Fusco v. United States, 15-cv-9354 (PKC)
| Decision Date | 21 November 2018 |
| Docket Number | 09-cr-01239 (PKC),15-cv-9354 (PKC) |
| Parties | EMILIO FUSCO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Petitioner Emilio Fusco moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For reasons that will be explained, Fusco's motion will be denied.
Fusco was charged in five counts of a Superseding Indictment, S4 09 Cr. 1239 (PKC) (the "Indictment"). A jury found him guilty of Count One, racketeering conspiracy in violation of 18 U.S.C. § 1962(d), Count Three, extortion conspiracy in violation of 18 U.S.C. § 1951, and Count Five, interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952. He was acquitted of Count Two, racketeering in violation of 18 U.S.C. § 1962(c), and Count Four, extortion in violation of 18 U.S.C. § 1951. With respect to Count Two, a conviction required the jury to unanimously find at least two predicate acts of racketeering proven beyond a reasonable doubt. The Indictment alleged the following predicate acts: the murders or conspiracies to murder Adolfo Bruno and Gary Westerman, extortion or conspiracy to extort a local business owner, and conspiracy to distribute marijuana. Of the four predicate acts, the jury only found the conspiracy to distribute marijuana proven beyond a reasonable doubt. The Court denied Fusco's motion for a judgment of acquittal or a new trial on Counts Three, Five, and the predicate racketeering act of conspiracy to distribute marijuana related to Count Two. (Mem. and Order of Sept. 17, 2012; Crim. Doc. 286).
The sentencing hearing lasted two days. At the conclusion of the hearing, this Court concluded, by a preponderance of the evidence, that the government had proven that Fusco had participated in the Bruno and Westerman murders. Accordingly, it determined that Fusco's adjusted offense level under the Guidelines was 45 and his Criminal History Category was III. The resulting Guidelines range was life imprisonment, which was reduced to 45 years' imprisonment (the statutory maximum). This Court sentenced Fusco to 300 months' imprisonment (25 years) and ordered him to forfeit $260,000. On March 21, 2014, the Second Circuit affirmed the conviction and sentence. United States v. Fusco, 560 F. App'x 43 (2d Cir. 2014) (summary order). The Supreme Court of the United States denied Fusco's petition for a writ of certiorari on December 1, 2014. Fusco v. United States, 135 S. Ct. 730 (2014). Fusco's present motion was timely filed within a year of the denial of the writ.
A person in federal custody may collaterally attack a final judgment in a criminal case based on "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in complete miscarriage of justice.'" Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996). United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). When a petitioner attempts to establish "cause" by asserting ineffective assistanceof counsel, courts apply the two prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Sapia v. United States, 433 F.3d 212, 218 (2d Cir. 2005). Additionally, "a § 2255 petition cannot be used to 'relitigate questions which were raised and considered on direct appeal.'" United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (citation omitted). However, § 2255 does not bar consideration of a claim where an "intervening change in the law" has occurred. Underwood v. United States, 15 F.3d 16, 18 (2d Cir. 1993).
On appeal to the Second Circuit, Fusco argued that "his prosecution and sentencing violated the Extradition Treaty between the Government[s] of the United States and . . . the Italian Republic and the rule of specialty," "the District Court improperly considered acquitted conduct in determining his sentence," "the District Court constructively amended the indictment," "the evidence was insufficient for a conviction," and "the indictment was multiplicitous." Fusco, 560 F. App'x at 45. He also raised three ineffective assistance of counsel arguments relating to the Extradition Treaty and the Rule of Specialty, the purported constructive amendment of the Indictment, and the purported multiplicity of counts. Id. at 46. The Second Circuit considered Fusco's arguments and affirmed his judgment of conviction. The Court reached and denied the ineffective assistance claims because it concluded that it was "beyond any doubt" that Fusco's trial counsel was not ineffective in failing to raise the issues. Id.
Fusco now puts forth multiple additional grounds for relief under § 2255. First, Fusco argues that both his trial counsel and his appellate counsel were ineffective for numerous reasons. Second, he asserts that the Court based its sentencing determination principally on acquitted conduct—namely, the Bruno and Westerman murders. On this ground, Fusco urges the Court to consider the following cases, which were decided after his conviction and sentencebecame final: United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016) and Nelson v. Colorado, 137 S. Ct. 1249 (2017).1 Third, he argues that, under Rosemond v. United States, 134 S. Ct. 1240 (2014), the Court erred when instructing the jury on Count Five of the Indictment. The Court will address these grounds in turn.
Fusco asserts that both his trial counsel and appellate counsel were ineffective. Despite the numerosity of Fusco's grievances, his ineffective assistance claims fail the Strickland test as to both his trial and appellate counsel.
Under Strickland v. Washington, 466 U.S. 668, 688-90 (1984), a defendant asserting ineffective assistance of counsel must first overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" by presenting evidence that counsel's performance fell below an "objective standard of reasonableness" as measured by "prevailing professional norms." Second, the defendant must prove "actual prejudice" by showing a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 692, 694. It is insufficient to show that counsel's errors had "some conceivable effect" on the outcome. Id. at 693. Instead, the defendant must show "a probability sufficient to undermine confidence in the outcome." Id. at 694.
Fusco argues that his retained trial counsel, an experienced federal criminal practitioner, was ineffective during trial because he (1) did not object to the jury charge relating to Count One or Count Five of the Indictment, (2) did not ask for "Special Interrogatories" on the predicate acts underlying Count One of the Indictment, and (3) did not obtain testimony from Mario Manzi, Sandra Berardi, or Jimmy Santaniello. He further argues that trial counsel was ineffective during the sentencing proceeding because he (1) did not obtain a sworn affidavit from Mario Manzi, and (2) was not prepared for a Fatico hearing.
The Court has considered these alleged errors individually and in their totality and holds that trial counsel did not render ineffective assistance. To the contrary, Fusco's counsel's performance at both trial and sentencing was exemplary and very effective. His performance resulted in acquittals on two of the five counts and a sentence 20 years below the 45 year statutory maximum that capped the Guidelines.
First, Fusco argues that trial counsel was deficient in failing to object to the jury charges on Counts One and Five, which he alleges were overbroad. On Count Five (interstate travel in aid of racketeering), the Court instructed the jury based on language from 18 U.S.C. §§ 1952(a)(1), (2) and (3) when the Indictment only charged him with violations of §§ 1952(a)(1) and (3). Count One of the Indictment (racketeering conspiracy) listed extortion in violation of 18 U.S.C. § 1952 as a predicate act. Fusco argues that the overbroad instruction could have caused the jury to convict him of Count Five based on a violation of § 1952(a)(2), which was not charged in the Indictment. Similarly, he argues the jury could have also convicted him of Count One based on a finding that he committed the predicate act of violating § 1952(a)(2).
Even if these alleged errors amounted to deficient performance under the first prong of Strickland, Fusco did not suffer "actual prejudice." On direct appeal, Fusco argued that the jury charge on Count Five "constructively amended" the Indictment. The Second Circuit held that there was no "'substantial likelihood' that the jury relied on § 1952(a)(2) rather than § 1952(a)(1) or § 1952(a)(3) in convicting him of interstate travel in aid of racketeering."2 Fusco, 560 F. App'x at 45. It follows that there is no substantial likelihood that the jury convicted Fusco of Count One based on the predicate act of violating § 1952(a)(2). Therefore, even if counsel had objected to the jury charge on Counts One or Five, the Court holds that there is no "reasonable probability" that the result of Fusco's trial or sentencing would have been any different.
Second, Fusco argues that counsel should have asked the Court to include "Special Interrogatories" on the verdict form so that the jury could make factual findings on each of the predicate offenses...
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