Bonfilio v. United States

• Decision Date: 20 October 2016
• Docket Number: CIVIL NO. 15-1015,CRIMINAL NO. 09-205
• Parties: DENISE BONFILIO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Pennsylvania

DENISE BONFILIO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL NO. 15-1015

CRIMINAL NO. 09-205

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

October 20, 2016

MEMORANDUM OPINION

CONTI, Chief District Judge.

I. Introduction

Petitioner Denise Bonfilio ("Bonfilio" or "Petitioner") filed a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (the "§ 2255 motion") on August 4, 2015. (ECF No. 249.)¹ Upon reviewing the submissions of the parties, including Petitioner's § 2255 motion, the addenda to Petitioner's § 2255 motion (ECF Nos. 266, 269, and 270), the government's response to Petitioner's § 2255 motion (ECF No. 254), and the government's response to Petitioner's addenda (ECF No. 268), the court will deny Petitioner's § 2255 motion for the reasons set forth herein.

II. BACKGROUND

On June 23, 2009, a federal grand jury returned a nine-count indictment charging Bonfilio with eight counts of wire fraud pursuant to 18 U.S.C. § 1343 and one count of money laundering conspiracy, pursuant to 18 U.S.C. § 1956(h). (ECF No. 1.) These charges arose from Bonfilio's participation in a mortgage-fraud scheme, whereby she recruited a number of co-conspirators inter alia to submit false mortgage applications and sales agreements, acquire inflated appraisals, and execute false settlement statements. Many of Bonfilio's coconspirators pleaded guilty to related charges, including Bonfilio's life partner, Deborah Kitay ("Kitay") (09-CR-172), and two of her mortgage brokers, David McCloskey ("McCloskey") (09-CR-225) and Jay Berger ("Berger") (09-CR-283).

On July 7, 2009, Bonfilio entered a plea of not guilty to all counts. (ECF No. 10.) Over the course of the fifteen-day trial, the government presented substantial documentary and testimonial evidence to support the charges that Bonfilio and her coconspirators engaged in a mortgage fraud scheme spanning from June 2005 to April 2008, involving eight different properties. (ECF. No. 1.) At trial, the government called 19 witnesses to testify against Bonfilio. (ECF Nos. 164-170.) Government witnesses included Kitay, Bonfilio's life partner and coconspirator (ECF Nos. 164-65, 234); Berger, a mortgage broker and coconspirator (ECF Nos. 181, 231-33); Carrie Marraro, a friend and coconspirator (ECF Nos. 166, 173); Tony Tholtsiniathis, Kenneth Maietta, and Richard Schectman, three of Bonfilio's victims (ECF Nos. 165-66, 235); Neal Caldwell, a special agent with the Federal Bureau of Investigation (ECF No. 231); several of Bonfilio's business associates in the real estate field, including an attorney (ECF No. 167), mortgage broker (ECF No. 168), investor (ECF No. 170), and individuals involved in real estate settlement services and title insurance (ECF Nos. 167, 168); several individuals whosold their homes to Bonfilio (ECF Nos. 167, 168, 170); and multiple experts, including banking, real estate, and finance experts (ECF Nos. 168, 169, 170, 235). The government also played an incriminating tape recording of a conversation Bonfilio had with Berger, which was made while Berger was wearing a recording device. (ECF No. 232.) Hundreds of pieces of documentary evidence were offered into the record.² (ECF No. 104.)

On September 24, 2012, a jury convicted Bonfilio of eight counts of wire fraud and one count of money laundering conspiracy. (ECF No. 102.) On January 24, 2014, the court sentenced Bonfilio to 120 months of imprisonment at each count of the indictment, to be served concurrently; three years of supervised release at each count, to be served concurrently; and $2,024,548.86 in restitution.³

On August 4, 2015, Bonfilio filed a timely pro se motion to vacate her sentence under 28 U.S.C. § 2255. (ECF No. 249.) On September 18, 2015, the government filed a response to Bonfilio's initial § 2255 motion. (ECF No. 254.)

On December 8, 2015, the court granted Bonfilio's request for the appointment of counsel to represent her in connection with her § 2255 motion. (ECF Nos. 258, 261.) On March 14, 2016, Bonfilio filed an addendum to her § 2255 motion through counsel.⁴ (ECF No. 266.) On April 6, 2016, the government filed a response to Bonfilio's § 2255 addendum. (ECF No. 268.) On May 4, 2016, the court held a status conference at which the parties presentedargument with respect to whether the court should hold an evidentiary hearing on Bonfilio's § 2255 motion. See (Text Minute Entry, 5/4/2016.)⁵

Bonfilio asks the court to vacate her sentence on four grounds:

(1) the government violated her due process rights under Brady v. Maryland, 387 U.S. 83 (1963), by failing to inform her before trial about an alleged agreement it had with witness Kitay; and the government violated her rights under Napue v. Illinois, 360 U.S. 264 (1959), by failing to correct Kitay's allegedly false testimony denying the existence of such an agreement during the trial;

(2) the government violated her due process rights under Brady by failing to inform her before trial that witness Mark Wolper ("Wolper") allegedly engaged in misconduct that could have been used to impeach his testimony on cross-examination;

(3) then trial counsel for the government, James Garrett, violated her due process rights when he allegedly "assaulted" her then counsel during a recess at trial; and

(4) her trial counsel was ineffective under the Fifth and Sixth Amendments for (1) advising her that the court would hold her in contempt if she elected to testify on her own behalf, (2) failing to "investigate the case by not viewing the electronic evidence readily available at the United States Attorney's office on a view only computer," and (3) failing to file a motion in limine to exclude allegedly "forged or otherwise inauthentic documents and instead stipulated [to] these documents['] admission." (ECF No. 249 at 2.)

III.Standard of Review

Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside, or correct the sentence upon the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of themaximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. The Supreme Court reads § 2255 as stating four grounds upon which relief can be granted:

(1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence "is otherwise subject to collateral attack."

Charles A. Wright, et al., Federal Practice and Procedure § 625 (4^th ed. 2011) (quoting Hill v. United States, 368 U.S. 424, 426-27 (1962)). The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255.

"As a collateral challenge, a motion pursuant to [§ 2255] is reviewed much less favorably than a direct appeal of the sentence." United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). "Indeed, relief under § 2255 is available only when 'the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice,' and . . . 'present[s] exceptional circumstances where the need for the remedy afforded by the writ . . . is apparent.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974) (internal quotation marks omitted)). The court construes Petitioner's pro se § 2255 motion liberally, but Petitioner "must abide by the same rules that apply to all other litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013).

A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255, unless the motion and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files andrecords of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing hereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). The threshold the Petitioner must meet to obtain an evidentiary hearing is considered to be "reasonably low." Id. at 546. In considering a motion to vacate a defendant's sentence, the "district court must 'accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Johnson v. United States, 294 F. App'x 709, 710 (3d Cir. 2008) (quoting Booth, 432 F.3d at 545-36). The district court, however, without further investigation may dispose of "vague and conclusory allegations contained in a § 2255 petition." Id.

IV. Discussion

A. Due process violations

Bonfilio argues that the government violated her due process rights by failing to disclose that the government had agreed to seek a reduction in Kitay's sentence in exchange for Kitay's cooperation in Bonfilio's trial. Bonfilio additionally argues that the government violated her due process rights by failing to inform her before trial that Wolper, a witness for the government, engaged in misconduct, which could have been used to impeach his testimony on cross-examination.

To establish that the prosecution's suppression of evidence constituted a due process violation under Brady, "a defendant must show: (1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed evidence was material either to guilt or to punishment." United States...