Fusco v. United States of America
Filing
29
OPINION AND ORDER: The Court has considered all of Fuscos arguments, including those not expressly addressed herein, and find them to be without merit. Fuscos motion to vacate, set aside or correct his convictions and/or sentence pursuant to 28 U. S.C. § 2255 is DENIED. The Clerk is directed to enter judgment for the United States and to terminate the motion, (Civ. Docs. 1, 24). SO ORDERED. (Signed by Judge P. Kevin Castel on 11/21/2018) (jca) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EMILIO FUSCO,
Petitioner,
-againstUNITED STATES OF AMERICA,
15-cv-9354 (PKC)
09-cr-01239 (PKC)
OPINION AND
ORDER
Respondent.
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CASTEL, U.S.D.J.
Petitioner Emilio Fusco moves to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. For reasons that will be explained, Fusco’s motion will be denied.
BACKGROUND
Fusco was charged in five counts of a Superseding Indictment, S4 09 Cr. 1239
(PKC) (the “Indictment”). A jury found him guilty of Count One, racketeering conspiracy in
violation of 18 U.S.C. § 1962(d), Count Three, extortion conspiracy in violation of 18 U.S.C. §
1951, and Count Five, interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952.
He was acquitted of Count Two, racketeering in violation of 18 U.S.C. § 1962(c), and Count
Four, extortion in violation of 18 U.S.C. § 1951. With respect to Count Two, a conviction
required the jury to unanimously find at least two predicate acts of racketeering proven beyond a
reasonable doubt. The Indictment alleged the following predicate acts: the murders or
conspiracies to murder Adolfo Bruno and Gary Westerman, extortion or conspiracy to extort a
local business owner, and conspiracy to distribute marijuana. Of the four predicate acts, the jury
only found the conspiracy to distribute marijuana proven beyond a reasonable doubt. The Court
denied Fusco’s motion for a judgment of acquittal or a new trial on Counts Three, Five, and the
predicate racketeering act of conspiracy to distribute marijuana related to Count Two. (Mem.
and Order of Sept. 17, 2012; Crim. Doc. 286).
The sentencing hearing lasted two days. At the conclusion of the hearing, this
Court concluded, by a preponderance of the evidence, that the government had proven that Fusco
had participated in the Bruno and Westerman murders. Accordingly, it determined that Fusco’s
adjusted offense level under the Guidelines was 45 and his Criminal History Category was III.
The resulting Guidelines range was life imprisonment, which was reduced to 45 years’
imprisonment (the statutory maximum). This Court sentenced Fusco to 300 months’
imprisonment (25 years) and ordered him to forfeit $260,000. On March 21, 2014, the Second
Circuit affirmed the conviction and sentence. United States v. Fusco, 560 F. App’x 43 (2d Cir.
2014) (summary order). The Supreme Court of the United States denied Fusco’s petition for a
writ of certiorari on December 1, 2014. Fusco v. United States, 135 S. Ct. 730 (2014). Fusco’s
present motion was timely filed within a year of the denial of the writ.
LEGAL STANDARD
A person in federal custody may collaterally attack a final judgment in a criminal
case based on “a constitutional error, a lack of jurisdiction in the sentencing court, or an error of
law or fact that constitutes ‘a fundamental defect which inherently results in complete
miscarriage of justice.’” Graziano v. United States, 83 F.3d 587, 589–90 (2d Cir. 1996). “[A]
defendant is barred from collaterally challenging a conviction under § 2255 on a ground that he
failed to raise on direct appeal . . . . An exception applies, however, if the defendant establishes
(1) cause for the procedural default and ensuing prejudice or (2) actual innocence.” United
States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). When a petitioner attempts to establish “cause” by asserting ineffective assistance
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of counsel, courts apply the two prong test set forth in Strickland v. Washington, 466 U.S. 668
(1984). Sapia v. United States, 433 F.3d 212, 218 (2d Cir. 2005). Additionally, “a § 2255
petition cannot be used to ‘relitigate questions which were raised and considered on direct
appeal.’” United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (citation omitted). However, §
2255 does not bar consideration of a claim where an “intervening change in the law” has
occurred. Underwood v. United States, 15 F.3d 16, 18 (2d Cir. 1993).
DISCUSSION
On appeal to the Second Circuit, Fusco argued that “his prosecution and
sentencing violated the Extradition Treaty between the Government[s] of the United States and .
. . the Italian Republic and the rule of specialty,” “the District Court improperly considered
acquitted conduct in determining his sentence,” “the District Court constructively amended the
indictment,” “the evidence was insufficient for a conviction,” and “the indictment was
multiplicitous.” Fusco, 560 F. App'x at 45. He also raised three ineffective assistance of counsel
arguments relating to the Extradition Treaty and the Rule of Specialty, the purported constructive
amendment of the Indictment, and the purported multiplicity of counts. Id. at 46. The Second
Circuit considered Fusco’s arguments and affirmed his judgment of conviction. The Court
reached and denied the ineffective assistance claims because it concluded that it was “beyond
any doubt” that Fusco’s trial counsel was not ineffective in failing to raise the issues. Id.
Fusco now puts forth multiple additional grounds for relief under § 2255. First,
Fusco argues that both his trial counsel and his appellate counsel were ineffective for numerous
reasons. Second, he asserts that the Court based its sentencing determination principally on
acquitted conduct—namely, the Bruno and Westerman murders. On this ground, Fusco urges
the Court to consider the following cases, which were decided after his conviction and sentence
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became final: United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016) and Nelson v.
Colorado, 137 S. Ct. 1249 (2017). 1 Third, he argues that, under Rosemond v. United States, 134
S. Ct. 1240 (2014), the Court erred when instructing the jury on Count Five of the Indictment.
The Court will address these grounds in turn.
I.
Fusco’s Ineffective Assistance of Counsel Claims Fail Under Strickland
Fusco asserts that both his trial counsel and appellate counsel were ineffective.
Despite the numerosity of Fusco’s grievances, his ineffective assistance claims fail the Strickland
test as to both his trial and appellate counsel.
Under Strickland v. Washington, 466 U.S. 668, 688–90 (1984), a defendant
asserting ineffective assistance of counsel must first overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance” by
presenting evidence that counsel’s performance fell below an “objective standard of
reasonableness” as measured by “prevailing professional norms.” Second, the defendant must
prove “actual prejudice” by showing a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 692, 694. It
is insufficient to show that counsel’s errors had “some conceivable effect” on the outcome. Id. at
693. Instead, the defendant must show “a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
Fusco also asked that the Court await the Supreme Court’s ruling on a petition for a writ of certiorari in Siegelman
v. United States, 136 S. Ct. 798 (2016), before rendering an opinion on the propriety of considering acquitted
conduct during his sentencing. The Supreme Court’s decision, Fusco argued, could constitute an “intervening
change in the law” regarding the constitutionality of considering acquitted conduct during sentencing. Because the
Supreme Court denied certiorari in Siegelman on January 11, 2016, the Court need not address this claim.
1
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a. Fusco’s Trial Counsel Did Not Render Ineffective Assistance
Fusco argues that his retained trial counsel, an experienced federal criminal
practitioner, was ineffective during trial because he (1) did not object to the jury charge relating
to Count One or Count Five of the Indictment, (2) did not ask for “Special Interrogatories” on the
predicate acts underlying Count One of the Indictment, and (3) did not obtain testimony from
Mario Manzi, Sandra Berardi, or Jimmy Santaniello. He further argues that trial counsel was
ineffective during the sentencing proceeding because he (1) did not obtain a sworn affidavit from
Mario Manzi, and (2) was not prepared for a Fatico hearing.
The Court has considered these alleged errors individually and in their totality and
holds that trial counsel did not render ineffective assistance. To the contrary, Fusco’s counsel’s
performance at both trial and sentencing was exemplary and very effective. His performance
resulted in acquittals on two of the five counts and a sentence 20 years below the 45 year
statutory maximum that capped the Guidelines.
i. Trial Counsel Did Not Render Ineffective Assistance During Trial
First, Fusco argues that trial counsel was deficient in failing to object to the jury
charges on Counts One and Five, which he alleges were overbroad. On Count Five (interstate
travel in aid of racketeering), the Court instructed the jury based on language from 18 U.S.C. §§
1952(a)(1), (2) and (3) when the Indictment only charged him with violations of §§ 1952(a)(1)
and (3). Count One of the Indictment (racketeering conspiracy) listed extortion in violation of 18
U.S.C. § 1952 as a predicate act. Fusco argues that the overbroad instruction could have caused
the jury to convict him of Count Five based on a violation of § 1952(a)(2), which was not
charged in the Indictment. Similarly, he argues the jury could have also convicted him of Count
One based on a finding that he committed the predicate act of violating § 1952(a)(2).
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Even if these alleged errors amounted to deficient performance under the first
prong of Strickland, Fusco did not suffer “actual prejudice.” On direct appeal, Fusco argued that
the jury charge on Count Five “constructively amended” the Indictment. The Second Circuit
held that there was no “‘substantial likelihood’ that the jury relied on § 1952(a)(2) rather than §
1952(a)(1) or § 1952(a)(3) in convicting him of interstate travel in aid of racketeering.” 2 Fusco,
560 F. App’x at 45. It follows that there is no substantial likelihood that the jury convicted
Fusco of Count One based on the predicate act of violating § 1952(a)(2). Therefore, even if
counsel had objected to the jury charge on Counts One or Five, the Court holds that there is no
“reasonable probability” that the result of Fusco’s trial or sentencing would have been any
different.
Second, Fusco argues that counsel should have asked the Court to include
“Special Interrogatories” on the verdict form so that the jury could make factual findings on each
of the predicate offenses enumerated in Count One, charging participation in a RICO conspiracy.
Without these interrogatories, he argues, the sentencing Court did not know which predicate acts
the jury found to support a conviction on the conspiracy count. Even if counsel had requested
interrogatories, this Court was free to reject that request because the decision whether to use
special interrogatories in a criminal case is committed “to the broad discretion of the district
court.” See United States v. Ogando, 968 F.2d 146, 149 (2d Cir. 1992). Moreover, regardless of
the answers to these hypothesized “Special Interrogatories,” the government would be entitled to
urge the Court to find that the predicate acts not proven beyond a reasonable doubt to the jury
were still proven by a preponderance of the evidence. There is no reasonable probability that the
The Second Circuit reasoned that “[t]he evidence at trial supported Fusco’s interstate travel conviction based on §
1952(a)(1) or § 1952(a)(3), intent to distribute the proceeds of or to promote, manage, establish, carry on and
facilitate gambling and extortion. By contrast, as shown by Fusco’s acquittal of the substantive RICO charge and its
predicate murder acts, the evidence did not support a conviction based on § 1952(a)(2).” Fusco, 560 F. App’x at 45.
2
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Court’s preponderance of the evidence determination would have changed had the Court allowed
special interrogatories and the jury made explicit findings of fact under a beyond a reasonable
doubt standard. Thus, the failure to ask for interrogatories did not prejudice Fusco.
Third, Fusco argues that trial counsel should have obtained testimony from three
additional witnesses: Mario Manzi, Sandra Berardi, and Jimmy Santaniello. Specifically he
argues that Manzi, who allegedly delivered money to Fusco’s residence while Fusco was in
prison, could have testified to the contrary (thereby “undermining” the government’s evidence
on the extortion conspiracy count); Berardi could have testified about her affair with Anthony
Arillotta, a government cooperating witness, and about how Gary Westerman smoked cigarettes
(thereby introducing an alternate explanation for the cigarettes found near Westerman’s body);
and Santaniello could have testified that Fusco did not extort him. Under Strickland’s first
prong, an attorney’s performance is not deficient merely because the defendant disagrees with
the attorney’s strategy. United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986).
Disagreements regarding tactical decisions do not generally amount to deficient performance.
United Stated v. Best, 219 F.3d 192, 201–02 (2d Cir. 2000) (citation omitted). The decision to
call or not to call witnesses at trial 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).
Trial counsel’s decision not to call these witnesses during trial did not amount to
deficient performance under the first prong of Strickland. During trial, counsel presented
testimony from four witnesses and other evidence that rebutted the charges of extortion and
extortion conspiracy and that spoke to Berardi’s relationship with Arillotta and Westerman’s
smoking habit. Trial counsel also provided Manzi and Berardi with subpoenas to testify at trial. 3
3
It is unclear from the record whether or not trial counsel provided a subpoena to Santaniello to testify at trial.
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With respect to Manzi, trial counsel reached out to Manzi’s attorney and was informed that
Manzi would assert a Fifth Amendment privilege if called to testify. (Oct. 10-11, 2012, Tr. 56).
With respect to Santaniello, the government was informed by Santaniello’s counsel that
Santaniello would also assert his Fifth Amendment privilege if called to testify. (Gov’t Brief;
Civ. Doc. 14 at 25 n.7). It is pure speculation that had Fusco’s counsel compelled them to
appear, they would not have asserted a Fifth Amendment privilege. Even if that were true, a
reasonable and prudent trial lawyer would consider it strategically unwise to call a witness on the
defense case without reliable knowledge of the likely content of the witness’s testimony and a
means to impeach the witness if he or she deviated from the expected testimony. Counsel’s
performance did not fall below an “objective standard of reasonableness,” but was instead a
“tactical decision[].” See Strickland, 466 U.S. at 688-89. Fusco’s grievance appears to be
merely that he disagrees with that decision. Such disagreement does not support a finding of
deficient performance.
ii. Trial Counsel Did Not Render Ineffective Assistance During the
Sentencing Proceeding
Fusco raises two issues with respect to counsel’s performance at sentencing.
First, he argues that counsel should have obtained a sworn affidavit from Mario Manzi, from
whom counsel only obtained an unsworn “Voluntary Statement.” Second, he argues that counsel
was not prepared for a Fatico hearing. This Court holds that any failure to obtain a sworn
affidavit from Mario Manzi did not prejudice Fusco, and, contrary to Fusco’s assertion, trial
counsel was very well-prepared for the sentencing proceeding.
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1. Failure to Obtain A Sworn Statement From Mario Manzi’s Did
Not Prejudice Fusco
Fusco argues that a sworn statement from Manzi “may well have caused this
Court to conclude that Mr. Fusco’s involvement with a purported extortion scheme had not been
established by a preponderance of the evidence.” In the statement, Manzi denied delivering
money to Fusco’s wife while Fusco was incarcerated. (Civ. Doc. 5-11 at 8). Fusco’s attorney
obtained this statement after Fusco’s trial when Manzi himself reached out to the Fusco family
offering to sign an affidavit. (Oct. 10-11, 2012, Tr. 56). Though Manzi’s statement was not
given under oath and did not amount to an affidavit or a declaration, it was signed by Manzi and
notarized. (Civ. Doc. 5-11 at 8). Further, as this Court noted on the record, if Manzi’s statement
were false, he “might be subject to prosecution for making a false statement within the purview
of a federal proceeding.” (Oct. 10-11, 2012, Tr. 59). The government did not object to the
Court’s consideration of the statement. Ultimately, the Court did in fact take the statement into
consideration in determining Fusco’s sentence. (Id. at 58). Had the statement been in the form
of a sworn affidavit, any additional weight the Court would have given the statement would not
have outweighed the significant evidence supporting Fusco’s involvement in an extortion
conspiracy. As such, there is no reasonable probability that the Court’s sentencing determination
would have changed. There is no reason to conclude that the unsworn nature of the statement
was anything other than a decision exclusively made by Manzi and his attorney. Fusco’s lawyer
had no power to compel a sworn statement. But in any event, the failure to obtain a sworn
statement did not prejudice Fusco.
2. Trial Counsel Was Not Unprepared During Sentencing
Trial counsel’s performance during sentencing rose far above Strickland’s
“objective standard of reasonableness.” In the government’s sentencing submission, it urged that
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Fusco’s participation in the murders of Westerman and Bruno, conduct for which Fusco was
acquitted as a predicate act on Count Two, was relevant conduct on the counts of conviction. It
further urged that Fusco’s participation in these murders had been proven by a preponderance of
the evidence. In response, Fusco’s counsel submitted a 27-page, single-space sentencing
memorandum (with multiple exhibits), which meticulously presented his client’s factual and
legal rebuttal and passionately urged a below Guidelines sentence. (Crim. Doc. 287).
Specifically, with regard to the Westerman murder, counsel asserted that (1) the testimony of
government cooperator Arillotta was incredible; (2) Fusco would never have participated in a
murder with the Geas brothers because the brothers robbed an alleged criminal associate of
Fusco’s; (3) there was no corroboration; (4) Fusco lacked the motivation to kill Westerman; and
(5) an excluded hearsay statement by Fred Geas did not mention Fusco.
With regard to the Bruno murder, Fusco’s counsel argued that (1) testimony by
government cooperator Frankie Roche was contradicted by his testimony in a prior trial before
this Court and by the grand jury testimony of his roommate, Billy Johnston; (2) there were
plausible reasons for Bruno’s murder other than the theory proffered by the government; (3) the
testimony of Arillotta was unreliable; (4) it was unlikely that Fusco would participate in a
murder with the Geas brothers; (5) there was no corroboration; and (6) the testimony of
government cooperator Felix Tranghese suggested that Fusco was not willing or able to comply
with Arthur Nigro’s order to kill Bruno because Fusco would be leaving for prison shortly on
another case.
Trial counsel also raised numerous objections to the facts set forth in the
Presentence Report (“PSR”). The Court conducted a two-day hearing on the parties’ objections
to the PSR. On the present motion, Fusco makes much of a statement made at the first day of the
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two-day sentencing hearing. The Court asked if Fusco wanted an “evidentiary hearing” on “any
of [Fusco’s] objections” to the PSR. (Oct. 10-11, 2012, Tr. 23). Fusco’s counsel answered in
the affirmative. (Id.). The government, the party with the burden of proof, stated that it would
rest exclusively on the record of the trial against Fusco and the earlier trial against his coconspirators. (Id.). The Court then invited Fusco’s counsel to call his first witness and Fusco’s
counsel responded that he did not have any witnesses to present and that he “was not prepared to
go forward today.” (Id. at 24). It is this statement that forms an important part of Fusco’s
argument of ineffectiveness. 4 But context matters, and the full context of the sentencing
proceeding demonstrates that Fusco’s counsel was extremely well prepared.
Fusco’s lawyer knew the record and meticulously laid out an attack on the
government’s evidence as to the Westerman and Bruno murders in his written sentencing
submission. The lawyer appearing for Fusco at sentencing was the same lawyer who
successfully defended him at trial against predicate acts charging that Fusco participated in the
two murders. At sentencing, counsel orally highlighted helpful testimony from the government’s
DNA expert that there was no link between Fusco and cigarettes found in the location where
Westerman was buried. (Id. at 25). He also pointed out with respect to the Bruno murder that
the timing of a phone call at “5:47 on November 23” between two co-conspirators and 3500
material relating to Billy Johnston made the government’s version of events unreliable. (Id. at
26-32).
Between the first and second day of the sentencing proceeding, Fusco’s lawyer
helpfully supplied the Court with a letter enclosing certain grand jury testimony of Billy
When the Court reiterated the opportunity to introduce evidence or highlight evidence, counsel asked for a moment
with his client. (Oct. 10-11, 2012, Tr. 24.) He then responded that he had nothing further on the pending objection.
(Id.).
4
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Johnston, discovery materials relating to Johnston’s proffer to the government, and an excerpt
from the first trial against Fusco’s co-conspirators. (Id. at 36). Counsel pointed out that despite
five or six attempts by an investigator to serve Billy Johnston, he was not to be found. (Id. at
48). Fusco’s counsel continued to point to evidence substantiating his argument that the
government could not prove Fusco’s participation in the Bruno murder. (Id. at 36-42, 47, 49-52).
With regard to other objections, Fusco’s counsel also offered Mario Manzi’s previously
discussed “Voluntary Statement,” wherein Manzi denied delivering money to Fusco’s residence
while Fusco was in prison. (Id. at 56-57). Counsel also orally pointed out that his sentencing
memorandum attached a bill of sale for Fusco’s dumpster business showing that it was sold to
Jimmy Santaniello. (Id. at 62).
Several of Fusco’s counsel’s objections to the PSR were sustained and resulted in
changes to the PSR, while several others were not. (Id. at 1-68). The Court ultimately found that
Fusco’s participation in the murders of Bruno and Westerman had been proven by a
preponderance of the credible evidence. (Id. at 78-81, 83-85). The Court announced that it
would impose a sentence of 300 months’ imprisonment, three years’ supervised release, waiver
of the fine, and a $300 special assessment and gave its reasons for the proposed sentence. (Id.
105-09). Fusco’s counsel objected to the term of imprisonment as unreasonable. (Id. 109). As
noted, the sentence was challenged on the direct appeal and was upheld. The transcript of the
two-day sentencing hearing demonstrates that, contrary to Fusco’s assertion, trial counsel was
well-prepared, knowledgeable, energetic, and resourceful in his representation of Fusco
throughout the proceeding.
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b. Fusco’s Appellate Counsel Did Not Render Ineffective Assistance
Fusco alleges that his appellate counsel was ineffective because appellate counsel
did not argue (1) that sentencing Fusco based on acquitted conduct violated Fusco’s Sixth
Amendment right to trial, (2) that the sentencing Court violated Fusco’s Sixth Amendment right
to trial when it failed to state on the record all of the facts upon which it based Fusco’s sentence,
(3) that sentencing Fusco based on acquitted conduct violated the Extradition Treaty and the
Rule of Specialty, (4) that the sentencing Court violated the Extradition Treaty and the Rule of
Specialty when it erroneously instructed the jury on Count Five, and (5) that Fusco’s sentence
was procedurally or substantively unreasonable. Essentially, Fusco takes issue with the
arguments that his appellate counsel chose to make on direct appeal, asserting that appellate
counsel “pursued weak appellate issues instead of significant and obviously stronger appellate
issues.”
Ineffective assistance of appellate counsel is also measured under the Strickland
test. Smith v. Robbins, 528 U.S. 259, 285 (2000). In this context, appellate counsel is similarly
entitled to make strategic decisions. For example, appellate counsel “need not (and should not)
raise every nonfrivolous claim” on appeal. Id. at 288; Jones v. Barnes, 463 U.S. 745, 753 (1983)
(“A brief that raises every colorable issue runs the risk of burying good arguments.”). As a
matter of strategy, appellate counsel “may select from among [possible claims] in order to
maximize the likelihood of success on appeal.” Robbins, 528 U.S. at 288 (quoting Gray v.
Greer, 800 F.2d 644, 646 (7th Cir. 1986)) (“Generally, only when ignored issues are clearly
stronger than those presented, will the presumption of effective assistance of counsel be
overcome.”).
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This Court holds that appellate counsel’s performance was not deficient and, thus,
will not reach the question of prejudice. Fusco has not overcome the “strong presumption” that
appellate counsel acted within the “wide range of reasonable professional assistance.” See
Strickland, 466 U.S. at 688–90. Appellate counsel intelligently and capably raised numerous
nonfrivolous issues on direct appeal. 5 The claims that Fusco now argues should have been raised
are not “clearly stronger” than the claims actually raised. Indeed, some are very similar to the
claims that appellate counsel did raise. Specifically, appellate counsel’s brief suggests that
counsel carefully considered arguments related to the Extradition Treaty, the Rule of Specialty,
Fusco’s Sixth Amendment right to trial, and the Court’s jury instruction on Count Five of the
Indictment. Appellate counsel was free to strategically choose among viable claims in order to
“maximize the likelihood of success on appeal” and that appears to be what Fusco’s appellate
counsel did. An exercise of discretion in strategy does not amount to deficient performance
under Strickland.
As listed in Fusco’s § 2255 petition, appellate counsel raised the following grounds on direct appeal:
“[1] Mr. Fusco’s prosecution and sentencing violated the Extradition Treaty
between the United States and Italy and/or the Rule of Specialty incorporated
therein; [2] The sentence imposed on Mr. Fusco violated Apprendi v. New Jersey,
530 U.S. 466 (2000) and its progeny because the district court’s “judicial
factfinding” with respect to acquitted conduct increased the prescribed sentence
for the crimes of conviction; [3] The Indictment was constructively amended with
respect to Count 5 (Interstate Travel in Aid of Racketeering in violation of 18
U.S.C. § 1952 and Aiding and Abetting Interstate Travel in Aid of Racketeering
in violation of 18 U.S.C. § 2) by including jury instructions related to 18 U.S.C.
§ 1952(a)(2), a section of that statute not charged in the Indictment; [4] The
evidence was insufficient to convict Mr. Fusco on Count 5 of the Indictment
(Interstate Travel in Aid of Racketeering in violation of 18 U.S.C. § 1952 and
Aiding and Abetting Interstate Travel in Aid of Racketeering in violation of 18
U.S.C. § 2); [5] Count 1 of the Indictment (Racketeering Conspiracy in violation
of 18 U.S.C. § 1962(d)) and Count 5 of the Indictment (Interstate Travel in Aid
of Racketeering in violation of 18 U.S.C. § 1952 and Aiding and Abetting
Interstate Travel in Aid of Racketeering in violation of 18 U.S.C. § 2) were
multiplicitous; and [6] Mr. Fusco’s trial counsel was ineffective.”
(Civ. Doc. 1).
5
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II.
Neither Pimental-Lopez nor Nelson Warrant § 2255 Relief
Fusco argues United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016) and
Nelson v. Colorado, 137 S. Ct. 1249 (2017), which were both decided after the Second Circuit
affirmed Fusco’s conviction and sentence, constitute “intervening changes in the law” that
warrant this Court’s consideration. Specifically, Fusco asserts that both of these cases preclude
the Court from considering acquitted conduct when sentencing a defendant. The Court has
reviewed these cases and concludes that neither Pimental-Lopez nor Nelson warrant § 2255
relief.
Pimental-Lopez was decided on July 15, 2016 by the Ninth Circuit. 6 The
decision in Pimental-Lopez is not binding on this Court. In any case, the Court’s sentence does
not conflict with the rule set forth in Pimental-Lopez. In that case, the jury found beyond a
reasonable doubt that the defendant possessed “[l]ess than 50 grams” of a controlled substance.
Pimentel-Lopez, 859 F.3d at 1139. The sentencing court found by a preponderance of the
evidence that the defendant possessed more than 50 grams and sentenced the defendant
accordingly. Id. at 1139–40. The Ninth Circuit held that the sentencing court erred by
sentencing the defendant based on a “contradictory finding.” Id. at 1141. In Fusco’s case, the
jury found that the government failed to prove, beyond a reasonable doubt, that Fusco was
involved in the murders of Bruno and Westerman. During sentencing, this Court found, by a
preponderance of the evidence, that Fusco was involved in these murders. Proof that fails to
satisfy the high threshold of “beyond a reasonable doubt” does not necessarily fail to satisfy the
Fusco cited to United States v. Pimentel-Lopez, 828 F.3d 1173 (9th Cir. 2016), a three-judge panel opinion, which
has since been amended and superseded by United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016). The
amendment does not affect the substance of Fusco’s claim. This Court will cite to the amended opinion throughout.
6
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less rigorous “preponderance of the evidence” standard. As such, unlike the sentencing court’s
finding in Pimental-Lopez, this Court’s finding did not contradict the jury’s finding.
Nelson was decided on January 9, 2017 by the Supreme Court of the United
States. In Nelson, the Court held that certain Colorado statutes violated due process where the
statutes required defendants, whose convictions had been reversed, to prove their innocence by
clear and convincing evidence before they could receive a refund of costs, fees, and restitution.
137 S. Ct. at 1255 (holding that, after reversal, the presumption of innocence is restored). This
Court’s sentence does not conflict with the rule set forth in Nelson. During sentencing, the Court
considered the evidence relating to Fusco’s involvement in the Bruno and Westerman murders
and made its own factual finding that Fusco was involved in these murders. In making these
findings, the Court, unlike the Colorado statutes, did not presume Fusco guilty, requiring Fusco
to prove his innocence. Thus, Nelson is inapposite.
III.
Fusco’s Rosemond Claim Is Procedurally Barred
Fusco’s claim, based on Rosemond v. United States, 134 S.Ct. 1240 (2014), is
procedurally barred because the Second Circuit addressed this claim on direct appeal. Rosemond
was decided while Fusco’s direct appeal was pending, but before Fusco’s reply brief was due.
Once Rosemond was decided, Fusco submitted his reply brief to the Second Circuit, arguing that
this Court erred in instructing the jury on Count Five of the Indictment in light of Rosemond—
the same argument he now makes to this Court. The Second Circuit did not explicitly reference
Rosemond in its opinion, but it stated that it had “considered Fusco's remaining arguments and
conclude that they are without merit or abandoned.” Fusco, 560 F. App'x at 46. As such, this
claim is procedurally barred. See Sanin, 252 F.3d at 83 (“[A] § 2255 petition cannot be used to
relitigate questions which were raised and considered on direct appeal.”).
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CONCLUSION
The Court has considered all of Fusco’s arguments, including those not expressly
addressed herein, and find them to be without merit. Fusco’s motion to vacate, set aside or
correct his convictions and/or sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Clerk is
directed to enter judgment for the United States and to terminate the motion, (Civ. Docs. 1, 24).
SO ORDERED.
Dated: New York, New York
November 21, 2018
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