Judge Lewis Kaplan
Pfaff was sentenced to 97 months in prison after conviction for tax evasion in connection with a conspiracy to create fraudulent tax shelters. Codefendant Makov was a cooperating witness for the government. Pfaff sought 28 USC §2255 sentence relief on the ground that the government committed prosecutorial misconduct by allowing Makov to perjure himself when he testified that he forfeited all his assets to the government. Pfaff argued Makov hid $4.8 million of his ill gotten gains with his father in 2002, and $1 million in 2005. The court denied Pfaff relief. Distinguishing United States v. Rodriguez, Leka v. Portuondo and Banks v. Dretko it noted that Pfaff was on notice, in 2005, that some of Makov’s tax shelter proceeds were unaccounted for. Thus, facts permitting Pfaff to explore the nature of the $4.8 million transfer to his father in 2002, whether Makov retained an interest in that money, and whether the $10 million forfeiture included in Makov’s plea agreement with the government permitted Makov to retain a portion of the ill-gotten gains, were available to Pfaff at trial. Also, there was no reasonable probability that the outcome of trial would have been different if the government had disclosed Makov’s alleged retained interest in the $4.8 million.
