United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1696

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Gary Lefkowitz, *

*

Petitioner - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

United States of America, *

*

Respondent - Appellee. *

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Submitted: March 10, 2006

Filed: May 3, 2006 

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Before LOKEN, Chief Judge, HANSEN and BYE, Circuit Judges.

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LOKEN, Chief Judge.

Gary Lefkowitz and his company, Citi-Equity Group, developed and built low

and moderate income housing projects. Lefkowitz used project funds to pay personal

expenses and operating costs, contrary to representations made to investors and

lenders. The scheme eventually collapsed, and a jury convicted Lefkowitz of fortyfive counts of mail fraud, wire fraud, income tax fraud, bankruptcy fraud, obstruction

of justice, and managing a continuing financial crimes enterprise. The district court

sentenced him to 293 months in prison. Lefkowitz appealed. We reversed the

conviction on two counts and remanded for resentencing. United States v. Lefkowitz,

125 F.3d 608 (8th Cir. 1997), cert. denied, 523 U.S. 1079 (1998) (Lefkowitz I). On
1

The HONORABLE DAVID S. DOTY, United States District Judge for the

District of Minnesota.

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remand, the district court again sentenced him to 293 months in prison. Lefkowitz

appealed, and we summarily affirmed. United States v. Lefkowitz, 187 F.3d 644 (8th

Cir. 1999), cert. denied, 528 U.S. 1190 (2000) (Lefkowitz II). 

Lefkowitz then filed this motion for relief from a criminal sentence under 28

U.S.C. § 2255, raising numerous issues. The district court1

 rejected many claims as

procedurally defaulted, rejected the rest on the merits, and denied § 2255 relief

without an evidentiary hearing. United States v. Lefkowitz, 289 F. Supp. 2d 1076 (D.

Minn. 2003) (Lefkowitz III). As subsequently amended by this court, Lefkowitz was

granted a certificate of appealability on two issues:

1. Did this Court’s limitation of funding to $169,000 for accountant

experts, after a recommendation by the district court for full funding for

the accounting experts in the amount of $300,000, and the cessation of

funding for accountant experts prior to trial, result in the denial of the

defendant’s Sixth Amendment right to the effective assistance of

counsel?

2. Do Blakely v. Washington, 124 S. Ct. 2531 (2004), United States v.

Booker, 125 S. Ct. 738 (2005), and United States v. Fanfan, 125 S. Ct.

738 (2005), apply to this case, and, if so, with what result?

We also granted Lefkowitz’s motions for leave to file an overlength brief and reply

brief. He responded with briefs arguing issues that go far beyond the limits of the

amended certificate of appealability. Moreover, most if not all of those additional

issues were procedurally defaulted in Lefkowitz I and Lefkowitz II. We confine our

review to the issues on which a certificate of appealability was granted and affirm.

See 28 U.S.C. § 2253(c); Harris v. Bowersox, 184 F.3d 744, 748 (8th Cir. 1999), cert.

denied, 528 U.S. 1097 (2000).
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I. Ineffective Assistance of Counsel.

Well before trial, the district court appointed counsel to represent Lefkowitz

under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A. The court also ruled that

Lefkowitz would ultimately bear the cost of his defense and ordered him to deposit

$250,000 for that purpose because he had not shown that he was financially unable

to obtain counsel. See § 3006A(b). Lefkowitz never obeyed that order. Appointed

counsel subsequently applied for $300,000 in CJA funds to obtain the services of

accounting experts for the defense. The district court recommended approval of that

amount, but a judge of this court limited the funding to $169,000. See § 3006A(e)(3).

An expert accountant testified for the defense at the May 1995 trial. 

Before sentencing, Lefkowitz moved for judgment as a matter of law or a new

trial. He argued both that the lack of expert witness funding deprived him of his Fifth

Amendment right to due process (a fair trial), and that he was denied his Sixth

Amendment right to the effective assistance of counsel because trial counsel suffered

from a prejudicial lack of accounting knowledge caused by the court’s refusal to

approve sufficient funds to acquire the necessary expert assistance. The district court

denied that motion in a twenty-four page Order dated December 7, 1995, discussing

both the Fifth and Sixth Amendment issues. On direct appeal, Lefkowitz argued that

he was denied due process when a judge of this court limited him to $169,000 in

accountant expert fees. We rejected that claim on the merits, concluding “that the

funds he received gave him the basic accounting tools for an adequate defense.”

Lefkowitz I, 125 F.3d at 620. Lefkowitz did not raise on appeal the related Sixth

Amendment contention he had raised in the district court. 

Lefkowitz now argues that the denial of $300,000 for accounting experts

constituted “court-induced” ineffective assistance of counsel, relying on preStrickland cases such as United States v. King, 664 F.2d 1171 (10th Cir. 1981). This

claim is procedurally defaulted for two reasons. First, this Sixth Amendment issue
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could have been but was not raised on direct appeal. Although ineffective assistance

claims are usually deferred until post-conviction proceedings, they may be raised in

the trial court and on direct appeal if the relevant facts have been adequately

developed. See United States v. Williams, 897 F.2d 1430, 1434 (8th Cir. 1990).

Here, Lefkowitz raised the issue after trial, the district court developed the record and

denied relief on the merits, and the issue was not raised on direct appeal. “Absent an

intervening change in the applicable law, issues that have been raised and decided on

a motion for a new trial cannot be reconsidered in a subsequent collateral attack.”

United States v. Sanders, 723 F.2d 34, 36 (8th Cir. 1983) (citations omitted).

Second, Lefkowitz does not contend that trial counsel’s assistance was

ineffective because counsel failed to aggressively pursue the grant of $300,000 in CJA

funds to pay accountant experts for the defense. Rather, the claim is that, despite

counsel’s efforts, the denial of this funding resulted in “court-induced” ineffective

assistance. This is in fact a due process claim. See Ungar v. Sarafite, 376 U.S. 575,

589 (1964); United States v. Ross, 210 F.3d 916, 921-22 (8th Cir.), cert. denied, 531

U.S. 969 (2000). It was expressly raised and rejected in Lefkowitz I, 125 F.3d at 620.

Thus, the claim is procedurally barred. See Bear Stops v. United States, 339 F.3d 777,

780 (8th Cir.), cert. denied, 540 U.S. 1094 (2003).

Even if the claim were not procedurally barred, we agree with the district court

that it fails on the merits. After trial, the district court held a hearing to determine

whether Lefkowitz should be ordered to pay his costs of defense. The government

presented evidence that he had spent several hundred thousand dollars on personal

expenses and unrelated attorney's fees between June 1994 and February 1995,

contrary to his repeated claims of indigence. The district court determined that

Lefkowitz had funds available and ordered him to reimburse the government $316,693

for the cost of his defense. We upheld this ruling on direct appeal. Lefkowitz I, 125

F.3d at 621. Thus, any shortage in funds for Lefkowitz’s defense was caused by

Lefkowitz’s failure to fund his own defense when he had the means to do so, not by
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a lack of CJA funds to which he was not entitled. In other words, any ineffective

assistance of counsel was “Lefkowitz-induced,” not “court-induced.”

Scattered throughout Lefkowitz’s brief and reply brief are many unrelated

allegations of ineffective assistance of counsel. These issues are beyond the purview

of the first question on which he was granted a certificate of appealability.

Accordingly, we do not consider them.

II. Whether Blakely and Booker Apply to This Case.

Lefkowitz argues that his Sixth Amendment rights as construed in Blakely and

Booker were violated when the district judge at sentencing found facts by a

preponderance of the evidence, particularly the amount of loss caused by his fraud,

that dramatically increased his guidelines sentencing range. In April 2005, we issued

an order revising Question 2 of the certificate of appealability to include whether the

Supreme Court’s recent decision in Booker applies to this case. Thereafter, a panel

of this court held that “the ‘new rule’ announced in Booker does not apply to criminal

convictions that became final before the rule was announced, and thus does not benefit

movants in collateral proceedings.” Never Misses A Shot v. United States, 413 F.3d

781, 783 (8th Cir. 2005). This holding is controlling here. Thus, Lefkowitz is entitled

to no relief on Question 2.

We further note that Lefkowitz’s briefs include many additional arguments

raised as purported Booker issues. They are nothing of the kind. They simply rehash

arguments that were made or that could have been made in Lefkowitz I and Lefkowitz

II -- for example, that certain elements of his conviction under the continuing financial

crimes enterprise statute, 18 U.S.C. § 225, were not proven to the jury beyond a

reasonable doubt, and that the district court violated the unanimous jury principle of

Richardson v. United States, 526 U.S. 813 (1999), when it resentenced Lefkowitz after

his conviction on two of the forty-five counts was overturned on direct appeal. The
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district court thoroughly considered these issues. See Lefkowitz III, 289 F. Supp. 2d

at 1082-85. We decline to consider them because they go far beyond the scope of the

certificate of appealability.

The judgment of the district court is affirmed.

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