Opinion
97 Civ. 2971(MGC), S1 92 Cr. 529(MGC).
November 29, 2000.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA, New York, N.Y. BY: Herald Price Fahringer Erica T. Dubno, Attorneys for Petitioner.
JAMES R. FROCCARO, JR., Port Washington, NY., Attorney for Petitioner.
MARY JO WHITE, United States Attorney, Southern District of New York Attorney for Respondent, New York, NY. BY: David N. Kelley, Lisa P. Korologos, Assistant United States Attorneys.
OPINION
Joseph Massaro, a person in custody under a sentence of this Court, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255 and a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The grounds for Massaro's § 2255 petition include the following: (1) the government violated his constitutional right to due process when it presented false and misleading evidence concerning a bullet that was discovered on the eve of trial; (2) the government withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194 (1993); (3) the Supreme Court's decision in United States v. Lopez , 514 U.S. 549, 115 S.Ct. 1624 (1995), changed the law regarding the required nexus to interstate commerce under the Hobbs Act, 18 U.S.C. § 1951; and (4) petitioner was denied effective assistance of trial counsel in violation of the Sixth Amendment.
The grounds for Massaro's Rule 33 motion essentially mirror some of his grounds for § 2255 relief. Massaro repeats his contentions regarding the bullet evidence and undisclosed Brady material, and claims that these constitute "newly discovered" evidence. In an earlier opinion on the Rule 33 motion, I held that Massaro's contentions regarding the bullet do not constitute "newly discovered" evidence within the meaning of Rule 33. Massaro v. United States , 1998 WL 241625 (S.D.N.Y. May 12, 1998). For the reasons discussed below, Massaro's petition under § 2255 and the balance of his Rule 33 motion are denied.
I. Background
On October 27, 1993, a jury found Massaro, a soldier in the Luchese Organized Crime Family, guilty of numerous racketeering crimes, including murder, extortion, arson and loansharking, in his efforts to take over Long Island's topless bar industry. Massaro was sentenced on July 26, 1994 to life imprisonment and a $240,000 fine, as well as payment of restitution. In November 1994, Massaro, represented by new counsel, appealed his conviction, listing eight grounds of error. The Second Circuit issued an unpublished opinion affirming Massaro's conviction on May 18, 1995. On October 16, 1995, the United Supreme Court denied Massaro's petition for a writ of certiorari.
II. Discussion
A) Claims that have been argued on direct appeal
It is a well-settled rule that "Section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal." Riascos-Prado v. United States , 66 F.3d 30, 33 (2d Cir. 1995). Accordingly, Massaro's claims relating to the bullet evidence, as well as his claims concerning the requisite nexus to interstate commerce under the Hobbs Act, cannot be raised in a § 2255 petition. The only exception to this rule arises when the issue was not raised because of ineffective assistance of counsel, or when there has been an intervening change of law. Underwood v. United States , 15 F.3d 16, 18 (2d Cir. 1993). Neither of these exceptions applies to these claims.
1) Bullet Evidence
According to the evidence at trial, by the end of the summer of 1989, Massaro, believing that Joseph Fiorito, an associate in his crew, had been stealing from him, decided to kill Fiorito. Together with Esposito, Massaro lured Fiorito to an empty home in Hauppauge. After shooting Fiorito in the head once in the basement of the house, Massaro, with Esposito's help, carried Fiorito through the house and placed the body in a sitting position on the rear seat of the car that had been driven by Fiorito. As they crossed New York City, Massaro expressed concern that Fiorito might not be dead, and again shot Fiorito in the head.
On September 21, 1990, Fiorito's body was discovered in the back seat of a car. The New York City Police Department's Crime Scene Unit examined the vehicle at the scene and found a shell casing on the floor of the rear passenger compartment. No additional ballistics evidence was recovered. At the time, the police were aware of only one wound — an entry wound — to Fiorito's head. The medical examiner subsequently established that Fiorito had been shot twice, and that there were two entry wounds and one exit wound on his head. After state criminal charges against Esposito were dismissed as a result of his cooperation with the government, the car used to transport Fiorito's body was released from state custody. Several days before trial commenced, police sergeant Carbone tracked down Fiorito's car, but was unsuccessful in searching for the second bullet. However, the car's new owner discovered a hole in the floorboard and a bullet, and on September 6, 1993, the day before opening statements, advised the government of the discovery.
The government waited until Saturday, September 11, 1993, to advise Massaro's lawyer, by faxed letter, of the existence of the bullet, and offered to make available a videotape reenactment of its discovery. When the trial resumed on Monday, Massaro's counsel did not mention the bullet. On Thursday, September 23, 1993, Massaro's counsel finally raised the issue with the Court and sought to expedite ballistics tests that were being conducted by the government. On Monday, September 27, 1993, the government advised Massaro that its expert had concluded that the bullet matched the fragments recovered from Fiorito's body, and had probably been fired from the same gun. Massaro moved for a mistrial, or, in the alternative, to preclude admission of the bullet because of its late disclosure. The motion for a mistrial was denied and the bullet evidence was ruled admissible because the defense's position had not been irretrievably prejudiced by the government's delay. Nevertheless, Massaro was offered a continuance to allow him time to examine the evidence and make any necessary adjustments to his trial strategy. Moreover, Massaro was permitted to reexamine any witnesses in light of the newly discovered evidence. Massaro reexamined one investigator, but declined the continuance.
In an unpublished opinion, the Second Circuit described the government's delay as "regrettable," but concluded that it was not error to admit the evidence. 92 Cri. 529, Slip Op., 94-1447, at 5 (2d Cir. May 18, 1995). The Second Circuit stated that the late disclosure and the government's presentation of the bullet evidence had not "irreparably damaged Massaro's strategy" and "Massaro's failure to avail himself of the offer of a continuance calls into doubt the claim of error." Id .
In his § 2255 petition, Massaro offers the affidavits of three forensic experts who question the government's conclusion that the discovered bullet came from the same gun as the bullet found in Fiorito's head. Massaro argues that his "new" experts demonstrate that the government presented "false and misleading" evidence in violation of Massaro's rights under the Fifth Amendment. However, Massaro's current argument simply repeats the argument that he has already unsuccessfully pursued in the Court of Appeals; the only difference is that Massaro has now added "new" experts to support his claim. But, these "new" experts are not newly discovered evidence. I have previously dismissed the bullet issue from the Rule 33 motion for precisely that reason: "There is no claim, however, that these tests, are based upon evidence that was not available during trial. Rather, the only thing that is "new" about this evidence is the team of experts reviewing it. Such evidence is not "newly discovered" within the meaning of Rule 33." Massaro v. United States , 1998 WL 241625, at *5. Moreover, Massaro's claim of unfair prejudice has been rejected by the Court of Appeals.
2) Nexus to Interstate Commerce
Massaro's contention regarding the necessary nexus to interstate commerce under the Hobbs Act is also barred. One of Massaro's eight grounds for appeal was that the government had presented insufficient evidence to demonstrate a link to interstate commerce. In his § 2255 petition, Massaro attempts to raise this argument once again by claiming that the government failed to satisfy its burden of proving a sufficient nexus to interstate commerce, and that the jury charge regarding the requisite jurisdictional element was erroneous. Recognizing that he had raised this ground on direct appeal, Massaro contends that, in light of the Supreme Court's holding in United States v. Lopez , 514 U.S. 549, 114 S.Ct. 1624 (1995), there has been an intervening change of law which enables him to relitigate this issue. However, in United States v. Farrish , 122 F.3d 146 (2d Cir. 1997), the Second Circuit held that Lopez did not alter the interstate commerce element required under the Hobbs Act. Thus, Massaro's previously litigated jurisdictional claim does not come within the exception for an intervening change in the applicable law.
The Hobbs Act provides, "Whoever in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a). Massaro is challenging the jury's findings with respect to four RICO predicate acts (Racketeering Acts Two, Five, Six and Eight) and count Six (conspiracy to extort Partner's Lounge).
The opinion in Lopez was issued 9 days after Massaro's appeal was argued in the second circuit, and 22 days before the court of Appeals' issued its unpublished decision affirming his conviction. Thus, it is not clear that the second Circuit did not consider this decision before issuing its unpublished decision. The court's unpublished decision did not discuss the jurisdictional issue.
Farrish involved a conviction under the Hobbs Act for stealing cars from the Chelsea Parking Garage. There, the Second Circuit explained that "appellant argues that the Commerce Clause requires more than a de minimis effect on interstate commerce to trigger Hobbs Act jurisdiction. that Lopez changed the jurisdictional requirement of the Hobbs Act." Id . at 148. The Court concluded that: " Lopez did not raise the jurisdictional hurdle for bringing a Hobbs Act prosecution . . . . We find nothing in Lopez to suggest that the Court intended to heighten the threshold for establishing jurisdiction under [the Hobbs Act]. Accordingly, we reaffirm that to satisfy the jurisdictional element of the Hobbs Act, the Government need only show a 'minimal' effect on interstate commerce." Id . at 148-49. Without an intervening change in the applicable law, Massaro may not relitigate the same issues that he argued on direct appeal.
B) Claims that could have been raised on direct appeal
The Second Circuit has consistently held that a defendant who fails to raise an issue on direct appeal is barred, as a general rule, from raising it subsequently in an attempt to vacate judgment. Riascos-Prado , 66 F.3d at 34-35. Unless Massaro can show that "there was cause for failing to raise the issue, and prejudice resulted therefrom," he is procedurally barred from raising those claims that could have been raised on appeal. United States v. Pipitone , 67 F.3d 34, 38 (2d Cir. 1995). Therefore, Massaro's claim that the government's failure to turn over statements by Mark Carney in violation of Brady v. Maryland is procedurally barred.
Although there is greater latitude for petitioners to assert ineffective assistance of counsel claims for the first time in § 2255 petitions, rather than on direct appeal, because Massaro was represented by new counsel on appeal and each of the grounds he asserts to support this claim was apparent from the trial record, Massaro is procedurally barred from asserting his claims of ineffective assistance of counsel. Billy-Eko v. United States , 8 F.3d 111 (2d Cir. 1993) (superseded by statute on other grounds).
1) Carney's statements in Presentence Investigation Report
Racketeering Act Eight of Count One charged Massaro with conspiring to extort the "owners and operators . . . and persons associated with" the Carousel Lounge topless bar. The second and third parts of that Racketeering Act also charged Massaro with committing, and conspiring to commit, arson of that bar on three separate occasions. The Presentence Investigation Report, prepared January 13, 1994, reported that Mark Carney had related that "although his bar suffered three fires, he was at no time aware that Massaro was the perpetrator . . . he was never threatened nor were any attempts at extortion made against the Carousel Lounge. Carney reported that neither he nor his bar were victimized." Massaro contends that the failure to disclose these statements before his trial constitutes a violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194 (1963). In Brady , the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where evidence is material to either guilt or to punishment." Id . at 87.
Carney's statements were clearly revealed in the Presentence Report. Massaro could have raised this Brady argument either at the time of sentence or on direct appeal. Massaro has not proffered any cause for his failure to raise this claim at those earlier opportunities. Nor does Massaro contend that the failure to raise the Carney statement on appeal resulted from ineffective assistance of appellate counsel. Accordingly, I do not reach the merits of this issue which is barred procedurally.
2) Ineffecive Assistance of Counsel
Massaro lists many "failures" of his retained trial counsel. These include contentions that his trial counsel: (1) failed to preserve a challenge to the jury instructions under the Supreme Court's opinion in Reves v. Ernst Young , 507 U.S. 170, 113 S.Ct. 1163 (1993); (2) failed to take advantage of the continuance or otherwise attend to the bullet evidence; (3) refused to allow Massaro to testify; (4) failed to interview or call "certain" witnesses; (5) failed to object to evidence of Massaro's state extortion conviction; (6) failed to insist that the jury be instructed that state law conspiracy requires proof of an overt act; (7) failed to object to the manner in which the jury reviewed the trial transcript; and (8) failed to object to the scope of Special Agent Pistone's testimony.
Each of these alleged defaults of counsel could have been raised by Massaro's new counsel on appeal and are thus procedurally barred. The Second Circuit has recognized that often it is inappropriate to impose a procedural bar on Sixth Amendment ineffective assistance of counsel claims raised for the first time in petitions for habeas corpus, because "resolution [of ineffective assistance] claims often requires consideration of matters outside the record on direct appeal," and because, in many instances, the defendant is represented by the same counsel at trial and direct appeal, making it "unrealistic to expect that trial counsel would be eager to pursue an ineffective assistance of counsel claim." Billy-Eko , 8 F.3d at 114. However, "if defendant has new appellate counsel on direct appeal, and the record is fully developed on the ineffective assistance claim, there is little reason to extend the defendant an unlimited opportunity to delay bringing the claim." Id . at 115. See also Abbamonte v. United States , 160 F.3d 922, 925 (2d Cir. 1998). Massaro was represented by new counsel on appeal, and each of the bases for his ineffective assistance of trial counsel could have been argued on direct appeal.
C) Claims that are meritless
Massaro's additional claims — that the government failed to turn over two pieces of information about Alphonse D'Arco that might have provided additional material for cross-examination, and that the government violated 18 U.S.C. § 201(c)(2) — lack merit.
1) D'Arco evidence
Alphonse D'Arco, Massaro's former boss in the Luchese Crime Family, was a witness at trial. Massaro contends that the government withheld information set out in an application for an eavesdropping warrant about D'Arco's involvement in narcotics, and that the government withheld a psychological profile of D'Arco. The government essentially concedes that it should have known that these documents existed. For the reasons discussed below, the government's failure to disclose these documents does not support a new trial.
As the Second Circuit has noted, "undisclosed impeachment evidence is not material in the Brady sense when, although 'possibly useful to the defense,' it is 'not likely to have changed the verdict.' For example, where the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material." United States v. Avellino , 136 F.3d 249, 257 (2d Cir. 1998) (internal citations omitted). Neither the eavesdropping application nor the psychological profile would have furnished significant additional bases to impeach D'Arco on cross-examination. At trial, D'Arco was impeached by his many admissions of past criminal activity. Moreover, D'Arco was not the main witness against Massaro. Indeed, D'Arco did not testify about any essential element of the crimes charged, but rather provided an "insider's view" of the hierarchy and business dealings of the Luchese Family. D'Arco was only one of more than forty other witnesses, including several of the victims of Massaro's crimes, forensic experts and law enforcement witnesses, who helped establish the government's case against Massaro. As in Avellino , "the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence." Avellino , 136 F.3d at 257.
2) Singleton Claim
In his reply brief, Massaro raises, for the first time, a claim based on the Tenth Circuit's opinion in United States v. Singleton , 144 F.3d 1343 (10th Cir. 1998). The opinion he relies on has been overruled by the Tenth Circuit sitting en banc, 165 F.3d 1297 (10th Cir. 1999), and has been rejected by the Second Circuit in United States v. Stephenson , 183 F.3d 110, 118 (2d Cir. 1999)
III. Conclusion
For the foregoing reasons, this petition and this motion for a new trial are denied.