Salemo v. United States

• Decision Date: 17 May 2016
• Docket Number: 14 Civ. 1868 (JSR)(GWG),11 Cr. 65 (JSR)
• Citation: 187 F.Supp.3d 402
• Parties: George Paul Salemo, Petitioner, v. United States of America, Respondent.
• Court: U.S. District Court — Southern District of New York

187 F.Supp.3d 402

George Paul Salemo, Petitioner,

v.United States of America, Respondent.

14 Civ. 1868 (JSR)(GWG)

11 Cr. 65 (JSR)

United States District Court, S.D. New York.

Signed May 17, 2016

George Paul Salemo, Fairton, NJ, pro se.

Adam Fee, Kiersten Ann Fletcher, United States Attorney's Office, New York, NY, for Respondent.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff George Salemo brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 following his conviction on two counts of wire fraud in violation of 18 U.S.C. § 1343 on July 7, 2011. Salemo was sentenced principally to 162 months imprisonment and is currently serving that sentence. For the reasons stated below, Salemo's petition should be denied.

I. BACKGROUND

A. Indictment and Pre-Trial Appearances

Salemo was indicted in the Southern District of New York on two counts of wire fraud in violation of 18 U.S.C. § 1343. See Indictment, United States v. Salemo, 11 Cr. 65 (JSR), filed Jan. 19, 2011 (Docket # 6). The first count of the indictment alleged that, in an effort to obtain funds from various financial lending institutions, Salemo caused a fraudulent document purporting to be a United States Department of Agriculture ("USDA") grant agreement to be transmitted by email. See id.¶ 1. The second count alleged that Salemo transmitted, through email and fax, an altered check and a check drawn on a closed bank account, for the purpose of obtaining real property fraudulently. See id.¶ 2.

Priya Chaudhry was initially appointed as Salemo's CJA attorney, and she represented him at his initial appearance and arraignment. On March 14, 2011, Michael Schachter of Willkie Farr & Gallagher LLP was substituted in as Salemo's counsel. Schachter and his firm represented Salemo at trial and sentencing and on direct appeal. See Ex. A to Memorandum of Law of the United States of America in Opposition to the Motion of George Salemo under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct His Sentence, filed July 1, 2014 (Docket # 6) ("Gov't Mem.") (transcript of trial) ("Tr."); Ex. C to Gov't Mem. (transcript of sentencing hearing) ("Sent. Tr."); United States v. Salemo, 499 Fed.Appx. 110, 112 (2d Cir.2012) (Summary Order).

B. Trial

Judge Jed S. Rakoff presided over Salemo's trial, which began on June 28, 2011, and ended on July 5, 2011. (See Tr.). Over the course of the trial, the Government presented ten witnesses, all of whom were cross-examined by defense counsel. The defense called no witnesses, although it offered a stipulation and a document into evidence. (See Tr. 634-35). The evidence presented at trial is summarized below to the extent relevant to the issues in the petition.

1. Evidence as to the USDA Grant Scheme

As to the first count of the indictment, the Government offered evidence that, in 2008, Salemo met Erik Hagberg, the founder of a company called Pacific Aquaculture Cooperatives International ("PAC"), which dealt with sea cucumber development and operated in the Marshall Islands. (See Hagberg: Tr. 97, 99-100, 106). Hagberg and Salemo discussed using Salemo's company, the Global Alliance for International Advancement ("GAIA"), to obtain funding for PAC. (See Hagberg: Tr. 107-08, 116-18, 121; Dalmau: Tr. 374-75).

As described further below, Salemo's scheme involved presenting to potential investors a document that purported to be a "Grant Agreement" between the United States Department of Agriculture ("USDA") and GAIA to fund PAC in the amount of $2,250,000. (See Porsch: Tr. 60; Lucangeli: Tr. 76).¹ The purported "grant" was to fund the development of sea cucumber farms by PAC. (Mikkelsen: Tr. 46-47); GX 106. Two copies of this grant document, bearing the signatures of Salemo and an individual named Steven Mikkelsen, were offered into evidence. (Mikkelsen: Tr. 41-54). Mikkelsen, who worked for the USDA's Farm Service Agency, testified that his signature on the grant document was a forgery, that he had never signed the grant, and that grants of the nature reflected in the document—for aquaculture—are issued by the USDA only to states, not to private entities such as PAC. (Mikkelsen: Tr. 36, 39-42, 45-52).

Salemo's company, GAIA, was listed on the grant agreement as the "fiscal sponsor" of PAC. (Mikkelsen: Tr. 47); GX 106. The Government offered testimony that, as part of his fraud, Salemo placed advertisements in newspapers seeking investments in connection with PAC's business and the forged USDA grant. (See Porsch: Tr. 58-59).

Hartmut Porsch testified that he met with Salemo and that Salemo had emailed a copy of the forged grant to him as part of Salemo's request for a bridge loan of $1,000,000, in return for which Salemo would assign the right to receive payment from the grant to Porsch. (See Porsch: Tr. 59-67). That email was offered into evidence. (Tr. 60). Salemo promised Porsch that a bridge loan investment with GAIA would produce a 25% return once the USDA disbursed the grant funds. (Porsch: Tr. 63). Salemo requested that the investment funds be deposited into GAIA's bank account, which he controlled. (Porsch: Tr. 61; Dinkins: Tr. 569-70). On cross-examination, Porsch acknowledged that he had no knowledge of whether Salemo knew that the grant was a forgery, or whether Salemo forged the grant himself. (Porsch: Tr. 69-70).

Natalio Lucangeli, a managing member of a company called Broadway Capital, testified that Salemo had told Lucangeli he wanted "to sell the proceeds of the grant." (Lucangeli: Tr. 71, 73). Salemo told Lucangeli he needed to find a buyer for the grant because Salemo "needed cash" and that he "wanted [$]750,000." (Lucangeli: Tr. 73-74). A copy of the grant that Lucangeli had received by fax, containing Salemo's signature and the forged signature of Mikkelsen, was submitted into evidence. (See Lucangeli: Tr. 76-77); GX 106. Lucangeli testified that the only person at Salemo's office he discussed the grant with was Salemo himself (Lucangeli: Tr. 80), and that Salemo had offered to introduce Lucangeli to the individual from the USDA who had signed the grant (Lucangeli: Tr. 88, 91). On cross-examination, Lucangeli indicated that he had initially thought the grant was real and that Salemo had said he was positive it would "pass due diligence." (Lucangeli: Tr. 92-93).

Hagberg testified that although GAIA entered into an agreement under which GAIA would work to obtain funding for PAC (see Hagberg: Tr. 107, 120-22), Salemo never told him that he had received a grant with PAC's name on it (Hagberg: Tr. 132). Questioned by defense counsel, Hagberg indicated that he had told Salemo that he believed the USDA grant process would likely result in funding for his aquaculture project at some point (see Hagberg: Tr. 139-40) and that he had previously written an aquaculture grant application to the USDA (Hagberg: Tr. 142).

Pedro Dalmau, who had worked for GAIA in various capacities (see Dalmau: Tr. 369, 383), testified that he saw a document that appeared to be a grant from the USDA to PAC when he was examining Salemo's emails (Dalmau: Tr. 380-81). He stated that a signature on the grant purporting to be that of GAIA co-founder, Brandon Williams, did not match Williams's usual signature. (Dalmau: Tr. 368, 381-82).

James Knee, an independent contractor who provided funding for businesses (Knee: Tr. 484) testified that Salemo had asked him to advance approximately $1,000,000 in funding against a USDA grant, which Salemo represented GAIA had already been awarded (Knee: Tr. 487, 490, 497). A copy of the grant in question, which Knee stated he originally saw at Salemo's office, was received into evidence. (Tr. 489). Knee testified that he and GAIA, by Salemo's signature as CEO, entered into an agreement for Knee to locate funding for the advance that Salemo had requested, though he was ultimately unsuccessful. (Knee: Tr. 498-500, 502).

Agent Bethanne Dinkins of the USDA's Office of Inspector General testified that she had received copies of the grant document itself or a similar document from Mikkelsen and several GAIA employees. (Dinkins: Tr. 562, 565-67, 569). Approximately three of those copies bore Salemo's signature, and the others bore the purported signature of Williams. (Dinkins: Tr. 566). The purported grant document stated that funds were to be directed to a bank account that was identified as being held by GAIA. (See Dinkins: Tr. 569-70).

2. Evidence as to the Real Estate Scheme

As to the second count of the indictment, the Government offered evidence that Salemo transmitted copies of fraudulent checks in an attempt to obtain title to seven apartment buildings he had contracted to purchase. Julie Corrado, a residential real estate broker (Corrado: Tr. 157), testified that while Salemo was incarcerated on a separate matter, he had discussed with her his plan to buy the buildings, which were owned by a company called Milbank (see Corrado: Tr. 171, 193). On Salemo's instruction, Corrado emailed Milbank's representative a "proof of funds" that she had received from Salemo, purportedly showing that Salemo's company, called American Reclaimed Properties, Inc. ("ARP"), had a bank account with a balance of over $50,000,000. (Corrado: Tr. 212-16). The "proof of funds" was missing an account number and contained other errors. (See Corrado: Tr. 214-15). When Corrado asked Salemo about the missing account number, he responded that it was "to protect the account" and that if Milbank "dug deeper and had any kind of access to the account through an account number, then for some reason it would be putting it in jeopardy." (Corrado: Tr. 219-20). In fact, the Government offered evidence that Salemo had altered a bank statement for an account held by an individual named Gabriel Gatto to make it appear as though ARP had these funds available to it when it did not. See Dinkins: Tr. 590-91; Government Exhibit 317R, annexed in App. App'x at A30.

Corrado testified that Salemo directed her to execute a purchase contract...