Opinion
22-CV-9892 (JSR) (RWL) 18-CR-14-JSR-3
08-24-2023
FRANK GIOVINCO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION TO HON. JED S. RAKOFF: PETITION TO VACATE JUDGMENT
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
Petitioner Frank Giovinco (“Petitioner” or “Giovinco”) was convicted on December 3, 2019 on one count of racketeering conspiracy and one count of extortion conspiracy. On June 22, 2020, the Court sentenced Giovinco to a term of 48 months' imprisonment followed by three years' supervised release; ordered Giovinco to pay $135,000 in restitution; and imposed a mandatory $200 special assessment. Giovinco was released from prison on February 10, 2023 and is currently serving supervised release. Proceeding pro se, Giovinco now moves to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. The motion is fully briefed and has been referred to me for a report and recommendation. For the reasons set forth below, I recommend that Giovinco's petition be DENIED.
BACKGROUND
A. The Federal Charges
In an investigation spanning from 2011 to 2018, the Government identified Giovinco as a member of the Genovese Crime Family, an organized criminal group and subset of the New York City area mafia that engages in criminal activity to preserve and augment its power, territory, and financial profits through intimidation, including threats of economic and physical harm. (See United States v. Giovinco, 18-CR-014-JSR-3 (“Giovinco I”), Dkts. 5 at 1-3; 371 at 5.)
On January 9, 2018, a grand jury jointly indicted Giovinco and four co-defendants (Vincent Esposito, Steven Arena, Frank Cognetta, and Vincent D'Acunto Jr.) for a total of ten counts; Giovinco was charged with one count of racketeering conspiracy. (Giovinco I, Dkt. 5.) Giovinco was arrested the following day, on January 10, 2018, and then released on a $500,000 personal recognizance bond. (Giovinco I, Dkt. 352 at 2.) A superseding Indictment was filed on May 29, 2019 (the “Indictment”), charging both Giovinco and co-defendant Steven Arena (“Arena”) with a total of three counts, two of which included Giovinco.
The Indictment can be found at Dkt. 190 in Giovinco I.
Count One charged Giovinco and Arena with racketeering conspiracy in violation of 18 U.S.C. § 1962(c). Specifically, Count One charged Giovinco and Arena with direct and indirect participation in a pattern of racketeering activity including (a) multiple acts of extortion and aiding and abetting extortion; (b) multiple acts of grand larceny by extortion; (c) multiple acts of unlawful payments; (d) multiple acts of mail fraud, honest services mail fraud, conspiracy, and aiding and abetting the same; and (e) multiple acts of wire fraud, honest services wire fraud, conspiracy, and aiding and abetting the same. (Indictment at 4-6.)
Count Three charged Giovinco and Arena with conspiracy to extort an unnamed financial advisor and an unnamed labor union official by threatening force and violence in order to receive payments to which the defendants were not entitled. (Indictment at 6.)
The Court understands, as the parties acknowledge in their briefs, that the unnamed financial advisor is Clifford Moss, and the unnamed labor union official is Vincent Fyfe. The Government's Enterprise Letter dated June 3, 2019 (“Ent. Letter”), identified two cooperating witnesses - “CW-1” (a union official) and “CW-2” (financial advisor). (Giovinco I, Dkt. 204, Ent. Letter at 4-5.) Both Moss and Fyfe testified as cooperating witnesses at trial; Fyfe self-identified as the president of the United Food and Commercial Workers Local 2D union, and Moss self-identified as a “financial advisor.” (Tr. 101-02, 494-95.) “Tr.” refers to the transcript of Giovinco's trial, which can be found at Dkts. 326, 328, 330, 332, 334-35, 337 in Giovinco I.
B. Trial Proceedings And Verdict
From November 18 to December 3, 2019, Giovinco - represented by CJA appointed defense attorney Aaron M. Goldsmith (“Goldsmith”) - was tried by jury with presiding District Judge Jed S. Rakoff (the “Trial Judge”).
According to a sentencing memorandum dated June 15, 2020 (“Pet. Sent. Memo.”), Giovinco was the only defendant who proceeded to trial. Arena plead guilty and received a sentence of 366 days. (Pet. Sent. Memo, Giovinco I, Dkt. 371, at 5; see also USA v. Esposito, No. 18-CR-00014-VM-2, at Dkt. 201.)
The jury convicted Giovinco on both Count One (racketeering conspiracy) and Count Three (extortion conspiracy). (Giovinco I, Dkt. 322, Verdict Form (“Ver.”) at 1-2.) For Count One, the jury unanimously found the following predicate racketeering acts were proven beyond a reasonable doubt: (1) extortion of Clifford Moss (“Moss”); (2) extortion of co-defendant Frank Cognetta (“Cognetta”); (3) extortion of Vincent Fyfe (“Fyfe”); (4) unlawful payments to Cognetta; and (5) bribes/kickbacks to Cognetta. (Ver. at 1-2.)
The Court sentenced Giovinco on June 22, 2020, to a term of 48 months' imprisonment followed by three years' supervised release, held Giovinco joint and severally liable for $135,000 in restitution stemming from the extortion of Fyfe, and imposed a mandatory $200 special assessment. (Sent. Tr. 18-19.) The Court ordered that Giovinco's portion of restitution be paid at a rate of fifteen percent of Giovinco's gross monthly income, scheduled to begin in the second month of his supervised release. (Sent. Tr. 20.) Giovinco was released from prison and began his term of supervised release on February 10, 2023. (Resp. Memo at 2.)
“Sent. Tr.” refers to the sentencing transcript dated June 22, 2020, which can be found at Dkt. 417 in Giovinco I.
“Resp. Memo.” refers to the letter brief submitted by the Government on March 7, 2023 in opposition to Giovinco's § 2255 motion, which can be found at Dkt. 414 in Giovinco I.
C. Petition To Submit A Pro Se Supplemental Brief
On March 23, 2021, Giovinco and appellate counsel Malvina Nathanson petitioned the United States Court of Appeals for the Second Circuit to submit a pro se supplemental brief challenging the restitution required of Giovinco. (See United States v. Esposito (Giovinco), No. 20-2143-CR, Dkt. 59 at 1-3.) On March 25, 2021, the Second Circuit denied Giovinco's request, stating that Giovinco did not have the right to “hybrid” pro se and counsel representation. (Id. at Dkt. 63.) Giovinco, through appellate counsel, filed a request for reconsideration of his petition to file a pro se supplemental brief, which was denied on June 23, 2021. (Id. at Dkts. 64, 86.)
D. Direct Appeals
On November 23, 2021, Giovinco appealed the judgment of his conviction, challenging three of the trial court's evidentiary rulings: (1) the admission of a stipulation describing Giovinco's prior conviction for attempted enterprise corruption; (2) the admission of testimony regarding Giovinco's membership in the Genovese Crime Family; and (3) the admission of expert testimony from a government special agent. United States v. Esposito, No. 20-2143-CR, 2021 WL 5492935, at *1-4 (2d Cir. Nov. 23, 2021). Giovinco also argued that the evidence presented at trial was insufficient to convict him of conspiracy to commit extortion. Id. at *5. The Second Circuit rejected Giovinco's arguments and affirmed the judgment of conviction. Id. at *5-6.
E. Giovinco's Petition To Vacate
On November 20, 2022, Giovinco filed the instant petition pursuant to 28 U.S.C. § 2255, seeking to stay the district court's order of restitution and vacate the verdict. (Dkt. 1, “Pet.,” at 13.) Giovinco advances four grounds for vacatur.
First, Giovinco alleges that the district court failed to follow the procedures of the Mandatory Victims Restitution Act (“MVRA”) when imposing the joint and several restitution order stemming from the extortion of Fyfe. (Pet. at 5.) Giovinco argues that he was not indicted for extorting Fyfe and was not notified that the Government sought restitution. Second, Giovinco argues that the Indictment was impermissibly constructively amended to include the extortion of Fyfe as a predicate act to the racketeering conspiracy charged in Count One. (Pet. at 6.) Third, Giovinco asserts that his trial attorney Goldsmith's request for a letter of recommendation from one of the Government's attorneys created a conflict of interest that compromised the quality of Goldsmith's performance and rendered him ineffective. (Pet. at 8.) Lastly, Giovinco claims that Goldsmith was ineffective by failing to object, as inadmissible hearsay, to the admission of a recorded conversation between co-defendant Cognetta and Fyfe discussing Cognetta's fear of co-defendant Arena. (Pet. at 9.)
On October 16, 2019, the Honorable Victor Marrero issued an Order of Restitution in a related case for Giovinco's co-defendant Vincent Esposito. See USA v. Esposito, No. 18-CR-014-1, Dkt. 291. As with Giovinco, the order required Esposito, jointly and severally with any other defendant, to “pay restitution in the total amount of $135,200 to [Vincent Fyfe].” Id; see also Sent. Tr. at 18-19.
At the Government's request, and with Giovinco's consent, Goldsmith has submitted an affidavit about his representation of Giovinco (“Goldsmith Aff.”). (Resp. Memo. at Dkt. 414-1.) In response to Giovinco's first ground for vacatur concerning restitution, Goldsmith rejects the allegation that he failed to properly object to the finding and calculation of restitution. As support, Goldsmith cites sentencing memoranda submitted in June 2020 and oral argument in which he objected to restitution stemming from the extortion of Fyfe. (Goldsmith Aff. ¶¶ 10-16; see Giovinco I, Dkts. 371, 375.)
Regarding Giovinco's claim of impermissible constructive amendment, Goldsmith maintains that he appropriately argued a motion to dismiss the Indictment during trial, but that the Trial Court both denied the request and refused Goldsmith the opportunity to detail his argument. (Goldsmith Aff. ¶¶ 19-25.) Goldsmith adds that “the Court noted during the charge conference that it could see how a reasonable juror could infer the elements based upon the evidence and testimony adduced at trial.” (Id. ¶ 22.)
Next, Goldsmith rejects the allegation that his request for a letter of recommendation created a conflict of interest that affected the quality of his representation. Goldsmith states that he obtained Giovinco's consent “[p]rior to receiving [the] recommendation and giv[i]ng instructions to [] Richman,” and that the timing of his request for Giovinco's consent “nullifies any alleged conflict during the litigation of the case, at trial, or during the drafting and argument of the Rule 33 motion.” (Id. ¶¶ 32-34, 38.)
Neither Goldsmith nor the Government provide the date on which Goldsmith requested the letter of recommendation. Giovinco additionally appears uncertain as to whether the letter of recommendation was ever provided to Goldsmith and seeks disclosure on that issue from Goldsmith or the Government. (Pet. at 8.)
Finally, Goldsmith argues that no objection to the recording of Cognetta's conversation with Fyfe would have been appropriate or successful because the Government used the conversation “to, in part, support the element of fear of physical or financial harm under extortion.” (Id. ¶¶ 40-41.) Goldsmith also explains that in advance of trial (1) he reviewed the recording with Giovinco for errors and alternative explanations; (2) “Giovinco poured through portions of the selections looking for additional selections to add better context”; and (3) Giovinco and Goldsmith prepared additional recording selections to be used in Fyfe's cross-examination, although the Trial Court precluded some selections based on Fyfe's answers to questions. (Id. ¶¶ 42-47.) Giovinco also attests to discussing the Rules of Evidence, specifically the Rule of Completeness, with Giovinco and explaining why it could be strategically more beneficial to introduce additional recordings, rather than to pursue preclusion. (Id. ¶ 44.) Overall, Goldsmith attests that he provided Giovinco with effective assistance of counsel throughout the proceedings. (Id. ¶ 50.)
STANDARDS OF REVIEW
A. Law Governing Section 2255 Motions
Section 2255 provides a petitioner in federal custody with a limited opportunity to collaterally challenge the legality of his sentence. See United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 2240 (1979). To obtain relief under 28 U.S.C. § 2255, the petitioner must show that his sentence: (1) “was imposed in violation of the Constitution or the laws of the United States;” (2) was entered by a court “without jurisdiction to impose such sentence;” (3) exceeded the maximum detention authorized by law; or (4) is “otherwise subject to collateral attack.” See 28 U.S.C. § 2255(a).
Collateral relief is available only for a constitutional error “that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” FNU LNU v. United States, No. 12-CV-7897, 2015 WL 5893723, at *4 (S.D.N.Y. Oct. 7, 2015) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)); see also Medrano v. United States, No. 13-CV-1604, 2015 WL 848551, at *12 (S.D.N.Y. Feb. 27, 2015). As the Second Circuit has explained, “[t]he reasons for narrowly limiting the relief permitted under § 2255 - a respect for the finality of criminal sentences, the efficient allocation of judicial resources, and an aversion to retrying issues years after the underlying events took place - are ‘well known and basic to our adversary system of justice.'” Bokun, 73 F.3d at 12 (quoting Addonizio, 442 U.S. at 184, n.11, 99 S.Ct. at 2240).
It also is well-established that a Section 2255 petition “cannot be used to ‘relitigate questions which were raised and considered on direct appeal.'” Reese v. United States, 329 Fed.Appx. 324, 326 (2d Cir. 2009) (quoting United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)); see also Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (“the so-called mandate rule bars re-litigation of issues already decided on direct appeal”). This limitation encompasses issues expressly or impliedly decided on appeal. United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). There are exceptions, however. A court may “reconsider an earlier decision when [it is] confronted with ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'” United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)).
Relatedly, “[a] habeas action is not intended to substitute for a direct appeal.” Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004) (citing United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593 (1982)); see also Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012) (citing Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007)). Accordingly, “[w]here a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent Section 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom.” Rosa v. United States, 170 F.Supp.2d 388, 396 (S.D.N.Y. 2001) (collecting cases).
As the Supreme Court has explained, barring collateral review of claims not raised on direct appeal absent cause and prejudice “is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693 (2003). “To satisfy the cause requirement, the petitioner must show circumstances external to the petitioner, something that cannot be fairly attributed to him.” Zhang, 506 F.3d at 166 (internal quotation marks and citations omitted). Thus, among other claims, a habeas petitioner may not challenge the sufficiency of evidence presented at trial without showing cause for not raising the issue in the first instance on direct appeal. See United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998) (“absent a showing of cause for, and prejudice resulting from, the failure to raise [a sufficiency of evidence] claim [on direct appeal], [the petitioner] may not ... challenge the sufficiency of the evidence by collateral attack. A motion under § 2255 is not a substitute for an appeal”).
B. Law Governing Ineffective Assistance Of Counsel Claims
To prevail on an ineffective assistance of counsel claim, the petitioner must show that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984). These claims are analyzed using the two-prong test set forth in Strickland, which places the burden on the petitioner to “(1) demonstrate that his counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms; and (2) affirmatively prove prejudice arising from counsel's allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) (internal quotation marks and citation omitted); see also Santone v. Fischer, 689 F.3d 138, 154 (2d Cir. 2012).
Under the first Strickland prong, the reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2055; see also Raysor v. United States, 647 F.3d 491, 495 (2d Cir. 2011). The court must assess the case from the viewpoint of the attorney at the time of the challenged conduct or omission. See Parisi v. United States, 529 F.3d 134, 141 (2d Cir. 2008); Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844 (1993). Accordingly, “the record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed [to] the defendant by the Sixth Amendment.'” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).
A petitioner cannot prevail on a claim of ineffective assistance merely because they believe that his counsel's strategy was inadequate. United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986). “‘There are countless ways to provide effective assistance in any given case,' and ... ‘even the best criminal defense attorneys would not defend a particular client in the same way.'” United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065) (internal brackets omitted). As a result, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
Similarly, reasonably prudent decisions concerning the “selective introduction of evidence, stipulations, objections, and pre-trial motions” are generally upheld as matters of trial strategy. United States v. Plitman, 194 F.3d 59, 63-64 (2d Cir. 1999). Likewise, tactical decisions concerning which witnesses to call to testify are “‘ordinarily not viewed as a lapse in professional representation.'” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (quoting United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997)). Moreover, “‘[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a defendant is] entitled.'” Forbess v. United States, 574 F.3d 101, 106 (2d Cir. 2009) (quoting Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001)).
If the petitioner satisfies the first prong, they then must meet the “heavy burden” of showing “actual prejudice” as a result of counsel's ineffectiveness. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. It is not enough “‘to show that the errors had some conceivable effect on the outcome of the proceeding.'” Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067). Rather, to establish prejudice, a petitioner “must demonstrate ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Raysor, 647 F.3d at 495 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2055-56). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2056.
Only where both prongs of the Strickland test are satisfied can it be concluded that “counsel was not functioning as the ‘counsel' guaranteed to the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064. “[T]here is no reason,” however, “for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.
When considering the two Strickland prongs, the Supreme Court has explained that “[t]he object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. Applying that rule, the Second Circuit has often rejected ineffectiveness claims by determining that, in view of the strength of the prosecution's case, the defendant is unable to establish prejudice. See, e.g., Rosario v. Ercole, 601 F.3d 118, 136 (2d Cir. 2010) (“Strickland makes clear that ‘a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support'”) (quoting Strickland, 466 U.S. at 696, 104 S.Ct. at 2069).
An ineffective assistance of counsel claim may be raised for the first time in a Section 2255 motion “whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1691 (2003); see also Yick Man Mui, 614 F.3d at 54; Harrington, 689 F.3d at 129. Indeed, “in most cases” a Section 2255 motion is “‘preferable to direct appeal for deciding claims of ineffective assistance.'” United States v. Kimber, 777 F.3d 553, 562 (2d Cir. 2015) (quoting Massaro, 538 U.S. at 504, 123 S.Ct. at 1691). Conversely, however, ineffective assistance claims may be procedurally barred if they were raised and considered on direct appeal. Yick Man Mui, 614 F.3d at 53; United States v. Pitcher, 559 F.3d 120, 123 (2d Cir. 2009). Similarly, ineffectiveness claims may be barred if “the factual predicates of those claims, while not explicitly raised on direct appeal, were nonetheless impliedly rejected by the appellate court mandate.” Yick Man Mui, 614 F.3d at 53; see also Pitcher, 559 F.3d at 124.
DISCUSSION
I. Challenge To Restitution
Giovinco alleges that the Trial Court failed to follow the procedures of the MVRA when ordering $135,000 joint and several restitution stemming from the extortion of Fyfe on the basis that Giovinco neither extorted Fyfe nor was indicted for extorting Fyfe. (Pet. at 5). The Government argues that challenges to restitution orders are not cognizable on a 28 U.S.C. § 2255 motion because the statute applies only to custodial punishments; and, in any event, Giovinco was properly indicted for the extortion of Fyfe and had sufficient notice of restitution. (Resp. Memo. at 3-4.) The Court agrees that Giovinco's restitution does not constitute custody, and, therefore, his challenge is not cognizable under 28 U.S.C. § 2255.
“In order to invoke habeas corpus review by a federal court, the petitioner must satisfy the jurisdictional ‘in custody' requirement of 28 U.S.C. § 2255.” Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994). “Custody” in the context of habeas corpus statutes need not require physical custody, but rather that the petitioner is subject to restraints not shared by the public generally. See Jones v. Cunningham, 371 U.S. 236, 240-42, 83 S.Ct. 373, 376-77 (1963) (finding that a petitioner's parole conditions - which restricted where he could live, when he can leave the community, and if he could operate a motor vehicle - significantly restrained his freedom so as to keep him in the “custody” of the parole board); Mallo v. Vance, No. 21-CV-10488, 2023 WL 2456709, at *3 (S.D.N.Y. March 10, 2023) (“[Section 2255 custody] requirement is jurisdictional and is satisfied if the petition is filled while the petitioner is in custody pursuant to the conviction or sentence being attacked, ... or if the petitioner is on supervised release or probation”) (internal citations omitted).
“The Second Circuit Court of Appeals has squarely held that challenges to restitution orders are not cognizable on a 28 U.S.C. § 2255 motion to vacate” unless the restitution order “is so burdensome that it amounts to a restraint on liberty.” Bimpeh v. United States, No. 05-CV-3011, 2008 WL 4861705, at *1 (S.D.N.Y. Nov. 10, 2008); see also Jones at 242-43, S.Ct. at 376-77; Kaminski v. United States, 339 F.3d 84, 85 (2d Cir. 2003) (holding that a restitution order requiring the greater of ten percent of the defendant's monthly income or $100 “plainly does not come close” to amounting to custody). “It is not the amount of restitution alone but, rather, the terms of payment that identify those rare cases in which a restitution order might so severely deprive a defendant of liberty as to equate to custodial punishment.” United States v. Rutigliano, 887 F.3d 98, 111 (2d Cir. 2018).
While the “severity” of a restitution order remains vaguely defined, courts in the Second Circuit have held that restitution orders requiring ten to fifteen percent of a defendant's gross monthly income do not constitute custodial punishment. See Kaminski 339 F.3d at 87 (holding that a monthly restitution payment equal to ten percent of the defendant's gross monthly income did not constitute custody); Mansour v. United States, No. 11-CR-612-3, 2015 WL 1573327, at *4 (S.D.N.Y Apr. 8, 2015) (same); McEwan v. United States, 279 F.Supp.2d 462, 464 n.1 (S.D.N.Y. Sept. 3, 2003) (holding that a monthly restitution payment equal to fifteen percent of the defendant's gross monthly income did not constitute custody).
Giovinco does not allege that the $135,000 joint and several restitution imposed on him is so severe as to equate to custodial punishment. (See Pet. at 5.) And even if he did, that argument would fail. Giovinco was ordered to pay restitution equaling fifteen percent of his gross monthly income, falling within the range that courts deem reasonable. (Sent. Tr. 20.) There thus is “no basis for finding a restraint on liberty, [and] this Court has no subject matter to hear [Giovinco's] motion.” Bimpeh, 2008 WL 4861705, at *2.
The issue of whether Giovinco was properly indicted for the extortion of Fyfe, which was the basis for the $135,000 restitution order, overlaps with Ground Two of the petition and will be addressed next.
II. Constructive Amendment To The Indictment
Giovinco claims that the jury verdict form constituted an impermissible constructive amendment to the Indictment by including the extortion of Fyfe as a predicate act of extortion under Count One. (Pet. at 6.) Giovinco first advances a procedural argument that he was not formally indicted extorting Fyfe. (Id.) Substantively, Giovinco argues that he could not have extorted Fyfe because Giovinco joined the conspiracy after Fyfe had completed his last extortion payment. (Id.)
The Government rejects the notion that Giovinco's extortion of Fyfe was not contemplated by the Indictment, citing the Enterprise Letter filed in advance of trial that provided Giovinco with notice that the Government sought to prove the extortion of a “union official turned cooperating witness” as evidence of Giovinco's membership in the racketeering enterprise. (Resp. Memo. at 5; see also Ent. Letter at 4.) The Government also maintains that the evidence supported a finding of Giovinco's role in extorting Fyfe, pointing to, inter alia, conspiracy members' extortion of payments from Fyfe for years; Genovese Family instructions to Giovinco to pressure Fyfe to provide Giovinco and a particular attorney with positions in the union, and evidence that Giovinco participated in the extortion conspiracy in April 2015, prior to Fyfe's last payment. (Resp. Memo at 5, n.1.) The Government is correct.
A. Relevant Law Of Constructive Amendments And Variances
“A criminal defendant has a substantive right to be tried only on the charges contained in the indictment returned by the grand jury.” United States v. Weiss, 752 F.2d 777, 787 (2d Cir. 1985); see also Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273 (1960) (“a court cannot permit a defendant to be tried on charges that are not made in the indictment against him”). An indictment is deemed to be constructively amended “when it is so altered as to charge a different offense from that found by the grand jury.” United States v. Miller, 471 U.S. 130, 144-45, 105 S.Ct. 1811, 1819 (1985). To establish a constructive amendment, “a defendant must show that the trial evidence or jury instructions ‘so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment.'” United States v. Bastian, 770 F.3d 212, 220 (2d Cir. 2014) (quoting United States v. Rigas, 490 F.3d 208, 227 (2d Cir. 2007)).
Impermissible constructive amendment occurs when the defendant had “no inkling” that he was charged with the act in question because it was neither mentioned in the indictment nor related to the charges. United States v. Milstein, 401 F.3d 53, 65 (2d Cir. 2005) (finding constructive amendment where defendant was charged with misbranding and repackaging drugs but did not have notice that the Government would also attempt to prove that the drugs were not sterile); United States v. Wozniak, 126 F.3d 105, 111 (2d Cir. 1997) (finding constructive amendment where defendant was charged for his part in a cocaine and methamphetamine distribution conspiracy but had no notice that the Government would seek to present evidence of marijuana-related activities); United States v. Zingaro, 858 F.2d 94, 103 (2d Cir. 1988) (finding constructive amendment where the indictment included the names of particular individuals from social clubs in Yonkers, but the government in summation named an additional individual who was neither mentioned in the indictment nor related to social clubs in Yonkers).
A constructive amendment to an indictment is a per se violation of the Fifth Amendment. See Zingaro, 858 F.2d at 98 n.5 (referencing the grand jury clause, which provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury”). However, “[n]ot every divergence from the terms of an indictment ... qualifies as a constructive amendment.” Bastian, 770 F.3d at 220. The Second Circuit has “consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial.” Rigas, 490 F.3d at 228 (internal quotation marks and original emphasis omitted). “Where charges are ‘constructively narrowed' or where a generally framed indictment encompasses the specific legal theory or evidence used at trial, no constructive amendment occurs.” United States v. Morgenstern, 933 F.2d 1108, 1115 (2d Cir. 1991).
Variances that do not alter essential elements of the charges are permissible. Unlike a constructive amendment, “[a] variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.” United States v. Pelose, 538 F.2d 41, 45 n.8 (1976); see also United States v. Salmonese, 352 F.3d 608, 621 (2d Cir. 2003). A variance constitutes a constitutional violation “only if it infringes on the notice and double jeopardy protections of an indictment,” United States v. D'Amelio, 683 F.3d 412, 417, 422 (2d Cir. 2021), and does not require reversal absent a showing of substantial prejudice to the defendant. United States v. Weiss, 752 F.2d 777, 790 (2d Cir. 1985). Courts thus have found permissible variances when the defendant had sufficient notice of the core criminal conduct for which he was charged. See D'Amelio, 683 F.3d 412, 417 (finding permissible variance where deviation between indictment, which charged defendant with using the internet to commit the crime, and the jury charge, which referenced proof of defendant's use of both the internet and telephone, did not modify the essential element at issue of defendant's use of a facility or means of interstate commerce); United States v. Patino, 962 F.2d 263, 265-67 (2d Cir. 1992) (holding that, though the appellant was charged for the use of one firearm at the time of his victim's abduction, the prosecutor's reference to three additional weapons in the Government's summation “was at best a variance”), abrogation on other grounds recognized, United States v. Capers, 20 F.4th 105 (2d Cir. 2021).
B. No Constructive Amendment
The Indictment was not constructively amended with Giovinco's participation in the predicate act of extorting Fyfe. Count One charged Giovinco and codefendant Arena with a pattern of racketeering activity that included the following acts:
a. multiple acts indictable under Title 18, United States Code, Sections 1951 and 2 (extortion and aiding and abetting extortion);
b. multiple acts involving extortion, chargeable under the following provision of state law, namely New York Penal Law Sections 155.40(2) and 155.05(2)(e) (grand larceny in the second degree by extortion), 155.30(6) and 155.05(2)(e) (grand larceny in the fourth degree by extortion); 105.10 (conspiracy in the fourth
degree); 105.05 (conspiracy in the fifth degree); 110.00 (attempt to commit a crime[.](Indictment at 4-5.)
The charging terms of the Indictment were not altered after it was issued. The Indictment unmistakably charged Giovinco in Count One with racketeering conspiracy that included predicate acts of extortion and conduct involving extortion and, thus, certainly “gave notice of the core of criminality to be proven at trial.” (Indictment at 4-5.) United States v. Cain, 671 F.3d 271, 299 (2d Cir. 2012) (internal quotation marks omitted). Giovinco was ultimately convicted on Count One based on the predicate acts of extorting three victims: Moss, Cognetta, and Fyfe. (Ver. 1-2). The evidence at trial and acts identified on the verdict form fall comfortably within the general acts for which Giovinco was indicted. See United States v. Vilar, 729 F.3d 62, 81, 90-91 (2d Cir. 2013) (no constructive amendment where a generally framed indictment encompasses the specific legal theory or evidence used at trial); United States v. Ortiz, 962 F.Supp.2d 565, 571 (S.D.N.Y. 2013) (no constructive amendment where defendant was charged with crack cocaine conspiracy but the prosecutor's summation referenced powder cocaine conspiracy because there was no change to the core criminality).
That the Indictment did not specifically name Moss, Cognetta, and Fyfe is of no moment. Giovinco was charged with the core crime of racketeering, for which conviction requires proving certain predicate acts. The “charge is sufficiently inclusive” such that further refinement of predicate acts presented in the original charge did not alter the pattern of racketeering for which Giovinco was indicted. United States. v. Fasciana, 226 F.Supp.2d 445, 453 (S.D.N.Y. 2002); c.f. United States v. Basciano, 599 F.3d 184, 206 (2d Cir. 2010) (observing constructive amendment occurred where the government substituted a different pattern of racketeering for the pattern charged by the grand jury).
Moreover, the Enterprise Letter provided before trial further put Giovinco on notice that the Government would attempt to prove his extortion of Fyfe, then designated as a cooperating “union official”:
Giovinco participated in pressuring a union official turned cooperating witness (“CW-1”) to insert a particular attorney associated with organized crime into CW-1's union (“Union”)[;] ...
Giovinco and co-conspirators pressed CW-1 to provide Giovinco with a job at the Union, despite his prior felony conviction. Placing Giovinco within the union was intended to permit the Genovese Family to keep a closer hold on the union.(Ent. Letter at 4.)
At trial, Fyfe testified and identified himself as the cooperating union official. (Tr. 494-95, 529.) In short, Giovinco was on notice that he was charged with extorting Fyfe, and the Indictment was not impermissibly constructively amended.
At most then, identification of Fyfe on the verdict form was no more than a permissible variance of which Giovinco had notice before trial by virtue of the Enterprise Letter. See United States v. Delano, 55 F.3d 720, 730 (2d Cir. 1995) (finding that because petitioner “received adequate notice of the variance and thus was not substantially prejudiced in his trial preparations, there was no fatal defect to the government's case”). Giovinco could not have been prejudiced by such variance, because, as discussed next, the evidence at trial proved facts - extortion of Fyfe - that were not “materially different” from those alleged in the indictment. See Pelose, 538 F.2d at 45 n.8; Salmonese, 352 F.3d at 621-22 (finding defendant cannot demonstrate prejudice from a variance where “the pleading and the proof substantially correspond [and] where the variance is not of a character that could have misled the defendant at the trial”) (internal quotation marks omitted).
C. Sufficient Evidence Of Giovinco's Extortion Of Fyfe Was Presented
Giovinco alleges that he could not have plausibly extorted Fyfe since Giovinco did not enter the extortion conspiracy until “April 2016-2017,” post-dating Fyfe's final extortion payment on May 26, 2015. (Pet. at 6.) But Giovinco's petition does not include any information establishing that assertion. (See id. at 6.) To the contrary, sufficient evidence was presented at trial - a recording of a meeting between Giovinco, Arena, and Fyfe, accompanied by testimony from Fyfe - demonstrating that Giovinco was involved with the conspiracy as early as April 2015, before Fyfe's final payment. (Tr. 569-70) (citing Government Exhibit 311); see also Tr. 742-47 (Government summation).) Pursuant to the trial evidence, the jury determined that Giovinco conspired to extort Fyfe as a predicate act for racketeering conspiracy. (Ver. at 2).
During sentencing, Giovinco's trial counsel Goldsmith stated that “there was no evidence adduced at trial regarding [Giovinco's] ... involvement until 2013.” (Sent. Tr. at 3.)
Additionally, disposing of Giovinco's motion for a new trial, the Trial Judge concluded that Giovinco failed to demonstrate that the weight of the evidence was against the verdict. See United States v. Giovinco, No. 18-CR-14, 2020 WL 832920, at *3 (S.D.N.Y. Feb. 20, 2020). The Trial Judge found that the evidence at trial, including Fyfe's testimony that he understood Giovinco to be a member of the Genovese Crime Family, “was sufficient for the jury to conclude that Giovinco was a member of the Genovese Crime Family and thus a member of the charged racketeering conspiracy.” Id. And, at sentencing, the Government stated that it believed Giovinco should be held joint and severally liable for the $135,000 restitution relating to Fyfe's extortion, to which Goldsmith objected “based upon the evidence at trial.” (Sent. Tr. 18-19.) The Trial Judge overruled the objection “given that the jury didn't agree” that there was not sufficient evidence to find Giovinco extorted Fyfe. (Id. at 19.) Goldsmith's objection to the general lack of evidence of Giovinco's involvement in the conspiracy was also overruled. (Sent. Tr. at 67, 11-12, 16-17; Goldsmith Aff. ¶¶ 12-14). Giovinco “thus provides no new evidence or legal theory to warrant the habeas relief he seeks.” Davis v. United States, 636 F.Supp.2d 297, 299 (S.D.N.Y. 2009).
In sum, there is no procedural or substantive basis for Giovinco's constructive amendment claim.
III. Hearsay
Giovinco alleges that evidence introduced at trial was inadmissible hearsay. In particular, Giovinco argues that the trial court wrongly permitted entry of an unsubstantiated statement from a recording, Government Exhibit 323 (“GX 323”), that “Frank Cognetta, a co-defendant and alleged victim stated to a cooperating witness that his cousin (also named Frank Cognetta) was told by co-defendant Steven Arena that his life was in jeopardy.” (Pet. at 9). Giovinco does not identify which of the multiple “cooperating witnesses” he is referencing; however, based on the content of the trial transcript, Giovinco apparently was referring to statements made by either Moss or Fyfe, given that the “threat” in question was mentioned by both of them at trial. (Tr. 160-61, 243-44, 585-86).
The Government advances arguments on both procedural and substantive grounds. First, the Government asserts that Giovinco's failure to raise any claim related to admission of the conversation on direct appeal now renders his claim procedurally defaulted. (Resp. Memo. at 6.) Second, the Government argues that Giovinco's claim fails because: (1) Moss, a participant in the challenged recording (GX 323), “was clearly in a position to authenticate the recording”; (2) “there is no basis to believe that [the] clear probative value [of GX 323] was outweighed by undue prejudice”; (3) the decision to “forego objection to the recording and accompanying testimony, given its obvious relevance and Moss's ability to authenticate the recording” was a reasonable strategic choice made by trial counsel; and (4) Giovinco fails to demonstrate that, had counsel objected to the admission of GX 323, the outcome of the proceeding would have been different. (Id. at 6-7.) Additionally, Goldsmith explains that the Government used the recorded conversation “to, in part, support the element of fear of physical or financial harm under extortion.” (Goldsmith Aff. ¶¶ 40-41.)
The Court agrees that Giovinco's claim is procedurally defaulted. As explained above, Section 2255 “precludes a defendant from bringing claims for the first time that could have been raised on direct appeal.” United States v. Smith, Nos. 14-CR-813, 19-CV-3137, 2022 WL 1063170, at *5 (S.D.N.Y. Apr. 8, 2022). Where a criminal defendant “did not raise an argument on direct appeal, he is procedurally barred from doing so on a collateral challenge under § 2255.” Rakaratnam v. United States, 736 Fed.Appx. 279, 281 (2d Cir. 2018).
A procedurally defaulted claim “may be raised in habeas only if the defendant can first demonstrate either ‘cause' and ‘actual prejudice,' ... or that he is ‘actually innocent.'” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611 (1998) (citations omitted). Cause for a procedural default ordinarily turns on whether the petitioner can show that “some objective factor external to the defense impeded [petitioner's] efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986); see also Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566 (1991). Common examples of cause include a showing that the factual or legal basis for a claim was not reasonably available at the time of the default or that “some interference by [state] officials” made compliance with the procedural mechanism impracticable. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645.
For a petitioner to demonstrate prejudice, he “must show more than that errors created a possibility of prejudice, but instead that they worked to his actual and substantial disadvantage.” Quail v. Farrell, 550 F.Supp.2d 470, 474-75 (S.D.N.Y. 2008) (internal quotation marks and brackets omitted). To overcome procedural default through actual innocence, the petitioner must show that “the federal court's refusal to consider the merits of his claim will result in a fundamental miscarriage of justice, because he is ‘actually innocent.'” Smith, 2022 WL 1063170, at *5 (citing Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001)). A court can find actual innocence only when, after a review of the evidence, it concludes that “no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Doe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (internal quotation marks omitted).
Giovinco's hearsay claim is procedurally defaulted. Giovinco and Goldsmith received notice from the Government of the recordings it sought to submit as evidence during trial and reviewed the recordings together in advance of trial. (Goldsmith Aff. at ¶¶ 42-46.) At trial, the Government introduced the recording, stating that that “[t]he parties have stipulated and agreed” to the submission of the recording marked as GX 323, along with various other recordings and corresponding transcripts. (Tr. 153; see also GX 1010.) The Court received the exhibits with no objection from the defense, and GX 323 was played during Moss's direct examination. (Tr. 153, 242-44.)
“GX 1010” is the parties' stipulation to the truth and correctness of various exhibits to be presented at trial, including GX 323. The Government read relevant portions of GX 1010 into the record during trial. (Tr. 152-53.)
On direct appeal, Giovinco challenged several of the trial court's evidentiary rulings. See Esposito, 2021 WL 5492935, at *1-4. Specifically, Giovinco challenged (1) the admission of evidence of Giovinco's previous New York State conviction for attempted enterprise corruption; (2) the testimony of multiple witnesses as to their understanding of Giovinco's alleged membership in the Genovese Crime Family; and (3) the testimony of organized crime expert Special Agent John Carillo. Id. Giovinco did not, however, raise the issue of hearsay or admissibility of GX 323. See generally id. The claim thus cannot be challenged now on collateral review. See, e.g., Knowles v. United States, Nos. 18-CV-1950, 11-CR-630, 2022 WL 999078, at *16 (S.D.N.Y. March 30, 2022) (finding petitioner's claims of prosecutorial misconduct based on coerced testimony procedurally defaulted because petitioner “did not raise these arguments either at trial or on appeal” and could not “show cause or actual innocence”); Moore v. White, 188 F.Supp.2d 411, 415 (S.D.N.Y. 2002) (“[a] petitioner's failure to raise a claim of error at trial or on direct appeal constitutes a procedural default that bars collateral review”).
Giovinco does not make any attempt to overcome procedural default. He neither invokes the “cause and actual prejudice” standard, nor proclaims his innocence. (Pet. 9.) Giovinco instead states that he did not raise the issue of hearsay in his direct appeal because of “[i]neffective assistance of Appellate Counsel,” but does not explain when and how appellate counsel, if at all, was ineffective. (Pet. 9.) His assertion of ineffective assistance of Appellate Counsel is therefore merely conclusory and unsupported, and his procedural default cannot be excused. See United States v. Hirst, Nos. 15-CR-643, 20-CV-2412, 2022 WL 1134960, at *4 (S.D.N.Y. Apr. 18, 2022) (“[a]bsent a demonstration that counsel omitted significant and obvious issues in favor of weaker ones, ... [petitioner's] conclusory assertions of ineffective assistance do not demonstrate cause that excuses procedural default”) (internal citation omitted); Brizard v. United States, No. 11-CV-6033, 2013 WL 1809636, at *5 (S.D.N.Y. Apr. 30, 2013) (conclusory assertion of ineffective assistance does not demonstrate cause); United States v. Escobar-Alonso, No. 05-CR-520, 2008 WL 2545283, at *4 (S.D.N.Y. June 24, 2008) (finding petitioner's “conclusory assertions [were] insufficient to establish that ineffective assistance of counsel was the cause of his failure to file a direct appeal” where petitioner failed to specify “how his counsel was ineffective or how that ineffectiveness caused him to fail to file a proper appeal”) (internal quotation marks omitted). Because Giovinco's claim is procedurally defaulted, the Court need not engage with its substance. See Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991) (finding that because petitioner's claims were forfeited and he made “no showing of cause or of prejudice” his claims “must therefore be dismissed without reaching the merits”); Williams v. United States, No. 20-CV-1554, 2022 WL 903001, (S.D.N.Y. March 28, 2022), at *7-10 (dismissing claims as procedurally defaulted without analyzing the merits).
IV. Conflict of Interest And Ineffective Assistance of Counsel
Giovinco claims that his trial attorney, Goldsmith, had a conflict of interest that compromised the quality of his performance at trial. (Pet. at 8.) The Court finds, however, that Goldsmith was not laboring under a conflict of interest and that he was not ineffective.
The alleged conflict stems from Goldsmith's request for a letter of recommendation from AUSA Jason Richman, one of the prosecuting attorneys. Approximately six weeks after Giovinco's conviction, but prior to sentencing, Goldsmith informed Giovinco that Goldsmith had requested a letter of recommendation from AUSA Richman. (Goldsmith Aff. ¶ 33.) Giovinco asserts that he did not provide Goldsmith with his “consent”; rather, Goldsmith “verbally informed” Giovinco “that he sought a favorable letter of recommendation” and “described [this request] in the past tense.” (Pet. Reply at ECF 4.) According to Giovinco, Goldsmith's request for the recommendation letter gave rise to a conflict of interest that compromised the quality of his performance and yielded “countless mistakes prior to and during trial proceedings.” (Pet. at 8.) Giovinco faults Goldsmith for acting without first conferring with Giovinco, being unresponsive, and failing to make “basic objections.” (Pet. at 8.) Giovinco seeks discovery on when Goldsmith requested the letter of recommendation from Richman, whether a letter of recommendation was provided, and any communications between the two of them. (Id.; Pet. Reply at ECF 5.)
Giovinco references an alleged “Government meeting” attended by Goldsmith on May 30, 2019 seemingly to suggest that Goldsmith could have requested the letter of recommendation at a point prior to trial, which began in November 2019. (“Pet. Reply” at ECF 4.) But there is no evidence in the record to suggest that a letter of recommendation was requested or discussed at that time. (“Pet. Reply” refers to Giovinco's reply brief in support of his petition, which can be found at Dkt. 8.)
Giovinco alleges he sent two emails - dated October 17, 2019 and December 4, 2019 - in which he expressed dissatisfaction with Goldsmith's refusal to keep appointments and general dislike for Goldsmith's stipulation to Government requests without Giovinco's consent. (Pet. Reply at ECF 4.) Giovinco did not submit any such emails in support of his petition. The Court therefore deems Giovinco's assertions unsubstantiated. But even accepting Giovinco's assertions as true, the Court's findings are unaltered because Giovinco cannot show how Goldsmith's alleged inability to keep appointments rises to or stems from a conflict of interest.
The Government argues that Goldsmith did not have a conflict of interest; that Goldsmith timely obtained Giovinco's consent; and that Giovinco's generalized grievances do not meet the standard for ineffectiveness of counsel. (Resp. Memo. at 56.) In his affidavit, Goldsmith denies any conflict of interest, stating that he obtained Giovinco's consent immediately before the pre-sentencing interview, which “nullifies any alleged conflict during the litigation of the case, at trial, or during the drafting and argument of the Rule 33 motion.” (Goldsmith Aff. ¶¶ 32-34.)
The Court agrees with the Government that Giovinco has not sufficiently set forth facts or argument to warrant discovery or a hearing, let alone establish his claim.
A. Relevant Law Of Conflict Of Interest And Ineffective Assistance Of Counsel
“A defendant's Sixth Amendment right to effective assistance of counsel includes the right to representation by conflict-free counsel.” United States v. Blau, 159 F.3d 68, 74 (2d Cir. 1998); see also Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103 (1981) (“Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest”). Whether a petitioner's representation violates the Sixth Amendment right to effective assistance of counsel is a mixed question of law and fact that courts review de novo. United States. v. Schwarz, 283 F.3d 76, 90-91 (2d Cir. 2002).
While, under Strickland, “a defendant is generally required to demonstrate prejudice to prevail on a claim of ineffective assistance of counsel ... that is not so when counsel is burdened by an actual conflict of interest.” Id. (internal citation omitted); see also Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (“prejudice is presumed when counsel is burdened by an actual conflict of interest); Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993) (same). “To plausibly state an actual conflict of interest claim, a [petitioner] need only allege (1) an actual conflict of interest that (2) adversely affected his counsel's performance.” Curshen v. United States, 596 Fed.Appx. 14, 16 (2d Cir. 2015) (internal quotation marks omitted); see also United States v. Levy, 25 F.3d 146, 155 (2d Cir. 1994) (same). Counsel has an actual conflict of interest where the “attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action.” United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000) (internal quotation marks omitted).
An actual conflict adversely affects counsel's performance only if it results in an “actual lapse in representation.” Triana v. United States, 205 F.3d 36, 40-41 (2d Cir. 2000), cert. denied, 531 U.S. 956, 121 S.Ct. 378 (2000) (quoting Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1719 (1980)). To prove an actual lapse in representation, a petitioner “must demonstrate that some ‘plausible alternative defense strategy or tactic might have been pursued,' and that the ‘alternative defense was inherently in conflict with or not undertaken due to the attorney's loyalties or interests.'” Schwarz, 283 F.3d at 92 (citing Levy, 25 F.3d at 157); see also Mittal v. United States, No. 2-CV-8449, 2005 WL 2036023, at *13 (S.D.N.Y. Aug. 24, 2005) (same). “A movant need not allege that the outcome of his trial would have been different; a plausible defense strategy is a strategy that could have been pursued even if, in all likelihood, it would have failed.” Curshen, 596 Fed.Appx. at 16. That being said, the burden of proof to establish an actual conflict “cannot be met by speculative assertions of bias or prejudice.” Triana, 205 F.3d at 41.
“[C]laims of counsel's conflict of interest that do not qualify as ... actual are ordinarily treated as ‘potential' conflicts” governed by “the familiar standard established in Strickland.” Armienti, 234 F.3d at 824.
There are two additional instances in which the right to conflict-free counsel is implicated, when: (1) “the district court's knowledge of a possible conflict imposed upon it a duty of inquiry” and (2) “there was a ‘per se' conflict.” Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000). Neither is applicable here.
B. Giovinco's Claim Does Not Establish An Actual Conflict Of Interest
Giovinco's claim that Goldsmith's request for a letter of recommendation gave rise to a conflict of interest in his representation fails because he cannot establish either an actual conflict with the requisite divergence of interests or that any such conflict caused a lapse in representation. See Triana, 205 F.3d at 40 (“[t]he burden of proof rest[s] on [petitioner] to show a conflict of interest by a preponderance of the evidence”). First, Giovinco cannot show that Goldsmith “actively represented conflicting interests.” Cuyler, 446 U.S. 335 at 350, 100 S.Ct. at 1719. “An actual conflict of interest exists when an attorney engages in wrongful conduct related to the client's trial.” United States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990). “The quintessential example of an actual conflict in this Circuit arises where an attorney engaged in the same criminal conduct as the defendant he is representing.” United States v. Hild, No. 19-CR-602, 2022 WL 17484992, at *18 (S.D.N.Y. Dec. 7, 2022) (collecting cases). Courts have also found actual conflicts of interests in cases of dual representation and contingency fee arrangements, as well as situations where a “defendant's lawyer faces possible criminal charges or significant disciplinary consequences as a result of questionable behavior related to representation of the defendant,” Levy, 25 F.3d at 156, or an attorney coerces his client to plead guilty, see Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995). No such circumstances are alleged here. Giovinco has not cited to, and the Court is not aware of, any case where a request for a letter of recommendation or other similar request, or the fulfilling of that request, constituted an actual conflict of interest. Nor has Giovinco demonstrated that Goldsmith's request for a letter of recommendation fostered any divergence between his and Goldsmith's interests, let alone “with respect to a material factual or legal issue or to a course of action.” Moree, 220 F.3d at 69 (internal quotation marks omitted); see also Matera v. United States, 83 F.Supp.3d 536, 550 (S.D.N.Y. 2015) (even in case of dual representation, petitioner claiming conflict of interest “must still show that the dual representation caused the attorney's and petitioner's interests to diverge”) (internal quotation marks and brackets omitted).
See e.g. Curshen, 598 Fed.Appx. at 16 (finding petitioner alleged plausible conflict of interest where counsel concurrently represented government cooperator); Schwarz, 283 F.3d at 91-92 (finding counsel in police brutality case faced an actual conflict between his representation of defendant policeman and his professional obligation and personal incentive to comply with a retainer agreement with the police officer's union).
See, e.g., Winkler, 7 F.3d at 307-08 (“[p]lainly the contingency fee agreement” under which defense counsel was to receive an additional $25,000 if defendant was acquitted or otherwise not found guilty, “created an actual conflict of interest”).
Giovinco's additional concern that Goldsmith wanted to move to Nashville “to represent his son in a blossoming music career” similarly does not give rise to an actual conflict of interest. (Pet. Reply at ECF 5; Pet. at 8.) See Hild, 2022 WL 17484992, at *20 (“[a] finding ... that [counsel's] competing personal and professional obligations constituted an ‘actual conflict' could open the floodgates” to actual conflict of interest challenges because “every attorney has other obligations - personal and professional - that may affect their performance”). Nor does Giovinco's claim that he emailed Goldsmith “and requested that perhaps there should be a change in counsel because Goldsmith refused to keep appointments.” (Pet. Reply at ECF 4.) C.f. Shakur v. Portuondo, No. 98-CV-3462, 1999 WL 759993, at *5 (S.D.N.Y. Sept. 27, 1999) (“The mere fact of a dispute between counsel and his client resulting in a motion to be relieved is insufficient to support” a conflict claim).
Giovinco has offered only “general, unsubstantiated allegations that [Goldsmith's request for the letter] led [him] to be a less zealous advocate on [Giovinco's] behalf.” United States v. Felzenberg, Nos. 97-CV-2800, 93-CR-460, 1998 WL 152569, at *15 (S.D.N.Y. Apr. 2, 1998); accord Hoffenberg v. United States, 333 Fed.Appx. 625, 627 (2d Cir. 2009) (finding “scant evidence of any divergence of interest” based on speculative allegations). And there is no evidence or suggestion in the record that Goldsmith placed his interest in obtaining a letter of recommendation over representing Giovinco's best interest. Indeed, the letter request just as well could have further aligned Goldsmith and Giovinco's interests, as “[Goldsmith] [may have] sought to get the best possible result for [Giovinco] [since] getting the best result ... would enhance [Goldsmith's] reputation and lead to [his] professional advancement.” Garcia-Giraldo v. United States, 691 F.Supp.2d 500, 514 (S.D.N.Y. 2010). Regardless, “until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719. Giovinco is unable to meet this standard.
Second, even if Goldsmith's request for, or receipt of, a letter of recommendation was an actual conflict of interest, Giovinco cannot show that the conflict caused a lapse in Goldsmith's representation. Giovinco claims that Goldsmith failed to make basic objections and made “countless mistakes” during trial but does not identify which objections should have been made or which conduct constituted a mistake. (Pet. at 8.) Similarly, Giovinco claims that Goldsmith acted without conferring with Giovinco “in a number of areas” but does not describe when and in which areas. (Id.) These conclusory and unspecific statements do not “possess[] sufficient substance to be a viable alternative.” Winkler, 7 F.3d at 309; see also Earl v. Graham, No. 17-CV-8814, 2020 WL 8872704, at *15 (S.D.N.Y. Apr. 22, 2020), R & R adopted, 2021 WL 981549 (S.D.N.Y. March 16, 2021) (denying ineffective assistance of counsel claim based on conflict of interest where “the Petition offers no plausible alternative defense strategy or tactic that trial counsel should have taken, or importantly failed to take because of the existence of any alleged conflict”) (internal quotation marks omitted).
In his reply, Giovinco does specifically mentions several actions taken, or not taken, by Goldsmith which implicitly suggest plausible alternative defense strategies or tactics that could have been pursued: first, Goldsmith did not obtain a court-expensed investigator; second, Goldsmith did not call James Christopher (who introduced Moss to Giovinco) as a witness even though Christopher was “willing to testify at trial”; third, Goldsmith did not identify “cousin Frankie” in the recorded conversation between Moss and Cognetta; fourth, Goldsmith did not object to the Government's addition of Fyfe's extortion as a predicate act, and fifth, Goldsmith agreed to the introduction of the recorded conversation (and corresponding transcript) discussed above, despite Giovinco's belief that “the jury should hear the entire tapes rather than bits and pieces of certain exchanges.” (Pet. Reply at ECF 4.) None of those assertions, however, advance the ball for Giovinco.
Giovinco's argument about the recording appears to have shifted between his petition and reply. In the petition, Giovinco based his claim on the premise that the recording “should not have been permitted” at trial at all. (Pet. 9.) In his reply, however, Giovinco states that Goldsmith should have advocated for admission of the entirety of the taped recordings. (Pet. Reply at ECF 4.)
Giovinco's contentions about a court-expensed investigator, calling Christopher, and identifying “cousin Frankie” were only raised for the first time in reply, and may therefore be disregarded on that basis alone. Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996) (declining to consider argument raised for first time in pro se litigant's reply brief); see also Farmer v. United States, No. 15-CV-6287, 2018 WL 3448014, at *3 (S.D.N.Y. Aug. 10, 2017) (“Courts have repeatedly held that arguments raised for the first time in reply briefs are waived, and courts have routinely applied this rule to pro se litigants” and collecting cases); United States v. Martinez, 475 F.Supp.2d 154, 166-67 (D. Conn. 2007) (finding an argument not made in an initial Section 2255 brief waived, even though the party was pro se, because “a reply brief containing new theories deprives the respondent of an opportunity to brief those new issues”).
Another reason that Giovinco's assertions about an investigator, Christopher, and “cousin Frankie” are deficient is equally applicable to Giovinco's two other alleged lapses - not objecting to the recording or including extortion of Fyfe as a predicate act. To succeed on his claim, Giovinco must demonstrate that Goldsmith was confronted with more than “a theoretical division of loyalties” and instead show that Goldsmith's request for the letter of recommendation was causally related to the adequacy of his representation. Mickens, 535 U.S. 162, 171, 122 S.Ct. 1237, 1243 (2002). Giovinco has not done so; he merely speculates, without support, that he “believes that the conflict had adversely affected the performance of defense counsel.” (Pet. 8.)
Even though Giovinco suggests alternative actions Goldsmith could have taken, he does not explain how Goldsmith's decisions stemmed from a conflict of interest or that Goldsmith altered his planned trial strategy because of an allegiance to the Government. No evidence in the record suggests that Goldsmith “chose not to undertake [the alternative strategies] because of his conflict.” See Winkler, 7 F.3d at 309. Thus, even if each of those decisions could be considered as a “plausible alternative defense strategy” that was not taken, Giovinco “has not indicated that there is any evidence that the[se] strateg[ies] [were] foregone because of any conflicting interest of [Goldsmith].” United States v. Stantini, 85 F.3d 9, 16-17 (2d Cir. 1996). His claim therefore has no merit. See Hild, 2022 WL 17484992, at *22-23 (finding no actual conflict of interest where petitioner “propose[d] other avenues that were purportedly foregone as a result of the [alleged conflict] ... - but proof of a causal link [wa]s still missing”); Skinnerv. Duncan, No. 01-CV-6656, 2003 WL 21386032, at *46 (S.D.N.Y. June 17, 2003) (finding petitioner failed to demonstrate how counsel's failure to undertake certain actions “would have been caused by a desire to curry favor with the prosecutor”); Amato v. United States, Nos. 11-CV-5355, 3-CR-1382, 2017 WL 1293801, at *20 (E.D.N.Y. April 6, 2017) (“Petitioner asserts in the strongest terms that [counsel] should have acted differently, but fails to establish that any of his suggested alternative strategies were ‘inherently in conflict' with any of [counsel's] duties to [his] former client”); Moseley v. Scully, 908 F.Supp. 1120, 1142 (E.D.N.Y. 1995), aff'd, 104 F.3d 356 (2d Cir. 1996) (“Even assuming, arguendo, that these [foregone objections] were plausible and likely to succeed, there is simply no evidence that they were inherently in conflict with or not undertaken due to [the attorney's purported] other loyalties or interests”) (internal quotation marks omitted).
Giovinco's allegations also do not entitle him to further discovery or an evidentiary hearing. An evidentiary hearing is appropriate only when the application contains “assertions of fact that a petitioner is in a position to establish by competent evidence.” United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987); see also LoCasio v. United States, 395 F.3d 51, 57 (2d Cir. 2005). Giovinco's petition does not do so. A hearing to determine factual issues - such as when Goldsmith asked for the letter of recommendation and whether a letter was provided - would be pointless, because, Giovinco has neither demonstrated that asking for or receiving such a letter engendered a conflict of interest, nor that Goldsmith forewent alternative defense strategies because of the purported conflict.
C. Giovinco's Claim Does Not Establish A Potential Conflict Of Interest
Giovinco's claim also does not succeed even if considered as asserting a potential, rather than an actual, conflict of interest. As explained above, potential conflicts of interest are evaluated under the Strickland standard. Giovinco must establish “both that [Goldsmith's] conduct fell below an objective standard of reasonableness and that but for this deficient conduct, the result of the trial would have been different.” Armienti, 234 F.3d at 824 (citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2068). Giovinco's undeveloped allegations regarding the court-expensed investigator, Christopher's testimony, and “my cousin Frankie” are too speculative to establish either requirement. See Lorenzana v. United States, No. 11-CV-6153, 2012 WL 4462006, at *6 (S.D.N.Y. Sept. 27, 2012) (“[b]ecause [pro se petitioner] has not provided any facts to support his accusation, this speculative claim does not warrant scrutiny under Strickland”).
The bases for Giovinco's remaining assertions - that Goldsmith should have objected to the hearsay recording, in whole or in part, and to the addition of Fyfe's extortion as a predicate act - do not constitute incompetent conduct that fell below an objective standard of reasonableness. “[D]ecisions such as when to object and on what grounds are primarily matters of trial strategy and tactics, and thus are virtually unchallengeable absent exceptional grounds for doing so.” United States v. Cohen, 427 F.3d 164, 170-71 (2d Cir. 2005) (internal quotation marks and citations omitted); Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir. 2004) (“[i]n considering the reasonableness of counsel's failure to object, we ‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance”) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2055). No exceptional circumstances are present here. Goldsmith's decision to prepare additional recording selections to introduce at trial, rather than to object to the hearsay recording, was a tactical choice made after review of the rules of evidence and discussion with Giovinco. (Goldsmith Aff. ¶¶ 41, 44-49.) See Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001) (noting that a strategic decision is a “conscious, reasonably informed decision made by an attorney with an eye to benefitting his client”). And his decision not to object to the inclusion of Fyfe's extortion as a predicate act was also strategic, undertaken in light of the trial court's prior disposition of Giovinco's Rule 29 motion. (Goldsmith Aff. ¶¶ 21-23; see also Tr. at 675.)
Giovinco also cannot show that he was actually prejudiced by Goldsmith's actions. See Ventry v. United States, 539 F.3d 102, 111 (2d Cir. 2008). That is, “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112, 131 S.Ct. at 792 (citing Strickland, 466 U.S. at 693, 104 S.Ct. at 2067-68). Giovinco nowhere explains how his case would have ended differently had those objections been raised, and the Court divines none from the record.
Neither objection would have altered the case's outcome. An objection to the introduction of the recording would have been futile because the recording was admissible - it was offered, in part, to establish Moss's understanding of Cognetta's fearful state of mind and was authenticated at trial by Moss. See Fed.R.Evid. 803(3); United States v. Arena, 180 F.3d 380, 398 (2d Cir. 1999), cert. denied, 531 U.S. 811, 121 S.Ct. 33 (2000) (“Failure to make a meritless argument does not amount to ineffective assistance”), abrogated on other grounds, Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057 (2003); United States v. Diaz, 176 F.3d 52, 113 (2d Cir. 1999) (where there were “sound evidentiary bases for the admission of the challenged co-conspirator statements ... trial counsel was not ineffective for failing to object”); Beatty v. United States, 142 F.Supp.2d 454, 460 (S.D.N.Y. 2001) (finding counsel's failure to object to the introduction of a tape recording of petitioner selling drugs to an informant as “futile because the tape was properly admissible”).
So too would an objection to the inclusion of Fyfe's extortion as a predicate act. As explained above, Fyfe's extortion was contemplated by the Indictment and further indicated in both the Enterprise Letter and then Fyfe's testimony at trial. During the charging conference, the Trial Judge agreed to the inclusion of Fyfe's extortion as a predicate act on the jury verdict form because “there was evidence that a jury could possibly infer that from.” (Tr. at 699.) On summation, Goldsmith addressed the issue arguing to the jury that no testimony was heard on any of the predicate extortion acts, including the extortion of Fyfe, and described why the evidence did not support a finding otherwise. (Tr. 759-60, 765 (“You will never hear any mention of [Fyfe] or any other person who's recorded discussing [Giovinco] in relation to the payment between [Fyfe] and [Esposito]”, 771.)
And at various times, Goldsmith asserted other objections to, or arguments about, evidence on Fyfe's extortion that were rejected. See Giovinco I, Dkts. 371 (Giovinco's initial sentencing submission objecting to calculation of offense level because of weak evidence implicating Giovinco in Fyfe's extortion, and 375 at 2-3 (Giovinco's reply sentencing brief reiterating weakness of evidence connecting Giovinco to Fyfe's extortion); Sent. Tr. at 4 (Trial Judge overruling Goldsmith's objections to the presentence report, including the lack of evidence of Giovinco's involvement in the conspiracy), 6-7, 11-12 (Goldsmith arguing that the evidence relating to Giovinco is comparatively weak); 16 (Trial Judge stating that he “found the evidence more than sufficient beyond a reasonable doubt to convict the defendant”). In light of those facts and events, there is no reasonable probability that the outcome of the trial would have been different had Goldsmith objected to either the admission of the recording or inclusion of the extortion of Fyfe as a predicate act.
Giovinco cannot satisfy his burden of meeting Strickland's two-pronged test, nor has he rebutted Goldsmith's attestations that his decisions were reasonable strategic choices. In sum, Giovinco has failed to establish that Goldsmith labored under a conflict of interest, whether actual or potential, that deprived him of effective assistance of counsel.
CONCLUSION
For the foregoing reasons, the record and briefing conclusively show that Giovinco is not entitled to relief. No hearing is warranted, and I recommend that Giovinco's § 2255 petition for vacatur of judgment be denied in its entirety.
PROCEDURE FOR FILING OBJECTIONS AND PRESERVING RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Criminal Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of Jed S. Rakoff, 500 Pearl Street, New York, New York, 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York, 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.
Copies transmitted this date to all counsel of record. The Clerk's Office is directed to mail a copy of this report and recommendation to Petitioner and note service on the docket.