Barbarino v. United States of America

Filing 16

OPINION: For the reasons stated above, the motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255 and the request for resentencing pursuant to 18 U.S.C. § 3582(c) are denied. The Clerk of Court is directed to clos e the motion pending at Docket Number 297 in 10 Crim. 476 and to mark the corresponding civil action (No. 15 Civ. 8583) closed. Because Barbarino has not made a substantial showing of the denial of a constitutional right, a certificate of appealabili ty will not issue. Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). Pursuant to 28 U.S.C. § 1915(a)(3), the court certifies that any appeal from this Order would not be taken in good faith. See Coppedege v. United States, 369 U.S. 438, 445-46 (1962). (Signed by Judge Thomas P. Griesa on 4/11/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------X
LANCE BARBARINO,
1 0-cr-4 76 (TPG)
15-cv-8387 (TPG)

Petitioner,

OPINION

v.
THE UNITED STATES OF AMERICA,
Respondent.

-------------------------------------------X
Lance Barbarino ("Petitioner"), proceeding prose, brings this motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the
reasons set forth below, Petitioner's motion is denied.

BACKGROUND
I.

Trial and Sentencing

In June 2010, Barbarino was charged with securities fraud, wire fraud,
and conspiracy in connection with his decade-long participation in an
organized plan to defraud investors-many of whom were elderly individualsof $12 million. Barbarino pled not guilty and was tried before a jury in March
2013. Barbarino was represented by defense counsel Joel Stein in connection
with pretrial and trial proceedings.
The heart of the Government's case was that for a decade, Barbarino
conspired with a group of men working for Powercom Energy Services Corp.
and Empire Energy Services Corp. (collectively "Powercom/Empire") to defraud
1

innocent investors of millions of dollars. Barbarino and Powercom/ Empire
employees solicited investments from potential investors and told them that the
money would be invested in a particular company, when in fact 40% of the
money was paid to Barbarino or a co-conspirator as commission. One company
Barbarino solicited investments in was a small Florida-based company called
RealCast. Barbarino and his co-conspirators falsely represented to potential
investors that RealCast was on the verge of great success. In the course of
soliciting investments, Barbarino engaged in deceptive practices, such as
distributing misleading documents to investors, misrepresenting the amount of
commission to be collected, mischaracterizing which company he worked for,
and misleading investors about the potential of their investments. At the trial,
the Government repeatedly used the terms "boiler room," "fraudsters,"
"cronies," and "partners in crime" to describe the scheme. Defense counsel
repeatedly objected to the Government's use of the language. Trial Tr. 395,
399, 403, 483.
To prove its case, the Government played recordings of Barbarino and
other co-conspirators discussing their roles in seeking investments and their
activities in furtherance of the plan to defraud investors. The Government's
witnesses included several investors who never received returns on their
money. Dr. Frank Moore, an aggrieved investor, traveled from Alaska to testify
at trial, and was only available for limited cross-examination before he needed
to return home. Dr. Moore was made available for further cross-examination
via telephone, but the parties reached an agreement that did not require
2

further cross-examination. Instead, the Government stipulated to the
admissibility of a document concerning Dr. Moore's communication with
Barbarino, and the defense was satisfied. The Government also called
Barbarino's co-defendant, cooperating witness Jamil Fuller, to testify. Fuller
worked with Barbarino for many years and his testimony directly implicated
Barbarino in the plan to defraud investors. Defense counsel cross-examined
Fuller at length.
The defense's key strategy at trial was to portray the statements made to
investors by Barbarino and his co-conspirators as genuine and to attempt to
demonstrate the viability and potential of RealCast. The defense also
highlighted the supporting documentation Barbarino and his co-conspirators
sent to investors to demonstrate their candor. The defense called a witness to
testify about RealCast's bank records.
Before and during trial, Barbarino suffered illness due to ongoing health
issues, including chronic obstructive pulmonary disease. On the third
scheduled day of trial, Barbarino collapsed while waiting to enter the
courthouse. An alternate juror witnessed Barbarino's collapse and spoke to at
least one other juror about the incident. The court questioned the alternate
juror as well as another juror who had heard about the incident. The court
concluded that the jurors could remain fair and impartial.
The jury convicted Barbarino on all counts. On April 25, 2014, the court
sentenced Barbarino to 97 months' imprisonment followed by three years'
supervised release based on a loss calculation of $12 million.
3

II.

Appeal

On appeal to the Second Circuit, Barbarino made two primary
arguments. United States v. Barbarino, 612 F. App'x 624, 626 (2d Cir. 2015).
First, Barbarino argued that he was denied a fair trial by the cumulative effect
of several errors he claimed were committed by this court and by the
Government before and during his trial, including: ( 1) this court's denial of his
request for a continuance based on his health; (2) this court's management of
the situation arising from Barbarino's illness in front of a juror; (3) this court's
decision to cut short the cross-examination of Dr. Moore; and (4) the
Government's use of improper remarks, such as the terms "boiler room,"
"fraudsters," "cronies," and "lies." Id. at 626--27. Second, Barbarino argued that
his sentence was unreasonable because the applicable United States
Sentencing Guidelines ("Guidelines") range was calculated using a loss amount
of $12 million, which was larger than the loss amount attributed to his coconspirators. Id. at 626.
The Second Circuit affirmed this court's judgment in its entirety,
reasoning that many of the alleged errors were "adequately addressed," and
that any errors that did occur could "not be said to have deprived [Barbarino]
of a fair trial." Id. at 627-28. The Second Circuit also found that this court "did
not clearly err in determining that the entire $12 million loss was foreseeable to
Barbarino, and chargeable to him in its sentencing calculation." Id at 628.

4

III.

Motion to Vacate, Set Aside, or Correct Sentence

Barbarino now moves to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. In his petition, Barbarino sets forth numerous
grounds on which he challenges his conviction and sentence. Those grounds
can be summarized as falling into four categories: (1) challenges based on trial
errors; (2) a challenge that his sentence was procedurally unreasonable; (3)
ineffective assistance of counsel; and (4) a challenge to his sentence based on
an amendment to the Guidelines.
Barbarino's challenges based on trial errors cover (1) the Government's
use of certain language to describe his criminal conduct and co-conspirators;
(2) this court's denial of Barbarino's request for a continuance of trial based on
health issues; and (3) this court's decision to limit the cross-examination of Dr.
Moore.
In connection with the sentence, Barbarino alleges that this court's
adoption of a loss amount of $12 million in calculating the applicable
Guidelines range was erroneous because (1) it held him responsible for the loss
attributable to the entire conspiracy, and (2) it was higher than the loss
amount attributed to his co-conspirators, resulting in the imposition of a
longer sentence on Barbarino than his co-conspirators (Petitioner refers to this
as "prosecutorial vindictiveness" in his motion). Pet. at 42.
Barbarino also contends that his counsel was ineffective based on
counsel's failure to: (1) call exculpatory witnesses at trial, including three
witnesses counsel interviewed before trial; (2) adequately prepare for trial by

5

reviewing discovery, including certain recordings; (3) object to the
Government's use of certain language; (4) correct a purported
mischaracterization of evidence by the Government; (5) insist on additional
cross-examination of Dr. Moore; and (6) more vigorously argue for adjournment
of the trial due to Barbarino's health issues.
Finally, Barbarino argues that his sentence should be reduced based on
a November 1, 2015 amendment to Guidelines Application Note 3(B) to Section
1B 1.3, which states "the accountability of the defendant for the acts of others
is limited by the scope of his or her agreement to jointly undertake particular
criminal activities. Acts of others that were not within the scope of the
defendant's agreement, even if those acts were known or reasonably foreseeable
to the defendant, are not relevant conduct under subsection (a)(1)(B)." U.S.S.G.
§ 1B1.3 Applic. Note 3 (2015).

DISCUSSION

In assessing a petition for habeas corpus, "a district court need not
assume the credibility of factual assertions, as it would in civil cases, where the
assertions are contradicted by the record in the underlying proceeding." Puglisi

v. United States, 586 F.3d 209, 214 (2d Cir. 2009). Where the record
"conclusively show[s] that the petitioner is entitled to no relief," summary
dismissal without further evidentiary proceedings may be appropriate. 28
U.S.C. § 2255(b); see also Newfield v. United States, 565 F.2d 203, 207 (2d Cir.
1977). Because the court has at its disposal the trial transcripts, the relevant

6

sentencing materials, and counsel's submissions to this court, an evidentiary
hearing is not necessary.

I.

Claims Already Raised on Appeal

In his § 2255 motion, Barbarino raises many of the same claims he
raised on direct appeal to the Second Circuit. It is well accepted that a § 2255
petition is not a substitute for a direct appeal and that a federal prisoner
cannot use a§ 2255 petition to relitigate claims already raised on direct appeal.

Reese v. United States, 329 F. App'x 324, 326 (2d Cir. 2009).
To the extent Barbarino's challenges are duplicative of the arguments he
raised on direct appeal, they are not a cognizable basis for relief under§ 2255.
Therefore, the court dismisses Barbarino's challenges based on (1) this court's
denial of his request for a continuance based on his health; (2) this court's
management of the situation arising from Barbarino's illness in front of a juror;
(3) this court's decision to cut short the cross-examination of Dr. Moore; (4) the
Government's use of the terms "boiler room," "fraudsters," "cronies," and other
similar language; and (5) this court's calculation of the applicable Guidelines
range using a loss amount of $12 million.
II.

Ineffective Assistance of Counsel

Petitioner asserts that his defense counsel was ineffective, and he
enumerates several alleged failings on the part of his counsel to support his
claim. A claim for ineffective assistance of counsel is a permissible basis for a
§ 2255 motion. Tavarez v. Larkin, 814 F.3d 644, 650 (2d Cir. 2016).

7

To prevail on a claim of ineffective assistance of counsel, a petitioner
must show {1) that counsel's representation fell below an objective standard of
reasonableness (the "performance prong"), and (2) a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceedings
would have been different (the "prejudice prong"). Strickland v. Washington,
466 U.S. 668, 688, 694 (1984). Failure to meet the required showing of either
prong defeats an ineffectiveness claim. Id. at 700.
Under the performance prong, "the challenger's burden is to show that
counsel made errors so serious that counsel was not functioning as the
counsel guaranteed the defendant by the Sixth Amendment." Chrysler v.

Guiney, 806 F.3d 104, 123 (2d Cir. 2015) (internal quotations omitted). Courts
must "indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance" because "[t]here are
countless ways to provide effective assistance in any given case." Id. at 689.
Coming to the specifics of this case, counsel did not render ineffective
assistance in deciding not to call certain witnesses identified by Petitioner. The
decision "whether to call any witnesses on behalf of the defendant, and if so
which witnesses to call, is a tactical decision of the sort engaged in by defense
attorneys in almost every trial." United States v. Nersesian, 824 F.2d 1294,
1321 (2d Cir. 1987). This decision about the witnesses falls squarely within the
ambit of trial strategy, and does not constitute a basis for ineffective assistance
of counsel. Id. Strategic choices made by counsel "after thorough investigation

8

of law and facts relevant to plausible options" are "virtually unchallengeable."

Id. at 690-91.
Here, Counsel interviewed the witnesses Petitioner requested, which
surely indicated that the decision not to call the witnesses was a deliberate
strategic choice. See Barnes v. United States, Nos. 13 Civ. 9105, 04 Crim. 186,
2015 WL 585430, at *7 (S.D.N.Y. Aug. 31, 2015) (That "counsel contacted [the
potential witness] and investigated his account of that day suggests that the
alleged 'failure' to call him as a witness was in fact a deliberate strategic
decision."). And counsel's strategy not to call the witnesses was reasonable.
Petitioner's assertions that these witnesses would have spoken to "their feelings
about the company as well as the esteem they held the defendant, the well
regard for his work ethic, integrity and honesty," Pet. Ex. A at 24, do not call
into question counsel's decision. The legitimacy of the Powercom/Empire and
Bararino's credibility were effectively challenged at trial, so counsel could have
reasonably determined that the added value of presenting the witnesses would
have been negligible.
Counsel's decision not to continue cross-examining Dr. Moore also fell
within the range of reasonable strategic decisions. "Decisions whether to
engage in cross-examination, and if so to what extent and in what manner, are
... strategic in nature." Nersesian, 824 F.2d at 1321. Counsel may very well
have believed that further probing of Dr. Moore was unnecessary, especially in
light of the Government's stipulation to the admissibility of the document
concerning Dr. Moore's communications with Barbarino.
9

Next, Petitioner claims counsel's failure to "correct crucial mistakes
during prosecution's summary" amounted to ineffective assistance. Pet. Ex. B
at 4. Initially, this claim fails because Petitioner does not clearly identify what
mistakes counsel failed to correct. Rather, Petitioner argues that counsel
should generally have painted a more sympathetic image of Petitioner to the
jury during trial. This argument is not based on a specific identifiable error,
but amounts to a challenge to counsel's general approach to trial. Counsel's
strategy at trial, which was to undermine the Government's theory that the
statements and transactions made by Petitioner were fraudulent, was
reasonable. Furthermore, to the extent counsel decided not to object to the
Government's characterization of certain evidence, that decision could well
have reflected counsel's fear that doing so would have highlighted the evidence
for the jury. See Quinones v. Miller, 224 F. App'x 44, 49 (2d Cir. 2007).
In any event, Petitioner's claim that counsel failed to object during trial is
not supported by the facts. The record shows that counsel objected to the
Government's use of the language Barbarino cites. The court sustained some of
the objections and overruled others. Compare Tr. at 395 with Tr. at 483.
Petitioner has not identified any specific occasion on which counsel did not
object. Thus, Petitioner's allegation that counsel's lack of objections constituted
ineffective assistance of counsel fails.
As for counsel's failure to seek additional continuances of trial due to
Barbarino's health, the court finds that counsel's decision was objectively
reasonable. Counsel sought to adjourn the trial at a pretrial conference on
10

February 25, 2013 due to Barbarino's health, and that request was denied.
Counsel was not then required to engage in the filing of futile duplicative
motions for the same relief. See, e.g., Nersesian, 824 F.2d at 1322. Counsel
kept the court apprised of Barbarino's health concerns throughout trial and
advocated on Barbarino's behalf to ensure he could attend doctor's
appointments and recover from a hospital admission. Tr. at 193, 213-15.
Counsel's efforts were eminently reasonable.
Petitioner also contends that counsel inadequately prepared for trial
because he did not sufficiently review discovery materials or have certain
recordings transcribed. With respect to the recordings, Petitioner advances no
argument as to why the recordings needed to be transcribed, why the
recordings were independently insufficient, or why counsel's failure to
transcribe the tapes fell below an objective standard of reasonableness.
"Allegations relating to counsel's alleged errors in trial preparation and
advocacy that are vague, conclusory and unsupported ... are insufficient to
establish an ineffective assistance of counsel claim." Barnes, 2015 WL 585430,
at *7. Petitioner's claim falls far short of establishing that the failure to
transcribe the recordings amounted to ineffective assistance of counsel. The
record also plainly contradicts Petitioner's claim that counsel failed to review
the discovery prior to trial. The trial transcript demonstrates that counsel had
a thorough knowledge of the materials in the case, including the recordings,
financial records, bank statements, and subscription agreements. Tr. at 18-22,
108,157-159,307-15,371-91,448-451.
11

On the whole, the record indicates that counsel's preparation and
performance at trial was well within the "wide range of reasonable professional
assistance." Strickland, 446 U.S. at 689. For example, counsel did seek an
adjournment of trial to account for Barbarino's health issues. Counsel objected
to the Government's use of the language Barbarino cites, thoroughly crossexamined the Government's key witnesses, and called a witness to testify about
RealCast's bank records. On the whole, counsel's performance did not fall
below an objective standard of reasonableness.
Even assuming, contrary to the court's view, that counsel failed to
adequately investigate and prepare a defense or made errors at trial, Petitioner
fails to satisfy the prejudice prong of the Strickland test. As the Second Circuit
determined, the Government's use of the language Petitioner identifies "did not
rise to the level of prejudicial error," and Petitioner suffered no harm from the
shortened cross-examination of Dr. Moore. Barbarino, 612 F. App'x at 626-27.
Therefore, Petitioner did not suffer prejudice from counsel's decisions relating
to either the Government's use of certain language identified by Petitioner or
the cross-examination of Dr. Moore. Moreover, there was "overwhelming
evidence of Barbarino's guilt" at trial. Id. at 627. Under these circumstances,
the court cannot conclude that Barbarino was prejudiced by the errors
purportedly committed by trial counsel.
III.

Challenge Pursuant to Section 3582(c)

In his§ 2255 petition, Petitioner challenges his sentence on the ground
that the Guidelines were amended after his sentencing and that the
12

amendment would result in a reduction in his sentence. Such claims are
properly raised in a motion for resentencing under 18 U.S.C. § 3582(c).
Because Petitioner is proceeding prose in the current action, the court liberally
interprets his request for relief based on the amendment to the Guidelines as a
motion for resentencing pursuant to§ 3582(c). Green v. United States, 260 F.3d
78, 83 (2d Cir. 2001) ("It is well settled that prose litigants generally are
entitled to a liberal construction of their pleadings, which should be read to
raise the strongest arguments that they suggest.") (internal quotations
omitted).
Under § 3582(c)(2), a court may reduce a petitioner's term of
imprisonment to reflect "the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the guidelines listed in
subsection (d) had been in effect at the time the defendant was sentenced."
U.S.S.G. § 1Bl.10(b). Thus, a petitioner seeking to reduce his sentence must
show that the amendment to the Guidelines he relies upon is listed in
§ 1Bl.10(d).
In assessing a petitioner's request, the court must first "determin[e] the
amended guideline range that would have been applicable to the defendant had
the relevant amendment been in effect at the time of the initial sentencing."
Dillon v. United States, 560 U.S. 817, 827 (2010). If the amendment would not

"have the effect of lowering the defendant's applicable guideline range," the
defendant is not eligible for a sentencing reduction. 18 U.S.C. § 3582(c)(2).

13

Second, the court must decide whether the "particular circumstances of the
case" justify a reduction. Dillon, 560 U.S. at 827.
The amendment Barbarino relies upon is Application Note 3 to§ 1B 1.3.
Application Note 3 to § 1B 1. 3 is not listed in § 1B 1. 1 0( d), so Barbarino has not
identified an amendment to the Guidelines that would make him eligible for a
reduction in his sentence pursuant to§ 3582(c). Barbarino's petition for
resentencing is therefore denied.
CONCLUSION

For the reasons stated above, the motion to correct, vacate, or set aside
his sentence pursuant to 28 U.S.C. § 2255 and the request for resentencing
pursuant to 18 U.S.C. § 3582(c) are denied. The Clerk of Court is directed to
close the motion pending at Docket Number 297 in 10 Crim. 476 and to mark
the corresponding civil action (No. 15 Civ. 8583) closed. Because Barbarino has
not made a substantial showing of the denial of a constitutional right, a
certificate of appealability will not issue. Lucidore v. N.Y. State Div. of Parole,
209 F.3d 107, 111-13 (2d Cir. 2000). Pursuant to 28 U.S.C. § 1915(a)(3), the
court certifies that any appeal from this Order would not be taken in good
faith. See Coppedege v. United States, 369 U.S. 438, 445-46 (1962).
SO ORDERED
Dated: New York, New York
April 11, 2017

Thomas P. Griesa
U.S. District Judge
14