Marcano v. United States of America

Filing 21

MEMORANDUM & ORDER: Petitioner's application for relief under 28 U.S.C. § 2255 is denied. Because petitioner has not "made a substantial showing of the denial of a constitutional right," 29 U.S.C. § 2253(c)(2), a certificate of appealability will not issue. Ordered by Judge Raymond J. Dearie on 3/19/2015. (Chee, Alvin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------)(
CORY MARCANO,
Petitioner,
MEMORANDUM & ORDER

-against11 CV 5551 (RJD)

UNITED STATES OF AMERICA,
Respondent.

-------------------------------------------------------)(
DEARIE, District Judge.
After trial, a jury convicted petitioner Cory Marcano of conspiracy to commit robbery, in
violation of 18 U.S.C. § 1951(a) (Count One); attempted robbery, in violation of 18 U.S.C. §
1951 (a) (Count Two); use or possession of a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(l)(A)(iii) (Count Three); conspiracy to retaliate against an
informant, in violation of 18 U.S.C. § 1513(b)(2) (Count Five); conspiracy to tamper with an
informant, in violation of 18 U.S.C. § 1512(a)(2)(c) (Count Seven); conspiracy to distribute and
possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 (Count Nine);
possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841 (a)(l) (Count
Ten); and use or possession of a firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(l)(A)(i) (Count Eleven). The jury acquitted Marcano on Count Four, which
charged him with causing the death of a person (Wesley Thomas) through the use of a firearm, in
violation of 18 U.S.C. § 9240)(1).
Serving a principal sentence of 39 years, 1 Marcano now moves for federal habeas relief

concession, the Second Circuit remanded for resentencing pursuant to United States v. Regalado,

under 28 U.S.C. § 2255 on three grounds. First, he challenges the three robbery-related
convictions (Counts One, Two and Three) on the ground that the government failed to prove that
the robbery affected interstate commerce. Second, under the guise of a claim asserting that the
Court erred in its instructions to the jury on aiding and abetting the crime of using or possessing
a firearm in furtherance of a crime of violence (Count Three), Marcano asserts that his robberyrelated convictions are invalid as somehow incompatible with his acquittal on the murder charge.
Third, Marcano challenges his conviction on Count Seven, admitting the existence of the
informant-tampering conspiracy but claiming that the evidence of his participation was
insufficient.
For the reasons that follow, the application for federal habeas relief is denied.

FACTUAL BACKGROUND
As will be addressed throughout the legal discussion section that follows, the United
States Court of Appeals for the Second Circuit has already reviewed the evidence in this case and
found it legally sufficient-notably, in language rejecting each of the two species of sufficiency
challenges presented in Marcano's appellate papers:
Because Marcano primarily challenges the credibility of the witnesses, his
challenge fails. To the extent that he claims that the evidence itself was
insufficient for the jury to return guilty verdicts on the eight counts of conviction,
based on our review of the evidence presented at trial in the light most favorable
to the government, we conclude that a rational jury could have found the essential
elements of each of the crimes beyond a reasonable doubt.
Marcano, 290 Fed. App'x at 422. Nevertheless, the nature ofMarcano's § 2255 claims makes a

518 F.3d 143, 149 (2d Cir. 2008). See United States v. Marcano, 290 Fed. App'x 421, 423-24
(2d Cir. Aug. 22, 2008). Then, following the Circuit's reversal of the codefendants' witnessretaliation convictions on sufficiency grounds, the government moved to dismiss that same
charge as against ~vfarcano (Count Five). On remand, the Court resentenced ~llarcano to 39

years.
2

brief recounting of the trial evidence appropriate.

A. The Lucrative, Round-the-Clock Drug Trade
Principally through cooperator testimony, the government established Marcano's
leadership role in a violent narcotics enterprise sometimes known as Lincoln Road Productions
("LRP"), a reference to the block on Lincoln Road in Brooklyn that intersects Flatbush A venue,
and its immediate vicinity. Raised in this neighborhood, Marcano and his colleagues also took
control of it through the substantial and lucrative trade in crack cocaine they conducted there,
daily and around the clock, from 1999 through 2003. To keep other drug dealers off their
territory while also "keep[ing] the block pumping," LRP members engaged in a variety of
tactics, including serving as look-outs for each other and concealing weapons in local mailboxes,
but their principal modus operandi was violence and the threat of violence.
Two significant episodes of such violence were explored at trial-the murder of Wesley
Thomas on July 9, 2001, for no apparent reason, during a robbery; and the series of ruthless
retaliatory beatings inflicted on eventual cooperating witness Clinton Davy after he implicated
Marcano in the robbery and murder.

B. The Robbery and Murder of Wesley Thomas
The point-blank shooting of Thomas, as testified to by Davy, happened during a planned
robbery that, initially, included a plan to kill Thomas. According to Davy, Marcano and he
decided to rob another drug dealer, and they targeted Thomas because they believed he would be
unarmed and because they had easy access to his apartment. Marcano expressed interest in
killing Thomas because Thomas knew Davy's mother and Marcano's grandmother, so it was
feared he would snitch if left alive.
As a set-up, Davy first phoned Thomas to order marijuana from him. Marcano was not in

3

possession of the weapon he usually carried, a 9 millimeter Highpoint, so Davy and he went to
see Jamil Bannister (eventually a cooperator and trial witness), who sold Marcano a loaded,
Ruger nine millimeter semi-automatic pistol, for which Marcano agreed to pay, at a later time,
between $500 and $600. So armed, Marcano walked with Davy and Bannister to Thomas's
apartment building. (Davy's car was already parked in a garage beneath the building). Outside,
Davy spotted Everton Scott, known to be Thomas's marijuana supplier, and tried to avoid eye
contact, but Scott then placed a call on his cell phone, and Davy believes it was to alert Thomas
to Marcano's and his arrival.2 Bannister stayed with Davy's car in the basement while Marcano
and Davy went up to Thomas's apartment. As they neared the elevator, they encountered a man
they knew who alerted them to the presence of a camera, which prompted Davy to tell Marcano
that he had reconsidered their plan and decided they should only rob Thomas, not kill him, and
Marcano agreed.
Once they reached the door to Thomas's apartment on the second floor of the building,
Marcano and Davy again considered abandoning their plan but then Thomas, apparently
expecting them, opened his door and let them in. Davy saw some marijuana but asked Thomas
about the quantity he ordered, and Thomas asked Davy for the money. Marcano then pulled out
his weapon and shot Thomas twice. Thomas retreated back into his bathroom; Marcano
followed him and shot through the bathroom door several more times. In all, eight bullets
penetrated Thomas's body.
Davy immediately took the available marijuana and fled. When he joined up with
Bannister in the garage, he told him that Marcano had shot Thomas. The next morning, after he
had learned that Thomas was killed, Davy met with Marcano and the two argued; Marcano was
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the basement of Thomas' s building shortly before the shooting.
4

upset that Davy had not taken more marijuana when he fled Thomas's apartment, while Davy
was upset that Marcano shot Thomas because it was not part of their plan. 3
C. Davy's Contacts with Law Enforcement and the Ensuing Retaliatory Beatings

Davy testified that he was an early suspect in the murder and was questioned by police
only four days later, on July 13, 2001. In his initial interview, to avoid implicating himself, he
placed two imaginary persons at the crime scene and claimed that he remained in the garage.
He met with Marcano the next day, recounted to him the substance of his interview, and
Marcano said they should be okay if Dave stuck to that story.
Davy continued to meet with police frequently during the next two weeks, and continued
to be untruthful, aware of the LRP credo that "informers were dead." In his words, during those
initial interviews, "I wasn't actually cooperating, I was lying." That changed, however, on
August 2, 2001, when he gave police a statement implicating Marcano in the robbery and murder
(although Davy was, again, not entirely truthful because he did not admit that he accompanied
Marcano upstairs to Thomas's apartment). Sometime after that interview, Davy and Marcano
stopped speaking because, in Davy's view, Marcano "felt like [Davy] was giving him up."
In a subsequent statement given on May 8, 2002, Davy again implicated Marcano, and

3

Additional testimony relating to the robbery and murder came from Bannister and cooperator
Rohan McCrea. Bannister's account of the events of July 9, 2001 is generally consistent with
Davy's. He further testified that about a week after the shooting, he asked Marcano for the
money he owed him for the gun; that Marcano gave him approximately $200 worth of marijuana
as payment; and that he (Bannister) was not fully truthful in his initial interview with law
enforcement. McCrea testified that Marcano admitted to him that he had robbed and killed
Thomas with Davy present, and that he and his girlfriend, Daphne Brunet-Bruner, had disposed
of the clothing he used during the incident. The government also called Brunet-Bruner, who
testified that she initially told police that Marcano told her that he robbed Thomas, but that she
said this because she was angry at him, and that it was not true. Brunet-Bruner also admitted that
she had initially told police that she helped Marcano dispose of clothing used during the robbery
but claimed that that, too, v1as not tru.e.

5

for the first time implicated himself as well by admitting he was with Thomas in the apartment
(although Davy was again not entirely truthful because he said there was a third person present
and he denied that he took anything from the apartment). On December 7, 2002, Davy was
arrested for a different robbery; in exchange for dismissal of that charge, he furnished additional
information about the Thomas robbery/murder that police used to obtain a warrant to search the
apartment Marcano used to sell drugs. Following that raid and the arrest of Marcano, Davy
heard from people in the neighborhood that Marcano suspected him of having snitched.
Marcano eventually recruited LRP members to intimidate Davy on his behalf. 4 Davy
suffered the first of three retaliatory assaults on February 3, 2003, in the apartment of Andrew
Edwards who, along with Tyrone Mitchell, pointed a gun at Davy's head, punched and kicked
him, and broke his ankle. Edwards told Davy during the beating that he was "lucky Black [i.e.,
Trigger Black, a/k/a Marcano] didn't kill" him for "snitching." Approximately a month later,
Davy was attacked in the basement of his mother's restaurant by Mitchell, Zackee Campbell, and
Patrick Edwards; Mitchell accused Davy of "telling on Black" and said "you ain't going to tell
on me, too." A third and acutely savage attack occurred another month later, on April 8, 2003.
Codefendants Cornelius Draper and Ledrell Hart, along with Campbell and Andrew Edwards,
ruthlessly beat Davy with a firearm and clothing iron, whipped him with an electrical cord,
poured bleach and vinegar into his wounds and sprayed insect repellent into his eyes, all while
repeating that Davy had "snitch[ed] on Trigger Black." Edwards proposed that the group finish
the job by killing Davy, but before they could carry out the plan the police arrived in response to
4

Cooperating witness Rohan McCrea testified that Marcano said that he wanted to kill Davy "for
snitching," but that he could not do it himself because he suspected that the police were
expecting some sort of retaliation from him. Marcano did not want codefendant Ledrell Hart to
do the killing because he thought Hart would do a clumsy job and it would lead right back to
~v:t:arcano. ~vfarcano initially recrJited ~AcCrea, v1ho agreed to attack Davy only to appear 10) al
but did not actually intend to follow through.
1

6

a 911 call. 5

D. Additional Trial Evidence
Marcano testified in his own defense. He admitted that he sold crack cocaine but
disputed the quantity and otherwise denied being part of a drug conspiracy or using a firearm to
further his drug trade. He also disavowed any role in the robbery-homicide or the beatings of
Davy.
In rebuttal, the government called New York City Police Detective Peter Margraf, who
testified that, before he died, Thomas told him that he knew the individuals who had shot him but
did not name them. Instead, Thomas said to Margrafthat he "would take care of it [him]self."
Thomas also told Margraf that the two individuals who shot him were "Black males" and were
wearing white t-shirts.

DISCUSSION
A.

The Sufficiency Challenge to the Jurisdictional
Element of Counts One, Two and Three

In accordance with United States v. Fabian, 312 F.3d 550, 555 (2d Cir. 2002), the
governing Second Circuit law at the time of Marcano's March 2005 trial, the Court instructed the
jury, in pertinent part, as follows: "Under the law, all illegal drug activity, even if it is purely
local in nature, has an effect on interstate commerce. Therefore, if you find that the object of the
robbery at issue was to obtain illegal drugs or money earned from the sale of illegal drugs, this
element is satisfied." Court Exhibit# 3 at 17. Five years later, however, in United States v.
Parkes, 497 F.3d 220 (2d Cir. 2007), the Second Circuit abrogated Fabian and held, instead, that
5

It was after this third attack that Davy begaI1 assisting law enforcement in the investigation of
this case.

7

"the Hobbs Act requires the jury to determine, beyond a reasonable doubt, whether the conduct
affected, or would have affected, interstate commerce." Id. at 230. Because Marcano's direct
appeal was pending while Parkes was issued, the Parkes standard governs his case. See United
States v. Needham, 604 F.3d 673, 678-79 (2d Cir.), cert. denied, 131 S. Ct. 355 (2010).
Marcano believes he is entitled to relief under section 2255 because the jurisdictional
element of Counts One, Two and Three was not submitted to the jury as required by Parkes, and
in any event because, in his view, the evidence the government offered on that element is legally
insufficient.
The Court disagrees.
As a threshold matter, it is doubtful that this claim is even cognizable in this section 2255
proceeding. "It is well established that a§ 2255 petition cannot be used to relitigate questions
which were raised and considered on direct appeal." United States v. Pitcher, 559 F.3d 120, 123
(2d Cir. 2009) (internal quotations and citations omitted), cert. denied, 558 U.S. 1137 (2010).
The prohibition on relitigation applies here because, as noted, Marcano made an appellate
challenge to the sufficiency of the evidence on all counts of conviction and the Second Circuit
rejected it. Marcano, 290 Fed. App'x 421.
Marcano's section 2255 counsel David J. Cohen, however, appears to take the position
that the claim is not barred here because Marcano's appellate sufficiency claim was a general
credibility challenge that did not specifically address Hobbs Act jurisdiction. Cf. Pitcher, 559
F.3d at 123 ("[a] claim is not barred from being brought in a§ 2255 motion where it rests upon a
different legal 'ground' for relief than the one previously raised") (internal citation omitted).
Without engaging the arguably hairsplitting distinctions between a "ground" and the differing
factual or legal "arguments" that may be advanced in support, the Court concludes, based on

8

careful examination of the record, that the specific jurisdictional claim Marcano advances here
was presented to and rejected by the Second Circuit on Marcano's direct appeal, and so is
procedurally barred.
Marcano' s initial brief, prepared by trial counsel Michael Marinaccio, was submitted on
or about April 5, 2007 and as Mr. Cohen represents, its sufficiency argument addressed only
credibility. The brief pre-dated Parkes by several months but did not address jurisdiction. After
Parkes was issued, but before oral argument on his appeal on May 6, 2008, Marcano obtained
new counsel-Mr. Cohen-who then moved for leave to file a supplemental and/or replacement
brief. Mr. Cohen's motion specifically argued that Mr. Marinaccio did not properly brief
sufficiency because, inter alia, he did not also argue (as the proposed supplemental brief would)
that "[t]he evidence on Counts 1 and 2 was insufficient because the Government failed to prove
that the marijuana previously traveled in interstate commerce."
Against this backdrop, the Circuit's decision on Marcano's appeal is reasonably
understood as disposing of the entirety of Marcano's sufficiency challenge. First, the Circuit
took express account of the change in representation and the request for additional briefing.
Marcano, 290 Fed. App'x at 421 ("[p]rior to oral argument, but well after all briefs had been
filed, Marcano obtained new counsel. At oral argument, this Court granted Marcano's counsel's
request to make a motion to seek permission to file a supplemental brief. Counsel maintained
that there were many issues that had not been sufficiently briefed in defendant's original brief to
this Court."). Second, although the Court announced that it had "reviewed counsel's motion"
and "conclude[ d] that the issues counsel raises do not warrant supplemental briefing," id., the
panel did review the motion, which contained succinct capsule summaries sufficient to alert the
Court to the existence of the jurisdictional claim. Third, and most crucially, because the Circuit

9

must be presumed to have known the state of its own jurisprudence-by the time of the decision
in Marcano' s appeal, Parkes had been the law for nearly a year-the sufficiency portion of its
decision on Marcano's appeal must be read as disposing of both the general credibility claim
raised by Mr. Marinaccio and the jurisdiction-based claim previewed in Mr. Cohen's motion.
As set forth above, the Court wrote:
Because Marcano primarily challenges the credibility of the witnesses, his
challenge fails. To the extent that he claims that the evidence itself was
insufficient for the jury to return guilty verdicts on the eight counts of conviction,
based on our review of the evidence presented at trial in the light most favorable
to the government, we conclude that a rational jury could have found the essential
elements of each of the crimes beyond a reasonable doubt.
Id. at 422 (emphasis added).
In any event, even if the jurisdictional claim were cognizable here, it would fail on the
merits. Under Needham, where, as here, "the source of [the claimed] ... error is a supervening
decision," the dispositive inquiry is "whether th[e] error affected substantial rights." 604 F.3d at
678, 679. "An error affects a defendant's substantial rights if it is prejudicial and it affected the
outcome of the district court proceedings." Id. (internal quotations and citation omitted). To
assess whether there was prejudice, a court must "closely examine the record to determine
whether the jury, had it been properly instructed, would have found the jurisdictional element
satisfied, or whether the government failed to prove this element beyond a reasonable doubt."
Id. at 680.
The Court concludes that Marcano's substantial rights were not affected by the Court's
instruction on interstate commerce. Notably, Marcano does not dispute the substantive
jurisdictional standard under Parkes, where the Court reaffirmed that "[t]he Hobbs Act prohibits
robberies that affect interstate commerce 'in any way or degree,' so the required showing of an
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Indeed, "[t]he jurisdictional requirement of the Hobbs Act may be satisfied by a showing of a
very slight effect on interstate commerce,'' and "[ e]ven a potential or subtle effect on commerce
will suffice." Id. (internal quotation marks and citation omitted). See also United States v.
Jones, 30 F.3d 276, 284-85 (2d Cir. 1994) (the "in any way or degree" standard is satisfied "even
though the effect [on commerce] is not immediate or direct or significant, but instead is
postponed, indirect and slight") (quoted approvingly in Parkes, 497 F.3d at 230). Further, on a
sufficiency challenge, the Court "must view the evidence in the light most favorable to the
government, crediting every inference that could have been drawn in the government's favor,
and deferring to the jury's assessment of witness credibility and its assessment of the weight of
the evidence." United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (internal quotation marks
and citation omitted), cert. denied, 134 S. Ct. 71 (2013). A verdict must be upheld as long as

"any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Applying these standards, the Court concludes that a rational jury given the Parkes
instruction could have found the jurisdictional element beyond a reasonable doubt. The parties
agree that the pertinent evidence concerns the testimony relating to the source of the marijuana
that Marcano and Clinton Davy stole or intended to steal from drug dealer Wesley Thomas.
Davy testified that he telephoned Thomas and ordered eight pounds of marijuana from himspecifically, "Jamaican, yard weed," that was "made in Jamaica"-and that Thomas told him that
"he would have it" at the time the sale was supposed to take place. Everton Scott, Thomas's
usual supplier, testified that he typically supplied Thomas with marijuana that came from
Jamaica but that he did not supply the four pounds of marijuana that Davy and Marcano stole
from Thomas at the time of the murder.

11

The government argues that this evidence proves the required "potential," de minimis
effect on interstate commerce. Marcano, however, argues that the ordering of Jamaican
marijuana cannot count for jurisdictional purposes because the placing of the order was just a
ruse, i.e., that Davy and Marcano did not really care whether the marijuana they stole came from
Jamaica, as evidenced by the fact that they went directly to Thomas's apartment after Davy
placed the order, without allowing time for Thomas to obtain the Jamaican product or even
verifying that he obtained it. Thomas was a relatively randomly selected target, Marcano argues,
and at the very least, the objective of the robbery was not specifically to obtain Jamaican
marijuana.
The government, however, is unquestionably correct. Marcano cites no authority-and
there is none of which the Court is aware-holding that a proven effect on interstate commerce
must also be the specific objective of the Hobbs Act robbery to count for jurisdictional purposes.
A potential and very slight effect on interstate commerce is all the cases require, and that was
proven here. 6

B.

The Challenge to the Aiding and Abetting
Jury Charge on Count Three
1. Procedural Considerations

This claim presents a threshold procedural consideration: it was not raised in Marcano' s
principal appellate brief but, like the jurisdictional challenge, first appeared in the motion Mr.

6

Although not a listed "ground" or "claim" on his counsel-prepared 2255 motion form, Marcano
argues in his brief that the failure of trial and initial appellate counsel to raise and preserve the
jurisdictional issue in anticipation of Parkes constitutes ineffective assistance. The claim does
not present a basis for section 2255 relief: without reaching the issue of counsel's performance,
the Court concludes that Marcano could not show the required prejudice because the
jurisdictional claim has no merit. See generally Strickland v. Washington, 466 U.S. 668 (1984).
12

Cohen filed on Marcano's behalf in the Second Circuit for leave to file a supplemental brief. For
the reasons discussed with respect to the jurisdictional claim, this Court believes that the Second
Circuit's plenary sufficiency finding (i.e., that "a rational jury could have found the essential
elements of each of the crimes beyond a reasonable doubt," Marcano, 290 Fed App'x at 422
(emphasis added)) should be read as having disposed of any factual claim premised on a defect
in how the jury reached its verdict. Nevertheless, the Circuit also arguably invited Marcano to
raise the claim here. See id. ("We hereby deny the motion for supplemental briefing without
prejudice to whatever motions pursuant to 28 U.S.C. § 2255 Marcano may file raising directly or
indirectly any issue presented in the motion."). Accordingly, without deciding whether the claim
is procedurally barred-either because it was not raised in the initial brief and thus forfeited, or
because it was rejected on the merits by the Circuit and therefore barred from being relitigatedthe Court proceeds to the merits.
2.

Is the Claim a Proxy for
An Inconsistent Verdict Claim?

Although Marcano consistently labels this claim a challenge to the aiding and abetting
instructions on Count Three (the use or possession of a firearm in connection with the robbery
charged in Counts One and Two), in substance his is attacking the convictions on all three
robbery-related counts on the ground that they are, in his view, inconsistent with his acquittal on
the charge of murdering Wesley Thomas.
Marcano posits the inconsistency as follows: the jurors' decision to acquit on the murder
charge-particularly because the available theories of conviction included felony murder and
aiding and abetting-means that they "necessarily concluded that Mr. Marcano was not
physically involved in the actual commission of the robbery itself." ECF # 2 at 39. Marcano
continues:

13

The felony murder doctrine would have rendered Mr. Marcano liable if he merely
assisted in the robbery because Mr. Thomas's death was a foreseeable
consequence of engaging in the robbery. Moreover, ifthe jury believed Mr.
Davy's testimony that Mr. Marcano accompanied Mr. Davy to purchase the gun
and then carried the gun to the scene of the robbery, it should and would have
found Mr. Marcano guilty of the murder on both the aiding and abetting and
felony murder theories.
Thus, the verdict rendered by the jury as to Count 4 is in direct conflict with the
verdict that the jury reached as to Count 3. There is no factual or legal
mechanism by which an individual can be found not guilty of a murder that was
the direct result of a robbery and also be found to have (1) conspired to commit
the robbery with a firearm; (2) participated in that robbery; and (3) either used or
carried (or aided and abetted the use or carrying of) the firearm in that robbery
that was used to murder the victim.

Id. at 39-40.
Throughout his papers, Marcano continues to identify, as the principal alleged defect in
the instructions, the fact they "allowed" the inconsi$tency of which he complains, rather than
point to any particular wording error or omission. Notably, when Marcano first put this claim to
paper, in the motion filed by his new appellate (and now section 2255) counsel in the Second
Circuit for leave to file a replacement or supplemental brief, he asserted that "[t]he evidence is
insufficient on Count 3 because of the inconsistent Count 4 verdict" and that "the instructions ...
were confusing and explain the inconsistent verdicts." ECF # 2 at 109 (emphases added). That
branch of the motion concludes that the Court's "instructions w[ere] plain error and confused the
jury. It is the only explanation for the inconsistent verdicts in Counts 3 and 4." ECF # 2 at 114
(emphasis added). Likewise, in the lengthy discussion in his§ 2255 briefs, Marcano's premise is
the flawed belief that the acquittal on Count 4 can be a valid analytical springboard for
measuring the instructions on Count 3.

See,~'

ECF # 2 at 38 ("The jury's acquittal of Mr.

Marcano as to Count 4 signified its belief that Mr. Marcano was not at the scene of the robbery
and, therefore, could not have carried, possessed or used or aided and abetted the carrying or

14

possession or use of the firearm"); id. at 44 ("Thus, the only means by which the jury could have
convicted Mr. Marcano of Count 3 would have been due to a misinterpretation of the misleading
and erroneous jury instructions-that Mr. Marcano could have been convicted of aiding and
abetting the carrying and/or possession of the firearm even though he was not present at the
robbery.").
To the extent Marcano's claim of jury instruction error is merely a proxy for an
inconsistent verdict claim, it cannot be entertained bythis or any court. See generally Dunn v.
United States, 284 U.S. 390, 393 (1932); United States v. Powell, 469 U.S. 57 (1984); United
States v. Acosta, 17 F.3d 538, 545 (2d Cir.1994). Indeed, the Supreme Court specifically
rejected as "imprudent and unworkable a rule that would allow criminal defendants" to do
exactly what Marcano seeks to do here, namely, "challenge inconsistent verdicts on the grounds
that in their case the verdict was not the product of lenity, but of some error that worked against
them." Powell, 469 U.S. at 66. Courts do not review verdicts for claims of inconsistency
because doing so "would be based either on pure speculation, or would require inquiries into the
jury's deliberations that court generally will not undertake." Id.

3. The Gap between the Purported Legal Claim and
The Reality of the Trial Record
The Court must remark here upon a disturbing feature of this branch of Marcano's
application: namely, the extraordinary gap between the four corners ofMarcano's legal claim
and the reality of the trial record. Befitting a cooperator case, the defense was largely credibilitydriven, and counsel for Marcano took the additional step of affirmatively asserting to the jury in
summation that "the government has proved beyond a reasonable doubt that Clinton Davy and
Jamil Bannister shot and killed Vlesley Thomas." The fact that the jury strnggled with the
15

murder count is a matter of record. See, ~' Court Exhibit 8 Gury note asking, "If a party is
present and participating in the commission of a crime, but the jury isn't convinced that the
person used a weapon himself, can we find the person guilty on the

3rd

charge and/or 4th

charge?")
The jury note, of course, speaks for itself, and the Court will not take the additional step
of engaging in the very practice for which it has chided Marcano-speculating about what the
jury was thinking-but the fact remains that the jury did credit much of Davy's and the other
cooperators' testimony because it unanimously found the evidence sufficient to convict Marcano
of the counts charging him with a role in the robbery, the lucrative drug trade, and the beatings
inflicted on Davy, and the Second Circuit expressly affirmed those findings. All discussion of
verdict consistency and validity as a factual matter should begin and end there.
Further still-and again, regardless of the acquittal on the murder charge-both Davy
and Bannister testified that it was Marcano who purchased the gun used in the robbery. The fact
that Marcano quarrels with aiding and abetting liability for the robbery-related weapons charge,
in the face of this evidence, is indefensible. Even worse, his quarrel has spawned an unduly
lengthy analytical odyssey through aiding and abetting and "in furtherance of' theory relatively
divorced from the trial evidence. 7

4. There was No Error in the Court's Instruction on
Aiding and Abetting the Firearms Offense
To the extent Marcano's jury instruction claim is bona fide and not a pretext for his
inconsistent verdict claim, the Court concludes that it committed no error in instructing the jury

7

Indeed, the nearly 100 pages of briefing (some in reduced font) that Marcano devoted to this
claim aione tend to confuse rather than illuminate the issues.
16

on aiding and abetting a firearms offense. Marcano's assertions to the contrary are frivolous.
On a claim of jury instruction error, the question is whether "the entire charge delivered
a correct interpretation of the law." United States v. Quattrone, 441F.3d153, 177 (2d Cir. 2006)
(internal quotation marks and citation omitted). Relief is warranted "only where, viewing the
charge as a whole, there was a prejudicial error," which exists when "a charge either fails to
adequately inform the jury of the law, or misleads the jury as to a correct legal standard." Id.
(internal quotation marks and citation omitted). An error is harmless if it is "clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent the error." Id.
(internal quotation marks and citations omitted).
Reviewing the instructions under the standards of "current law," Rasanen v. Doe, 723
F.3d 325, 338 (2d Cir. 2013), would seem to require that the Court take account of Rosemond v.
United States,_ U.S._, 134 S. Ct. 1240 (2014), which deals directly with the essential
elements of an aiding and abetting charge in the context of a Section 924(c) offense. Rosemond
was issued during the pendency of this proceeding and, at Marcano's request, was the subject of
extensive supplemental briefing. In a lengthy analysis under Teague v. Lane, 489 U.S. 288
(1989), however, Marcano argues that portions of the decision apply retroactively and other
portions do not, and at least one district court in this Circuit has decided that Rosemond does not
apply retroactively on collateral review, at least for purposes of authorizing a second or
successive motion§ 2255 application. Minaya v. United States, 41 F. Supp. 3d 343, 345
(S.D.N.Y. 2014). The government, by contrast, treats Rosemond as a "substantive" decision that
"narrow[s] the scope of a criminal statute by interpreting its terms,'' Schiro v. Summerlin, 542
U.S. 348, 351-52 (2004), and that is therefore retroactive.
Without formally deciding the question of retroactivity-or whether Rosemond

17

materially alters Second Circuit law-the Court has nevertheless examined the relevant portions
of this Court's instructions in light of Rosemond's comprehensive discussion and finds no jury
instruction error, either under Rosemond or pre-Rosemond Second Circuit law.
At the time ofMarcano's trial, Second Circuit law provided that a defendant "cannot be
convicted as an aider and abettor under§ 924(c) merely because he knew that a firearm would be
used or carried." United States v. Masotto, 73 F.3d 1233, 1240 (2d Cir. 1996), cert. denied, 519
U.S. 810 (1996) (quoting United States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994)). "Instead, the
defendant must have 'performed some act that directly facilitated or encouraged the use or
carrying of a firearm."' Masotto, 73 F.3d at 1240 (quoting Medina, 32 F.3d at 45).
This Court's charge plainly satisfied this standard. In a section of the charge separately
captioned "Aiding and Abetting in Firearms Charges" that supplemented the general instructions
on aiding and abetting, the Court alerted the jury that "[t]here are specific- rules governing the
application of 'Aiding and Abetting' theory to firearms charges." Court Ex. 3 at 40. As set forth
above, the Court instructed the jury, in pertinent part,
you may not find the defendant guilty of aiding and abetting unless you first find
that he is guilty of an underlying crime .... Additionally, it is not enough for the
government simply to show that the defendant aided and abetted the other person
in the commission of the underlying offense. The government must prove beyond
a reasonable doubt that the defendant performed some act that directly facilitated
or encouraged the other perpetrator in the use or carrying of a firearm. That is,
the defendant must have actively assisted the other person in using or carrying the
firearm so that he could commit the specific crime of violence or drug trafficking
charged in the Indictment.
Id. at 40-41. (emphasis added). 8

8

The Court expressly made these instructions applicable to Count 3 in its written response to the
juror note referenced supra at p. 15. The response advised the jury, in pertinent part:
You may find the defendant guilty on Counts 3 and 4, if the govern..111ent proves
each element of the crimes charged beyond a reasonable doubt. You must,
18

The italicized language is precisely what Medina and Masotto require.
The Court turns now to Rosemond, which holds that, to prove a defendant aided and
abetted a § 924( c) offense, the government must show "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." 134 S. Ct. at 1243. Brief examination
of the context, however, illuminates this holding.
The trial court had instructed the jury that the government had to prove that "( 1) the
defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant
knowingly and actively participated in the drug trafficking crime." Id. at 1244. The Supreme
Court found the first branch of the charge defective because the language failed to convey that a
"defendant's knowledge of a firearm must be advance knowledge-or otherwise said, knowledge
that enables him to make the relevant legal (and indeed, moral) choice ... to aid an armed
offense." Id. at 1249. In other words, "[a]n active participant in a drug transaction [or crime of
violence] has the intent needed to aid and abet a § 924(c) violation when he knows that one of
his confederates will carry a gun." Id. at 1249. 9

however, bear carefully in mind my instructions to you on "aiding and abetting,"
particularly with respect to the firearms charges. It is not enough to find that the
defendant was present and participated in the robbery or murder. You must find
beyond a reasonable doubt that the defendant either possessed, carried or used a
firearm in furtherance of the crime, or that he aided and abetted another to do so,
and that he acted with the requisite level of intent required by the Court's
instructions on the count you are considering.
Court Exh. 8-A (emphasis in original). The instructions on intent for Count Three (to which the
supplemental instruction referred the jury) provided, in pertinent part, that that the government
"must prove that the defendant knew what he was doing, that is, using or carrying a firearm in
furtherance of the underlying crime of violence." Court Exh. 3 at 20.
9

On the affirmative act element, not apparently at issue here, the Court held that because aiding
and abetting liability is satisfied if a defendant "facilitated any part-even though not every
part-of a criminal venture," id. at 1246, aiding and abetting a § 924(c) offense is established if
19

Several courts are of the view that Rosemond reduced the government's pre-Rosemond
burden in the Second Circuit.

See,~.

United States v. Santana, 552 Fed. App'x 87, 90 n.l (2d

Cir. Jan. 29, 2014) (noting, in response to the Supreme Court's grant of certiorari in Rosemond,
that the other Circuits' 924(c) aiding and abetting standards required less of the government than
the Second Circuit's, and thus that "Rosemond's outcome will not affect the result [in that case]
because this Circuit requires active facilitation or encouragement in order to establish aiding and
abetting liability, which imposes the strictest standard ofproof on the government") (emphasis
added), cert. denied, 134 S. Ct. 2718 (2014); United States v. Caraballo, 2014 WL 3535348, *7
(D. Vt. July 16, 2014) ("The government, however, is equally correct that Rosemond effectively
lightened the government's burden of proof because the government need not prove the
defendant directly facilitated or encouraged the use or carrying of a firearm (the former Second
Circuit standard) but need only prove the defendant's advance knowledge that another would use
or carry a firearm in a drug trafficking crime.").
Without deciding whether Rosemond upped or lowered the ante, the Court concludes that
in this case, the instructions pass muster under Rosemond. As recounted above, the Court
instructed the jury that, to convict Marcano of aiding and abetting the use or carrying of a firearm
in furtherance of the Thomas robbery, it must find that Marcano "performed some act that
directly facilitated or encouraged the other perpetrator in the use or carrying of a firearm [,t]hat
is, the defendant must have actively assisted the other person in using or carrying the firearm so
that he could commit the specific crime of violence." Court Exh. 8 at 41. Advance knowledge
that a confederate would carry a gun-what Rosemond requires-is inherent in this instruction.
Simply put, if a defendant "directly facilitate[ s]" or "encourage[s]" a confederate to carry a

the defendant facilitated either the use or carriage of the firearm or the commission of the
predicate violent or drug trafficking offense. Id.
20

weapon in order to commit a robbery, it is axiomatic that he "knows that one of his confederates
will carry a gun." Id. at 1249. In an unpublished decision, the Second Circuit reached essentially
the same conclusion. See United States v. Young, 561 Fed. App'x 85, 92 (2d Cir. Apr. 4, 2014)
("the district court instructed, in accordance with United States v. Medina, 32 F.3d 40, 45 (2d
Cir.1994 ), that [aiding and abetting] liability attached under § 924(c) if the defendant 'performed
some act that facilitated or encouraged the actual using, carrying of, or possession of the firearm
in relation to the underlying crime.' By finding that [the defendant] encouraged the "actual
using, carrying of, or possession" of a firearm in the ... robbery, the jury necessarily also had to
find that he had advance knowledge of the firearm-related conduct, consistent with the Supreme
Court's explication in Rosemond") (internal record citation omitted), cert. denied, 135 S. Ct. 387
(2014).
In any event, as discussed, Davy and Bannister both testified that Marcano went to
Bannister to purchase a gun to use in the robbery of Thomas. Construing that testimony in the
light most favorable to the government-i.e., assuming it was credited by the jury-the Court
concludes that there was legally sufficient evidence that Marcano had advance knowledge that a
gun would be used in the robbery of Wesley Thomas. The fact that the jury was not convinced
that it was Marcano who pulled its trigger is irrelevant.
For all the foregoing reasons, Marcano's claim addressed to the instructions on aiding
and abetting liability for Count 3 does not present a basis for habeas relief.

C.

The Sufficiency Challenge to the Witness
Tampering Conviction (Count 7)
Marcano does not dispute the existence of the conspiracy to tamper with witness Clinton

Davy but claims only that there was insufficient evidence that he was a member.
This sufficiency challenge is situated similarly to the Count One jurisdictional challenge:
21

it was a theory not advanced in the initial appellate brief prepared by Mr. Marinaccio but was
first raised in the motion for leave to file supplemental briefing prepared by Mr. Cohen. For
reasons already discussed, the claim was also, therefore, rejected on the merits by the Second
Circuit in its plenary sufficiency finding and so is procedurally barred from consideration here.
In any event, the claim is frivolous. "[O]nce a conspiracy is shown to exist, the evidence
sufficient to link another defendant to it need not be overwhelming." United States v. Tawik,
391 Fed. App'x 94, 96 (2d Cir. Aug. 30, 2010) (internal quotations and citations omitted), and
may be entirely circumstantial. In re Terrorist Bombings of U.S. Embassies in East Africa, 552
F.3d 93, 113 (2d Cir. 2008), cert. denied, 556 U.S. 1283 (2009). There was ample evidence, as
reviewed at the outset of this memorandum, linking Marcano to the conspiracy to tamper with
Davy: testimony that, inter alia, Marcano became concerned after the Thomas murder that Davy
was cooperating with the police; Marcano spoke openly about wanting to kill him for doing so;
Marcano was also concerned about retaliating himself because he believed the police were
expecting him to retaliate against Davy; and during each beating, one or more of the LRPmember assailants spoke to Davy of his having snitched on Marcano.

CONCLUSION
For the reasons discussed, Cory Marcano's application for relief under 28 U.S.C. § 2255
is denied. Because Marcano has not "made a substantial showing of the denial of a
constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability will not issue.
SO ORDERED.
Dated: Brooklyn, New York
March
2015

/s/ Judge Raymond J. Dearie

4,

Wf

o<&D J. DEARIE
RA
United States District Judge

22