United States of America v. Volpentesta
Filing
27
ORDER : Volpentesta's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 1 is granted in part and denied in part. The concurrent 5-year terms of supervised release on Counts I, II, V, and VI are hereby vacated and reduced to concurrent 3-year terms of supervised release. The motion is denied in all other respects. Amended judgment to enter in Case No. 07 CR 50049. Certificate of appealability is denied. Volpentesta's motions for evidentiary hearing 23 and to correct filing errors 25 26 are denied. This case is closed. [See STATEMENT] Signed by the Honorable Frederick J. Kapala on 7/27/2015. Mailed notice (jp, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
United States,
Respondent,
v.
John M. Volpentesta,
Movant.
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Case No: 14 C 50343
Judge Frederick J. Kapala
ORDER
Volpentesta’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [1] is
granted in part and denied in part. The concurrent 5-year terms of supervised release on Counts I,
II, V, and VI are hereby vacated and reduced to concurrent 3-year terms of supervised release. The
motion is denied in all other respects. Amended judgment to enter in Case No. 07 CR 50049.
Certificate of appealability is denied. Volpentesta’s motions for evidentiary hearing [23] and to
correct filing errors [25][26] are denied. This case is closed.
STATEMENT
On July 19, 2010, a jury convicted John M. Volpentesta of mail and wire fraud as well as
federal tax violations. He is currently serving a 133-month sentence. Before the court is
Volpentesta’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on
the grounds that pre-trial, post-trial, and appellate counsel provided him with ineffective assistance.
For the reasons which follow, Volpentesta’s § 2255 motion is granted in part and denied in part.
I. BACKGROUND
On October 23, 2007, the grand jury returned a 23-count indictment charging Volpentesta
with multiple counts of mail fraud, 18 U.S.C. § 1341; wire fraud, 18 U.S.C. § 1343; failure to pay
federal income taxes, social security taxes, and medicare taxes, 26 U.S.C. § 7202; and failure to file
federal income tax returns, 26 U.S.C. § 7203. On December 7, 2007, the court appointed Assistant
Federal Defender Paul Gaziano to represent Volpentesta. When Volpentesta complained of an
inability to review the voluminous discovery materials provided to him in electronic format, the
magistrate judge accommodated him by ordering the U.S. Marshals Service to periodically transport
Volpentesta to the courthouse to review the 11,000 pages of discovery and 40 boxes of documents
seized by the Internal Revenue Service (“IRS”) from Volpentesta’s office. On November 17, 2008,
after Volpentesta’s complaints about Gaziano’s failure to provide him with printed hard copies of
the discovery materials persisted, the magistrate granted Volpentesta’s motion to substitute counsel
and appointed attorney Mark Byrd. Volpentesta expressed dissatisfaction with Byrd as well, and the
two had differing views on how to proceed with the case. The magistrate denied Volpentesta’s
motions to substitute a new appointed attorney for Byrd on two occasions before appointing attorney
Robert Fagan as co-counsel on July 14, 2009. On October 7, 2009, Volpentesta again asked that
Byrd and Fagan be relieved of their appointments, citing difficulties in reaching his attorneys and
concerns over their diligence, and requested that substitute counsel be appointed. The magistrate
denied Volpentesta’s request.
After the case was transferred to the district judge’s trial calender, Volpentesta filed multiple
pro se pre-trial motions while represented by Byrd and Fagan including a motion to dismiss Counts
I -VI of the indictment, a motion to suppress all evidence specified in the government’s Rule 404(b)
notice, and a motion to suppress evidence seized from Volpentesta Construction, Inc. (“VCI”)
pursuant to a search warrant. Because Volpentesta maintained that his attorneys were ineffective for
failing to file these motions, the court conducted a hearing. At the hearing, counsel for defendant
explained that the pro se motions lacked merit, were frivolous, and would not be well-taken. In fact,
one of Volpentesta’s counsel stated that he was “100 percent confident that a Franks motion in this
case is nothing more than a colossal waste of time that pulls us from our duty to get ready for trial
in two months.” This court found that Volpentesta failed to establish ineffectiveness of counsel and
refused to hear the motions because defendant was represented by counsel.
Volpentesta moved to substitute his attorneys three more times claiming communication
issues, lack of trust, a failure to file motions to dismiss the indictment, and that his attorneys were
not working exclusively on his case. Each time the court denied Volpentesta’s motions to substitute
counsel. Ultimately, on May 21, 2010, the court granted Volpentesta’s third motion to represent
himself after determining that the waiver of his right to counsel was voluntary, warning him of the
risks of proceeding pro se, and advising him against waiving his right to counsel. The court relieved
Fagan of his appointment, but ordered Byrd to remain on the case as stand-by counsel. At that time,
Volpentesta confirmed that he would be prepared to go to trial on June 1, 2010, as scheduled.
The day after he was permitted to represent himself, Volpentesta refiled his pro se motions
to suppress the evidence specified in the government’s Rule 404(b) disclosures and his motion to
suppress evidence seized during the search of VCI pursuant to a search warrant. Two days later,
Volpentesta moved to continue the trial for ninety days. The court granted Volpentesta a twenty-one
day continuance finding that period sufficient to satisfy Volpentesta’s needs. This court ordered
briefing on Volpentesta’s pro se motions and denied them both. With regard to the motion to
suppress, this court determined that Volpentesta had not established that Special Agent Craig
Peterson made a material misrepresentation in his warrant affidavit. In denying Volpentesta’s
motion to suppress Rule 404(b) evidence, the court found, among other things, that the testimony
of certain fraud victims not named in the indictment was direct evidence of the scheme to defraud
not subject to Rule 404(b). Next, Volpentesta refiled his motion to dismiss Counts I-VI of the
indictment. After briefing by the parties, this court denied the motion finding Volpentesta’s two
main arguments to be frivolous.
Prior to trial, Volpentesta submitted evidentiary proffers of the expected testimony of twentythree witnesses he wished to call at trial as well as his proposed subpoenas. The proposed subpoenas
included the following language:
2
You must also bring with you the following documents, electronically stored
information, or objects (blank if not applicable):
Any and all records pertaining to the charged defendant, John M.
Volpentesta, including but not limited to past records of any civil
and/or criminal investigations involving John M. Volpentesta and any
company or companies, corporation, or other business entities
involving John M. Volpentesta as either the proprietor, officer, or
shareholder of said entity.
The court held an ex parte hearing pursuant to Federal Rule of Criminal Procedure 17(b) and found
that Volpentesta met his burden of establishing that the testimony of fifteen witnesses was necessary
to an adequate defense and issued subpoenas for them to appear at trial. However, the court ruled
that the above-quoted language would not be included in any issued subpoena without a showing by
Volpentesta that he had reason to believe that any witness had such materials in his or her possession
and that the materials were relevant, material, useful, and noncumulative. As of the date of the Rule
17(b) hearing, Volpentesta had not made such a showing.
At trial, the evidence established that Volpentesta owned and operated VCI, a construction
company that built custom homes. Volpentesta defrauded VCI’s customers by using their down
payments to pay his personal expenses rather than construction costs, billing “overages” for work
done by subcontractors and then retaining the money rather than using it to pay the subcontractors,
submitting false documents to Ticor Title who then paid VCI for work performed by others, and
charging customers for work that was never performed. The evidence also showed that Volpentesta
defrauded individuals who invested in VCI by falsely promising that their investments would be
secured by liens against homes that VCI was building, while concealing that the homes had
insufficient equity to secure the investments. In addition, Volpentesta fraudulently obtained money
from individuals for purported land sales by concealing that he did not hold title to the land or falsely
representing that he would hold the investment funds in escrow until he obtained title. The evidence
showed further that Volpentesta committed various tax violations by causing taxes to be deducted
from the wages of VCI’s employees and willfully failing to pay those taxes to the IRS, willfully
failing to file federal unemployment tax returns for VCI, and willfully failing to file personal federal
income tax returns. At the conclusion of the trial, the jury found Volpentesta guilty of two counts
of mail fraud, two counts of wire fraud, eleven counts of failure to pay federal income taxes, social
security taxes, and medicare taxes, and six counts of failure to file federal income tax returns.1
After the trial, a presentence investigation report (“PSR”) was submitted to the court. The
government moved for a two-level enhancement for obstruction of justice pursuant to U.S.S.G.
§ 3C1.1 and for an upward variance from the advisory guidelines range maintaining that the loss
calculation substantially understated the seriousness of the offense and that Volpentesta’s criminal
history category did not adequately reflect his history and characteristics. Byrd was reappointed to
represent Volpentesta and filed an extensive sentencing memorandum opposing both of the
government’s motions and objecting to the fraud and tax loss calculations in the PSR, as well as the
1
The jury acquitted Volpentesta on the mail fraud offenses alleged in Counts III and IV.
3
two-level enhancement for defrauding ten or more victims, the two-level enhancement for failing
to report in excess of $10,000 in income from criminal activity, and the recommended restitution
amounts. Byrd also moved for a downward variance from the advisory guidelines range based on
a number of rationales.
Ultimately, this court granted the government’s motions for an enhancement based on
obstruction of justice and for an upward variance. The court also denied Volpentesta’s motion for
a downward variance and overruled his objections to the enhancements, tax and fraud loss amounts,
and restitution amounts. The court ordered Volpentesta to serve concurrent prison sentences of 133
months on Counts I, II, V, and VI, which sentences were concurrent to lesser terms of imprisonment
on the other counts of conviction.
On direct appeal, the Seventh Circuit affirmed after rejecting Volpentesta’s three appellate
contentions: (1) that he was deprived of his Sixth Amendment right to effective assistance of
counsel; (2) that his waiver of his right to counsel was not knowingly, voluntarily, and intelligently
given; and (3) that this court erroneously denied his motions to continue the trial once he had decided
to represent himself. United States v. Volpentesta, 727 F.3d 666, 669 (7th Cir. 2013). The Seventh
Circuit issued its decision on August 14, 2013, and its mandate on September 5, 2013. Volpentesta
did not file a petition for writ of certiorari to the United States Supreme Court.
On July 30, 2014, Volpentesta filed a pro se motion asking the Seventh Circuit to recall its
mandate maintaining that his appellate counsel did not inform him of the Seventh Circuit’s decision
and advise him of the available courses of action. In this motion, Volpentesta indicated that he
became aware of the Seventh Circuit’s decision on August 27, 2013. Volpentesta also indicated that
he had informed his appellate counsel in a March 2013 email and in an August 29, 2013 letter that
he wanted to file a petition for a writ of certiorari to the United States Supreme Court. On August
11, 2014, the Seventh Circuit denied Volpentesta’s motion to recall its mandate. United States v.
Volpentesta, 7th Cir. No. 11-2187, Dkt. No. 63. Volpentesta filed the instant § 2255 motion on
October 11, 2014.
II. DISCUSSION
Relief under § 2255 is “an extraordinary remedy because it asks the district court essentially
to reopen the criminal process to a person who already has had an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Accordingly, habeas relief under
§ 2255 is “reserved for extraordinary situations.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996). “To succeed on a § 2255 petition a convicted defendant must show that the district court
sentenced him in violation of the Constitution or laws of the United States or that the sentence was
in excess of the maximum authorized by law or is otherwise subject to collateral attack.” Id.
Claims that were raised on direct appeal and rejected or that could have been raised on direct
appeal and were not are procedurally defaulted. See United States v. Peleti, 576 F.3d 377, 383 (7th
Cir. 2009) (noting that once a claim has been rejected on direct appeal the law of the case doctrine
bars the defendant from raising it in a § 2255 motion); Massaro v. United States, 538 U.S. 500, 504
(2003) (noting that if a § 2255 petitioner does not raise a claim in his direct appeal, that claim is
barred unless the petitioner can demonstrate cause for the procedural default and actual prejudice).
“[A]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under
4
§ 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro, 538
U.S. at 504.
Before granting an evidentiary hearing, the § 2255 “petition must be accompanied by a
detailed and specific affidavit which shows that the petitioner had actual proof of the allegations
going beyond mere unsupported assertions.” Prewitt, 83 F.3d at 819 (quotation marks omitted).
“[C]ourts may deny an evidentiary hearing where the motion, files, and records of the case
conclusively show that the prisoner is entitled to no relief.” Koons v. United States, 639 F.3d 348,
355 (7th Cir. 2011) (quotation marks omitted).
To succeed on an ineffective-assistance-of-counsel claim, a movant must demonstrate (1) his
attorney’s performance “fell below an objective standard of reasonableness,” and (2) “there is a
reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). To satisfy the first
prong, the court must “determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.” Id. at 690. A district
court’s “analysis begins with the strong presumption that the defendant’s attorney rendered adequate
representation of his client.” United States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000) (quotation
marks omitted). Therefore, petitioner must overcome a heavy burden to prove that his attorney was
constitutionally deficient. Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006). If a defendant
is unable to satisfy either prong of the Strickland test, then the court does not need to address the
matter further. Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient
showing on one.”). The Seventh Circuit has long held that “[c]ounsel is not ineffective for failing
to raise meritless claims.” Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013); Stone v. Farley,
86 F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at trial or on appeal,
does not constitute ineffective assistance of counsel.”). In turn, there can be no resulting prejudice
from a failure to raise a meritless issue on appeal. Martin v. Evans, 384 F.3d 848, 852 (7th Cir.
2004).
In addition to his claims of ineffective assistance of counsel analyzed below, Volpentesta
argues within his § 2255 motion that this court should set aside his conviction on the grounds that
his waiver of his right to counsel was involuntary and that his pre-trial attorneys were ineffective
because they had a conflict of interest. However, Volpentesta raised these additional arguments on
direct appeal, and the Seventh Circuit ruled against him. Accordingly, the law of the case doctrine
bars the defendant from relitigating these issues on collateral review. See Peleti, 576 F.3d at 383.
A. Ineffective Assistance of Pre-trial Counsel
Volpentesta contends that his pre-trial counsel were constitutionally ineffective in that (1)
they failed to pursue the “missing discovery,” and (2) failed to challenge several purported
constitutional violations that happened at the outset of his case. However, the Seventh Circuit
explicitly held that Byrd and Fagan were “entirely competent” and “provided competent
representation to Volpentesta in spite of Volpentesta’s refusal to cooperate with them.” Volpentesta,
727 F. 3d at 676. As a result, the law of the case doctrine bars relitigation of these issues. See Peleti,
576 F.3d at 383.
5
In any event, these contentions are meritless.2 Volpentesta maintains that the Federal Deposit
Insurance Corporation (“FDIC”) requires that banks retain records concerning real estate loan
transactions and that the government failed to provide bates-stamped discovery of such documents.
Volpentesta states, in conclusory fashion, that “[t]his discovery will provide for an actual innocence
claim on several counts of conviction,” and that his “defense was substantially prejudiced due to this
missing discovery.” Unfortunately, that is the extent of Volpentesta’s specificity as to the relevance
of this purported “missing evidence” and he provides no actual proof of these allegations going
beyond mere unsupported assertions. See Prewitt, 83 F.3d at 819; see also Gray-Bey v. United
States, 156 F.3d 733, 739 (7th Cir. 1998) (explaining that § 2255 petition must be accompanied by
a specific, detailed affidavit showing that petitioner has proof of allegations going beyond
unsupported assertions). In particular, Volpentesta fails to explain how these bank records
concerning real estate loan transactions would show that he is actually innocent of any charge in the
indictment. For instance, with respect to the mail fraud charge in Count I, Volpentesta does not even
theorize how these bank records would show that he did not, in furtherance of his scheme to defraud,
mail the Garcias an $8,900 VCI invoice for well and septic work that VCI did not perform and retain
the money rather than paying Lake Cook Trenching the $6,400 it charged for actually performing
the work. This caused Lake Cook Trenching to file a mechanics lien on the Garcias’ property which
the Garcias in turn had to pay an additional $6,400 to release. Volpentesta includes VCI computer
data in the form of emails, accounting spreadsheets, scanned documents, and digital photos of project
work in the “missing discovery,” but he is even less specific as to the purpose that these materials
would have served.3 Missing discovery and supposed exculpatory documents somewhere within the
forty boxes of documents seized from VCI have been a theme of Volpentesta’s throughout this case,
but so has a lack of specificity as to the type of document or how it would exculpate him.
Volpentesta also contends that pre-trial counsel failed to raise at the outset of the case that
IRS Special Agent Lynette See abused her investigative powers in order to help her sister, Leanne
See-Garcia, who was engaged in a dispute with Volpentesta over the construction of her home.
Volpentesta has argued that it was the investigation that caused VCI to fail, not the alleged fraud,
and that his pre-trial counsel should have brought this to light. This court has rejected “the
investigation caused this to happen” explanation for the fraud Volpentesta exacted on his customers,
investors, and vendors. This court also specifically found that Volpentesta failed to show that the
prosecution was selective or vindictive in violation of Due Process Clause of the Fifth Amendment.
See 3:07-cr-50049 Doc. # 256. Thus, any failure by pre-trial counsel to raise these arguments at the
outset of the case was not deficient and did not result in prejudice. See Warren, 712 F.3d at 1104.
2
Volpentesta contends that pre-trial, post-trial, and appellate counsel were ineffective for failing to pursue the
“missing evidence.” A separate analysis is not required for each, however, because appellate counsel has no duty to seek
discovery and any contention that he was ineffective for failing to raise pre-trial or post-trial counsels’ failure to pursue
discovery on appeal is without merit for the same reasons the court has concluded that pre-trial counsel was not
ineffective for failing to pursue the “missing discovery.”
3
At various points in his submissions, Volpentesta raises the “missing discovery” as a Brady violation but
“unsupported assertions that the government suppressed [exculpatory] evidence” are insufficient to support a Brady
claim. United States v. Jumah, 599 F.3d 799, 809 (7th Cir. 2010).
6
For these reasons, there is no basis to provide Volpentesta with § 2255 relief on the ground that his
pre-trial counsel failed to provide him with effective assistance.
B. Ineffective Assistance of Post-Trial Counsel
In his reply brief, defendant contends that “the sentencing errors that took place are
numerous,” but then goes on to discuss only the court’s loss amount calculation based on his relevant
conduct. Of course, as stand-alone § 2255 contentions these claims are barred because they could
have been raised on direct appeal. Peleti, 576 F.3d at 383. Moreover, Volpentesta cannot advance
this contention as ineffective assistance of post-trial counsel because Byrd did argue in Volpentesta’s
sentencing memorandum that the government failed to establish a sufficient nexus between the
alleged scheme to defraud and the losses resulting from uncharged or acquitted conduct for purposes
of relevant conduct under § 1B1.3 of the sentencing guidelines. Therefore, it would be improper for
this court to provide Volpentesta with relief based on his claim of ineffective assistance of post-trial
counsel.
C. Ineffective Assistance of Appellate Counsel
In addition to the contentions discussed below, Volpentesta argues that his appellate counsel
was ineffective for failing to raise on direct appeal the “missing evidence” and “constitutional
violations occurring at the outset” issues discussed in sections A. and B. However, as concluded
above, these contentions lack merit and therefore appellate counsel could not have been deficient for
failing to raise them on appeal nor could Volpentesta have thereby suffered any prejudice. See
Warren, 712 F.3d at 1104.
The court also notes that Volpentesta has not specifically argued that appellate counsel was
ineffective for failing to argue on direct appeal that this court abused its discretion by including the
loss resulting from defendant’s relevant conduct in the total fraud loss amount. Nevertheless, the
argument would have failed on appeal. This court concluded that $381,207.27 of losses resulted
from defendant’s conduct of conviction and $996,919.76 of losses resulted from acquitted or
uncharged conduct, properly characterized as relevant conduct, for a total fraud loss of
$1,378,127.03. Volpentesta argues that this court failed to connect the acquitted or uncharged
conduct to the conduct for which he was convicted. The court disagrees because at sentencing it
made specific findings establishing the required nexus with regard to each loss. For example, this
court determined that Volpentesta executed the same scheme to defraud the Garcias in Count I,
conduct for which he was convicted, and the Hickeys and St. Louises in Counts III and IV, conduct
of which he was acquitted. Specifically, the court found that Volpentesta submitted false invoices
for work performed by subcontractors and then failed to pay the subcontractors in order to infuse
money into VCI, thereby enriching himself personally. As a result, the homeowners or
subcontractors were left with the bill for the work. Volpentesta has not convinced this court that the
Seventh Circuit would have found that this court abused its discretion by including losses resulting
from acquitted and uncharged conduct in the fraud loss calculation as relevant conduct pursuant to
§ 1B1.3(a)(2) because the losses were the result of the same course of conduct or common scheme
or plan as the charged conduct. As a result, appellate counsel was not ineffective for failing to raise
this issue on direct appeal and Volpentesta suffered no prejudice. See Warren, 712 F.3d at 1104.
7
1. Failure to Challenge Order Striking Pro Se Motions
Volpentesta contends that his appellate counsel was ineffective because he failed to challenge
this court’s orders striking the pro se motions he filed while represented by counsel thereby violating
his right to be heard. This contention fails on both Strickland prongs. Appellate counsel did not
perform deficiently in deciding not to raise this issue on appeal and Volpentesta suffered no
prejudice because it is well established that courts have no obligation to consider pro se motions filed
by defendants with counsel. See United States v. Rollins, 309 F. App’x 37, 38 (7th Cir. 2009)
(“Rollins has no right to file a pro se brief or motion in any court while counsel represents him.”);
United States v. Williams, 495 F.3d 810, 813 (7th Cir. 2007); United States v. Gwiazdzinski, 141
F.3d 784, 787 (7th Cir. 1998) (“A defendant does not have an affirmative right to submit a pro se
brief when represented by counsel.”). The court also notes that the record establishes that
Volpentesta refiled his pro se motions after he was permitted to represent himself, and the court then
heard and denied the motions.4 Consequently, Volpentesta was indeed heard on the issues raised in
his pro se motions.
2. Failure to Challenge Counts I-VI of the Indictment
Volpentesta contends that his appellate counsel was ineffective because he failed to argue
that Counts I-VI of the indictment were defective. Volpentesta maintains that because Counts I-VI
incorporated paragraphs 1-17 of the indictment there were multiple acts alleged as the scheme to
defraud and it is impossible to discern which of these acts supported the guilty verdicts returned on
Counts I, II, V, and VI. This argument is also without merit and therefore there was no deficient
performance in failing to advance it on appeal and no resulting prejudice.
“An indictment is duplicitous if it charges two or more offenses in a single count.” United
States v. Haynes, 582 F.3d 686, 703 (7th Cir. 2009) (quotation marks omitted),vacated on other
grounds by United States v. Vizcarra, 668 F.3d 516, 521–22 (7th Cir.2012)). “Duplicity creates a
risk that the jury might return a less than unanimous guilty verdict, potentially exposes the defendant
to prejudice at trial and sentencing, and in some cases subjects the defendant to double jeopardy.”
United States v. Pansier, 576 F.3d 726, 734 (7th Cir. 2009). However, §§ 1341 and 1343 expressly
punish separate acts in execution of a scheme to defraud. See 18 U.S.C. §§ 1341 & 1343. “Schemes
to defraud . . . are often multi-faceted and therefore the various means used in committing the offense
may be joined without duplicity.” United States v. Zeidman, 540 F.2d 314, 318 (7th Cir. 1976)
(quotation marks omitted); see also 3:07-cr-50049 Doc. # 302, pg. 23; Pattern Criminal Jury
Instructions of the Seventh Circuit, 18 U.S.C. §§ 1341 & 1343, pg. 393 & No. 4.04, pg. 42 (2012),
available at https://www.ca7.uscourts.gov/Pattern_Jury_Instr/7th_criminal_jury_instr.pdf (providing
that the government is required to prove one or more of the false pretenses, representations, promises
and acts charged in the portion of the indictment describing the scheme to defraud but not all of them
and that in order to find that the government has proved a specific false pretense, representation,
promise or act the jury must unanimously agree on which specific false pretense, representation,
4
Volpentesta argues that the pro se motions filed after he was permitted to represent himself were not the same
as those presented when he was represented by counsel. The court has carefully compared the respective motions and
to the extent they are different, the pro se motions filed after Volpentesta represented himself had additional material but
included the same arguments advanced in the motions presented when he was represented by counsel.
8
promise or act the defendant committed). Consequently, the fact that the scheme to defraud alleged
in paragraphs 1-17 is incorporated into each mail and wire fraud count alleging a different execution
of the scheme to defraud does not render those counts duplicitous.
Furthermore, in addition to the instruction referenced immediately above, the jury also
received other instructions preventing any non-unanimous verdict. For example, the jury was
instructed to consider whether the requisite elements of each offense in the indictment were proven
beyond a reasonable doubt “as described in Count __ of the indictment.” See 3:07-cr-50049 Doc.
# 302, pg. 22, Pattern Criminal Jury Instructions of the Seventh Circuit, 18 U.S.C. §§ 1341
&1343, pg. 393 (2012), available at https://www.ca7.uscourts.gov
/Pattern_Jury_Instr/7th_criminal_jury_instr.pdf. Another instruction provided that each separate use
of the mail or interstate communication facilities in furtherance of the scheme to defraud constitutes
a separate offense. See 3:07-cr-50049 Doc. # 302, pg. 27; Pattern Criminal Jury Instructions of the
Seventh Circuit, 18 U.S.C. §§ 1341 & 1343, pg. 409 (2012), available at
https://www.ca7.uscourts.gov/Pattern_Jury_Instr/7th_criminal_jury_instr.pdf. For these reasons,
the court cannot afford Volpentesta extraordinary relief under § 2255 on his contention that he was
denied effective assistance of appellate counsel when he failed to challenge Counts I-VI of the
indictment as defective.
3. Failure to Challenge the Denial of Right to Compulsory Process
Next, Volpentesta contends that his appellate counsel was ineffective because he failed to
argue that Volpentesta’s right to compulsory process was violated when this court prohibited the
document production language on Volpentesta’s proposed trial subpoenas. Specifically, Volpentesta
maintains that he was allowed to subpoena VCI’s corporate attorney Robert Bless but was not
allowed to have Bless ordered to produce the “legal document(s) pertaining to all the alleged
victims.”
Appellate counsel’s performance was not deficient for failing to raise this issue on appeal
because Volpentesta did not specifically identify for this court relevant admissible documents that
were in Bless’ or any other witness’ possession. See United States v. Tokash, 282 F.3d 962, 971 (7th
Cir. 2002) (“Rule 17(c) is not a discovery device to allow criminal defendants to blindly comb
through government records in a futile effort to find a defense to a criminal charge. Instead, it allows
only for the gathering of specifically identified documents which a defendant knows to contain
relevant evidence to an admissible issue at trial.”). Contrary to Volpentesta’s assertion in his brief,
the pages in the record which he identifies do not contain “strong compelling reasons for [production
of] this material.” Therefore, because the argument would have failed, appellate counsel was not
deficient for not raising it. See Warren, 712 F.3d at 1104. Moreover, Volpentesta has not shown
prejudice. Other than his conclusory statements such as “these missing documents tore a hole in the
defense’s ability to provide the jury with credible exculpatory evidence that would prove for [sic]
actual innocence,” Volpentesta has yet to specify what these documents are or how they were
relevant, let alone how preventing him from subpoenaing these documents would have caused the
appellate court to order a new trial. See Martin, 384 F.3d at 852. Thus, the court cannot afford
Volpentesta relief under § 2255 on his contention that he was denied effective assistance of appellate
counsel when he failed to argue that Volpentesta’s right to compulsory process was violated.
9
4. Rule 404(b) Bad Acts Evidence
Volpentesta contends that his appellate counsel was constitutionally ineffective for failing
to raise on appeal the admission at trial of bad-acts evidence pursuant to Federal Rule of Evidence
404(b) which Volpentesta maintains was irrelevant and prejudicial. This contention fails for a
variety of reasons. First, in his § 2255 motion and supporting memorandum, Volpentesta failed to
sufficiently identify the bad-acts evidence that he maintains was improperly admitted and has not
explained how the court’s Rule 404(b) analysis was faulty.5 As a result, the contention is waived
because the court cannot begin to analyze whether appellate counsel’s failure to raise this issue on
direct appeal was deficient or whether Volpentesta suffered prejudice. See United States v. Wescott,
576 F.3d 347, 356 (7th Cir.2009) (stating that unsupported and undeveloped arguments are waived);
see also United States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003) (“[P]erfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent authority, are waived.” (quotation marks
omitted)).
In his reply memorandum, Volpentesta states that he informed his “appellate counsel of the
enormous amount of irrelevant 404(b) evidence that was presented by the government and that
Volpentesta objected to in his pre-trial motions.” Volpentesta identifies seven trial witnesses
(subcontractors and suppliers) that he maintains offered only impermissible propensity evidence as
“angry creditors” of VCI and provided only prejudicial testimony rather than evidence of the crimes
alleged in the indictment. However, it has long been established that arguments in support of a
§ 2255 motion that are raised for the first time in a reply brief are waived. Wright v. United States,
139 F.3d 551, 553 (7th Cir. 1998). This is true even if the movant is proceeding pro se. Id. This
is because the government does not have an opportunity to respond to the new arguments in the reply
brief. Id.
Putting the waiver aside, the evidence provided by the seven witnesses Volpentesta
references was not Rule 404(b) bad-acts evidence that should have been excluded but, rather, direct
evidence of the charged scheme to defraud. Evidence of the scheme to defraud is not limited to the
particular executions of the scheme alleged in the indictment. See United States v. Biesiadecki, No.
89 CR 39, 1989 WL 165039, at *1 (N.D. Ill. Dec. 18, 1989) (testimony of defrauded individuals not
named in the indictment as victims admitted as non-Rule 404(b) evidence of existence of the alleged
scheme to defraud). As such, even if this contention was properly raised, it would fail because
appellate counsel was not deficient for failing to argue it on appeal and Volpentesta was not thereby
prejudiced.
5
The closest Volpentesta comes to identifying any bad-acts evidence is his reference to the following remark
made by the attorney for the government during his opening statement: “It went to finance his high flying lifestyle, to
pay for his expensive home, to buy his $50,000 Corvette, and to take trips to the casinos.” This remark, of course, was
not Rule 404(b) evidence. See Pattern Criminal Jury Instructions of the Seventh Circuit 2.01 (2012), available at
http://www.ca7.uscourts.gov/PatternJuryInstr/7thcriminaljuryinstr.pdf (“The lawyers’ statements and arguments are not
evidence.”). Instead, the remark forecasted that the evidence at trial would show that the purpose of the scheme to
defraud charged in the indictment was defendant’s own personal enrichment.
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5. Restitution
Volpentesta argues that this court erred in determining the proper restitution amount and his
appellate counsel was ineffective in failing to argue various errors made by this court in arriving at
the restitution figure ordered in his case. The government argues that challenges to restitution
orders, even couched as ineffective-assistance-of-counsel claims, are not cognizable under § 2255.
The court agrees.
A restitution order does not present the type of serious error cognizable in a § 2255
proceeding. See United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007) (“Restitution orders that
sweep too much conduct into their calculations are issues that must be raised on direct appeal and
do not rise to the level of a constitutional violation.”); Barnickel v. United States, 113 F.3d 704, 706
(7th Cir. 1997) (Section 2255 “is not available to challenge an order of restitution imposed as part
of a criminal sentence” because “the relief requested in such a case [does] not qualify as a right to
be released” (quotation marks omitted)). This is true even if a prisoner has alleged ineffective
assistance of counsel in relation to the issue. Barnickel, 113 F.3d at 705-06; United States v. Barren,
No. 08 C 1778, 2008 WL 5070310, at *2 (N.D. Ill. Nov. 21, 2008) (“[E]ven when errors in
restitution are raised as the basis of an ineffective assistance claim, Section 2255 is not available to
challenge an order of restitution.”). Thus, the court cannot afford Volpentesta relief under § 2255
on his claim that his right to effective assistance of appellate counsel was violated because counsel
failed to advance certain arguments concerning restitution.
6. Criminal History Category
Volpentesta contends for the first time in his reply brief that his appellate counsel was
ineffective for failing to challenge this court’s purportedly improper enhancement of his criminal
history category pursuant to U.S.S.G. §§ 4A1.1 & 4A1.3(a)(4) based on the age of the information
utilized. This contention is waived because it was not advanced in Volpentesta’s opening brief, see
Wright, 139 F.3d at 553, and because it is perfunctory, undeveloped, and not supported with
pertinent authority, see Holm, 326 F.3d at 877.
Waiver aside, the contention is wholly lacking in merit. In the PSR, the probation officer
assigned three criminal history points based on Volpentesta’s 1993 bank fraud conviction, for which
he was originally sentenced to eight months in the Bureau of Prisons and then twelve months upon
revocation of his supervised release in July 1996, to arrive at a criminal history category of II.
Neither Volpentesta’s counsel nor the attorney for the government objected to this determination and
it was adopted by the court. Volpentesta does not explain how this determination was erroneous in
light of the fact that the instant offenses commenced in January 2003 and he was not released from
imprisonment for the bank fraud conviction until March 1997. See U.S.S.G. §4A1.2(k) (“In the case
of a prior revocation of probation, parole, supervised release, special parole, or mandatory release,
add the original term of imprisonment to any term of imprisonment imposed upon revocation.”);
U.S.S.G. §4A1.2(e)(1) (“Any prior sentence of imprisonment exceeding one year and one month that
was imposed within fifteen years of the defendant’s commencement of the instant offense is
counted.”). This court did grant the government’s motion for an upward variance based on the
theory that Volpentesta’s criminal history category under-represented his true criminal history.
However, the age of the information used to support this type of variance is not limited and, in any
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event, the court relied in large part on Volpentesta’s conduct which was the basis for the July 1996
revocation of his supervised release. Volpentesta also cites United States v. Mathews, in this portion
of his reply, but that case deals with the categorical approach used to sentence under the Armed
Career Criminal Act which was not at issue in Volpentesta’s case, 453 F.3d 830, 833-34 (7th Cir.
2006). Therefore, even if this contention were not waived this court would conclude that appellate
counsel was not ineffective for failing to challenge this court’s determination of Volpentesta’s
criminal history category.
7. Supervised Release Term
Volpentesta was ordered to serve concurrent five-year terms of supervised release on Counts
I, II, V, and VI, which terms were concurrent to lesser terms of supervised release on the other counts
of conviction. Volpentesta argues that his appellate counsel was ineffective for failing to argue that
the length of his supervised release term exceeds the applicable statutory maximum. The
government concedes this issue and agrees that the concurrent five-year terms of supervised release
imposed on the mail and wire fraud offenses in Counts I, II, V, and VI exceed the statutory
maximum term of three years for these offenses which were not alleged to have affected a financial
institution. See 18 U.S.C. §§ 1341 & 1343 (providing a twenty-year maximum terms of
imprisonment except when violation affects financial institution and then providing for thirty-year
maximums); see also 18 U.S.C. § 3583(b)(1) & (2) (providing a maximum five-year term of
supervised release for Class B felonies, which carry a maximum term of imprisonment of twentyfive-years or more, and a maximum three-year term of supervised release for Class C felonies which
carry a maximum term of imprisonment of twenty years). The PSR classified Counts I, II, V, and
VI as Class B felonies with five-year maximum terms of supervised release, even though the issue
of whether defendant’s mail and wire fraud affected a financial institution was not submitted to nor
decided by a jury. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). At sentencing,
neither Volpentesta nor the government objected to this classification. As class C felonies, the
supervised release terms of the convictions in Counts I, II, V, and VI should have been limited to
three years. See 28 U.S.C. § 3583(b)(2).
This court may summarily set aside or correct an unlawful sentence without holding a
resentencing hearing where the correction will not affect the other components of the sentence.
United States v. Binford, 108 F.3d 723, 728 (7th Cir. 1997); 28 U.S.C. § 2255(b) (“If the court finds
that the . . . sentence imposed was not authorized by law. . . the court shall . . . correct the sentence
as may appear appropriate.”). Therefore, that part of Volpentesta’s sentence imposing concurrent
five-year terms of supervised release on Counts I, II, V, and VI is hereby vacated and reduced to
concurrent three-year terms of supervised release to run concurrently with the supervised release
terms of all the other counts of conviction.
8. Failure to Petition for a Writ of Certiorari
Volpentesta contends that his appellate counsel was ineffective because he failed to file a
petition for a writ of certiorari to the United States Supreme Court after the Seventh Circuit affirmed
his conviction and sentence on direct appeal. In apparent recognition that he has no constitutional
12
right to the assistance of counsel in seeking discretionary review through a petition for a writ of
certiorari, see Wyatt v. United States, 574 F.3d 455, 459 (7th Cir. 2009) (“[A] criminal defendant
has no constitutional right to counsel to pursue a petition for a writ of certiorari. And where there
is no constitutional right to counsel, there cannot be constitutionally ineffective assistance of
counsel.”), Volpentesta argues that his attorney deprived him of his right to such assistance under
the Criminal Justice Act, see 18 U.S.C. § 3006A.6
Although the Seventh Circuit has not addressed this issue, the Sixth Circuit has held that a
violation of a defendant’s right under the CJA to effective assistance of counsel is not cognizable
under § 2255. See Nichols v. United States, 563 F.3d 240, 250-51 (6th Cir. 2009) (“This circuit’s
procedural rules, standing alone, do not create a constitutional right or impose a constitutional duty.
Even if we accept . . . that his counsel performed deficiently under our procedural rules, that
performance would not be constitutionally deficient solely because of a failure to comply with our
procedural rules.”); Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008) (same); see also
Bustamante v. United States, No. 08 C 3508, 2009 WL 1444716, at *8 (N.D. Ill. May 21, 2009)
(denying movant’s ineffective assistance of appellate counsel claim for failure to petition for
certiorari because movant did not have a constitutional right to counsel in seeking a discretionary
review of his appeal and because he could not claim that appointed counsel violated his statutory
duties under the Criminal Justice Act). In this case, as in Nichols and Steele, it appears that
Volpentesta’s appellate counsel breached his duty under the Circuit’s Criminal Justice Act Plan.
However, the court agrees with the conclusion of the Sixth and Eighth Circuits that a violation of
these procedural rules is not cognizable under § 2255. See Colby v. J.C. Penney Co., 811 F.2d 1119,
1123 (7th Cir. 1987) (stating that district courts in the Seventh Circuit should “give most respectful
consideration to the decisions of the other courts of appeals and follow them whenever [they] can”
(alteration and quotation marks omitted)).
Even if this ineffective-assistance-of-appellate-counsel claim were cognizable under § 2255,
it would fail because Volpentesta did not suffer prejudice. See Steele, 518 F.3d at 988-89 (finding
alternatively that the § 2255 movant did not show prejudice as a result of appellate counsel’s failure
to file petition for writ of certiorari because she failed to show that she would have succeeded in
obtaining a writ of certiorari if counsel had filed a petition and a reasonable probability that she
would have obtained relief as to her sentence). According to Volpentesta, he became aware that the
Seventh Circuit affirmed his conviction and sentence on August 27, 2013, and requested in an
6
The duty of appointed counsel with respect to a petition for a writ of certiorari is as follows:
After an adverse decision on appeal by this Court, appointed counsel shall advise the defendant in
writing of his right to seek review of such decision by the Supreme Court of the United States. If, after
consultation (by correspondence, or otherwise), the represented person requests it and there are
reasonable grounds for counsel properly to do so, the appointed attorney must prepare and file a
petition for writ of certiorari and other necessary and appropriate documents and must continue to
represent the defendant until relieved by the Supreme Court. Counsel who conclude that reasonable
grounds for filing a petition for writ of certiorari do not exist must promptly inform the defendant, who
may by motion request this Court to direct counsel to seek certiorari.
The Plan of the United States Court of Appeals for the Seventh Circuit to Supplement the Plans of the Several United
States District Courts within the Seventh Circuit, § V, Duties of Appointed Counsel, ¶ 3.
13
August 29, 2013 letter that his appellate counsel file a petition for a writ of certiorari. The petition
had to be filed by December 4, 2013, ninety days after his conviction became final upon the issuance
of the Seventh Circuit’s mandate on September 5, 2013. See Sup. Ct. R. 13. At some point after
December 4, 2013, Volpentesta became aware that no petition was filed and became obligated to file
a motion in the Seventh Circuit requesting that the mandate be recalled to afford him an opportunity
to file the petition if warranted. See United States v. Price, 491 F.3d 613, 615 (7th Cir. 2007).
Volpentesta filed that motion and the Seventh Circuit denied it, presumably because Volpentesta
did not establish reasonable grounds upon which counsel could advance a petition for certiorari. See
id. at 616 (“[T]he duty of appointed counsel to file a petition for certiorari is tempered by the duty
to refrain from filing ‘frivolous’ pleadings.”). It must be remembered that “[r]eview on a writ of
certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be
granted only for compelling reasons.” Sup. Ct. R. 10. Even now, Volpentesta has not identified
arguable grounds that could have been raised in a petition for a writ of certiorari, much less identified
compelling reasons to grant the writ or a reasonable probability that he would have obtained relief.
For these reasons, the court concludes that appellate counsel’s failure to file a petition for a
writ of certiorari was not ineffective assistance of appellate counsel in violation of Volpentesta’s
constitutional rights. Volpentesta’s claim that he was deprived of his right to effective appellate
counsel under the Criminal Justice Act is not cognizable under § 2255. Even if that claim were
cognizable, this court would not afford him relief because he has failed to show that he suffered
prejudice due to appellate counsel’s failure to file the petition.
III. CONCLUSION
For the reasons set forth above, the motion to set aside, modify, or vacate the sentence
pursuant to § 2255 is granted in part and denied in part. The concurrent five-year terms of
supervised release on Counts I, II, V, and VI are hereby vacated and reduced to three-year terms of
supervised release concurrent with the supervised release terms of all the counts of conviction. The
motion is denied in all other respects. Pursuant to Rule 11(a) of the Rules Governing Section 2255
Cases, the court must consider whether to grant a certificate of appealability. Based on the foregoing
analysis, Volpentesta has not established that reasonable jurists could debate the correctness of the
court’s decision. Accordingly, the court declines to issue a certificate of appealability.
Date: 7/27/2015
ENTER:
_________________________
FREDERICK J. KAPALA
District Judge
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