Opinion
97 Civ. 2971 (MGC).
October 5, 2004
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA, New York, NY, Attorneys for Petitioner Joseph Massaro, BY: Herald Price Fahringer, Erica T. Dubno.
JAMES R. FROCCARO, JR., Port Washington, NY, Attorney for Petitioner Joseph Massaro.
DAVID N. KELLEY, New York, NY, United States Attorney, Southern District of New York, Attorney for Respondent. BY: David N. Kelley, Lisa P. Korologos.
OPINION
Petitioner Joseph Massaro, a person in custody under a sentence of this court, seeks to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255, or, alternatively, seeks a hearing of his claims of ineffective assistance of counsel. For the following reasons, Massaro's petition is denied as is his request for a hearing.
BACKGROUND
On June 9, 1993, Massaro was charged in ten counts of an eighteen-count Indictment. The Indictment alleged that Massaro was a soldier in the Luchese organized crime family. Among other crimes, the Indictment charged Massaro with the murder of Joseph Fiorito, a member of his crew. This murder was also charged as an act of racketeering in Count One, which charged Massaro with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 (d).
The Government's key witness with respect to the murder charge was Patrick Esposito, another member of Massaro's crew who became a cooperating witness for the Government. Esposito testified that Massaro decided to kill Fiorito after learning that Fiorito had been stealing from him. Massaro directed Esposito to lure Fiorito to an abandoned house on Long Island, where Massaro shot him once in the head. Esposito testified that he and Massaro then dragged Fiorito's body out of the house and placed it in the back seat of the car Fiorito had driven to the house. The car was owned by Fiorito's girlfriend, Lisa Brunjes. Esposito testifed that as the two drove the car into New York City, Massaro, who was in the passenger seat, turned around and shot Fiorito again in the head. Esposito and Massaro then abandoned the car in Queens, where it was discovered by the police.
During the initial investigation of the crime scene by the New York Police Department ("NYPD"), officers observed one wound in Fiorito's head and found a spent shell casing in the rear passenger compartment of the car. They did not recover a bullet. A medical examination later ascertained that Fiorito had sustained two entry wounds and one exit wound. Fragments of a.38-caliber bullet were recovered from Fiorito's skull.
Esposito returned home and told his girlfriend that Fiorito had been killed. She reported the crime to the police, who arrested Esposito. Shortly after being charged with the murder, Esposito began cooperating with federal authorities who were investigating racketeering crimes. After Esposito's state murder charge was dismissed because of this cooperation, the state released the car in which Fiorito's body was discovered to its owner, Brunjes, who sold it.
In August 1993, shortly before Massaro's trial was to begin, NYPD officers tracked down the car and searched it again with the consent of its registered owner, Maria Kolano. They found nothing. After the police inspection, Kolano's boyfriend, Robert O'Neill, removed the seats and carpeting in the car in an attempt to remove an odor. He discovered a bullet under the insulation on the floor of the rear passenger compartment. On September 6, the day before opening statements were scheduled in Massaro's trial, O'Neill turned the bullet over to the police. The Government was notified of the discovery shortly before opening statements on September 7, but did not notify Massaro of the discovery at that time.
In his opening statement, Massaro's attorney, Harold Batchelder, informed the jury that the evidence would show that Esposito murdered Fiorito. Batchelder stated that not a single piece of scientific evidence connected Massaro with the murder.
On September 11, the Government informed Batchelder by letter of the existence of the bullet, offered to show him a videotaped reenactment of its discovery, and stated that the bullet would be available for his inspection after the Government's ballistics tests were complete. Batchelder first raised the issue on the record on September 23, in an attempt to expedite the Government's tests. On September 27, the Government informed the court and defense counsel that the tests showed that the recovered bullet was fired from the same gun as the bullet fragments found in Fiorito's head. On September 28, Batchelder moved for a mistrial, arguing that the late discovery of the bullet had prejudiced the theories upon which the defense had opened and which it had pursued to that point in the trial. He also contended that the discovery of a bullet in a location where he had argued that no shot had been fired damaged his credibility in front of the jury. He was offered a continuance, but rejected the offer, stating that the effect on the defense of the late discovery could not be cured by a continuance. He also stated that he had located an expert to examine the bullet, but that he expected the expert to confirm that the bullets matched. His motion for a mistrial was denied.
Massaro was convicted of all counts on October 27, 1993. His grounds for relief on appeal included a claim that it was error to admit the bullet evidence. Although he was represented by different counsel on appeal, Massaro did not claim ineffective assistance of trial counsel. The Second Circuit affirmed his conviction in an unpublished opinion on May 18, 1995. Massaro then filed a motion for a new trial and a petition for relief under 28 U.S.C. § 2255. Most of the claims Massaro raised were dismissed as either meritless or repetitious of claims raised on appeal. See Massaro v. United States, No. 97 Civ. 2971, 92 Cr. 529, 2000 WL 1761038 (S.D.N.Y. Nov. 29, 2000). His ineffective assistance of counsel claims were dismissed as procedurally barred under the rule of Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993). Billy-Eko held that a defendant who obtained new counsel on direct appeal and based his ineffective assistance of counsel claims on matters fully developed in the record could not raise those claims for the first time in a petition for habeas corpus without showing cause for the default and resulting prejudice. See id. at 114. The Second Circuit affirmed the dismissal of Massaro's ineffective assistance claims. Massaro v. United states, 27 Fed. Appx. 26 (2d Cir. 2001). The Supreme Court reversed and held that a petitioner does not procedurally default claims of ineffective assistance by raising them for the first time in a collateral proceeding. See Massaro v. United States, 538 U.S. 500 (2003). The Second Circuit accordingly remanded Massaro's petition.
DISCUSSION
I. Massaro's Ineffectiveness Claims
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his lawyer's representation was unreasonable under "prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.
Massaro contends that his trial counsel provided ineffective assistance by failing to (1) take advantage of the Court's repeated offers of a continuance to investigate evidence discovered at the start of the trial; (2) preserve a challenge to the jury instructions; (3) object to the admission of evidence of a state conviction; (4) request that the jury be instructed that state law conspiracy requires proof of an overt act; (5) interview or call certain witnesses; (6) object to the manner in which the jury reviewed the trial transcript; and (7) object to the scope of an FBI agent's testimony.
Massaro originally offered an eighth ground: that his counsel refused to permit him to testify. Massaro abandoned this claim in a letter to me dated November 13, 2003.
A. Failure to Seek a Continuance
The claim which Massaro presses most strenuously on remand is that his trial counsel's failure to accept the court's offer of a continuance and failure to investigate the new bullet evidence constituted ineffective assistance of counsel. Massaro argues that his counsel's failure to investigate was deficient because the evidence in question became the "lynchpin" of the Government's case, directly linked Massaro to the crime, and contradicted defense counsel's opening statement and theory of the case, thus undermining his credibility before the jury. A continuance would have enabled Massaro's attorney to use the new evidence to dispute Esposito's account of the murder.
Massaro offers the affidavits of three experts, presumably as examples of the kind of testimony which a continuance would have enabled his lawyer to seek and use at trial. Robert J. Kopec, a forensic scientist in private practice, makes three points relevant to the new bullet evidence: (1) the lack of "high velocity spatter" in the car indicates that Fiorito was not shot in the car as Esposito testified; (2) the fact that the newly discovered bullet was only "moderately deformed," while the bullet in Fiorito's head was shattered, suggests that the new bullet was not used in Fiorito's death; and (3) the failure of the police to find the bullet, and its discovery on the eve of trial, raise suspicions about the bullet's provenance. Rene Trasorras, a private investigator, also notes the lack of spatter and states that a crime scene search of the car by the NYPD would have revealed the presence of the bullet, had it been there at the time. Charles Morton, another privately employed forensic scientist, calls into question the adequacy of the investigation and the analysis of the physical evidence in the car.
The Supreme Court has noted: "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 460 U.S. at 691. Massaro has failed to show that his lawyer's refusal to accept a continuance to investigate the case constituted deficient performance. First, Massaro is incorrect when he contends that his lawyer failed to investigate the new evidence or to attempt to use it to his client's advantage. Batchelder moved for a mistrial, and moved in the alternative to preclude the admission of the bullet, because of the prejudicial effect it would have on the defense's credibility. Batchelder also stated on the record that he had arranged for a ballistics expert to examine the bullet. Massaro cannot show that his attorney ignored the new evidence.
Second, it is clear that Batchelder did not need a continuance in order to use the bullet to attempt to undermine Esposito's credibility and sow doubts about the quality of the Government's investigation. Batchelder cross-examined Government witnesses about the lack of spatter, the disparity in appearance of the two bullets, and the police's inability to discover the bullet during the initial search. He also raised the last two points in summation. In other words, Batchelder placed before the jury all of the points which Massaro's new experts raise.
Insofar as Massaro is arguing that the failure to call expert witnesses to support those contentions was ineffective assistance of counsel, he must overcome the deference accorded to a lawyer's decision whether to call certain witnesses, which is a matter of trial strategy ordinarily left to the lawyer's discretion. "In some instances, the failure to call an expert witness may satisfy the two-pronged ineffective assistance of counsel standard." United States v. Aliotta, No. 97 Cr. 311, 1998 WL 43015, at *3 (S.D.N.Y. Feb. 3, 1998). However, "[w]here an expert would only marginally assist the jury in its role as fact finder, an attorney's decision not to call an expert is more likely to fall within the bounds of reasonable performance and less likely to prejudice the defendant." Id. The lack of spatter, the deformity of the bullet, and the quality of the forensic investigation are matters which require only visual inspection or common sense to sort out. Massaro has not explained how the jury would have been assisted by expert opinion on these points, or how Batchelder's use of cross-examination, rather than testimony from defense witnesses, was insufficient.
Finally, Massaro cannot show prejudice. Massaro exaggerates the importance of the bullet. While it corroborated Esposito's account of the murder, it was by no means the "lynchpin" of the case. Neither did it directly link Massaro to the crime scene or provide physical evidence connecting him to the murder. As noted previously, all of the concerns which his new experts raise about the bullet were raised during the trial. Massaro's legal team also spent extensive amounts of time seeking to undermine Esposito's credibility on other grounds, and developed an alternative theory that Esposito had killed Fiorito. All of this was to no avail. Accordingly, Massaro has not shown that but for Batchelder's failure to investigate, there is a reasonable probability that he would have been acquitted of this crime.
B. Failure to Preserve a Challenge to the Jury Instructions
Massaro argues that his attorney consented to a charge that was erroneous in light of the Supreme Court's determination, inReves v. Ernst Young, 507 U.S. 170 (1993), that liability under RICO can attach only to individuals who participated in the "operation or management" of an enterprise's affairs — that is, individuals with "some part in directing the enterprise's affairs," id. at 179.
The relevant portion of the jury charge reads as follows:
To establish [the conduct or participation element of the RICO offense], the government must prove, beyond a reasonable doubt, that the defendant conducted or participated in the conduct of the enterprise through that pattern of racketeering activity.
It is not enough that there is an enterprise and that the defendant engaged in a pattern of racketeering activity. More is required. There must be a meaningful connection between the defendant's racketeering acts and the affairs of the enterprise. The defendant must have conducted or participated in the enterprise by engaging in the pattern of racketeering.
The precise wording of the statute is "to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs." In order to participate, directly or indirectly, in the conduct of the affairs of an enterprise, one must have some part in the operation or management of the enterprise itself. Of course, the word "participate" makes clear that RICO liability is not limited to those with primary responsibility for the enterprise's affairs, just as the phrase "directly or indirectly" makes clear that RICO liability is not limited to those with a formal position in the enterprise, but some part in directing the enterprise's affairs is required.
I also instruct you that an enterprise is operated not just by upper management but also by lower-rung participants in the enterprises who are under the directions of upper management. An enterprise also might be operated or managed by others associated with the enterprise who exert control over it.
Put simply, the government must prove that there is a meaningful connection between the defendant's acts of racketeering and the affairs of the enterprise. The government is required to prove either that the acts were related to the affairs of the enterprise or that the defendant was able to commit the acts solely by virtue of his position or involvement in the affairs of the enterprise.
Massaro contends that while the first three paragraphs properly articulate the Reves test, the last two paragraphs undercut the first three and permitted the jury to convict Massaro using the more lenient pre-Reves test. While Massaro's attorney requested a narrower charge, Massaro contends that the record does not establish that the lawyer objected to the language chosen. Massaro argues that the Second Circuit held that he had defaulted this claim. Had Batchelder properly preserved the issue for appeal, Massaro contends, he would have had a reasonable probability of reversal on the substantive RICO charge, because of the dearth of evidence of his participation in the management of the Luchese enterprise.
There are several problems with this claim. First, the Second Circuit's unpublished opinion affirming Massaro's conviction does not discuss this ground for appeal. Thus, it is not clear whether his argument as to the jury instructions was considered procedurally defaulted, as Massaro now claims, or was instead rejected on the merits.
Second, the language of the charge is not improper. Viewed "in the context of the overall charge," United States v. Locascio, 6 F.3d 924, 942 (2d Cir. 1993) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)), the instruction properly articulated the requirement that the jury find that Massaro had some role in the operation or management of the enterprise. The sections which Massaro claims were erroneous merely elaborated on the paragraphs which preceded them, which tracked the language of the RICO statute and of Reves. A lawyer's failure to object to a proper jury charge is not ineffective assistance of counsel.
Finally, the Government produced ample evidence at trial that Massaro did participate in the management of the enterprise. Far from being a crew member who only took direction from his superiors, Massaro was a soldier who directed others to commit extortion, arson, and other crimes, and who himself engaged in these activities. Thus, even if the final paragraphs of the instruction were somewhat broad, the jury could have convicted Massaro of the racketeering crimes charged in the Indictment without them. Massaro has failed to demonstrate prejudice.
C. Failure to Object to Evidence of a State Conviction
Massaro contends that his lawyer's failure to object to the admission of evidence of a state conviction prejudiced him. While Massaro concedes that the Government was entitled to place evidence of the conduct underlying this conviction before the jury, because the conduct was charged as an act of racketeering in the Indictment, he claims that his lawyer should have sought to stipulate to the conviction in order to avoid placing more prejudicial prior crimes evidence before the jury.
Decisions about whether to object to certain evidence or to consent to stipulations fall squarely within the realm of trial strategy, and are rarely disturbed. See Brown v. Artuz, 124 F.3d 73, 77 (2d Cir. 1997) Moreover, the record demonstrates that Batchelder did argue vigorously against the admission of Massaro's plea allocution to a misdemeanor count of petit larceny, which the Government sought to introduce as part of its evidence of the state conviction. The plea allocution was not admitted. Massaro has failed to show that his lawyer was inattentive to this evidentiary issue. Moreover, given the extensive additional evidence of Massaro's crimes, Massaro has failed to show that his lawyer's conduct with respect to this evidence prejudiced him.
D. Failure to Request a Jury Instruction on State Conspiracy
Massaro also faults his attorney for failing to request that the jury be informed that in order to find Massaro guilty of a RICO violation based on the predicate act of conspiracy to commit arson, the jury was required to find an overt act.
The Government responds that under United States v. Bagaric, 706 F.2d 42 (1983), courts need outline only a generic conspiracy offense, not all of the elements of conspiracy under state law. This is because "RICO was not intended to incorporate 'the elements of the penal codes of the various states where acts of racketeering occurred,' but only to provide general substantive frames of reference." United States v. Miller, 116 F.3d 641, 675 (2d Cir. 1997) (quoting Bagaric, 706 F.2d at 62)).
Moreover, Massaro cannot show prejudice. The verdict form demonstrates that the jury found that Massaro committed the substantive crime of arson for each of the six acts of racketeering charged. In other words, the jury found an overt act for each of the racketeering crimes charged. A different jury charge would not have changed this result.
E. Failure to Call Witnesses
Massaro claims that he was prejudiced by his counsel's failure to call certain witnesses. Massaro does not name these witnesses or explain how their testimony could have assisted him. Accordingly, he has failed to show that this claim has any merit.See Leaks v. United States, 841 F. Supp. 536, 545 (S.D.N.Y. 1994); see also United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974) ("[T]he decision to call or bypass particular witnesses is peculiarly a question of trial strategy . . . which courts will practically never second-guess.").
F. Failure to Object to the Jury's Review of the Transcript
Massaro argues that his lawyer's failure to object to the manner in which the jury reviewed portions of the trial transcript constituted deficient performance. Massaro does not explain which aspects of the jury's review of the transcripts were objectionable. District courts possess substantial discretion to direct whether and how juries should review the trial transcript. See, e.g., United States v. Criollo, 962 F.2d 241, 243 (2d Cir. 1992). Massaro has failed to demonstrate how the procedures implemented in his case constituted an abuse of discretion, such that his lawyer should have objected, or how the jury's review of the transcripts prejudiced him.
G. Failure to Object to the Scope of Agent Pistone's Testimony
Massaro also contends that his counsel's failure to object to the scope of FBI Agent Joseph Pistone's testimony was ineffective assistance of counsel. Massaro does not explain how Agent Pistone's testimony was improper. Such a conclusory claim is not a sufficient basis for vacating a conviction.
II. Massaro's Request for a Hearing
To justify an evidentiary hearing on a petition for relief under § 2255, a petitioner must "establish that he has a plausible claim." United States v. Tarricone, 996 F.2d 1414, 1418 (2d Cir. 1993). The petitioner must also set forth specific evidence raising issues of fact which would entitle him to relief if proved. See Hayden v. United States, 814 F.2d 888, 892 (1987). Massaro has only offered specific evidence with respect to the claim that his lawyer failed to accept a continuance. As demonstrated above, Massaro has not shown that he is entitled to relief on that ground. An evidentiary hearing would therefore be futile. Massaro does not explain how the remainder of his claims require an evidentiary hearing for their disposition.
CONCLUSION
For the foregoing reasons, Massaro's petition is denied.
SO ORDERED.