United States v. Cordaro

Decision Date18 August 2015
Docket NumberNO. 3:CR-10-75,3:CR-10-75
CourtU.S. District Court — Middle District of Pennsylvania



Presently before me is Robert C. Cordaro's ("Cordaro") Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 321.) Cordaro was charged with multiple offenses relating to allegations that he demanded payments from contractors and firms who had or wished to receive contracts with Lackawanna County during the time he served as an elected county commissioner. Cordaro proceeded to trial and was found guilty of 18 counts and not guilty of 15 counts charged in the Second Superceding Indictment. He was sentenced to 132 months imprisonment. The Third Circuit affirmed Cordaro's conviction and sentence on appeal.

Now, Cordaro seeks a new trial pursuant to 28 U.S.C. § 2255 on the basis that his counsel rendered ineffective assistance prior to and at the time of trial. Cordaro claims that his counsel was ineffective for: (A) failing to properly prepare him to testify at trial; (B) conducting an abbreviated direct examination of him when he was on the witness stand; (C) failing to object to questions of whether other witnesses were lying; (D) failing to investigate the case; (E) failing to call a number of witnesses at trial; and (F) presenting inconsistent theories regarding the testimony of a crucial prosecution witness. Cordaro argues that as a result of counsel's failings, either individually or cumulatively, there is a reasonable probability that, but for those errors, the result of his trial would have been different. Because he fails to satisfy the standard for evaluating ineffective assistance of counsel claims set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Cordaro's § 2255 motion will be denied.

I. Background
A. Relevant Factual Background

Cordaro was indicted on March 16, 2010 for conduct relating to his position as a Lackawanna County commissioner. (Doc. 1.) A federal grand jury returned a superseding indictment on October 5, 2010. (Doc. 47.) Subsequently, the Second Superseding Indictment was returned against Cordaro on March 29, 2011. (Doc. 94.) Cordaro proceeded to trial in June 2011 on the Second Superseding Indictment.

At trial, numerous witnesses testified concerning illegal payments made to Cordaro. For example, Al Hughes ("Hughes") testified that he was the conduit of bribes from Acker Associates (P.J. McLaine), a firm that was doing substantial business with Lackawanna County, to Cordaro. These payments to Cordaro were said to be $10,000 per month and totaled $365,000. Hughes received Form 1099s from Acker Associates for many if not all of the alleged payments. There was no evidence or suggestion that Hughes, a funeral director, was performing any services for Acker Associates. It was uncontested that all Hughes did for Acker was to act as a conduit for the bribes. There were also recordings of telephone conversations between Hughes and Cordaro referencing Hughes' complaints that Acker Associates had given him 1099s and that payments to him were subject to tax.

Don Kalina of Highland Associates testified that he gave Cordaro $30,000 when no one was present at Highland's offices except Cordaro and Kalina.

Michael Pasonick, an engineer who had contracts with Lackawanna County, testified he made two cash payments of $1,000 each to Cordaro. The first payment was made on December 29, 2003, and the second payment was made on March 17, 2004. There was an appointment with Pasonick on March 17, 2004 noted in Cordaro's calendar.

There was also testimony that Hughes brought Cordaro into a cell tower project at the suggestion of Acker Associates. When the tower was sold, Cordaro, who was not named as a partner, received $14,000.

Marc Boriosi testified that he made a cash payment of $2,000 to Cordaro. Boriosi and his partner, Charles Costanzo, replaced Joseph Ferrario's firm as the processors of workers compensation claims for Lackawanna County. Boriosi also testified to taking Cordaro on trips to New York City and Los Angeles.

The foregoing are most of the significant claims of wrongdoing by Cordaro that were presented to the jury.

At the conclusion of the trial, Cordaro was convicted of conspiracy to commit theft or bribery in violation of Title 18, United States Code, Section 371 (Count 13); bribery in violation of Title 18, United States Code, Section 666(a)(1)(B) (Counts 17-18); conspiracy to commit extortion under color of official right in violation of Title 18, United States Code Section 1951(a) (Count 19); extortion under color of official right in violation of Title 18, United States Code, Section 1951 (Counts 20-21); conspiracy to commit money laundering in violation of Title 18, United States Code Sections 1956(a)(1)(B)(I) and 1957 (Count 25); money laundering in violation of Title 18, United States Code Section 1956(A)(1)(B)(I) (Counts 26-28); racketeering in violation of Title 18, United States Code Section 1962© (Count 31); conspiracy to commit racketeering in violation of Title 18, United States Code Section 1962(d) (Count 32); conspiracy to defraud the United States in violation of Title 18, United States Code Section 371 (Count 33); subscribing and filing materially false tax returns in violation of Title 26, United States Code, Section 7206(1) (Counts 34-36); and income tax evasion in violation of Title 26, United States Code, Section 7201 (Counts 38-39). Conversely, Cordaro was found not guilty of Counts 1-12, 29-30, and 41.

A Judgment was entered against Cordaro on February 13, 2012. (Doc. 267.) Cordaro was sentenced to a term of imprisonment of 132 months.

Cordaro then appealed to the United States Court of Appeals for the Third Circuit. See United States v. Munchak, 527 F. App'x 191 (3d Cir. 2013). The Third Circuit affirmed Cordaro's conviction and sentence on May 31, 2013. See id. at 193-95.1 The Third Circuit issued a certified copy of its Judgment in lieu of a formal mandate on July 8, 2013. (Doc. 298.)

On November 21, 2013, Cordaro, pro se, filed the instant motion pursuant to 28 U.S.C. § 2255. (Doc. 321.)2 The Government filed a brief in opposition to Cordaro's § 2255 motion on January 9, 2014. (Doc. 329.) Cordaro filed his pro se reply brief in further support of his motion on February 12, 2014. (Doc. 337.)3

By Order dated August 26, 2014 (Doc. 397), an evidentiary hearing was scheduled on Cordaro's § 2255 motion. Cordaro was appointed counsel the following day. (Doc. 398.) The proceedings on Cordaro's § 2255 motion were then stayed after Cordaro filed an appeal of the denial of his motion for new trial. (Docs. 399; 416.) After Cordaro's motion to lift the stay was denied (Doc. 427), he withdrew his appeal. (Doc. 430.) The evidentiary hearing on Cordaro's § 2255 motion was then rescheduled for January 26, 2015.

B. The Evidentiary Hearing

A three-day evidentiary hearing on Cordaro's § 2255 motion was held beginning on January 26, 2015. Four witnesses testified at the hearing: Cordaro; William Costopoulos; Jerry Alan Johnson; and Anthony M. Cardinale. Their testimony relevant to Cordaro's ineffective assistance of counsel claims is set forth below.

1. William Costopoulos

William Costopoulos ("Costopoulos") was the first witness to testify at the evidentiary hearing. (Doc. 472, "Costopoulos Test.," 8:5-190:12.) Costopoulos was Cordaro's lead trial counsel, and he was retained by Cordaro approximately two months before his arraignment. (Id. at 8:14-21.) Prior to Costopoulos' participation in the case, Cordaro had retained Mike Schwartz ("Schwartz"), an attorney from Philadelphia. (Id. at 90:24-91:5.)

Around the time Cordaro was arraigned in March 2010, Costopoulos retained Jerry Alan Johnson to assist in the case. (Id. at 8:22-9:9.) Both Costopoulos and Jerry Alan Johnson served as Cordaro's trial counsel in June 2011. (Id. at 9:10-12.)

Costopoulos recalled that at trial Cordaro was questioned by the prosecution some eleven different times about whether government witnesses were lying. (Id. at 14:24-15:3.) Costopoulos "intentionally" did not object to any of these questions. (Id. at 16:23-17:7.) Similarly, Costopoulos did not object to the prosecutor's statement in closing argument to the effect that "everybody is lying" except Cordaro, or the prosecutor's comment in rebuttal that "everybody is lying but me is just not a reasonable scenario." (Id. at 18:21-19:1; 19:8-12.) Although at the time of trial Costopoulos had not read the Third Circuit's decision in United States v. Harris, 471 F.3d 507 (3d Cir. 2006) (id. at 14:20-23; 17:13-19; 19:5-7), he testified that he was aware, "with or without Harris," that questions about whether other witnesses are lying are objectionable. (Id. at 20:2-3; 22:5-7.) Costopoulos explained that the reasons such questions are improper is because a witness is not to invade the province of the jury. (Id. at 22:13-17.) In Cordaro's case, though, Costopoulos thought it was wise not to object to these questions because he believed allowing him to answer those questions helped his defense. (Id. at 23:10-21.) Costopoulos explained:

I intentionally did not object to those questions to Bob Cordaro because his answer to those questions was what our defense was all about, and I was not going to object to my own defense. . . . Those questions opened the door for Bob to testify to what our defense was all about and those witnesses were lying.

(Id. at 20:3-12.) The decision not to object, according to Costopoulos, was a tactical decision made using his best professional judgment. (Id. at 117:11-21.)

Costopoulos was also questioned at the evidentiary hearing about his decision to conduct an abbreviated direct examination of Cordaro at trial. At trial, Costopoulos conducted a direct examination of Cordaro that lasted only a few minutes consisting of minor biographical...

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