.C. Cir. 2013) (explaining that Mr. Pole’s defense at trial 

was “that he had implicit authority to spend down the budget” 

and that he therefore lacked the requisite criminal intent). Mr. 

Pole also objects to the R. & R.’s conclusion regarding the good 

faith jury instruction but proffers no specific arguments as to

why it should be rejected. See Def.’s Objs., ECF No. 195 at 30 

n.6. Because Mr. Pole “makes only conclusory or general 

objections, [and] simply reiterates his original arguments” on 

these points, the Court reviews this objection only for clear 

error. Houlahan v. Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) 

(citation and internal quotation marks omitted). Finding no 
53

11. Furthermore, even though Mr. Pole argues that the R. & R.’s 

repeated citations to testimony from the chiefs of staff that 

Mr. Pole “did not have authority to issue spend-down bonuses” 

was irrelevant to the actual issue, such testimony directly

speaks to the reasonableness of Mr. Pole’s beliefs regarding his 

understanding of that authority. Def.’s Objs., ECF No. 195 at 

32. Thus, in many respects, the R. & R. properly assesses Mr. 

Pole’s ineffective assistance of counsel claims against a 

“backdrop” where the primary issue was whether Mr. Pole could 

have reasonably believed that he had authority to spend down the 

budget by awarding to himself and other staffers unapproved 

bonuses. See Gov’t’s Resp., ECF No. 196 at 3 n.1. 

Nonetheless, out of an abundance of caution, the Court 

reviews de novo Mr. Pole’s objections to Magistrate Judge 

Faruqui’s conclusions that Mr. Acree was not ineffective for not 

using and introducing into evidence: (1) unredacted budget 

memoranda; and (2) employment history transcripts. See R. & R., 

ECF No. 193 at 20-24. Mr. Pole argues that Mr. Acree’s failure 

to use both the unredacted budget memoranda and the employment 

history transcripts was prejudicial to his defense “that he 

genuinely believed he had authority to spend-down the surplus by 

error, the Court ADOPTS the portion of the R. & R. pertaining to 

Mr. Pole’s good faith defense argument. See R. & R., ECF No. 93 

at 9-12.
54

issuing extra bonuses” without prior authorization. Def.’s 

Objs., ECF No. 195 at 32. The Court addresses this argument in 

relation to these two forms of evidence in turn below.

a. Mr. Pole’s Unredacted Budget Memoranda

In his motion for a new trial, Mr. Pole argues that Mr. 

Acree was ineffective in failing “to obtain and use during 

trial” Mr. Pole’s unredacted budget memoranda that showed he 

“continuously and accurately informed the chiefs of staff about 

budget surpluses.” Def.’s Mot., ECF No. 139 at 20. He states 

that while on the stand, he “testified that he routinely 

informed his supervisors about high budget surpluses,” and that 

these memoranda would have substantiated this testimony, as they 

“put the budget surplus numbers front and center for [the 

jury’s] attention.” Def.’s Objs., ECF No. 195 at 11, 17. 

However, as Mr. Pole states, he was prevented by the Court, 

following an objection from the government, from testifying to 

the contents of the memoranda, which were “heavily redacted, 

including with respect to the surplus numbers.” Id. at 11-12.

Mr. Pole similarly argued on appeal to the D.C. Circuit 

that this Court erred in refusing “to permit him to testify 

about the contents of certain [redacted] budget memos.” Pole, 

741 F.3d at 124. The D.C. Circuit set the stage for this 

argument as follows:
55 

The issue arose when [Mr.] Pole testified that 

he ‘let Ms. Cahill know that the surplus 

numbers were high [in fiscal year 2002].’

Trial Tr. 67 (Jan. 26, 2011 Afternoon 

Session). Noting that some budget memos he 

sent [Ms.] Cahill had been entered into 

evidence, [Mr.] Pole then attempted to testify 

that the ‘place where I traditionally would 

put [the projected surplus] number is redacted

so it’s hard to see.’ Id. The government 

objected, arguing that [Mr.] Pole should not 

be allowed to testify about redacted contents. 

Sustaining the objection, the district court 

stated only that the redacted contents are 

‘not a part of the evidentiary record.’ Id. at 

68-69. 

Id. at 125. This Court then twice instructed the jury that the 

information beneath the redactions “ha[d] nothing to do with 

this case.” Trial Tr. (Jan. 26, 2011), ECF No. 87 at 69:12-17, 

70:6-10. Mr. Pole alleges that Mr. Acree did not object to this 

instruction or “attempt to introduce unredacted memos[,]” and 

that before trial, Mr. Acree stipulated to the government’s use 

of the redacted budget memoranda and instructions to the jury to 

disregard the redactions. Def.’s Mot., ECF No. 139 at 21; Def.’s 

Objs., ECF No. 195 at 12; R. &. R., ECF No. 193 at 5. 

 Mr. Pole argues that “[t]he evidence beneath the 

redactions,” including those which covered the budget surplus 

amounts, “was material, exculpatory, and should have been 

admitted into evidence” because he contends that they were 

“crucial” to his claims that the chiefs of staff were “informed 

of surpluses, failed to spend them, and that [Mr.] Pole 
56 

concealed neither surpluses nor spend-down bonuses.” Def.’s 

Mot., ECF No. 139 at 21-22. However, during the evidentiary 

hearing, Mr. Acree testified that he did not seek to admit 

unredacted versions of the budget memoranda because he did not 

view the budget surplus numbers “as a contested issue[.]” 

Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 66:13-21. Mr. Acree 

stated his belief that there was other evidence introduced at 

the trial “that showed there was a budget surplus,” a fact which 

the government was not disputing, and that “the whole crux of 

[his] argument” was “not whether it was a surplus,” but rather 

“Mr. Pole’s state of mind and [the] circumstances” surrounding 

his understanding of his “authority or lack thereof . . . to 

act” to spend down the budget by awarding unapproved bonuses. 

See id. at 66:22-70:22. Mr. Acree further explained his belief 

that “the documents were not our friend on the crux of . . . the 

issue” and his strategy to try and focus the jury’s attention on 

the central issue “as much as possible because the [documents] 

didn’t speak favorably for us so much.” Id. at 70:18-22. 

 Based on this testimony, the Court concludes that Mr. 

Acree’s various decisions surrounding his alleged “failure” to 

obtain and use Mr. Pole’s unredacted budget memoranda were 

informed by strategic analysis. Mr. Acree correctly noted that 

the central issue at trial was “not whether Mr. Pole kept the 

chiefs of staff informed about the budget surplus numbers[,]” R. 
57

& R., ECF No. 193 at 21; especially since the government did not 

take the position “that there was not a surplus or that Mr. Pole 

was spending beyond the budget itself[,]” Hearing Tr. (Apr. 7, 

2022), ECF No. 188 at 69:18-21; but rather the issue was whether 

Mr. Pole “reasonably believed he had authority to award himself 

unapproved annual bonuses[,]” Pole, 741 F.3d at 127. As Mr. 

Acree explained, his strategy was to deemphasize the documents 

and focus on “Mr. Pole’s state of mind,” the “crux” of the case, 

rather than present additional evidence on an undisputed point.

Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 70:7-22. Given the 

“strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance[,]” the Court 

concludes that Mr. Acree’s strategy was “sound,” “reasonable,” 

and entitled to deference. Strickland, 466 U.S. at 689.

Mr. Pole nonetheless argues that Mr. Acree’s performance 

was deficient because he alleges that the government’s objection 

to Mr. Pole testifying about the redacted documents was based on 

a false representation from the prosecutor “that she had never 

seen what lay underneath the redactions,” when in fact “both the 

government and trial counsel were in possession of unredacted 

budget memos by the time of Mr. Pole’s trial[.]” Def.’s Objs., 

ECF No. 195 at 12, 32. Mr. Pole contends that had Mr. Acree done 

a proper investigation, he would have known that his law firm 

possessed and produced copies of the unredacted budget memoranda
58 

to the government during discovery and therefore objected to the 

prosecutor’s representation that she had not seen the material 

beneath the redactions, instead of taking the prosecutor “at her 

word,” see Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 34:10-22; 

and stipulating to the instruction to the jury that they not 

“speculate or concern themselves with the redacted information,” 

Joint Request for Suppl. Jury Instruction, ECF No. 40 at 2; see

Def.’s Objs., ECF No. 195 at 32-33. 

 Even assuming the truth of Mr. Pole’s claims that Mr. Acree 

“missed” the unredacted budget memoranda, Def.’s Objs., ECF No. 

195 at 33; the Court concludes that Mr. Pole has failed to 

demonstrate that Mr. Acree’s performance was deficient. Mr. 

Acree testified that his defense strategy, aimed at showing the 

reasonableness of Mr. Pole’s understanding of his authority to 

award unapproved bonuses, was focused less on using documents 

such as the budget memoranda, which he generally viewed as 

unfavorable to proving this issue, see Hearing Tr. (Apr. 7, 

2022), ECF No. 188 at 70:7-22; and thus the Court deems it 

logical—and strategic—that Mr. Acree devoted less time and 

attention to such documents during his review of discovery and 

preparation for trial, see Wiggins, 539 U.S. at 512 (concluding 

that “‘strategic choices made after less than complete 

investigation are reasonable’” when within the “‘limitations’” 

placed on that investigation by “‘reasonable professional 
59

judgments’” (quoting Strickland, 466 U.S. at 690-91)); Dunn, 594 

U.S. at 739 (acknowledging that “[d]efense lawyers have 

‘limited’ time and resources” and must make “difficult” choices 

when “choos[ing] from among ‘countless’ strategic options”

(quoting Harrington, 562 U.S. at 106-07)). Thus, “even if there 

is reason to think that counsel’s conduct ‘was far from 

exemplary’” by not: (1) recognizing that his law firm was in 

possession of the unredacted budget memoranda prior to trial; 

(2) challenging the prosecutor’s representations on objection; 

and (3) attempting to use the unredacted budget memoranda as 

evidence, the Court “still may not grant relief [since] ‘[t]he 

record does not reveal’ that [Mr. Acree] took an approach that 

no competent lawyer would have chosen.” Dunn, 594 U.S. at 739

(quoting Burt, 571 U.S. at 23-24). 

Furthermore, even if Mr. Acree’s above strategic decisions 

could be construed as “objectively unreasonable,” Mr. Pole’s 

objection still fails because he cannot show prejudice to the 

outcome of his trial from Mr. Acree’s failure to introduce into 

evidence the unredacted budget memoranda. When the D.C. Circuit 

remanded this ineffective assistance of counsel claim, it noted 

that “[h]ad [Mr.] Pole’s counsel introduced unredacted memos 

demonstrating that [Mr.] Pole kept [Ms.] Cahill informed about 

surpluses, the jury might have found [Mr.] Pole a more credible 

witness.” Pole, 741 F.3d at 127. Mr. Pole points to this 
60 

language in his objection, arguing that it proves that there was 

“no adequate substitute” for the unredacted budget memoranda as 

evidence since “the D.C. Circuit presumably would not have 

remanded in the first place.” Def.’s Objs., ECF No. 195 at 34, 

36. The Court disagrees, since the D.C. Circuit remands 

“colorable” ineffectiveness claims to the district court to make 

necessary factual findings under a “forgiving standard,” which 

thus does not mean that the remanding of a claim automatically 

entitles Mr. Pole to relief. Pole, 741 F.3d at 126-27 (citing 

Moore, 651 F.3d at 85, 87). As the D.C. Circuit stated: “To be 

clear, we conclude only that [Mr.] Pole’s claims of ineffective 

assistance are colorable, not that he has likely demonstrated 

ineffective assistance. Indeed, the government offers several 

plausible arguments suggesting that [Mr.] Pole has shown neither 

error nor prejudice.” Id. at 127. 

 Following a review of the record, the Court concludes that 

Mr. Pole has failed to demonstrate that the unredacted budget 

memoranda were indispensable pieces of evidence such that he was 

prejudiced by their omission. First, on the topic of budget 

surpluses, Mr. Pole “was allowed to testify that he kept chiefs 

of staff informed about budgetary matters and in fact did 

testify that he ‘let Ms. Cahill know that the surplus numbers 

were high.’” Id. at 125; see also Trial Tr. (Jan. 26, 2011), ECF 

No. 87 at 62:24-63:5, 66:14-67:17; Trial Tr. (Jan. 28, 2011), 
61 

ECF No. 89 at 22:19-23:2, 31:20-25. Mr. Pole’s testimony was 

also corroborated by correspondence admitted at trial indicating 

that he conveyed projected surplus numbers to the chiefs of 

staff. See R. & R., ECF No. 193 at 22 (listing the government’s 

trial exhibits 3, 6, 11, 27, 30, and 38 as examples of such 

correspondence); Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 

67:11-69:9 (highlighting some of these exhibits during the 

evidentiary hearing to show that they “project[ed] the fact that 

there was a budget surplus in the office”). Thus, although the 

unredacted budget memoranda may have additionally corroborated 

Mr. Pole’s testimony, the record disproves his contention that 

without them, “his ability to” prove that he reported surplus 

numbers to his bosses “was significantly limited.” See Def.’s 

Objs., ECF No. 195 at 34, 36. The Court therefore agrees with 

Magistrate Judge Faruqui that the unredacted budget memoranda 

“did not differ in a substantial way—in strength and subject 

matter—from the evidence actually presented at trial,” and that 

their admission as evidence “would have been cumulative,” 

thereby negating any prejudice to Mr. Pole. R. & R., ECF No. 193 

at 21-22 (citations and internal quotation marks omitted). 

This conclusion is buttressed by the D.C. Circuit’s 

conclusion on appeal that any error by this Court in refusing to 

allow Mr. Pole to testify to the contents of the redacted budget 

memoranda was “harmless” and “did not contribute to the verdict 
62

obtained.” See Pole, 741 F.3d at 125 (concluding that “if the 

jury found that [Mr.] Pole lacked credibility, it would have no 

reason to believe his assertions about what lay under the 

redactions; if the jury found [him] generally credible, it would 

have learned nothing new from the excluded testimony” (citations 

and internal quotation marks omitted)). The same finding is true 

for the unredacted versions of the memoranda themselves, since 

if the jury had found Mr. Pole to be generally credible, it 

would have learned nothing new from the unadmitted, unredacted 

memoranda, as Mr. Pole’s testimony on the budget surplus numbers 

was already substantiated by other correspondence. And again, 

because the main issue at trial was not whether Mr. Pole 

“routinely and accurately informed the Chiefs of Staff that the 

office was running substantial projected budget surpluses,” see

Def.’s Mot., ECF No. 139 at 21; Def.’s Objs., ECF No. 195 at 34; 

but rather whether he reasonably believed he had authority to 

spend down those surpluses by issuing himself unapproved 

bonuses, Pole 741 F.3d at 127; the omission of the unredacted 

budget memoranda could not be “extremely prejudicial” to Mr. 

Pole’s defense, Def.’s Objs., ECF No. 195 at 32.8

8 Mr. Pole adds a new argument in his objections that the R. & R. 

ignores “testimony from chiefs of staff who testified that they 

would’ve spent funds on other resources, had they known about 

large surpluses[,]” and that the unredacted budget memoranda are 

important because they show, contrary to this testimony, that 

the chiefs of staff “did know about the surpluses[.]” Def.’s 
63

b. Employment History Transcripts Reflecting 

the Salary Histories of Former Employees of 

Senator Kennedy’s Office

Mr. Pole next argues in his motion for a new trial that Mr. 

Acree “was ineffective in failing to demonstrate through the 

available documentary evidence that [Mr.] Pole routinely issued 

exit bonuses without specific Chief of Staff approval.” Def.’s 

Mot., ECF No. 139 at 22. He claims that this evidence should 

have included employment history transcripts obtained from the 

U.S. Senate following remand of his case from the D.C. Circuit, 

which he contends “fully corroborate [his] testimony that exit 

bonuses were [a] routine” office practice during his tenure and 

“that Mr. Pole regularly issued them.” Id.; see Ex. 4 to Def.’s 

Mot., ECF No. 139-4 at 1-36 (employment history transcripts for 

various former employees of Senator Kennedy). As such, he argues

that the transcripts would have discredited the chiefs of staff 

who sought to “downplay the practice of issuing exit bonuses” 

and impeached their testimony that Mr. Pole “was not allowed to 

issue exit bonuses.” Def.’s Mot., ECF No. 139 at 22. Mr. Pole 

thus argues that these transcripts would have supported his 

defense that he had a reasonable belief in his authority to 

Objs., ECF No. 195 at 36. The Court does not consider this 

argument, since, in the section of Mr. Pole’s motion for a new 

trial regarding the unredacted budget memoranda, he did not 

dispute that the chiefs of staff were “informed of surpluses[.]” 

Def.’s Mot., ECF No. 139 at 21.
64

spend down the budget by awarding bonuses himself, and that Mr. 

Acree’s failure to obtain and introduce them into evidence was 

both objectively unreasonable and prejudicial. Id.; Def.’s 

Objs., ECF No. 195 at 36-38. As the D.C. Circuit stated in 

remanding this “colorable” ineffectiveness claim: “Had [Mr.] 

Pole’s counsel been able to demonstrate that [Mr.] Pole had 

authority to issue exit bonuses without prior approval, [Mr.] 

Pole might have avoided conviction on the wire fraud count 

arising from his exit bonus and even convinced the jury that he 

reasonably believed he had authority to award himself unapproved 

annual bonuses.” Pole, 741 F.3d at 127.

Magistrate Judge Faruqui rejected these arguments because 

he found that the employment history transcripts do not actually 

show that Mr. Pole was the individual “responsible for issuing 

any of the exit bonuses supposedly reflected therein[.]” Gov’t’s 

Opp’n, ECF No. 142 at 20; see R. & R., ECF No. 193 at 23. 

Following its own review of the employment history transcripts, 

the Court agrees. The transcripts reflect the salary histories 

for twenty-seven former Kennedy employees, including former 

chiefs of staff Mr. Kavanaugh and Ms. Petroshius and former 

Political Director Tracy Spicer (“Ms. Spicer”), all of whom were 

government witnesses. See Def.’s Objs., ECF No. 195 at 37.

However, the Court agrees with the government that the 

transcripts are unclear as to “what salary changes, if any, were 
65

exit bonuses[,]” Gov’t’s Opp’n, ECF No. 142 at 20 n.13; and only 

reflect incremental salary changes associated with various dates 

throughout the employee’s period of employment, see Ex. 4 to 

Def.’s Mot., ECF No. 139-4 at 1-36. The transcripts also do not 

include Mr. Pole’s name, thus never specifically indicating that 

if a certain number was meant to reflect an exit bonus, Mr. Pole

was the one who issued it, “let alone that he did so without 

authorization from the [c]hief[s] of [s]taff.” Gov’t’s Opp’n, 

ECF No. 142 at 20.

Rather, the Court views the employment transcripts as 

bolstering facts about Mr. Pole’s case that were not disputed at 

trial. First, as the D.C. Circuit has noted, it was an office 

practice in Senator Kennedy’s office, “condoned by the Senator 

and chiefs of staff,” to award annual bonuses and exit bonuses 

notwithstanding the official Senate ban. Pole, 741 F.3d at 123. 

To do this, the “office would, with the Senator’s or chief of 

staff’s approval, submit PAAs that increased an employee’s 

salary for a period of time—two or three weeks or even a month—

sufficient to produce the intended [annual] bonus[,]” and to 

award exit bonuses, employees were either kept on payroll for a 

few weeks after their departure or “for an indefinite period at 

a salary just high enough to cover the employee contribution for 

Senate-subsidized health care.” Id. at 123-34. As such, there 

was “no dispute that departure bonuses were awarded to certain 
66 

staff during [Mr.] Pole’s tenure[,]” Gov’t’s Opp’n, ECF No. 142 

at 20 n.14; see, e.g., Trial Tr. (Jan. 20, 2011), ECF No. 83 at 

109:22-116:17 (Ms. Cahill’s testimony); Trial Tr. (Jan. 24, 

2011), ECF No. 85 at 97:3-12 (Ms. Petroshius’ testimony); R. & 

R., ECF No. 193 at 23 (citing the government’s trial exhibit 42, 

an email from Mr. Pole stating that Mr. Mogilnicki “signed off” 

on two exit bonuses); Ex. 5 to Def.’s Mot., ECF No. 139-5 at 8 

(reflecting a phone conversation between Mr. Mogilnicki and Ms. 

Spicer in which Ms. Spicer said she received severance pay and 

that “it had been done over the past 8-10 years, but there 

wasn’t a formal policy”); which is only confirmed by reference 

to the employment history transcripts if certain numbers in 

those transcripts are taken to reflect exit bonuses, as Mr. Pole 

contends, see Def.’s Objs., ECF No. 195 at 37. 

It was also not disputed that Mr. Pole was the employee 

responsible for submitting the PAAs to the Senate Disbursing 

Office, which would trigger payment of the salary raises or 

bonuses. See Pole, 741 F.3d at 123-24. Rather, the central 

dispute at trial was whether Mr. Pole reasonably believed he 

could submit PAAs initiating the payment of bonuses without 

prior authorization from the Senator or chiefs of staff. Id. at 

124. Thus, although the employment history transcripts may show 

that exit bonuses were a “routine” Kennedy office practice, 

nothing in them details the proper authorization protocols for 
67 

such bonuses and who specifically could give authorization. 

Instead, as the R. & R. states, the record evidence was 

overwhelming in showing that “approval was needed from someone 

at a higher level than Mr. Pole[,]” ECF No. 193 at 23; even if 

there was some confusion among the chiefs of staff as to whether 

that higher authority was themselves, Senator Kennedy, or both 

given the lack of official or written policies on the bonus 

procedure, see, e.g., Trial Tr. (Jan. 24, 2011), ECF No. 85 at 

98:6-17 (testimony from Ms. Petroshius indicating that “the 

chief of staff and up the same chain-of-command” had authority 

to approve departure bonuses while Mr. Pole did not); Trial Tr. 

(Jan. 19, 2011), ECF No. 82 at 8:3-8 (testimony from Mr. 

Mogilnicki indicating that only the Senator and himself had 

authority to approve bonuses); Trial Tr. (Jan. 20, 2011), ECF 

No. 83 at 17:13-22, 103:22-104:5, 113:12-114:1 (equivalent 

testimony from Mr. Kavanaugh and Ms. Cahill, who also explained 

that Mr. Pole would provide her with suggested bonuses for 

staffers that she would review and approve, in conjunction with 

Senator Kennedy, before Mr. Pole “put the bonuses into practice 

with the Senate Disbursing Office”). 

Therefore, the Court disagrees with Mr. Pole’s argument 

that the employment history transcripts were “critical” to 

corroborating his good faith defense because they do not speak 

to who had authority to approve bonuses, only that such bonuses 
68 

occurred, which was not disputed by the chiefs of staff who 

testified (and thereby the transcripts do not impeach their 

testimony as Mr. Pole argues). See, e.g., Trial Tr. (Jan. 20, 

2011), ECF No. 83 at 17:13-28 (testimony from Mr. Kavanaugh 

stating that he awarded bonuses to staffers when he was chief of 

staff), Trial Tr. (Jan. 24, 2011), ECF No. 85 at 97:20-98:9 

(testimony from Ms. Petroshius that it was “common practice” 

when she was chief of staff to award departure bonuses through 

the appropriate “chain-of-command”). 

Accordingly, the Court concludes that, in conjunction with 

Mr. Acree’s above-delineated strategy to focus less on the 

documents themselves and more on proving Mr. Pole’s “state of 

mind,” Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 70:5-22; 

Gov’t’s Opp’n, ECF No. 142 at 20 (contending that there is no 

admissible documentary evidence in existence that proves Mr. 

Pole “had the authority” to issue unapproved bonuses); Mr. 

Acree’s alleged “failure” to obtain and use the employment 

history transcripts was neither deficient performance nor 

prejudicial to the outcome of Mr. Pole’s trial. Mr. Acree did 

elicit testimony from Mr. Pole that during his employment with 

Senator Kennedy’s office, he routinely issued exit bonuses 

without specific approval, see, e.g., Trial Tr. (Jan. 28, 2011), 

ECF No. 89 at 72:3-23; and while the employment transcripts may 

have bolstered this testimony to a degree, their contents do not 
69 

specifically corroborate Mr. Pole’s statements that he was the 

employee who both issued and authorized any bonuses contained 

therein, i.e., without approval from any higher office 

authority. Because Mr. Pole has not met his burden in showing a 

reasonable probability that he would have been acquitted on the 

wire fraud count arising from his exit bonus had the employment 

history transcripts been introduced as documentary evidence, see

Def.’s Objs., ECF No. 195 at 37-38; the Court concludes that 

this ineffective assistance of counsel claim must fail, see 

United States v. Doost, 3 F.4th 432, 443-44 (D.C. Cir. 2021) 

(stating that “[d]etermining how a hypothetical jury would have 

analyzed additional evidence . . . ‘is inherently a speculative 

exercise,’” and concluding that the defendant fell short of 

“showing a reasonable probability that introducing” additional 

documentary evidence “would have resulted in acquittal” on the 

particular charge in question (citation omitted)). 

3. Mr. Acree Was Not Ineffective Because He Did Not 

Commit Any Errors with Cumulative Prejudicial 

Effect 

The Court turns to Mr. Pole’s final group of objections 

centering on the R. & R.’s alleged failure “to consider the 

cumulative effect of the numerous errors” allegedly committed by 

Mr. Acree. Def.’s Objs., ECF No. 195 at 38. Specifically, Mr. 

Pole argues that Magistrate Judge Faruqui’s rejection of his 

claims that Mr. Acree was ineffective for failing to: (1) 
70 

impeach the testimony of Ms. Cahill and Ms. Petroshius; and (2) 

call Mr. McCarthy as a witness, was improper because “each 

individual error was ineffective,” and also “the cumulative 

effect of those errors plainly warrants vacating [his] 

conviction.” See id. at 38-45. “Viewing these alleged errors 

cumulatively,” for the reasons discussed below, the Court 

concludes that Mr. Pole “has not shown ‘a reasonable probability 

that, but for counsel’s [alleged] errors, the result of the 

proceeding would have been different.’” Browne, 619 F. Supp. 3d 

at 113 (quoting Strickland, 466 U.S. at 694). 

a. Failure to Impeach Mary Beth Cahill’s 

Testimony 

As stated by the D.C. Circuit, Mr. Pole argues that Mr. 

Acree should have “demonstrate[d] that [Ms.] Cahill,” a former 

chief of staff, “instructed [Mr.] Pole to spend the budget to 

zero, or [should have] impeach[ed] her testimony that she did 

not do so.” Pole, 741 F.3d at 126 (citation and internal 

quotation marks omitted). Mr. Pole’s argument is based on an FBI 

interview report indicating that Mr. Mogilnicki told the FBI 

about certain conversations he had with Ms. Cahill. See Ex. 5 to 

Def.’s Mot., ECF No. 139-5 at 10. The report states that after 

his meeting with Mr. Pole and Mr. Craig, Mr. Mogilnicki called 

Ms. Cahill “to check [Mr.] Pole’s story.” Id. Mr. Mogilnicki 

reported to the FBI that in this phone conversation, Ms. Cahill 
71 

told him that “she told [Mr.] Pole to zero out the budget, but 

did not think she approved any of [Mr.] Pole’s extra bonuses.” 

Id. Mr. Pole uses the first portion of Mr. Mogilnicki’s 

statement to argue that Ms. Cahill’s “directive to [him to zero 

out the budget] was never elicited from [her] at trial.” Def.’s 

Mot., ECF No. 139 at 22. He contends that this was “an extremely 

damaging omission by” Mr. Acree because it undermined his good 

faith defense and caused a missed opportunity for both 

impeachment of Ms. Cahill and corroboration of his statement to 

Mr. Mogilnicki and Mr. Craig in their January 26, 2007 meeting 

that it was Ms. Cahill who told him to spend down the budget. 

Id. at 22-23 (citing Mr. Craig’s testimony, Trial Tr. (Jan. 25, 

2011), ECF No. 86 at 57:18-24, 60:2-10). 

Although the D.C. Circuit concluded, in remanding this 

“colorable” ineffectiveness claim, that “had [Mr.] Pole’s 

counsel successfully impeached [Ms.] Cahill . . . , [Mr.] Pole 

might have undermined [her] testimony that he needed [Ms. 

Cahill’s] approval before making salary adjustments[,]” Pole, 

741 F.3d at 127; following his review of the record, Magistrate 

Judge Faruqui rejected this claim for lack of deficient 

performance and prejudice, see R. & R., ECF No. 193 at 18-19. 

The substance of Mr. Pole’s objection to this conclusion raises 

proper, specific arguments against the R. & R.’s findings, so 

the Court reviews this objection de novo. See LCvR 72.3(b). 
72 

During Mr. Pole’s trial, Ms. Cahill testified that she 

never told “Mr. Pole that he could spend down the budget without 

checking with [her]” or “that he had the authority to spend down 

the budget on his own.” Trial Tr. (Jan. 21, 2011), ECF No. 84 at 

47:16-21 (emphasis added). In the R. & R., Magistrate Judge 

Faruqui summarized this testimony by stating that Ms. Cahill 

“testified that while she may have asked Mr. Pole to spend the 

budget down to zero, she never permitted him to do so alone and 

without approval.” R. & R., ECF No. 193 at 18 (emphasis added). 

After comparing this testimony that Ms. Cahill never instructed 

Mr. Pole to spend down the budget “on his own” with Mr. 

Mogilnicki’s statement in the FBI report that Ms. Cahill only 

told Mr. Pole “to zero out the budget,” Magistrate Judge Faruqui 

concluded that “the two statements were consistent” and that 

“impeachment was unnecessary,” and as a result Mr. Acree’s 

“strategic choice[]” to not impeach Ms. Cahill was “not 

deficient.” Id. However, Mr. Pole argues that Magistrate Judge 

Faruqui’s characterization of Mr. Acree’s failure to impeach Ms. 

Cahill as “strategic” is “misplaced” because during the 

evidentiary hearing, Mr. Acree was never asked about “his 

decision not to impeach Ms. Cahill” and only generally testified 

about his overall impeachment “strategy.” Def.’s Objs., ECF No. 

195 at 40. As such, Mr. Pole contends that without any specific 

testimony from Mr. Acree on the issue, Mr. Acree’s inaction in 
73 

regard to impeaching Ms. Cahill is not entitled to deference as 

a “strategic” choice. Id. 

Based on the evidentiary hearing transcript, the Court 

agrees with Mr. Pole that there is not sufficient evidence in 

the record to determine that Mr. Acree’s failure to impeach Ms. 

Cahill was a strategic decision. Mr. Acree only testified about 

his general “strategy for impeaching witnesses,” which is to 

impeach when “in the end it’s helpful,” as opposed to when it 

“might do more harm than good” or “might highlight a bad fact.” 

See Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 62:12-64:4. 

However, even assuming, as Mr. Pole contends, that Mr. Acree was 

deficient for failing to investigate and prepare for impeaching 

Ms. Cahill, see Def.’s Objs., ECF No. 195 at 40-41; for the 

below reasons, the Court agrees with Magistrate Judge Faruqui’s 

conclusion that “there was no prejudice to Mr. Pole” in this 

regard, R. & R., ECF No. 193 at 18. 

The Federal Rules of Evidence provide procedures governing 

how to attack the credibility of witnesses, including by using a 

witness’s prior inconsistent statements. See Fed. R. Evid. 607, 

613; United States v. Stock, 948 F.2d 1299, 1301 (D.C. Cir. 

1991) (“One may impeach a witness by asking him about prior 

inconsistent statements.”). “It is the well settled rule in this 

circuit that a prior inconsistent statement used to impeach a 

witness is admissible solely to affect credibility of the 
74 

witness and is not to be considered as support for the truth of 

its contents.” United States v. Gilliam, 484 F.2d 1093, 1096 

(D.C. Cir. 1973); see also United States v. Wright, 489 F.2d 

1181, 1187 (D.C. Cir. 1973) (“[P]rior inconsistent statements 

are admissible only for impeachment purposes, not as substantive 

evidence to prove the truth of the matter asserted, and the jury 

should be instructed to this effect.”). “Prior statements that 

omit details covered at trial are inconsistent if it would have 

been ‘natural’ for the witness to include them in the earlier 

statement.” Stock, 948 F.2d at 1301. 

Here, the Court concludes that Ms. Cahill’s testimony is 

not sufficiently inconsistent with the prior statement she 

allegedly made in a phone conversation with Mr. Mogilnicki, such 

that had Mr. Acree attempted impeachment, it would have been 

unsuccessful. Ms. Cahill testified that she told Mr. Pole to 

spend down the budget but not on his own and without checking 

with her first. See Trial Tr. (Jan. 21, 2011), ECF No. 84 at 

47:16-21. According to Mr. Mogilnicki in his statement to the 

FBI, Ms. Cahill told him that she told Mr. Pole “to zero out the 

budget” but that she did not “approve[] any of [Mr.] Pole’s 

extra bonuses.” Ex. 5 to Def.’s Mot., ECF No. 139-5 at 10. Not 

only does this statement by Ms. Cahill in the FBI’s report 

qualify as “triple hearsay,” see Gov’t’s Opp’n, ECF No. 142 at 

21; but also, it does not differ substantially from her 
75 

testimony during trial, as Ms. Cahill indicated in both 

instances that she instructed Mr. Pole to spend down the budget 

but not without approval. Thus, the Court does not conclude that 

there was an “unnatural” or crucial omission or contradictory 

detail in Ms. Cahill’s statements on the stand that might lead a 

reasonable jury to conclude that her prior statement referenced 

in the FBI report was inconsistent with her trial testimony, and 

that she was therefore a less credible witness. See Stock, 948 

F.2d at 1301. As such, there was no value in impeaching Ms. 

Cahill in this way, nor could it have established the truth of 

Mr. Pole’s contention that Ms. Cahill in fact instructed him to 

spend the budget down to zero. See Wright, 489 F.2d at 1187. Mr. 

Pole is therefore incorrect that impeaching Ms. Cahill’s 

testimony would have substantively “corroborated Mr. Pole’s 

testimony that he understood it was his responsibility to spend 

down the budget and that he did not need [Ms. Cahill’s] 

permission to award bonuses as part of doing so.” Def.’s Objs., 

ECF No. 195 at 41. 

Based on this analysis, and Mr. Mogilnicki’s and Ms. 

Petroshius’ consistent testimony to that of Ms. Cahill that Mr. 

Pole was not authorized to issue bonuses “on his own” without 

their approval, see, e.g., Trial Tr. (Jan. 19, 2011), ECF No. 82 

at 8:3-8, 30:19-20; Trial Tr. (Jan. 24, 2011), ECF No. 85 at 

4:21-5:7, 40:3-25, 93:12-17; the Court concludes that there is 
76 

no reasonable probability that the jury would have reached a 

different result had Mr. Acree impeached Ms. Cahill’s testimony 

with her alleged statements referenced in the FBI report.9

b. Failure to Impeach Danica Petroshius’ 

Testimony 

Mr. Pole next objects to the R. & R.’s conclusions that Mr. 

Acree was not ineffective for failing to impeach Ms. Petroshius, 

another former chief of staff, by: (1) calling Ms. Kruse “to 

impeach Ms. Petroshius’ testimony that Mr. Pole needed her 

approval to issue bonuses; and (2) using a memorandum Mr. Pole 

sent to [Ms. Petroshius] informing her that the projected 

surplus was over $200,000 and that there would be money left 

over[.]” Def.’s Objs., ECF No. 195 at 41. The substance of Mr. 

Pole’s objections to these conclusions raises proper, specific 

arguments against the R. & R.’s findings, so the Court reviews 

each of these two arguments de novo. See LCvR 72.3(b). 

9 In his motion for a new trial, Mr. Pole raises two ineffective 

assistance of counsel claims regarding Ms. Cahill—that Mr. Acree 

should have: (1) called her as a defense witness; and (2) 

impeached her testimony while she was on the stand as a witness 

for the government. See Def.’s Mot., ECF No. 139 at 22-23. Mr. 

Pole does not challenge Magistrate Judge Faruqui’s conclusion 

that it was “sound trial strategy” to not call Ms. Cahill as a 

defense witness, so the Court ADOPTS that portion of the R. & R. 

See ECF No. 193 at 19. 
77 

i. Failure to Call Kathleen Kruse to 

Impeach Danica Petroshius 

Mr. Pole argues in his motion for a new trial that Mr. 

Acree should have called Ms. Kruse as an impeachment witness “to 

demonstrate that she informed [Ms.] Petroshius [that] she had 

received a bonus of either $15,000 or $17,800, as indicated by a 

memorandum of her FBI interview the government produced in 

discovery.” Def.’s Mot., ECF No. 139 at 23 (citing Ex. 7 to 

Def.’s Mot., ECF No. 139-7 at 2-3). He contends that Ms. Kruse’s 

testimony would have impeached Ms. Petroshius “on the critical 

issue of whether she knew of high year-end bonuses.” Id. at 23-

24. Although the D.C. Circuit concluded, in remanding this 

“colorable” ineffectiveness claim, that “had [Mr.] Pole’s 

counsel successfully impeached . . . [Ms.] Petroshius, [Mr.] 

Pole might have undermined [her] testimony that he needed [Ms. 

Petroshius’] approval before making salary adjustments[,]” Pole, 

741 F.3d at 127; Magistrate Judge Faruqui rejected this claim 

because he concluded that impeachment was “immaterial” in this 

situation, and that Mr. Acree’s “decision not to impeach” Ms. 

Kruse was a “strategic choice . . . entitled to substantial 

deference[,]” R. & R., ECF No. 193 at 20 (citation and internal 

quotation marks omitted). For the reasons explained below, the 

Court agrees with the former but not the latter R. & R. 
78 

conclusions, even though it ultimately agrees with Magistrate 

Judge Faruqui that this ineffectiveness claim must fail. 

At trial, Ms. Petroshius testified that all bonuses needed 

to be approved by the proper “chain-of-command,” and that Mr. 

Pole could not issue bonuses, including exit bonuses, “without 

getting the approval of the chief of staff.” Trial Tr. (Jan. 24, 

2011), ECF No. 85 at 98:6-17. During her testimony, Ms. 

Petroshius was asked about a particular employee of Senator 

Kennedy’s office, Ms. Kruse, and she described how Ms. Kruse’s 

salary had been historically low despite her long tenure, value, 

and seniority at the office, and how she worked with Ms. Kruse 

to increase her salary over a period of years to get it “more in 

line with [that of] other senior staff.” See id. at 32:24-33:15, 

128:2-8. Although Ms. Petroshius was never asked whether she 

knew if Ms. Kruse had received a “high year-end bonus[],” Def.’s 

Mot., ECF No. 139 at 23-24; Mr. Pole argues that a memorandum 

from the FBI’s interview with Ms. Kruse could have impeached Ms. 

Petroshius’ testimony, as it states that Ms. Kruse “remembered 

having one conversation with Danica Petroshius . . . about a big 

bonus and a raise” that she received in 2003, see Ex. 7 to 

Def.’s Mot., ECF No. 139-7 at 3. 

The Court rejects Mr. Pole’s argument, as it does not find 

any inconsistent statements between Ms. Petroshius’ testimony 

and what Ms. Kruse told the FBI regarding her conversation with 
79 

Ms. Petroshius. First, contrary to Mr. Pole’s claims, the FBI 

memorandum does not make it “clear that the bonuses the FBI was 

asking” Ms. Kruse about were ones allocated and approved by Mr. 

Pole, Def.’s Objs., ECF No. 192 at 42-43; as the cited portion 

of the report only indicates that Ms. Kruse and Ms. Petroshius 

discussed “a big bonus and a raise[,]” Ex. 7 to Def.’s Mot., ECF 

No. 139-7 at 3. This aligns with Ms. Petroshius’ testimony that 

she “sat down with [Ms. Kruse] and worked out” a way for her to 

receive “significant [salary] increases to get her more in line 

with other senior staff.” Trial Tr. (Jan. 24, 2011), ECF No. 85 

at 33:12-15. Thus, because Ms. Petroshius never testified that 

she did not approve bonuses or salary increases for Ms. Kruse 

“over a period of years,” id. at 33:14; the extrinsic evidence 

cannot undermine any testimony from Ms. Petroshius “that she did 

not know about bonuses being awarded” from Mr. Pole “that she 

had not approved[,]” Def.’s Objs., ECF No. 192 at 42 n.8. 

Moreover, “Ms. Petroshius never denied being told about Ms. 

Kruse’s bonus[.]” ECF No. 193 at 20. In fact, she was never 

asked to testify about her knowledge of any specific year-end 

bonuses that Ms. Kruse may have been awarded. Therefore, her 

testimony does not contradict any proffered testimony from Ms. 

Kruse regarding the FBI’s report; rather, the report bolsters 

Ms. Petroshius’ testimony, as it indicates that Mr. Pole told 

Ms. Kruse “that he would ask the Chief of Staff for a raise for 
80

[Ms.] Kruse.” Ex. 7 to Def.’s Mot., ECF No. 139-7 at 3. Overall, 

it would not have been feasible for Mr. Acree to use Ms. Kruse

to rebut or impeach Ms. Petroshius’ testimony regarding: (1) 

“whether she knew of high year-end bonuses[,]” Def.’s Mot., ECF 

No. 139 at 23-24; and (2) “that Mr. Pole needed her approval to 

issue bonuses[,]” Def.’s Objs., ECF No. 195 at 41.

Nor would Ms. Kruse’s potential testimony have served any 

other purpose since it could only be used to impeach Ms. 

Petroshius and could not be “treated as having any potential 

substantive or independent testimonial value.” United States v. 

Livingston, 661 F.2d 239, 243 (D.C. Cir. 1981). Instead, the 

Court views Ms. Kruse’s testimony as irrelevant because it does 

not speak to the central issue at trial—whether Mr. Pole 

reasonably believed he had authority to award bonuses without 

approval from a higher authority—particularly when none of the 

charges against Mr. Pole stemmed from any bonus Ms. Kruse may 

have received. See United States v. Marshall, 935 F.2d 1298, 

1300 (D.C. Cir. 1991) (requiring impeachment evidence to bear on 

“a material disputed issue at trial” and be “inconsistent” with

the relevant testimony); Gov’t’s Opp’n, ECF No. 142 at 23.

Accordingly, the Court concludes that Mr. Acree’s 

performance was not deficient, nor was Mr. Pole prejudiced in 

Mr. Acree’s failure to call Ms. Kruse to impeach Ms. Petroshius’ 

testimony. In reaching this conclusion, however, the Court 
81 

rejects the R. & R.’s conclusion that Mr. Acree’s “decision not 

to impeach” Ms. Petroshius was “strategic,” see R. & R., ECF No. 

193 at 20; as there is no record evidence that Mr. Acree 

specifically considered impeaching Ms. Petroshius with Ms. 

Kruse’s testimony related to the FBI’s memorandum. Nonetheless, 

for the reasons stated above, Mr. Pole’s ineffective assistance 

of counsel claim centering on Ms. Kruse must fail because there 

is no reasonable probability that using her as an impeachment 

witness would have changed the outcome of his trial.10 

ii. Failure to Impeach Danica 

Petroshius with a Budget 

Memorandum 

Mr. Pole next argues in his motion for a new trial that Mr. 

Acree should have impeached Ms. Petroshius by questioning her 

about an undated budget memorandum that she received from Mr. 

Pole advising her that the office’s projected surplus was over 

$200,000, with “money left over” after “giv[ing] out as much of 

10 Mr. Pole repeatedly cites Smith v. Wainwright, 799 F.2d 1442, 

1444 (11th Cir. 1986) for the contention that “failure to 

impeach key government witness[es] with prior inconsistent 

statement[s] [is] prejudicial error.” See Def.’s Objs., ECF No. 

195 at 40-43. However, the Court concludes that Smith is 

inapposite here because: (1) Mr. Pole did not similarly identify 

inconsistencies between earlier statements allegedly made by Ms. 

Cahill or Ms. Petroshius and their testimony at trial; and (2) 

unlike here, in Smith, “the only way for the defendant to 

prevail would have been successfully to impeach” the witness, as 

his conviction “rested upon” the witness’s testimony, so the 

fact that prior inconsistent statements were not disclosed to 

the jury was prejudicial error. 799 F.2d at 1444. 
82

[the office’s] surplus as bonuses as possible.” Def.’s Mot., ECF 

No. 139 at 24; Ex. 8 to Def.’s Mot., ECF No. 139-8 at 2-3. He 

further informed Ms. Petroshius in the memorandum that “[i]t 

would be ideal to decide on dollar amounts and who will be 

getting bonuses no later than mid-month[,]” which would 

“maximize [his] ability to spend down the money efficiently.” 

Ex. 8 to Def.’s Mot., ECF No. 139-8 at 2. Mr. Pole contends that 

had Mr. Acree sought to impeach Ms. Petroshius’ testimony with 

this extrinsic evidence, “it would have supported [Mr.] Pole’s 

defense that he did not conceal spend-down bonuses from the 

Chiefs of Staff[.]” Def.’s Mot., ECF No. 139 at 24; Def.’s 

Objs., ECF No. 195 at 43. Because the Court has reviewed de novo 

Mr. Pole’s similar objection regarding Mr. Acree’s failure to 

use and introduce into evidence unredacted budget memoranda, it 

does the same de novo review here.

As with the unredacted budget memoranda, the Court notes 

that the central issue at trial was not whether Mr. Pole kept 

the chiefs of staff informed about budget surpluses and spenddown bonuses, but rather whether he reasonably believed he could 

spend down the budget by awarding such bonuses without theirs or 

the Senator’s approval. See Pole, 741 F.3d at 127. The Court 

agrees with Magistrate Judge Faruqui’s finding that this budget 

memorandum does “not show that Mr. Pole was authorized to spend 

down the budget without [Ms. Petroshius’] approval.” R. & R., 
83 

ECF No. 193 at 22; see also Gov’t’s Opp’n, ECF No. 142 at 24 

(arguing that this memorandum “contains no evidence that [Mr.] 

Pole informed [Ms.] Petroshius about spend-down bonuses he 

issued without her approval”). To the contrary, the memorandum 

supports the government’s position that Mr. Pole lacked 

authority to issue bonuses on his own and that he knew so. For 

example, Mr. Pole appears to be asking for Ms. Petroshius’ 

approval in “decid[ing] on dollar amounts and who will be 

getting bonuses” from the budget surplus by “no later than midmonth.” Ex. 8 to Def.’s Mot., ECF No. 139-8 at 2. As the 

government notes, and the Court agrees, Mr. Pole uses language 

throughout the memorandum seemingly acknowledging “that he 

cannot single-handedly make decisions about bonuses[,]” Gov’t’s 

Opp’n, ECF No. 142 at 24 (emphasis in original); such as Mr. 

Pole “recommend[ing]” that Ms. Petroshius look at historical 

bonus patterns in discerning present bonus numbers, asking her 

to make “a decision on bonuses by July 15th,” requesting that he 

and Ms. Petroshius “discuss ways that we may spend down any 

additional surplus,” and advising her to “be aware” of certain 

concerns “if [she was] planning a larger bonus” for certain 

employees, Ex. 8 to Def.’s Mot., ECF No. 139-8 at 2-3. 

Given the damaging effects this document could have had on 

Mr. Pole’s good faith defense, the Court concludes that Mr. 

Acree’s failure to question Ms. Petroshius about this memorandum 
84 

as a means of impeachment was not deficient performance, nor 

prejudicial to the outcome of the jury’s verdict in Mr. Pole’s 

trial. Instead, the information contained in the memorandum 

supports viewing Mr. Acree’s decisions to generally deemphasize 

the documents in Mr. Pole’s case as “strategic” and as a means 

of “sound trial strategy.” Hearing Tr. (Apr. 7, 2022), ECF No. 

188 at 70:7-22; Strickland, 466 U.S. at 689. 

c. Failure to Call James McCarthy as a Witness 

Finally, Mr. Pole argues in his motion for a new trial that 

Mr. Acree should have called Mr. McCarthy, a former co-worker of 

Mr. Pole, to testify as a witness since he previously told the 

FBI in an interview that he received an $11,000 bonus in 2006 

that was processed by Mr. Pole even though Mr. McCarthy “was not 

close with [Mr.] Pole and did not consider [Mr.] Pole a friend.” 

Def.’s Mot., ECF No. 139 at 23; see Ex. 6 to Def.’s Mot., ECF 

No. 139-6 at 2-3 (explaining to the FBI that Mr. McCarthy “would 

have been surprised if [Mr.] Mogilnicki didn’t approve [Mr.] 

McCarthy’s 2006 bonus because [Mr.] Pole would have been the 

last person to do [Mr.] McCarthy a favor”). Mr. Pole contends 

that Mr. McCarthy would have testified to this effect, which he 

argues would have undermined the government’s arguments that Mr. 

Pole acted in bad faith by only awarding bonuses to himself and 

his close friends at the office. Def.’s Mot., ECF No. 139 at 23. 
85 

The Court reviews Mr. Pole’s objection to the R. & R.’s 

conclusion that Mr. Acree was not ineffective for not calling 

Mr. McCarthy as a witness for clear error because Mr. Pole only 

reiterates his original arguments that Magistrate Judge Faruqui 

considered and rejected. Houlahan, 979 F. Supp. 2d at 88; 

compare Def.’s Mot., ECF No. 139 at 23 (arguing that Mr. 

McCarthy’s “testimony would have severely undermined a central 

tenet of the government’s case, i.e., that [Mr.] Pole only 

awarded bonuses to his friends at the office”), with Def.’s 

Objs., ECF No. 195 at 44-45 (calling Mr. McCarthy’s testimony 

“crucial evidence” for negating “the government’s very theory of 

this case that [Mr.] Pole allocated bonuses to himself and his 

friends only” and arguing that “given the centrality of this 

theory to the government’s case[,] . . . failure to call [Mr.] 

McCarthy was ineffective assistance”). 

The Court’s review of the R. & R. indicates that it 

mischaracterizes Mr. Acree’s testimony from the evidentiary 

hearing. The R. & R. states that “Mr. Acree concluded that 

whether Mr. Pole only awarded bonuses to his friends did not 

affect the legality of the bonus.” ECF No. 193 at 17 (citing 

Hearing Tr. (Apr. 7, 2022), ECF No. 188 at 71-72). However, the 

cited portion of the evidentiary hearing does not match this 

statement, and the transcript indicates that Mr. Acree was never 

specifically asked whether he considered calling Mr. McCarthy as 
86

a witness. Instead, when asked about his “strategy with respect 

to which witnesses to call to testify,” Mr. Acree responded that 

he “take[s] into account the totality of the testimony, not just 

the part that [he] want[s] to get out” and that he tries to be 

“protective” in anticipating any harmful testimony that might be 

elicited on cross-examination. Hearing Tr. (Apr. 7, 2022), ECF 

No. 188 at 71:2-16, 72:14-19. Based on that strategy and his 

“best judgment,” Mr. Acree testified that “it didn’t come to 

mind for [him] that there [were any] witness[es] beyond the ones 

that [he] called that [he] felt comfortable in putting on the 

stand.” Id. at 71:12-22. This reflective statement presumably 

extends to Mr. McCarthy, thereby negating Mr. Pole’s argument 

that Mr. Acree failed to consider calling Mr. McCarthy. See

Def.’s Objs., ECF No. 195 at 43-45. 

Therefore, despite the R. & R.’s mischaracterization of Mr. 

Acree’s testimony, the Court agrees with Magistrate Judge 

Faruqui that Mr. Acree’s testimony supports concluding that he 

made “‘strategic decision[s]’” regarding which witnesses to 

call, decisions which are to be afforded “‘great deference’” by 

the Court. R. & R., ECF No. 193 at 16-17 (quoting United States 

v. Campbell, No. 92-cr-0213, 2004 WL 5332322, at *14 (D.D.C. 

Sept. 1, 2004) (citing United States v. Kozinski, 16 F.3d 795, 

813 (7th Cir. 1993)), aff’d in part, dismissed in part, 463 F.3d 

1 (D.C. Cir. 2006)). And, even if Mr. Acree wholly failed to 
87 

investigate Mr. McCarthy as a potential witness, see Campbell, 

2004 WL 5332322, at *14 (“Failure to interview potential 

witnesses in the entirety is not a strategy decision . . . and . 

. . may give rise to a claim for ineffective assistance.”); Mr. 

Pole cannot show that having Mr. McCarthy testify would have 

produced a different trial result. As the government notes, Mr. 

McCarthy could not testify to Mr. Pole’s view of their 

relationship, Mr. Pole’s beliefs regarding his authority to 

award bonuses, or even if his bonus was awarded without Mr. 

Mogilnicki’s authorization. See Gov’t’s Opp’n, ECF No. 142 at 

22. To the contrary, Mr. McCarthy’s statement to the FBI 

demonstrates his belief that Mr. Mogilnicki was aware of and 

approved the bonus he received. See Ex. 6 to Def.’s Mot., ECF 

No. 139-6 at 2-3 (telling the FBI that Mr. McCarthy remembered 

thanking Mr. Mogilnicki for his 2006 bonus and that he “would 

have been surprised” if Mr. Mogilnicki did not approve his 

bonus). Thus, it appears likely that Mr. McCarthy’s potential 

testimony would have indicated that his bonus was not an 

unauthorized action by Mr. Pole, and therefore, it would not 

have been relevant to whether Mr. Pole reasonably believed he 

had authority to issue himself and others (friends or not) 

unapproved bonuses. Accordingly, without any finding of 

prejudice, the Court denies this ineffectiveness assistance of 

counsel claim. 
88 

Accordingly, because none of the individually alleged 

actions, or inactions, by Mr. Acree constitute deficient errors 

that prejudiced the outcome of Mr. Pole’s trial, the Court 

rejects Mr. Pole’s argument that Magistrate Judge Faruqui 

“failed to consider cumulative error.” See Def.’s Objs., ECF No. 

195 at 38-39; Def.’s Mot., ECF No. 139 at 24-25.11

B. Magistrate Judge Faruqui Did Not Err in His Conclusion 

That the Court’s Original Restitution Order Can Be 

Confirmed 

Mr. Pole’s final objection is to the R. & R.’s conclusion 

that the Court’s original $75,042.37 restitution order can be 

confirmed. Compare R. & R., ECF No. 193 at 24-26, with Def.’s 

Objs., ECF No. 195 at 45-46. Because Mr. Pole objects to 

Magistrate Judge Faruqui’s determination that caselaw from this 

circuit related to the calculation of restitution amounts, 

specifically the D.C. Circuit’s decision in United States v. 

11 Mr. Pole argues that the totality of Mr. Acree’s errors caused 

him “Strickland prejudice,” especially given “the closeness of 

this case,” which he alleges is exemplified by two notes from 

the jury during deliberations indicating that they were having 

“difficulty reaching unanimity on all counts.” See Def.’s Mot., 

ECF No. 139 at 24; Def.’s Objs., ECF No. 195 at 14, 32. The 

Court rejects Mr. Pole’s argument, as it does not view the 

jury’s notes as evidence that “there is a reasonable likelihood 

that [any] additional evidence counsel should have introduced 

would have led the jury to” rule in his favor. Def.’s Mot., ECF 

No. 139 at 24; cf. Gov’t’s Opp’n, ECF No. 142 at 25-26 (“The 

evidence against [Mr.] Pole . . . was so overwhelming that even 

if [Mr. Acree] had done everything [Mr.] Pole contends he should 

have done, it would not have made a difference in the 

outcome.”); Govt’s Resp., ECF No. 196 at 5. 
89

Udo, 795 F.3d 24 (D.C. Cir. 2015), is non-dispositive in the 

instant case, the Court reviews this objection de novo.

Following sentencing, the Court ordered Mr. Pole to pay the 

government $75,042.37 in restitution—Mr. Pole’s “total gains 

from all unauthorized bonuses he awarded himself,” $77,608.86,

“minus the small amount [Mr.] Mogilnicki managed to recover[,]”

$2,566.49. Pole, 741 F.3d at 124, 127; see J., ECF No. 102 at 5. 

The total amount covered eight unapproved bonuses that Mr. Pole 

issued to himself every year from 2003 to 2007 until he departed 

Senator Kennedy’s office: $10,720.65 (2003 year-end); $3,000.00 

(2003 holiday); $21,253.10 (2004 year-end); $9,007.37 (2004 

holiday); $11,678.95 (2005 year-end); $11,526.48 (2005 holiday); 

$8,026.48 (2006 year-end); and $2,395.83 (2006 holiday). R. & 

R., ECF No. 193 at 25; Gov’t’s Opp’n, ECF No. 142 at 29 n.17.

Mr. Pole awarded himself all of these bonuses over this period 

of three and a half years in the same manner—by issuing PAAs to 

the Senate Disbursing Office to temporarily increase his salary 

“by more or for longer than authorized by the Chiefs of Staff.” 

Gov’t’s Opp’n, ECF No. 142 at 30 (citing Gov’t’s Trial Exs. 11, 

32, 39, 51, 53A-53L); R. & R., ECF No. 193 at 24 (citing Gov’t’s

Trial Exs. 53A-53N, 69).

On appeal, Mr. Pole disputed the correct restitution 

amount. He argued, as he does now, that he should only be 

required to pay back $11,233.24, “the total gains from five 
90

unauthorized bonuses underlying the counts of conviction minus 

what [Mr.] Mogilnicki recovered.” Pole, 741 F.3d at 127; Def.’s 

Mot., ECF No. 139 at 26 n.7 (arguing that this is “the full 

amount authorized by the Jury’s verdicts”). This argument stems 

from the fact that although Mr. Pole’s indictment “alleged a 

scheme to defraud dating from July 2003, the five-year statute 

of limitations prevented the government from charging fraud for 

wire transfers occurring prior to December 15, 2004.” Pole, 741 

F.3d at 124. As a result, on appeal, the parties primarily 

debated, “whether, under the Mandatory Victim Restitution Act

[(“MVRA”)], 18 U.S.C. § 3663A, courts can order restitution for 

all losses resulting from a scheme to defraud, where as here, 

some of those losses occurred outside the statute of 

limitations.” Id. at 127. However, the D.C. Circuit did not 

reach this question because it concluded that the restitution 

order was not supported by record evidence indicating that 

either the jury or this Court had made factual findings to 

support “a scheme to defraud extending to conduct outside the 

statute of limitations[.]” See id. at 127-28. Accordingly, the 

D.C. Circuit remanded the restitution order so the Court could 

make “factual findings regarding the duration of [Mr. Pole’s] 

scheme” to defraud the government that could support the 

restitution order. See id. at 128-29.
91

Magistrate Judge Faruqui did just that on remand, stating 

that a court ordering restitution must “articulate a factual 

basis for its restitution amount by pointing to evidence in the 

record.” R. & R., ECF No. 193 at 24 (citation omitted); see also 

Pole, 741 F.3d at 129 (requiring restitution orders to “rest[] 

on adequate findings” or “an adequate factual basis”). He cites

various government trial exhibits supporting the veracity of the 

amounts of the eight unapproved bonuses that Mr. Pole awarded to 

himself between 2003 and 2007, totaling over $77,000. See R. & 

R., ECF No. 193 at 24-25 (citing Gov’t’s Trial Exs. 53A-53N, the 

PAA forms Mr. Pole submitted between 2003 and 2007 detailing his 

salary increases; Gov’t’s Trial Ex. 69, the government’s summary 

chart of Mr. Pole’s unauthorized bonuses between those years).

Following a comparison of this record evidence, including 

testimony from the chiefs of staff that they did not approve 

these bonuses, to Mr. Pole’s indictment, see id. at 26 (citing 

Indictment, ECF No. 1 at 2-10 ¶¶ 9-23); Magistrate Judge Faruqui 

concluded that the eight improper bonuses were all “part of the 

[same] scheme to defraud . . . for which Mr. Pole was charged

and convicted” and could “form[] the basis for the restitution 

order.” See id. at 24-26 (concluding that the $75,042.37 total 

amount “was attributable to the same underlying [unauthorized

bonus] scheme, and the [five] counts of wire fraud on which [Mr. 

Pole] was convicted” (citation and internal quotation marks 
92

omitted)). Mr. Pole does not object to Magistrate Judge 

Faruqui’s factual findings and instead argues that the R. & R.’s 

application of the law based on the MVRA to the facts is 

incorrect. See Def.’s Objs., ECF No. 195 at 45-46. Accordingly, 

the Court adopts the R. & R.’s factual findings regarding the 

duration of Mr. Pole’s scheme and proceeds to analyze whether it 

also correctly concludes that convictions for “scheme-based 

offense[s],” like wire fraud, enable an award of restitution for 

all losses resulting from that scheme, “regardless of whether 

the defendant is convicted for each criminal act within the 

scheme[.]” R. & R., ECF No. 193 at 25-26 (citation and internal 

quotation marks omitted). 

Mr. Pole argues that restitution must be limited to the 

offenses on which he was convicted—the specific wires charged in 

Counts One through Five—based on: (1) the MVRA, and (2) the D.C. 

Circuit’s decision in Udo. Id. at 25. For the reasons discussed 

below, the Court disagrees with both arguments.

1. Where a Defendant Is Convicted of a Crime of 

Which a Scheme to Defraud Is an Element, the 

MVRA Requires Restitution in the Amount of Total 

Losses Incurred in the Course of the Scheme, 

Including Those That Occurred Outside the 

Statute of Limitations

The MVRA states that a district court “shall order, in 

addition to, . . . any other penalty authorized by law, that the 

defendant make restitution to the victim of the offense.” 18 
93

U.S.C. § 3663A(a)(1). In Hughey v. United States, 495 U.S. 411, 

110 S. Ct. 1979, 109 L. Ed. 2d 408 (1990), “the Supreme Court 

held that where a defendant pleads guilty to a single count, 

restitution under the Victims and Witness Protection Act 

[(“VWPA”)] is limited to damage caused by that single count[,]” 

United States v. Emor, 850 F. Supp. 2d 176, 202 (D.D.C. 2012) 

(citing Hughey, 495 U.S. at 420); i.e., “the loss caused by the 

specific offense that is the basis of the offense of 

conviction[,]” United States v. Pepper, 51 F.3d 469, 473 (5th 

Cir. 1995) (citing Hughey, 495 U.S. at 413). However, Congress 

subsequently amended the VWPA and included identical changes 

when it later enacted the MVRA, see Emor, 850 F. Supp. 2d at 

202; such that today, “[f]or ‘an offense that involves as an 

element a scheme, conspiracy, or pattern of criminal activity,’ 

the MVRA defines a victim entitled to restitution as ‘any person 

directly harmed by the defendant’s criminal conduct in the 

course of the scheme, conspiracy, or pattern[,]’” United States 

v. Parnell, 959 F.3d 537, 539-40 (2d Cir. 2020) (quoting 18 

U.S.C. § 3663A(a)(2)). “Wire fraud is such an offense, requiring 

a ‘scheme or artifice to defraud’ as an element of the crime.”

Id. at 540 (quoting 18 U.S.C. § 1343); see also Pepper, 51 F.3d 

at 473 (explaining that “a fraudulent scheme is an element” of 

the offense of wire fraud). Ultimately, the MVRA requires that 

courts order restitution “to each victim in the full amount of 
94

each victim’s losses,” 18 U.S.C. § 3664(f)(1)(A); which raises 

the question of whether that includes “all losses resulting from 

a scheme to defraud, where . . . some of those losses occurred 

outside the statute of limitations[,]” Pole, 741 F.3d at 127. 

Several courts of appeal to consider the issue have 

concluded that “restitution under the MVRA encompasses losses 

arising from criminal conduct in the course of a scheme, 

including acts outside the statute-of-limitations period, as 

long as those losses are attributable to the same underlying 

scheme, and as long as some part of that scheme for which the 

defendant was convicted occurred within the statute of 

limitations.” Parnell, 959 F.3d at 540; see also United States 

v. Ellis, 938 F.3d 757, 763-65 (6th Cir. 2019) (concluding that 

the MVRA requires restitution “for all losses attributable to 

[the defendant]’s scheme to defraud,” which in a wire fraud 

case, includes conduct that was part of the scheme beyond the 

five-year statute of limitations); United States v. AniezeSmith, 923 F.3d 565, 573 (9th Cir. 2019), cert. denied sub nom., 

Garba v. United States, 140 S. Ct. 613, 205 L. Ed. 2d 403 (2019) 

(reading the MVRA to conclude that “Congress intended the 

district court to compensate victims of scheme-based crimes for 

all losses incurred throughout the entire scheme,” which 

includes “restitution for acts outside the reach of the 

indictment”); United States v. Dickerson, 370 F.3d 1330, 1342 
95

(11th Cir. 2004), cert. denied, 543 U.S. 937, 125 S. Ct. 343, 

160 L. Ed. 2d 244 (2004) (“[W]here a defendant is convicted of a 

crime of which a scheme is an element, the district court must, 

under 18 U.S.C. § 3663A, order the defendant to pay restitution 

to all victims for the losses they suffered from the defendant’s 

conduct in the course of the scheme, even where such losses were 

caused by conduct outside of the statute of limitations.”);

United States v. Williams, 356 F. App’x 167, 170 (10th Cir. 

2009) (same).12 Thus, in these circuits, federal courts may order 

restitution encompassing losses from an entire scheme to defraud 

so long as the victims’ losses are a direct result of the 

defendant’s criminal conduct or are “closely related to the 

scheme, rather than tangentially linked.” Dickerson, 370 F.3d at 

1342-43 (citation and internal quotation marks omitted); see

also Emor, 850 F. Supp. 2d at 202-03 (citations omitted).

In line with this caselaw, the Court concludes that 

“although the statute of limitations may prevent the government 

from charging [Mr. Pole] for acts that occurred outside the 

12 The government also cites several cases in which courts of 

appeal have upheld restitution orders encompassing total losses 

from multi-year schemes to defraud that fell partly outside of 

the statute of limitations. See Gov’t’s Opp’n, ECF No. 142 at 

27-28. The R. & R. incorporates many of these cases in support 

of its conclusion that the MVRA requires restitution for the 

eight improper bonuses that “were all part of the same scheme 

for which Mr. Pole was charged and convicted.” See R. & R., ECF 

No. 193 at 25-26.
96

statute of limitations, it poses no bar to imposing restitution 

under the MVRA for damages occurring from [his] full scheme.” 

Anieze-Smith, 923 F.3d at 573. The Court therefore concludes 

that $75,042.37 is the proper amount of restitution to be paid 

by Mr. Pole, who was found guilty of five counts of wire fraud, 

which includes as an element “a scheme . . . to defraud.” 18 

U.S.C. § 1343. As demonstrated by the above factual findings, 

the unapproved bonuses that fell outside of the five-year 

statute of limitations were directly related to the fraudulent 

transfers for which Mr. Pole was charged and convicted, as they 

were accomplished in the same manner. $75,042.37 is therefore 

“all attributable to the same underlying scheme” that Mr. Pole 

conducted from 2003 to 2007 while working in Senator Kennedy’s 

office and represents “the total amount of losses suffered by 

the government over the course of” Mr. Pole’s fraudulent 

unapproved bonuses scheme. Parnell, 959 F.3d at 540-41.

2. The D.C. Circuit’s Decision in United States v. 

Udo Does Not Bar Restitution in the Full Amount 

of Mr. Pole’s Entire Underlying Scheme to 

Defraud the U.S. Senate

Lastly, Mr. Pole argues that the above analysis is 

incorrect because he contends the D.C. Circuit’s decision in 

United States v. Udo, 795 F.3d 24 (D.C. Cir. 2015) makes “clear” 

that “‘uncharged relevant conduct’ . . . may not be a basis for 

restitution.” Def.’s Objs., ECF No. 195 at 45 (citing Udo, 795 
97 

F.3d at 33-34). Magistrate Judge Faruqui rejected this argument 

and concluded that “Udo is factually distinct” because it 

involves “a standalone offense”—preparing false tax returns—

rather than “a scheme-based offense” such as wire fraud, for 

which Mr. Pole was convicted. R. & R., ECF No. 193 at 25. The 

Court agrees with this conclusion. Mr. Udo was indicted and 

convicted of “twenty-five counts of violating [Internal Revenue 

Code] § 7206(2), which makes it a felony to ‘[w]illfully’ help a 

taxpayer file a materially false tax return.” Udo, 795 F.3d at 

27-28. Although the D.C. Circuit concluded that he could not be 

ordered to pay restitution for “uncharged relevant conduct,” 

i.e., “the losses generated from more than a dozen other returns 

that [Mr.] Udo was not convicted of helping prepare[,]” id. at 

34; this is not analogous to Mr. Pole’s case, as Internal 

Revenue Code § 7206(2) does not include as an element a scheme 

to defraud like wire fraud does in 18 U.S.C. § 1343. Thus, in 

Udo, the D.C. Circuit never had an occasion to distinguish 

between what Magistrate Judge Faruqui called “a standalone 

offense” and “a scheme-based offense” like wire fraud involving 

criminal conduct both within and outside of the relevant statute 

of limitations. Accordingly, the Court concludes that Mr. Pole’s 

reliance on Udo is misplaced, and that the amount of restitution 

that Mr. Pole owes to the government, now supported by factual 
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findings from the record, is $75,042.37, the total harm caused 

by his fraudulent scheme.

V. Conclusion

For the foregoing reasons, the Court ADOPTS IN PART

Magistrate Judge Faruqui’s R. & R., see ECF No. 193; and DENIES

Mr. Pole’s Motion for a New Trial, see ECF No. 139. An 

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED. 

Signed: Emmet G. Sullivan

United States District Judge

February 23, 2024