Michael Spataro v. Warden Fort Dix FCI

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, VANASKIE and KRAUSE, Circuit Judges. Total Pages: 8. DLD-162

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DLD-162

Date Filed: 04/04/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-3710
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MICHAEL SPATARO,
Appellant
v.
WARDEN FORT DIX FCI
__________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 1-15-cv-01736)
District Judge: Noel L. Hillman
__________________________________
Submitted on a Motion for Summary Affirmance
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 16, 2017
Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges
(Opinion filed: April 4, 2017)
____________
OPINION*
____________

_______________________
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM

Michael Spataro appeals from an order of the District Court dismissing his petition
for writ of habeas corpus, 28 U.S.C. § 2241, for lack of jurisdiction. For the reasons that
follow, we will summarily affirm.

Spataro was charged in the United States District Court for the Eastern District of
New York with participating in a conspiracy to murder Joseph Campanella, an alleged
soldier in the Colombo crime family. The evidence at trial consisted of witness
testimony, telephone records, audio recordings, and photographs, showing that, on July
16, 2001, Campanella was shot by Vincent DeMartino and that Spataro had participated
in the planning of that unsuccessful attempt to murder Campanella. Following a jury
trial, Spataro was convicted of conspiracy to commit murder in aid of racketeering, in
violation of 18 U.S.C. § 1959(a)(5), assault with a dangerous weapon in aid of
racketeering, in violation of 18 U.S.C. § 1959(a)(3), and using and carrying a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).
The Court of Appeals for the Second Circuit affirmed the criminal judgment, but vacated
and remanded for resentencing, see United States v. Persico, 293 F. App’x 24, 27 (2d Cir.
2008). The sentencing court resentenced Spataro on October 15, 2009, to 120 months’
imprisonment on the third count, to run consecutively to the 168- and 120-month
concurrent sentences previously imposed on Counts 1 and 2, respectively, for a total
sentence of 288 months.

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Spataro filed a motion to vacate sentence, 28 U.S.C. § 2255, in the sentencing
court, arguing that his trial counsel made numerous errors that amounted to ineffective
assistance of counsel. Specifically, he asserted that counsel failed to adequately
investigate and present a viable alibi defense, failed to effectively challenge the
Government’s primary witness, and failed to retain a reliable expert witness regarding
certain telephone records. On February 19, 2013, the § 2255 motion was denied on the
merits, see Spataro v. United States, 2013 WL 618426 (E.D.N.Y. Feb. 19, 2013).
At issue in this appeal, on March 9, 2015, Spataro filed a pro se petition for writ of
habeas corpus, 28 U.S.C. § 2241, in the United States District Court for the District of
New Jersey, where he is currently confined. Spataro alleged that he is actually innocent
of aiding and abetting a § 924(c) offense, in light of the Supreme Court’s decision in
Rosemond v. United States, 134 S. Ct. 1240 (2014); and, in the alternative, he argued that
he may proceed under § 2241 because Rosemond is in direct conflict with the Pinkerton
instruction given at his trial, see Pinkerton v. United States, 328 U.S. 640, 646-48 (1946)
(permitting conviction of defendant for acts by a coconspirator that were “done in
furtherance of the conspiracy” and that could have been “reasonably foreseen as a
necessary or natural consequence” of the conspiracy). Specifically, Spataro argued that
he did not know that Martino possessed a gun until moments before it was used to wound
Campanella. Spataro contends that the trial court’s aiding and abetting instructions were
erroneous because they did not require the jury to find that he knew in advance that a gun
would be involved in the crime, as required by Rosemond.
The Government moved to dismiss the § 2241 petition for lack of jurisdiction,
arguing that its burden of proof at Spataro’s trial actually was more stringent than
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Rosemond’s standard because, in the Second Circuit prior to Rosemond, a defendant
could only be convicted of aiding and abetting a § 924(c) offense if he performed some
act that directly facilitated or encouraged the use or carrying of a firearm. Citing a not
precedential summary order, the Government argued that the Second Circuit has since
noted that Rosemond effectively lightened the standard for proving aiding and abetting in
that circuit, see United States v. Rivera, 571 F. App’x 55, 59 n.5 (2d Cir. 2014) (holding
of Rosemond “expanded aiding and abetting liability under Section 924(c) as previously
recognized by this Court”). With respect to Spataro’s argument that the breadth of the
Pinkerton theory of liability is incompatible with Rosemond, the Government argued that
“the same discordance” identified by Spataro between the Pinkerton and “aiding and
abetting” standards of proof existed at the time of his conviction under the law of aiding
and abetting law in the Second Circuit, and thus he could have made that argument on
direct appeal or in his § 2255 motion.
Counsel then entered an appearance on behalf of Spataro and submitted a response
in opposition to dismissal, arguing that the Rosemond claim had merit because the
sentencing court did not charge the jury that the Spataro must have had advance
knowledge that a firearm would be used, and that the court’s charge that a defendant must
have performed some act that directly facilitated or encouraged the perpetrator in the use
or carrying of a firearm was not tantamount to a charge that a defendant must have
advance knowledge that a firearm would be used.
In an order entered on July 21, 2016, the District Court granted the Government’s
motion and dismissed the § 2241 petition for lack of jurisdiction. The District Court
agreed with the Government that Rosemond effectively lightened the standard for
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proving aiding and abetting a § 924(c) offense in the Second Circuit. The Court also held
that Spataro had an earlier opportunity to seek judicial review of his claim that the
Pinkerton theory of liability is incompatible with the Second Circuit standard for proving
aiding and abetting a § 924(c) offense, and, that, in any event, the holdings in Rosemond
and Pinkerton address two distinct and separate theories of vicarious liability.
Spataro appeals. We have jurisdiction under 28 U.S.C. § 1291.1 The Government
has moved to summarily affirm the order of the District Court, pursuant to Third Cir.
LAR 27.4 and I.O.P. 10.6. Spataro submitted a brief and a response in opposition to the
motion for summary affirmance, which we have considered.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The
District Court properly dismissed Spataro’s § 2241 petition for lack of jurisdiction
because a motion filed under § 2255 in the sentencing court is the presumptive means for
a federal prisoner to challenge the validity of his conviction or sentence. See Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002). In certain limited circumstances, a
petitioner may seek relief under § 2241 if the remedy provided by § 2255 is inadequate or
ineffective to test the legality of his detention, see In re: Dorsainvil, 119 F.3d 245, 249251 (3d Cir. 1997). Section § 2255 is not inadequate or ineffective, however, simply
because the petitioner is unable to meet the gatekeeping requirements, 28 U.S.C. §
2255(h), for a second § 2255 motion. See Cradle v. United States ex rel. Miner, 290 F.3d
536, 539 (3d Cir. 2002) (per curiam).

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A certificate of appealability is not required to appeal from the denial of a § 2241
petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
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We have, as yet, only applied the § 2255 “safety valve” where the petitioner has
had no prior opportunity to challenge his conviction for actions deemed to be noncriminal by an intervening change in law. Okereke, 307 F.3d at 120 (citing Dorsainvil,
119 F.3d at 251). In Rosemond, the Supreme Court addressed what the Government
must prove when it accuses a defendant of aiding or abetting the § 924(c) offense of
using or carrying a firearm during and in relation to a crime of violence or drug
trafficking crime. 134 S. Ct. at 1243. The Court held that the Government must prove
that the defendant “actively participated in the underlying drug trafficking or violent
crime with advance knowledge that a confederate would use or carry a gun during the
crime’s commission.” Id. “[A]dvance knowledge,” the Court stated, means “knowledge
at a time the accomplice can do something with it -- most notably, opt to walk away.” Id.
at 1249-50.
Here, even assuming that the trial court’s instructions violated Rosemond, when a
petitioner claims he is incarcerated based on conduct that subsequently has been rendered
non-criminal, we must consider whether the record supports his claim of innocence. See
United States v. Tyler, 732 F.3d 241, 247 (3d Cir. 2013). This was a planned execution.
The evidence, as summarized by the sentencing court in denying Spataro’s criminal Rule
29 motion for judgment of acquittal, indicates that, because the attempted murder was a
planned execution, Spataro had advance knowledge that a gun would be used during the
commission of the crime. The sentencing court explained:
[A] cooperating witness, Giovanni Floridia …, implicated Spataro in
the murder conspiracy, testifying about Spataro’s role in the plan to
murder Campanella, as well as the unsuccessful attempt. Floridia’s
testimony about Spataro’s participation in the murder conspiracy
included references to meetings in which Spataro participated as
well as incriminating actions by Spataro both before and after
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Campanella was shot on July 16, 2001. Had the government relied
exclusively on Floridia’s testimony -- which was not incredible on
its face -- to establish Spataro’s guilt beyond a reasonable doubt …
this evidence would have been enough to sustain Spataro’s
convictions…. But there was more evidence beyond Floridia’s
testimony that incriminated Spataro. For example, the government
introduced telephone records that corroborated Floridia’s testimony
about Spataro’s role in the murder conspiracy. These telephone
records reflected that, in the period leading up to and immediately
following the attempted murder, a significant number of telephone
calls were placed between the cellular telephones of Spataro and
Vincent DeMartino…, the person who actually shot Campanella. In
particular, Floridia testified that, as he and DeMartino were driving
away from the location where DeMartino shot Campanella,
DeMartino called Spataro and said, in part, “Hey, Mike. We
missed.” The telephone records received into evidence indeed
reflected that a call had, in fact, been placed from DeMartino’s
telephone to Spataro’s telephone immediately after DeMartino shot
Campanella. As far as the Court is concerned, no doubt exists that a
rational trier of fact could conclude -- as this jury did -- that Spataro
was guilty of all three charges.
United States v. Spataro, 2006 WL 2010788, *1-2 (E.D.N.Y. July 10, 2006).
In sum, § 2255 is inadequate or ineffective to test the legality of detention in a
case where the gatekeeping provisions bar a successive petitioner who can successfully
allege actual innocence of the crime of which he was convicted and who, at the time of
his earlier § 2255 motion could not demonstrate that innocence. But, in Spataro’s case,
denying him access to federal court under § 2241 is proper because he cannot allege facts
to support his claim of actual innocence, and therefore the unavailability of relief under §
2255 does not render that provision inadequate or ineffective as to him.
As to Spataro’s alternative argument, we agree with the District Court that the
holdings in Rosemond and Pinkerton address two distinct and separate theories of
vicarious liability, and that a conviction under a theory of vicarious liability pursuant to
Pinkerton serves as an alternate basis for conviction. Because Pinkerton and Rosemond
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address two separate theories of liability, there has been no intervening change in law and
thus the “safety valve” to § 2255 does not apply to Spataro. He has failed to bring his
Pinkerton claim within the Dorsainvil rule and thus the District Court lacked jurisdiction
to consider it in a § 2241 petition.
For the foregoing reasons, we will summarily affirm the order of the District Court
dismissing Spataro’s § 2241 petition for lack of jurisdiction.

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