Lustyik v. USA
Filing
32
ORDER AND MEMORANDUM DECISION denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255);denying 4 Motion for Hearing; denying 4 Motion for Discovery; denying 6 Motion to Appoint Counsel. Signed by Judge Tena Campbell on 11/21/19 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
ROBERT G. LUSTYIK, JR.,
Plaintiff,
ORDER AND
MEMORANDUM DECISION
vs.
Case No. 2:18-cv-00077-TC
UNITED STATES OF AMERICA,
Defendant.
On October 18, 2012, Robert G. Lustyik, Jr., was charged with one count of conspiracy,
eight counts of honest services wire fraud, one count of obstruction of justice, and one count of
obstruction of proceedings before a department or agency. (645 ECF No. 39.)1 After pleading
guilty to all eleven counts, he was sentenced to 120 months in custody. (645 ECF Nos. 896,
1030.)
Mr. Lustyik has now filed a Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255, contending that his counsel in the original action was ineffective. (77 ECF No.
1.) He also requests a hearing to present evidence in support of his motion. (77 ECF No. 4.)
For the reasons stated below, both motions are denied.2
1
“645 ECF” refers to the electronic case filing system for the original action, United States v. Lustyik, Case No.
2:12-cr-00645-TC. The court refers to the docket in the instant action, Lustyik v. United States, Case No. 2:18-cv00077-TC, as “77 ECF.”
2
There is also a pending request for the appointment of counsel. (77 ECF No. 6.) “There is no constitutional right
to appointment of counsel in a § 2255 proceeding.” United States v. Lewis, No. 97-3135-SAC, 1998 WL 1054227
at *3 (D. Kan. Dec. 9, 1998). Although the court has discretion to appoint counsel, it declines to do so because, like
1
LEGAL STANDARD
To succeed on his claim of ineffective assistance of counsel, Mr. Lustyik must satisfy the
two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong,
the petitioner must show that his attorney’s representation fell below an objective standard of
reasonableness. Id. at 688. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. As part of that deferential standard, the United States Supreme Court
has established “a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.” Id.
(citation and internal quotation marks omitted).
Second, the petitioner must establish that he was prejudiced by the allegedly deficient
representation. Id. at 687, 693 (the petitioner must “affirmatively prove prejudice”). “It is not
enough for the defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693. Instead, when a petitioner challenges a conviction, he “must show
that there is a reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.
The court may consider these two prongs in either order, or it may address just one of the
prongs. Id. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.”).
in Lewis, “The court finds no compelling merit to the defendant’s allegations. The defendant has demonstrated the
ability to investigate the facts necessary for his issues and to articulate them in a meaningful fashion. [And] [t]he
issues are straightforward and not so complex as to require counsel’s assistance.” Id.
2
A petitioner “is entitled to an evidentiary hearing unless his motion and the files and
records of the case ‘conclusively show that [he] is entitled to no relief.’” United States v.
Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988) (quoting 28 U.S.C. § 2255).
ANALYSIS
Mr. Lustyik’s motion asserts seven grounds for relief, and each ground is supported by
anywhere from two to eight factual allegations (though some of these facts are duplicative of one
another). (See 77 ECF No. 1.) After reviewing Mr. Lustyik’s motion, reply, and evidence,3 the
court has identified thirty-seven discrete allegations in support of his motion. These thirty-seven
facts are attached as an appendix to this order, together with the source of each allegation.
The court divides these claims into three categories: (1) Misconduct before trial; (2)
Misconduct regarding the plea; and (3) Misconduct after the plea, including during the forfeiture
hearing, sentencing, and appeal.
I.
Counsel’s Conduct During the Pretrial Phase
Most of Mr. Lustyik’s complaints are leveled against his primary attorney, Raymond
Mansolillo, and involve Mr. Mansolillo’s allegedly ineffective approach to defending Mr.
Lustyik in the years preceding the trial.4 All of these allegations fail the first prong of the
Strickland analysis because Mr. Mansolillo was not actually ineffective during this stage of the
proceedings. Most of the allegations also fail to show resulting prejudice, as required by the
second prong.
3
Generally, the court would not consider evidence submitted for the first time in support of a reply, but here, the
United States was given an opportunity to address this additional evidence in its sur-reply. (See 77 ECF No. 31.)
4
In addition to Mr. Mansolillo, who is an out-of-state attorney, Mr. Lustyik was represented by local counsel, first
Nathan Crane, and then Michael Langford. Mr. Lustyik’s motion rarely identifies which attorney he is accusing of
ineffectiveness, but it is clear from context that (except for certain post-plea matters involving Mr. Langford) Mr.
Mansolillo is the primary target.
3
A.
Prong One
1. Legitimate Strategic Choices
[S]trategic choices [by defense counsel] made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular decision not
to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.
Strickland, 466 U.S. at 690-91.
Nine of Mr. Lustyik’s allegations involve legitimate strategic choices.
First, Mr. Lustyik criticizes Mr. Mansolillo because he never objected to Mr. Lustyik’s
treatment during his arrest and the search of his home. (See Affidavit of Robert Lustyik
(“Lustyik Decl.”) at ¶¶ 10-13, Motion Ex. B (77 ECF No. 1-2).)5 But fighting over the search
and arrest would have been a distraction from the substantive defense of the case. Relatedly, Mr.
Lustyik complains that Mr. Mansolillo relied on Daniel Marino and Tillman Finley, the attorneys
for Mr. Lustyik’s co-defendant Michael Taylor, to pursue a motion to suppress evidence, rather
than filing his own motion. (Id. at ¶ 28.) But in the court’s view, it was reasonable to allocate
sparse resources by relying on the work of others. In fact, counsel for Mr. Taylor did a thorough
job advocating for the motion to suppress (see Oct. 15, 2013 Hearing Transcript, Reply Ex. FF
(77 ECF No. 21-32)), even though it was ultimately denied. It was smart, not ineffective, for Mr.
Mansolillo to let Mr. Taylor’s counsel take the lead there.
5
In support of his motion, Mr. Lustyik submitted eighteen exhibits, labelled Exhibit A through Exhibit S. In support
of his reply, Mr. Lustyik submitted an additional thirty-eight exhibits, labelled Exhibit A through Exhibit LL.
Because the letters used to identify the exhibits overlap, the court identifies the exhibits as “Motion Ex. A” or
“Reply Ex. A” to make clear which exhibit is being discussed.
4
Somewhat confusingly, in addition to arguing that Mr. Mansolillo relied too much on
other defendants’ counsel, Mr. Lustyik also criticizes Mr. Mansolillo for not working more
closely with them. He contends that Mr. Mansolillo was ineffective because he did not obtain a
joint defense agreement with Mr. Lustyik’s co-defendants. (Lustyik Decl. ¶ 40.) It is
contradictory for Mr. Lustyik to simultaneously claim that Mr. Mansolillo was working too
closely with the other defense counsel and that he was not working with them closely enough. In
any event, not obtaining a joint defense agreement is another strategic choice.
Mr. Lustyik also asserts that Mr. Mansolillo failed to seek a plea deal early in the case,
despite Mr. Lustyik’s request that he do so. (Id. at ¶¶ 8-9, 20-21, 30-35, 53, 55.) But when the
court asked about the possibility of settlement, both sides indicated they were waiting for the
other side to initiate negotiations. (See Mar. 27, 2014 Hearing Transcript at 22:11-25, Motion
Ex. M (77 ECF No. 1-13). Waiting for the other party to make an initial settlement offer is a
legitimate tactic.
Mr. Lustyik next faults Mr. Mansolillo for not taking his discovery obligations seriously.
Mr. Lustyik declares that Mr. Mansolillo sent his investigator, Charles Mulcahy, to review
classified discovery, rather than review it himself; that he failed to conduct discovery into Blue
Meadows Energy, LLC (“BME”), an entity allegedly used to funnel money between Mr. Taylor
and Mr. Lustyik; and that he did not interview any of the numerous potential witnesses Mr.
Lustyik urged him to contact. (Lustyik Decl. ¶¶ 42, 46-51). None of this conduct falls below the
standard of care of a reasonable attorney. Relying on staffers like Mr. Mulcahy to take the lead
in discovery is a common, reasonable practice. Notably, Mr. Lustyik has nothing but praise for
Mr. Mulcahy’s efforts. (Id. at ¶ 35.) And at the time in question, Michael Feldman, the founder
of BME, had invoked his Fifth Amendment right against self-incrimination. (Id. at ¶ 50.) It
5
would be reasonable in that context to assume that an investigation of BME would be both
heavily resisted by Mr. Feldman and unlikely to lead to inculpatory information. Finally, Mr.
Lustyik’s own declaration explains that most of the witnesses identified by Mr. Lustyik were
likely to be uncooperative because they were current or former government officials subject to
nondisclosure agreements and the information Mr. Lustyik sought from them was classified. (Id.
at ¶ 51.) Given these impediments, it makes sense for Mr. Mansolillo to focus his efforts
elsewhere.
Lastly, Mr. Lustyik argues that Mr. Mansolillo should have tried to convince the court
that the whole case was a prosecutorial sham. Mr. Mansolillo never challenged the involvement
of prosecutor Kevin Driscoll in the case, despite Mr. Lustyik’s belief that Mr. Driscoll was
biased against former FBI agents like Mr. Lustyik. (Id. at ¶ 16-18.) And Mr. Mansolillo never
investigated whether the suit was brought in retaliation for the fact that Mr. Lustyik had been
cleared of wrongdoing in an unrelated investigation, which had angered some Department of
Justice officials. (Id. at ¶ 19). But again, in the court’s view, it was a wise choice—and
protected strategy—to avoid spending time on these issues. These arguments are both highly
speculative and almost completely irrelevant, and it would have been a significant waste of time
for Mr. Mansolillo to pursue these improbable defenses.
In response to Mr. Lustyik’s allegations, the United States suggests that Mr. Mansolillo
essentially had one strategy throughout the trial preparation phase. He wanted to “graymail” the
United States into dropping the charges against Mr. Lustyik by forcing them to choose between
risking the exposure of classified information and going through with the trial. (See
Memorandum in Opposition (“Opp.”) at 8 (77 ECF No. 10).) According to the United States,
Mr. Mansolillo believed that if forced to make that choice, the United States would end the case
6
against Mr. Lustyik rather than allow the disclosure of such information. Ultimately, that
strategy was unsuccessful because the court issued an order preventing Mr. Lustyik from
introducing any classified information in his defense. (See CIPA Section 6(A) Order (645 ECF
No. 883).) But the United States contends it was a reasonable strategy, and that all of Mr.
Mansolillo’s other strategic decisions, discussed above, should be considered in light of this
objective.
The court agrees that this appears to have been Mr. Mansolillo’s strategy. There is
evidence in the record that supports this conclusion. For example, this is the same strategy Mr.
Lustyik advised Mr. Taylor to take to avoid prosecution in an earlier action. (Email Exchange,
Opp. Ex. 1 (77 ECF No. 10-1) (“[T]hey [the prosecutors] haven’t seen any of the classified info.
Now they will. And if your attny wants it all declassified then you can destroy their
investigation.”).) Mr. Mansolillo also explicitly discussed this strategy in open court, when
explaining how the Classified Information Procedures Act (CIPA) operates:
[T]he Court does not look at what the sensitivity of that [classified] information
is, it looks at what the Federal Rules of Procedure and what the Rule[s] of
Evidence are and whether it is going to benefit the defense.
It is up to the government, and if they want to keep it out, it is up to their
policymakers, and they will probably do this, to send in a motion saying or a
certification, they call it, saying that this information is too sensitive to be
disclosed. That is kind of, quote, the warning that it is either a disclose or dismiss
situation that they are getting down to.
(June 24, 2013 Hearing Transcript at 15:2-14, Reply Ex. AA (77 ECF No. 21-27).)
And the court further agrees that this was a reasonable strategy, even though it proved
unsuccessful. As the Supreme Court has noted, “There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys would not defend a
particular client in the same way.” Strickland, 466 U.S. at 689. Mr. Mansolillo had a legitimate
7
defense strategy and pursued it, and Mr. Lustyik cannot now use this § 2255 petition to secondguess that strategy.
2. Competent Conduct
The above allegations involve Mr. Mansolillo’s omissions, such as defenses he chose not
to pursue. But Mr. Lustyik also argues that when Mr. Mansolillo did act, he did so
incompetently. For example, Mr. Lustyik claims that during his bond revocation hearing, Mr.
Mansolillo was ineffective in challenging the conditions of Mr. Lustyik’s home confinement,
despite the impact that had on their ability to communicate about case preparation. (Lustyik
Decl. ¶ 14.) But the court has reviewed the transcripts of the bond revocation hearings and finds
that Mr. Mansolillo was an effective advocate, even if he did not achieve all that Mr. Lustyik
wanted. (See Feb. 13, 2013 Hearing Transcript, Reply Ex. EE (77 ECF No. 21-31); Mar. 19,
2013 Hearing Transcript, Reply Ex. R (77 ECF No. 21-18); May 3, 2013 Hearing Transcript,
Reply Ex. CC (77 ECF No. 21-29).)
Mr. Lustyik next notes that Mr. Mansolillo was threatened with contempt of court when
he failed to return certain unintentionally divulged classified information to the United States.
(Id. at ¶ 22; 645 ECF No. 517.) But this shows only that Mr. Mansolillo was determined to keep
discovery to which he believed he was entitled, which contradicts Mr. Lustyik’s characterization
of Mr. Mansolillo as being uninterested in the discovery issues that arose in the underlying case.
Mr. Lustyik also suggests Mr. Mansolillo provided ineffective assistance of counsel when
he failed to convince the court to allow Mr. Lustyik to use classified information as part of his
defense. The court disagrees. The parties submitted exhaustive briefing related to the classified
information issue, and the court thoroughly considered whether it needed to be disclosed to the
defense. While the court ultimately ruled against Mr. Lustyik, that was due to the court’s
8
conclusion that the information was inadmissible under Federal Rules of Evidence, Rules 401
and 403. (See CIPA Section 6(A) Order (645 ECF No. 883).) It was not because Mr.
Mansolillo’s “representation fell below an objective standard of reasonableness.” Strickland,
466 U.S. at 688.6
3. Conflict of Interest
Mr. Lustyik also alleges that Mr. Mansolillo had a conflict of interest while representing
him. (Lustyik Decl. ¶ 40.)
In the underlying proceeding, the United States warned that Mr. Mansolillo had a conflict
of interest with Mr. Taylor’s original counsel, Steven Brooks, and moved to disqualify Mr.
Mansolillo on that ground. (645 ECF No. 61.) But Mr. Lustyik waived any such conflict in
order to keep Mr. Mansolillo as his attorney. (645 ECF No. 194.) Before he did so, the court
appointed independent conflict counsel to advise Mr. Lustyik regarding how he should proceed.
(645 ECF No. 174.) And the court personally examined Mr. Lustyik regarding his understanding
of the consequences of waiving a conflict of interest. (645 ECF No. 194.) This process fully
resolved any concerns regarding that conflict.
Mr. Lustyik now argues there was an additional conflict between Mr. Mansolillo and Mr.
Taylor. Mr. Mansolillo worked for Mr. Taylor at some time in the past, and this employment
violated Mr. Mansolillo’s contract with his other employer, the Drug Enforcement Agency.
Knowledge of this violation gave Mr. Taylor leverage over Mr. Mansolillo, according to Mr.
Lustyik. (Reply at 5 (77 ECF No. 21).)
6
Mr. Lustyik claims in his reply brief that “[i]n the CIPA Order, the Court stated, ‘Any harm to the Defendants was
caused by their attorneys.’” (Reply at 10 (77 ECF No. 21).) But the quoted language is not from the CIPA order.
Rather, that language comes from an earlier order denying Mr. Lustyik’s request to continue trial. (See 645 ECF
No. 705.) Notably, the issue in that motion—whether Mr. Mansolillo had deleted his discovery records and needed
an additional year to recreate this work product—has not been raised by Mr. Lustyik as an example of ineffective
assistance of counsel in this motion.
9
While Mr. Lustyik characterizes this as a new, previously undisclosed conflict, he is
incorrect. This issue was explicitly raised by the United States in the original action before Mr.
Lustyik waived the conflict of interest. (See Addendum to Motion for Conflict Hearing (645
ECF No. 71).) Mr. Lustyik still chose to knowingly and voluntarily waive this conflict.
Accordingly, this argument does not entitle him to any relief.
4. Financial Motive
Finally, Mr. Lustyik provides evidence that Mr. Mansolillo was aggressively harassing
Mr. Lustyik about certain unpaid legal bills during the suit. (Lustyik Decl. ¶¶ 16, 24-25, 95-98.)
Mr. Lustyik previously presented this same evidence to Magistrate Judge Dustin Pead as part of
his motion to have Mr. Mansolillo removed as his attorney, which was granted on November 7,
2014. During that hearing, Judge Pead made no findings of fact regarding Mr. Mansolillo’s
conduct because it was not necessary for the motion to be granted, but he did “make . . . very,
very clear for the record” that, if Mr. Lustyik’s allegations were true, “[i]t would be absolutely
improper and unethical.” (Nov. 7, 2014 Unofficial Hearing Transcript, Reply Ex. BB (77 ECF
No. 21-28).)
But this evidence, even if concerning from an ethical standpoint, is irrelevant to the
present motion. Mr. Lustyik plausibly shows that Mr. Mansolillo had a motive to be lazy or halfhearted in his representation of Mr. Lustyik because of their ongoing payment dispute. But Mr.
Lustyik has not shown that Mr. Mansolillo actually performed poorly. Rather, as discussed
above, all of Mr. Mansolillo’s allegedly improper actions were consisted of effective
representation or legitimate strategic choices. It is not enough for Mr. Lustyik to identify a
motive for ineffectiveness, when he has not also shown that Mr. Mansolillo was actually
ineffective.
10
Accordingly, none of Mr. Lustyik’s allegations of pretrial misconduct rise to the level of
ineffective assistance of counsel.7
B.
Prong Two
To satisfy the second prong, Mr. Lustyik must show that “but for counsel’s professional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Because of its findings on the first prong, the court need not reach this issue. Nevertheless, it
briefly notes that most of Mr. Lustyik’s allegations also fail the second prong.
For example, Mr. Lustyik’s complaints about early decisions by Mr. Mansolillo—not
challenging the search of his home or his arrest, failing to challenge the terms of his home
confinement—have no apparent connection to the resolution of the proceeding. Additionally,
Mr. Driscoll was removed from the case in early 2013 due to paternity leave (Lustyik Decl. ¶
17), so Mr. Mansolillo’s failure to challenge his involvement could have no plausible affect on
Mr. Lustyik’s ultimate decision to plead guilty rather than go to trial. Mr. Lustyik also has not
articulated how his arguments about retaliation by the Department of Justice would have altered
the outcome of the case, since a claim that the prosecutors were targeting him would not change
his guilt or innocence.
Next, there is no reason to believe Mr. Mansolillo would have been more successful on
the motion to suppress than Mr. Taylor’s counsel. And the fact that Mr. Mansolillo was
threatened with contempt of court nearly a full year before trial would not have impeded Mr.
Lustyik’s defense. Finally, as noted, Mr. Feldman had invoked his Fifth Amendment right
7
The United States claims that, even if Mr. Mansolillo was ineffective, any misconduct by Mr. Mansolillo was
“cured” by Mr. Crane and Mr. Langford’s simultaneous involvement in the case. (See Opp. at 4 n.2 (77 ECF No.
10).) But the United States cites no case law in support of this proposition and Mr. Lustyik has submitted evidence
showing that Mr. Crane and Mr. Langford were almost entirely uninvolved in Mr. Lustyik’s representation so long
as Mr. Mansolillo was the lead attorney. (See Hearings List, Reply Ex. B (77 ECF No. 21-2); Crane Email, Reply
Ex. L (77 ECF No. 21-12).) Accordingly, the court concludes that the presence of Mr. Crane and Mr. Langford does
not moot Mr. Lustyik’s claims.
11
against self-incrimination, so even if Mr. Mansolillo had diligently pursued calling him as a
witness, this would not have helped Mr. Lustyik obtain a different outcome.
In sum, Mr. Lustyik has not demonstrated that Mr. Mansolillo’s pretrial conduct violated
Mr. Lustyik’s Sixth Amendment right to effective assistance of counsel.
II.
Counsel’s Conduct During the Pleading Phase
Mr. Lustyik next asserts that Mr. Mansolillo failed to provide effective representation
when he urged Mr. Lustyik to plead guilty on the day trial was set to begin.
The same Strickland two-part test discussed above also applies here. But the Supreme
Court has provided additional clarification regarding the test’s application when a defendant
pleads guilty:
In the context of guilty pleas, the first half of the Strickland v. Washington test is
nothing more than a restatement of the standard of attorney competence . . . . The
second, or “prejudice,” requirement, on the other hand, focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the
plea process. In other words, in order to satisfy the “prejudice” requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 58 (1985).
A.
Lack of Prejudice Due to Court Intervention
Mr. Lustyik pled guilty, without the benefit of any plea agreement, on September 29,
2014. (Change of Plea Transcript at 4:22-23, 5:10-11 (645 ECF No. 907).) He argues he would
not have pled guilty if Mr. Mansolillo had properly apprised him of the consequences of his plea.
Specifically, he contends that Mr. Mansolillo did not explain to him (1) the risks of pleading
guilty without a plea agreement; (2) the effect that pleading guilty in Utah would have on a
separate, ongoing case in New York; (3) the length of sentence that he was likely to receive; (4)
that he was pleading guilty to all counts, instead of just some counts; and (5) that he would be
12
receiving two points of downward variance in the sentencing guidelines for accepting
responsibility, instead of three points. (Lustyik Decl. ¶¶ 70-73, 78-79.) Mr. Lustyik also claims
that Mr. Mansolillo bullied him into accepting the plea. (Id. at ¶¶ 74, 76, 84-86, 95-98.)
Assuming that Mr. Mansolillo was ineffective in advising Mr. Lustyik of the foregoing,
the court cured the problem by discussing these issues with Mr. Lustyik before he entered his
plea.
[Although] no procedural device for the taking of guilty pleas is so perfect in
design and exercise as to warrant a per se rule rendering it uniformly invulnerable
to subsequent challenge, . . . the representations of the defendant, his lawyer, and
the prosecutor at such a hearing, as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong presumption of
verity.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (internal quotations omitted).
The court, in detail, addressed each of the above complaints. (See Change of Plea
Transcript at 5:1-11; 49:10-21 (discussing the lack of a plea deal); at 4:14-5:7 (discussing the
New York case); at 37:9-38:18, 40:20-41:14 (discussing the length of sentence and size of
forfeiture); at 5:3-7, 40:1-19, 50:8-11 (discussing points for accepting responsibility); at 29:5-12;
37:6-38:11 (discussing all counts); at 12:1-16:1 (confirming that Mr. Lustyik’s plea was of his
own free will). This is sufficient.
Accordingly, Mr. Lustyik was not prejudiced by Mr. Mansolillo’s alleged failure to warn
him of the consequences of pleading guilty.
B.
Lack of Prejudice Due to Likely Conviction at Trial
Mr. Lustyik also states that he only pled guilty because he realized that Mr. Mansolillo
was completely unprepared for trial. Mr. Lustyik declares that, days before trial was set to begin,
he was informed by Daniel Calabro (counsel for his co-defendant, Johannes Thaler) that Mr.
13
Mansolillo was unprepared. (Lustyik Decl. ¶ 65-66.) Mr. Lustyik notes that he also became
concerned about Mr. Mansolillo’s lack of preparation when he realized Mr. Mansolillo failed to
bring his investigator, Mr. Mulcahy, to Utah, even though Mr. Mulcahy was essential to the
defense. (Id. at ¶ 67.) And Mr. Lustyik claims he observed for himself in the weekend before
trial that Mr. Mansolillo was unprepared. (Id. at ¶¶ 63-67.)
Assuming that Mr. Mansolillo was ineffective because he was unprepared for trial (a
reasonable assumption given that, as discussed above, it appears his primary strategy was to
prevail on the CIPA motion, which he did not do), the court nevertheless concludes Mr. Lustyik
was not prejudiced by this lack of preparation. The Supreme Court has warned that “[a]
defendant without any viable defense will be highly likely to lose at trial. And a defendant
facing such long odds will rarely be able to show prejudice from accepting a guilty plea that
offers him a better resolution than would be likely after trial.” Lee v. United States, 137 S. Ct.
1958, 1966 (2017). Here, although no plea agreement was reached, Mr. Lustyik was able to
receive a two-point downward variance in the calculation of his sentence for accepting
responsibility by pleading guilty. He has not shown a reasonable probability that, even with
competent counsel, he would have obtained a better outcome than this, because the evidence
against him was overwhelming.
The United States, citing the indictment, identifies numerous incriminating text messages
and emails between Mr. Lustyik and his co-defendants, Mr. Taylor and Mr. Thaler. (See, e.g.,
Indictment ¶¶ 12-17, 20, 61, 71, 97-99 (645 ECF No. 39).) Mr. Lustyik does not dispute the
veracity of these messages. Instead, he suggests the messages have been taken out of context
and actually show that he was simply using Mr. Taylor as a potential FBI source, not conspiring
with him. (Lustyik Supplemental Declaration ¶¶ 4-6, Reply Ex. H (77 ECF No. 21-8).) Mr.
14
Lustyik argues this shows he could have prevailed at trial by asserting a public authority defense,
which “requires a defendant to show that he was engaged by a government official to participate
in a covert activity.” United States v. Apperson, 441 F.3d 1162, 2004 (10th Cir. 2006).
Based on the messages alone, no reasonable jury would have applied this defense and
acquitted Mr. Lustyik. Indeed, Mr. Lustyik appears to acknowledge that the messages are not
enough by themselves. He repeatedly states that this defense was contingent upon his obtaining
access to classified information. (See, e.g., Reply at 3 (“Classified FBI records verify this.”); at
3 (“Classified Govt records would again confirm those facts.”); at 9 (“Attempts to introduce
classified information as part of my defense at trial were needed to prove that I was acting within
the scope of my employment.”); at 10 (Mr. Mansolillo was “unprepared to explain to the Court
what classified information was necessary and how that specific information was vital to the
defense.”); at 10 (Mr. Mansolillo did not provide the court with “the specific examples of
classified evidence needed to support the timeline and other proof of the legality of Petitioner’s
counterintelligence activity.”); at 13 (“Classified evidence from the Taylor file would show that .
. . I was acting in full accord with counterintelligence norms.”).)
In other words, Mr. Lustyik’s declaration that he would have gone to trial rather than
plead guilty if Mr. Mansolillo was better prepared is simply a rehashing of the argument, rejected
above, that Mr. Mansolillo was ineffective in convincing the court to allow the release of
classified information. As already noted, Mr. Mansolillo’s pursuit of this information was within
the standard of care of a reasonable defense attorney. His efforts to obtain permission to disclose
such information failed because the court, having reviewed the documents, disagreed with his
argument, not because he was ineffective in making that argument. Because Mr. Lustyik was not
going to be able to present this classified evidence at trial regardless of Mr. Mansolillo’s alleged
15
ineffectiveness, there is a reason to conclude he would have obtained a better outcome by going
to trial.
The only non-classified documents Mr. Lustyik suggests he would have presented, but
for Mr. Mansolillo’s incompetence, is evidence that BME was a legitimate company and not, as
the United States claimed, a means of funneling money between Mr. Taylor, Mr. Thaler, and Mr.
Lustyik. (Lustyik Decl. ¶ 51.) But as discussed above, Mr. Feldman had invoked his Fifth
Amendment right against self-incrimination, and Mr. Mansolillo’s failure to prepare a defense
based on BME and Mr. Feldman was reasonable in that situation.
Accordingly, Mr. Lustyik has not shown that he was prejudiced by his decision to plead
guilty. Even if that plea was motivated primarily by Mr. Lustyik’s realization that his attorney
was not prepared to successfully defend him at trial, Mr. Lustyik was almost certainly going to
lose at trial anyway.8
C.
Failure to Negotiate a Plea Deal
As noted above, the Supreme Court has stated that “[i]n the context of guilty pleas, . . . in
order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S. at 58. But Mr. Lustyik argues he can also satisfy this
prong by showing that, but for counsel’s ineffectiveness, he would have been able to negotiate a
favorable plea deal with the United States.
The United States’ only response to this assertion is to state, in its opposition brief:
[T]he defendant’s § 2255 claim here is premised on the assumption that the
Government was willing to negotiate with his counsel the weekend between the
8
The court notes that this conclusion applies equally to Mr. Lustyik’s earlier argument regarding Mr. Mansolillo’s
failure to warn him of the consequences of his plea. Even if, for some reason, the court’s discussion with Mr.
Lustyik at the change of plea hearing did not cure Mr. Mansolillo’s ineffectiveness, Mr. Lustyik still was not
prejudiced because the outcome at trial would have been worse than his allegedly uninformed plea.
16
Court’s CIPA ruling and the beginning of jury selection. It was not. The time for
plea negotiations had long since passed. After fully preparing for trial and
committing substantial resources to the defendant’s aggressive CIPA litigation,
there is no reason why the Government would have engaged in any plea
negotiations the weekend before trial, particularly with overwhelming evidence of
the defendant’s guilt.
(Opp. at 19 (77 ECF No. 10).)
This response is not particularly compelling. Notably, the statement is not made in a
sworn declaration. And even if it were, Mr. Lustyik has reasonably called the United States’
claim into doubt by noting that the United States was willing to work out a plea deal with Mr.
Thaler after trial was set to begin. (See 645 ECF No. 903.) Of course, the United States may
have legitimate reasons for treating Mr. Thaler and Mr. Lustyik differently but it has not
articulated such reasons in its briefing.
But ultimately, Mr. Lustyik’s argument fails for a more basic reason: Mr. Mansolillo’s
failure to secure a plea deal is not sufficient to satisfy the second Strickland prong under Tenth
Circuit precedent.
In Lee v. United States, the Supreme Court, without deciding the issue, appeared to leave
open the possibility that a petitioner could satisfy the second prong by showing he would have
negotiated a better plea deal. Lee, 137 S. Ct. at 1966 n.2 (“Lee also argues that he can show
prejudice because, had his attorney advised him that he would be deported if he accepted the
Government’s plea offer, he would have bargained for a plea deal that did not result in certain
deportation. Given our conclusion that Lee can show prejudice based on the reasonable
probability that he would have gone to trial, we need not reach this argument.”)
Every circuit to address the question has agreed that the prejudice prong could be
satisfied by showing a plea deal could have been reached if the petitioner had competent counsel.
Rodriguez-Penton v. United States, 905 F.3d 481, 488-89 (6th Cir. 2018) (collecting cases from
17
the D.C. Circuit, Second Circuit, Fourth Circuit, Seventh Circuit, and Ninth Circuit); see also
Byrd v. Skipper, 940 F.3d 248, 257-58 (6th Cir. 2019) (“[W]here a petitioner alleges ineffective
assistance of counsel prevented plea negotiations, demonstrating prejudice requires that he
establish a reasonable probability that but for counsel’s errors, the petitioner would have received
a plea offer. . . . [A] petitioner must also show that he would have accepted the offer, the
prosecution would not have rescinded the offer, and that the trial court would not have rejected
the plea agreement.”).
But so far as the court can determine, the Tenth Circuit has never addressed this issue.
Absent such authority, the court must continue to apply the standard set down by the Supreme
Court in Hill, which requires that a petitioner show that he would have gone to trial.
Accordingly, even if Mr. Lustyik could show that a different defense counsel would have been
able to secure a more favorable plea agreement, Mr. Lustyik would not be entitled to relief under
the second prong of the Strickland test.
D.
Failure to Disclose Existing Plea Offers
Closely related to the above, Mr. Lustyik insinuates that it is possible the United States
did make a plea offer, and that Mr. Mansolillo simply failed to tell Mr. Lustyik about it.
The Tenth Circuit has specifically held that an ineffective counsel claim may arise in this
context:
The plea bargaining process is a critical stage of a criminal prosecution. . . .
Accordingly, the Sixth Amendment applies to representation during the plea
process.
Mr. Williams was entitled to the effective assistance of counsel during plea
negotiations, including the decision whether to accept or reject the plea offer. See
Nunes, 350 F.3d at 1052-53. He was thereby prejudiced because had he been
adequately counseled, there is a reasonable probability that he would have
accepted the plea offer and limited his exposure to ten years.
18
Williams v. Jones, 571 F.3d 1086, 1090-91, 93 (10th Cir. 2009).
Nevertheless, the court does not believe Mr. Lustyik has provided a sufficient basis from
which the court could conclude such a plea offer existed. Mr. Lustyik declares that Mr.
Mansolillo never informed him of any plea offers. (Lustyik Decl. ¶¶ 68, 88.) The only reason he
suspects there was an offer is that, after he pled guilty without a deal, Mr. Mansolillo publicly
told the media that Mr. Lustyik had been offered a deal and turned it down because the deal
would have required that Mr. Lustyik testify against Mr. Thaler. (See Lindsay Whitehurst, “ExFBI agent pleads guilty in military contract fraud scheme,” Associated Press, Sept. 29, 2014,
Motion Ex. O, (77 ECF No. 1-15); Jorge Fitz-Gibbon, “Robert Lustyik, ex-FBI agent, pleads,
fights jail,” The Journal News, Sept. 30, 2014, Motion Ex. P (77 ECF No. 1-16).)
There is no reason to believe that Mr. Mansolillo’s statements to the media were true. In
particular, the court notes that Mr. Lustyik’s declaration is silent regarding whether he ever
confronted Mr. Mansolillo about such an offer after learning of Mr. Mansolillo’s public
statements. Presumably, upon hearing what Mr. Mansolillo had said, Mr. Lustyik would want to
investigate further, but he provides no evidence that he did so.
Moreover, assuming Mr. Mansolillo’s statements were true, Mr. Lustyik never declares
that he would have accepted a deal that required him to testify against his childhood friend and
co-defendant, Mr. Thaler. Indeed, it is entirely unknown under what conditions Mr. Lustyik
would have accepted a plea deal.
“[S]elf-serving speculation will not sustain an ineffective assistance claim.” United
States v. Gallant, 562 F. App’x 712, 716 (10th Cir. 2014) (quoting United States v. Ashimi, 932
F.2d 643, 650 (7th Cir. 1991)). Because Mr. Lustyik’s suspicions about a possible plea offer are
entirely speculative, this argument does not entitle him to relief.
19
Accordingly, none of Mr. Mansolillo’s conduct during the plea phase prejudiced Mr.
Lustyik within the meaning of § 2255.
III.
Counsel’s Conduct During the Post-Plea Phase
On November 7, 2014, the court granted Mr. Mansolillo’s motion for leave to withdraw
as counsel, and appointed Michael Langford as Mr. Lustyik’s primary counsel. (645 ECF No.
938.) Mr. Lustyik’s motion challenges several aspects of his post-plea representation, but he
frequently refers only to his “counsel’s” ineffectiveness, making it unclear whether any given
allegation is about Mr. Mansolillo or Mr. Langford. As much as possible, the court has
determined from context to which attorney Mr. Lustyik is referring.
A.
Presentence Report and its Effect on Sentencing
Mr. Lustyik declares that Mr. Mansolillo informed him about his presentence interview
with the probation office only a couple of hours before it was set to begin; that he provided no
advice regarding how to handle the interview; and that he failed to accompany Mr. Lustyik to the
interview. (Lustyik Decl. ¶ 91-92.) Mr. Lustyik contends this harmed him in two ways. First,
Mr. Lustyik failed to inform the interviewer that he had a drug addiction, and because that
information was not included in the presentence report (“PSR”), he is now ineligible for certain
drug treatment programs in prison. (Id. at 92-93.) And second, the PSR indicated his forfeiture
amount would be $200,000 (based on the allegations of the indictment), resulting in a total
offense level of 34 for purposes of the federal sentencing guidelines. (PSR at 17 (645 ECF No.
994).) But in fact, the court only found Mr. Lustyik liable for a $70,000 forfeiture. (See 645
ECF No. 1027.) Had the PSR used the $70,000 figure for its calculation instead of $200,000, his
total offense level would have only been 30. See 2013 Federal Sentencing Guidelines Manual §
2B1.1(b)(1).
20
Although Mr. Mansolillo was representing Mr. Lustyik at the time of the presentence
interview, Mr. Langford was representing him by the time of sentencing. Accordingly, Mr.
Lustyik asserts both that Mr. Mansolillo was ineffective in preparing him for the interview and
that Mr. Langford was ineffective in correcting the errors in the PSR at his sentencing hearing.
(Lustyik Decl. ¶¶ 91-93, 118-21, 124-26.)
The court concludes that while Mr. Mansolillo was likely ineffective in failing to prepare
Mr. Lustyik for the interview, this does not provide a basis for relief. As the United States notes,
“the presentence interview is not a critical stage of the proceeding within the meaning of the
Sixth Amendment.” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). Because Mr.
Mansolillo’s ineffectiveness at the presentence interview stage is not a violation Mr. Lustyik’s
Sixth Amendment right to competent counsel, his motion cannot be based on that claim.
Effective counsel at sentencing, on the other hand, is protected by the Sixth Amendment.
United States v. Horey, 333 F.3d 1185 (10th Cir. 2003). So arguably, Mr. Langford may have
been ineffective in not raising the flaws in the PSR at the time of sentencing. But the court
concludes that, even if Mr. Langford was ineffective on this issue, Mr. Lustyik was not
prejudiced by this ineffectiveness. First, regarding drug use, the court asked at sentencing
whether Mr. Lustyik struggled with substance abuse and Mr. Langford said no. (Sentencing
Hearing Transcript at 35:18-22 (645 ECF No. 1047).) That would have been an appropriate time
for Mr. Lustyik to clarify the record, but he did not do so, presumably because the terms of his
supervised release would have actually been more stringent if he had raised the issue. Id.
Second, regarding his calculated offense level, “a defendant must not only allege [the]
prejudice of being erroneously sentenced under a higher guideline but must also demonstrate that
the error produced ‘a large’ or ‘significant’ effect on the sentence.” Horey, 333 F.3d at 1187-88.
21
Here, under the PSR, Mr. Lustyik’s total offense level was 34, and the federal sentencing
guidelines set a sentence of 151 to 188 months. If the total offense level had been 30, the
guideline recommendation would have been 97 to 121 months. At the sentencing hearing, Mr.
Langford persuaded the court to impose a sentence of 120 months, even though the
recommended minimum was 151 months. Accordingly, Mr. Lustyik was already sentenced to a
prison term that fell within the guideline range that should have been applied. Whether his
sentence would have been even lower had Mr. Langford raised the forfeiture issue at sentencing
is entirely speculative and so does not provide a basis for additional relief.
B.
Forfeiture and Sentencing
Mr. Lustyik also contends more generally that Mr. Mansolillo failed to prepare Mr.
Langford for the forfeiture and sentencing hearings and failed to prepare Mr. Langford to make
certain arguments against the enhancements sought by the United States. (Lustyik Decl. ¶¶ 10612.) Mr. Lustyik also states that Mr. Langford failed to sufficiently challenge the United States’
requested enhancements and failed to request that Mr. Lustyik’s forfeiture hearing be separate
from Mr. Thaler’s forfeiture hearing. (Lustyik Decl. ¶¶ 117-21, 124-26.)
These claims are too vague. The court does not know what arguments Mr. Mansolillo
was supposed to provide to Mr. Langford, or what effect they would have had on the outcome of
the case. Mr. Lustyik does not explain how he was prejudiced by having a joint forfeiture
hearing with Mr. Thaler. And Mr. Langford did argue at the sentencing hearing, at length,
against certain enhancements. (Sentencing Hearing Transcript at 4:22-11:3 (645 ECF No.
1047).) Mr. Lustyik does not explain what other arguments Mr. Langford should have made.
Because Mr. Lustyik does not explain what Mr. Mansolillo or Mr. Langford did wrong, or how
22
the outcome of the action would have been better if they had acted differently, he is not entitled
to relief.
C.
Classified Information and Appeal
Mr. Lustyik also alleges Mr. Langford was ineffective during the sentencing hearing
because the court refused to allow him to review classified information that would have helped
him obtain a lower sentence for Mr. Lustyik. But the court specifically rejected this argument at
the hearing:
Let me just say to whatever extent, referring to the classified information, I will
tell you that I agree with Judge Pead that access to classified information would
not add to your ability to make a good argument and to argue for your client. To
the extent that it would be relevant, I am well aware, mainly from the materials
that Mr. Taylor has sent, that Mr. Taylor may have had some value as an
operative or as a contact, which is what I think you were needing that for.
(Sentencing Hearing Transcript at 14:17-25 (645 ECF No. 1047).)
Mr. Langford then raised this issue on appeal, where it was also rejected. See United
States v. Lustyik, 833 F.3d 1263 (10th Cir. 2016). Mr. Lustyik states that it was only rejected
because Mr. Langford was ineffective in presenting a compelling case to the Tenth Circuit
(Lustyik Decl. ¶ 122), but Mr. Lustyik has not actually explained what Mr. Langford did that
was ineffective. Mr. Lustyik also vaguely suggests that Mr. Langford was ineffective because he
did not raise all possible arguments on appeal, meaning Mr. Lustyik forfeited some arguments
(id. at ¶ 129), but Mr. Lustyik does not identify what arguments were lost.
Accordingly, none of these assertions support granting the motion.
D.
Impact on the New York Case
Finally, Mr. Lustyik claims Mr. Langford was ineffective because he failed to obtain a
sufficiently clear sentence in the Utah action prior to Mr. Lustyik’s sentencing in New York. (Id.
at ¶ 127.) This court originally sentenced Mr. Lustyik to 120 months in prison. (645 ECF No.
23
1030.) But the court did not connect that sentence to the specific counts in the indictment, and
following an appeal, the Tenth Circuit instructed the court to clarify the sentence. Lustyik, 833
F.3d at 1272. This court then explained that the sentence was actually ten sixty-month sentences
on counts two through eleven, which ran concurrently with one another, plus a sixty-month
sentence on count one, which ran consecutively to the other sentences. (645 ECF No. 1063.)
While the appeal of his Utah sentence was ongoing, Mr. Lustyik was sentenced in New
York. He argues that if the New York court had known about the corrected sentence Mr. Lustyik
received after the appeal, it might have imposed a lower sentence there. This is a highly
speculative proposition. It is also not properly before this court. Although the ineffectiveness
identified by Mr. Lustyik (the failure of Mr. Langford to clarify the sentence at the sentencing
hearing, requiring an appeal) occurred in this action, the alleged prejudice (the sentence he
received in New York) occurred in a separate action over which this court has no jurisdiction.
Perhaps Mr. Lustyik’s New York counsel was ineffective in presenting to that court Mr.
Lustyik’s concerns about his sentence here, and perhaps, had that issue been raised, the New
York court would have imposed a different sentence, but this court cannot provide Mr. Lustyik
any relief relating to his sentence in New York.
Relatedly, Mr. Lustyik contends Mr. Langford failed to properly coordinate his
arguments during sentencing with Mr. Lustyik’s counsel in New York. (Lustyik Decl. ¶ 128.)
But aside from the above, Mr. Lustyik has not explained what effect this lack of coordination had
on his sentence in either action, so he has not shown prejudice.
Accordingly, Mr. Lustyik has failed to show that any post-plea conduct by either Mr.
Mansolillo or Mr. Langford prejudiced the outcome of this action.
24
ORDER
For the reasons stated above, Mr. Lustyik’s motion to vacate (ECF No. 1) and motion for
an evidentiary hearing (ECF No. 4) are DENIED. Mr. Lustyik’s motion to appoint counsel (ECF
No. 6) is also DENIED.
DATED this 21st day of November, 2019.
BY THE COURT:
TENA CAMPBELL
U.S. District Court Judge
25
APPENDIX
No.
1
2
3
4
5
6
7
8
9
10
11
12
Statement
Source
Counsel’s Conduct During the Pretrial Phase
Mr. Mansolillo failed to object to Mr. Lustyik’s
Ground Four;9
treatment during the search of his home and his arrest. Lustyik Decl. ¶¶ 10-13.10
Mr. Mansolillo relied on counsel for Mr. Lustyik’s co- Ground Three;
defendant to pursue a motion to suppress evidence,
Lustyik Decl. ¶ 28.
rather than proceed with his own motion.
Mr. Mansolillo failed to obtain a joint defense
Ground Three;
agreement with Mr. Lustyik’s co-defendants.
Lustyik Decl. ¶ 40.
Mr. Mansolillo failed to seek a plea deal early in the
Ground One;
case, despite Mr. Lustyik’s request that he do so.
Lustyik Decl. ¶¶ 8-9, 10-13,
19-37, 53, 55.
Mr. Mansolillo sent his investigator, Mr. Mulcahy, to
Ground Three;
review classified discovery, rather than review it
Lustyik Decl. ¶ 42.
himself.
Mr. Mansolillo failed to conduct discovery relating to Ground Three; Ground Five;
Blue Meadows Energy, LLC (“BME”) and its founder, Ground Six;
Michael Feldman.
Lustyik Decl. ¶ 51.
Mr. Lustyik provided Mr. Mansolillo with numerous
Ground Three; Ground Four;
potential witnesses to interview and recommended
Lustyik Decl. ¶¶ 42, 46-50.
other avenues of discovery but Mr. Mansolillo failed
to follow-up with them.
Mr. Mansolillo failed to challenge the involvement of Ground Four;
Lustyik Decl. ¶¶ 16-18.
Mr. Driscoll in the case, despite Mr. Lustyik’s belief
that Mr. Driscoll was biased against former FBI agents
such as Mr. Lustyik.
Mr. Mansolillo failed to present evidence to the court
Ground Four;
that the entire action was a conspiracy against Mr.
Lustyik Decl. ¶ 19.
Lustyik, in retaliation for the fact that Mr. Lustyik had
been cleared of wrongdoing in an unrelated
Department of Justice investigation.
Mr. Mansolillo failed to defend Mr. Lustyik during his Ground Four;
bond revocation hearing.
Lustyik Decl. ¶ 15.
Mr. Mansolillo failed to object to the conditions placed Ground Four;
on Mr. Lustyik while he was subject to home
Lustyik Decl. ¶ 14.
confinement, which made it impossible for Mr.
Lustyik to communicate with Mr. Mansolillo.
Mr. Mansolillo was ineffective, as demonstrated by the Ground Three;
Lustyik Decl. ¶ 22.
fact that he was threatened with contempt of court for
failing to return classified information he had obtained
during discovery.
9
See Petition (77 ECF No. 1).
See Affidavit of Robert Lustyik in Support of Petition, Motion Ex. B (77 ECF No. 1-2).
10
26
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Mr. Mansolillo failed to obtain classified information
that would have aided Mr. Lustyik’s defense.
Mr. Mansolillo had a conflict of interest that should
have prevented his representation of Mr. Lustyik.
Mr. Mansolillo’s motive for doing such a poor job
during the case was that he was engaged in a financial
dispute with Mr. Lustyik regarding the payment of his
fees, and he decided to slow-walk his defense of Mr.
Lustyik as punishment for these unpaid fees.
Ground Three;
Lustyik Decl. ¶¶ 57-62.
Ground Three;
Lustyik Decl. ¶ 40.
Ground Three;
Lustyik Decl. ¶¶ 16, 24-25,
95-98.
Counsel’s Conduct During the Pleading Phase
Mr. Mansolillo did not inform Mr. Lustyik of the
Ground Two;
consequences of pleading guilty without a plea
Lustyik Decl. ¶¶ 78-79.
agreement with the United States.
Mr. Mansolillo did not inform Mr. Lustyik of the
Ground Two;
effect pleading guilty in Utah would have on a
Lustyik Decl. ¶¶ 72-73.
separate, ongoing case in New York.
Mr. Mansolillo misrepresented the length of sentence
Ground Two;
Mr. Lustyik was likely to receive.
Lustyik Decl. ¶ 70.
Mr. Mansolillo failed to advise Mr. Lustyik that he
Ground Two.
was pleading guilty to all counts.
Mr. Mansolillo failed to advise Mr. Lustyik that he
Ground Two.
would not be receiving all three points of downward
variance for accepting responsibility.
Mr. Mansolillo threatened and bullied Mr. Lustyik into Ground Two; Ground Three;
pleading guilty.
Lustyik Decl. ¶¶ 74, 76, 8486, 95-98.
Mr. Calabro told Mr. Lustyik that Mr. Mansolillo was Ground Two;
not prepared for trial.
Lustyik Decl. ¶ 65-66.
Mr. Mansolillo failed to bring Mr. Mulcahy to Utah
Ground Two; Ground Three;
for the trial.
Lustyik Decl. ¶ 67.
Mr. Lustyik realized in the days before trial that Mr.
Ground Two;
Mansolillo was badly unprepared.
Lustyik Decl. ¶¶ 63-67.
But for Mr. Mansolillo’s ineffectiveness, Mr. Lustyik
Ground Three;
would have gone to trial and prevailed because he
Lustyik Suppl. Decl. ¶¶ 4-6.11
could have asserted the Public Authority defense
successfully.
Mr. Mansolillo failed to negotiate a plea deal before
Ground One;
trial.
Lustyik Decl. ¶¶ 68-70, 7778.
Ground One;
Mr. Mansolillo failed to inform Mr. Lustyik of any
Lustyik Decl. ¶¶ 68, 88.
plea deals offered by the United States.
11
See Supplemental Lustyik Declaration, Reply Ex. H (77 ECF No. 21-8).
27
28
29
30
31
32
33
34
35
36
37
Counsel’s Conduct During the Post-Plea Phase
Mr. Mansolillo failed to advise Mr. Lustyik of the
Ground Five;
importance of the presentence interview and failed to
Lustyik Decl. ¶¶ 91-93.
accompany Mr. Lustyik to that interview.
Mr. Mansolillo failed to prepare Mr. Langford for the
Ground Five;
forfeiture and sentencing hearings.
Lustyik Decl. ¶¶ 106-112.
Mr. Mansolillo failed to prepare Mr. Langford for
Ground Five;
counterarguments to the United States’ enhancement
Lustyik Decl. ¶¶ 106-1112.
requests.
Ground Six;
Mr. Langford did not know it was important to
separate Mr. Lustyik’s and Mr. Thaler’s forfeiture
Lustyik Decl. ¶ 117.
hearings.
Mr. Langford failed to explain why Mr. Lustyik
Ground Six;
should not be subject to monetary and supervisory
Lustyik Decl. ¶¶ 118-121;
enhancements.
124-26.
Mr. Langford’s defense of Mr. Lustyik at the forfeiture Ground Six; Ground Seven;
and sentencing hearings was ineffective because he
Lustyik Decl. ¶¶ 43-44, 122.
lacked access to necessary classified information.
Mr. Langford did not sufficiently convey, on appeal,
Ground Seven.
why classified information was necessary to Mr.
Lustyik’s sentencing.
Mr. Langford failed to raise all relevant arguments on Ground Seven;
appeal.
Lustyik Decl. ¶ 129.
Mr. Langford failed to designate whether the sentence Ground Six; Ground Seven;
was concurrent or consecutive, which affected the
Lustyik Decl. ¶ 127.
length of his sentence in New York.
Mr. Langford failed to coordinate arguments with Mr. Ground Six; Ground Seven;
Lustyik’s New York counsel.
Lustyik Decl. ¶ 128.
28
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