MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Joshua Stegemann, appeals from an order denying his second motion for a new trial.
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The defendant argues that his trial counsel labored under a conflict of interest and that the seizure of his assets interfered with his right to counsel. We affirm.
Discussion. “We review a judges decision denying a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), only to determine whether there has been a significant error of law or other abuse of discretion” (quotation and citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). Reversal for abuse of discretion is “particularly rare” where, as here, the motion judge was also the trial judge. Id.
Despite being aware of his fee arrangement since 2001, and of the limited success of his motion to suppress since 2007, see Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 307 (2007), the defendant did not raise his current claims either on direct appeal or in his first motion for a new trial. Accordingly, the claims are waived. See Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Velez, 82 Mass. App. Ct. 12, 19 (2012). Thus, like the motion judge, we review his claims only to determine if any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002); Velez, supra.
1. Conflict of interest. According to the defendants affidavit, his criminal trial counsel also represented him in a civil forfeiture action against approximately $60,000 in assets “on agreement that she would be paid only upon recapture of the assets.” Counsel advised the defendant that he had a viable motion to suppress on which “the case would ‘rise and fall,’ ” and, if successful, “would require the seized assets to be returned.” Based on this advice, the defendant rejected the Commonwealths offer to “dismiss [his] pending charges” in exchange for his “full and complete cooperation.”
The defendant argues that his attorneys financial interest in the results of the civil forfeiture proceeding created an actual conflict of interest in the criminal case, which tainted her recommendation that he reject the cooperation agreement. Although an attorneys interest in a forfeiture fee might result in a conflict of interest under some circumstances, see Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 632 n.10 (1989); id. at 650 (Blackmun, J., dissenting), the defendant failed to carry his burden to demonstrate an actual conflict here. See Commonwealth v. Miller, 435 Mass. 274, 282 (2001). The motion judge declined to credit the defendants affidavit, which was his only offer of proof of both the fee and cooperation agreements. We defer to that determination. See Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015); Commonwealth v. Wallis, 440 Mass. 589, 597 (2003).
Even if we fully credited the defendants affidavit, his allegations would still fail to demonstrate that his attorneys advice amounted to ineffective assistance of counsel. See Caplin & Drysdale, 491 U.S. at 632 n.10. Nothing in the defendants motion suggests that counsels advice to reject the cooperation agreement and pursue a motion to suppress was manifestly unreasonable when given. See Kolenovic, 471 Mass. at 674-675. The reasonableness of a strategic decision “does not demand perfection. Nor is reasonableness informed by what hindsight may reveal as a superior or better strategy” (citations omitted). Id. at 675. The defendants long delay in raising this claim suggests that counsel properly informed him of the risks and benefits of rejecting the cooperation agreement, and that he came to regret his choice only later, when he faced collateral consequences of the convictions in connection with Federal sentencing proceedings. Cf. Commonwealth v. Lopez, 426 Mass. 657, 663 (1998).
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2. Right to counsel. The defendant also argues that the Commonwealths seizure of the assets subject to the civil forfeiture proceeding violated his right under the Sixth Amendment to the United States Constitution to the counsel of his choice. See United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). Generally, the Government does not violate a defendants right to counsel simply by seizing assets. See United States v. Monsanto, 491 U.S. 600, 616 (1989). Even if that general proposition does not apply with full force here, where the search warrant was later held to be unconstitutional and the assets returned,
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the defendant failed to allege any facts showing that the loss of those assets interfered with his preferred choice of counsel. He alleged only that he “retained [trial counsel] to represent” him. Critically, he did not allege that he would have retained different counsel but for the Commonwealth seizing the assets it later returned. See Gonzalez-Lopez, supra at 148.
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Order denying second motion for new trial affirmed.
FOOTNOTES
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. The defendant was convicted of numerous drug offenses after a jury trial in 2003. On direct appeal, holding that the defendants motion to suppress should have been allowed, this court reversed some, but not all, of his convictions. See Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 307 (2007). The defendant filed his first motion for a new trial in 2009, arguing that the wrongful admission of evidence from the search tainted the evidence supporting his remaining convictions. The motion was denied, and the denial was affirmed on appeal in an unpublished opinion. See Commonwealth v. Stegemann, 77 Mass. App. Ct. 1115 (2010).
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. In addition, the defendants affidavit fails to allege an actual conflict because it is silent as to whether the alleged cooperation agreement, which included dismissing all charges against him, also included dismissing the forfeiture action. If so, counsels advice to reject the agreement would have been inconsistent with her alleged financial interests. If not, trial counsel could still have pursued a motion to suppress to challenge the forfeiture. See Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 604 & n.1 (1993).
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. See Luis v. United States, 578 U.S. 5, 8-9 (2016) (Sixth Amendment violation to freeze “property that is untainted by the crime”). Although violation of the defendants rights under the Fourth Amendment to the United States Constitution ultimately necessitated the return of the assets seized from the defendants residence, the determination that the search warrant affidavit did not establish “a probable link between [the defendants] residence and his drug enterprise,” Stegemann, 68 Mass. App. Ct. at 303, did not suggest that the cash seized pursuant to the warrant was “untainted.”
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. We discern no abuse of discretion in the judges denying the motion without holding an evidentiary hearing. “If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence (and be subject to the prosecutors cross-examination further highlighting the weaknesses in that evidence) will accomplish nothing.” Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004).