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United States of America v. Cosmo Fazio

December 27, 2011


The opinion of the court was delivered by: McVerry, J.


Presently before the Court is the MOTION TO WITHDRAW GUILTY PLEA and BRIEF IN SUPPORT filed by defendant Cosmo Fazio (Document Nos. 791 and 823), the RESPONSE filed by the government (Document No. 795), and the POST-HEARING RESPONSE TO MOTION TO WITHDRAW GUILTY PLEA filed by the government (Document No. 831).

On November 21, 2011, the Court conducted an evidentiary hearing on the motion to withdraw guilty plea at which all parties were represented by counsel who presented and argued the issues skillfully and effectively. Lori Fazio, Mark Goldstein, Esquire; and Mark Lancaster, Esquire testified on behalf of Defendant, Cosmo Fazio, who did not testify.

At the conclusion of the hearing, the Court ordered that the record remain open until December 8, 2011, so that counsel, if so desired, could file post-hearing briefs in support of their respective positions. The post-hearing briefs were timely filed and the matter is now ripe for disposition.

Based on the testimony and evidence presented at the hearing, the applicable law, and after considering and balancing the three factors for withdrawal of a guilty plea set forth in United States v. Jones, 336 F.3d 245 (3d Cir. 2003), the Court finds that Defendant has failed to establish any of the required criteria under Jones. Therefore, Defendant's motion will be denied.


On December 9, 2009, a federal grand jury sitting in the Western District of Pennsylvania returned an eight-count indictment against defendant Cosmo Fazio and twelve (12) co-defendants. Defendant Fazio was charged only in Count I with Conspiracy to Distribute and Possess with Intent to Distribute 5 Kilograms or More of Cocaine, a Schedule II Controlled Substance, in violation of 21 U.S.C. § 846, occurring from in or around January 2009 to on or about November 2009. On March 30, 2010, a federal grand jury in the Western District of Pennsylvania returned a superseding indictment which charged three (3) additional defendants and charged one additional count (Count 9).

A hearing on four (4) suppression motions filed by Defendants was conducted on April 13, 2011, including a motion to suppress wire and electronic communication interceptions, which had been filed by Defendant Curran and joined by a number of defendants, including Defendant Fazio. Prior to the commencement of the hearing, Mark Lancaster, Esquire, attorney for Defendant Fazio, appeared in court with his client and advised that Defendant Fazio was withdrawing "our previously filed motions and motions joined in that were filed by other counsel" as it was "Mr. Fazio's intent to request a change of plea hearing." Transcript at 4 (Document No. 545).

On April 26, 2011, a Text Notice of Hearing was filed which scheduled a Change of Plea Hearing for Defendant Fazio on May 9, 2011. Defendant filed two motions to postpone and/or reschedule the change of plea, both of which were granted. On June 3, 2011, Defendant Fazio entered his plea of guilty to a lesser included offense of Count I - in particular, conspiracy to distribute and possess with intent to distribute at least 200 grams but less than 300 grams of cocaine. The Court conducted a thorough colloquy with Defendant Fazio in open court, found that he was competent, acting knowingly and voluntarily, and accepted his guilty plea. Sentencing was scheduled on October 3, 2011.

On August 2, 2011, Attorney Lancaster filed a Motion for Leave to Withdraw as Counsel in which he stated that Defendant had retained other private counsel. The motion was granted on August 3, 2011, the appearance of Mark Lancaster as counsel for Defendant Fazio was withdrawn and terminated, and the appearance of Attorney Patrick K. Nightingale was entered on behalf of Defendant.

On August 8, 2011, voir dire and jury selection commenced in the trial against two of Defendant's co-conspirators Bradley Barndt and Franco Badini. The jury trial commenced on August 9, 2011. On August 16, 2011, the jury found both co-conspirators Barndt and Badini guilty of Count I of the superseding indictment.

On August 11, 2011, Attorney Nightingale and Defendant Fazio were ordered by the Court to appear before Probation Officer Terrell Lewis on or before August 25, 2011, in order for the officer to conduct an interview of Defendant Fazio so that she could prepare a PreSentence Investigation Report ("PSI"). Sentencing was continued to November 4, 2011.

The PSI was filed in this case by the Probation Officer on September 30, 2011, with an Addendum filed on October 21, 2011.

On October 26, 2011, Attorney Nightingale filed a Motion to Withdraw As Counsel in which he stated that Defendant had advised that he "wishe[d] to secure new counsel." On the same day, Attorney Stanton D. Levenson filed a Notice of Attorney Appearance on behalf of Defendant Fazio. By Order of October 31, 2011, the Court granted the Motion to Withdraw as Counsel and the sentencing hearing was once again continued to November 18, 2011.

The next day, November 1, 2011, the instant Motion to Withdraw Plea of Guilty was filed in which Defendant argues that he was denied his Sixth Amendment right to effective assistance of counsel because "his [former criminal defense] attorney failed to properly advise him regarding the immigration consequences of his plea." Mot. at ¶ 5. The government responded that the advice of Defendant Fazio's former counsel was accurate and that Defendant has failed to meet his burden of demonstrating a "fair and just reason" to withdraw his guilty plea. United States v. Jones, 36 F.3d 245, 252 (3d Cir. 2003).

Defendant's Personal and Family Data

Defendant was born and raised in Bari, Italy and immigrated to the United States in 1992, at the age of 23. He is a permanent resident alien. Defendant reports that he can speak Italian, Spanish, and English.

Defendant has been married to Lori (nee) Soukavich since December 1, 2007. Together they have a six year old daughter. Defendant also has two older daughters by a previous marriage, both of whom reside in New York City.

Since January of 2009, Defendant has been the sole proprietor of Catering by Chef Mino. From November of 2004 to August of 2007, he was the co-owner and executive chef at Ciao Baby restaurant; and from June of 2002 to October of 2004, Defendant was the co-owner and executive chef at LaStrata Restaurant.

Defendant reported to the Probation Officer that he last attended a school in Italy and said he stopped attending school with only two years left before he would graduate so that he could go to work. His wife testified that Defendant has the equivalent of an 8th grade education; however, during the change of plea hearing, Defendant stated that he "went to eighth and ninth grade in Italy," which would be the equivalent to 12 grades in the United States. (Transcript of Evidentiary Proceedings at 4-5 (Document No. 813)).

Pre-Plea Discussions with Attorney Lancaster

Defendant was arrested on the instant charge on December 15, 2009. Following his arrest, Fazio's wife retained attorney Mark Lancaster to represent her husband. Mrs. Fazio met in person with Attorney Lancaster in his office on December 16, 2009, while her husband was still incarcerated. During that meeting, according to Mrs. Fazio, she informed Attorney Lancaster of her husband's immigration status and expressed her concerns as to what the immigration consequence of a conviction might be. According to Mrs. Fazio, on December 18, 2009, Attorney Lancaster texted her and "said deportation would not be an issue." (Tr. at 7.)

On June 2, 2011, the day prior to his scheduled Change of Plea hearing, Defendant Fazio and his wife met with Attorney Lancaster to discuss the pending plea hearing. Mrs. Fazio testified that during this meeting there was no discussion of the potential immigration consequences of the proposed guilty plea.

Contrary to Mrs. Fazio's testimony, Attorney Lancaster testified that during this pre-plea meeting, he reviewed the proposed plea agreement "line by line" with the Fazios "literally reading each paragraph at the time and then answering any questions following the reading of each paragraph." Attorney Lancaster characterized the review as "careful and thorough." (Tr. at 60.)

Paragraph 12 of the Plea Agreement specifically recites the potential immigration consequences as follows:

Cosmo Fazio recognizes that pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses. Removal and other immigration consequences are the subject of a separate proceeding, however, and defendant understands that no one, including his attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any immigration consequences that his plea may entail, even if the consequence is his automatic removal from the United States.

Plea Agreement, at ¶ 12 (emphasis added). Attorney Lancaster testified that he advised Mr. Fazio as follows:

I advised him that while this conviction, and I explained to him that in federal court, at the time of the plea, you are convicted, unlike state court where a conviction is not finalized until you are actually sentenced, and, as a result, there could be immigration consequences. However, it was my opinion that he would be entitled to a hearing. And given what I had learned of his family and friends and background, I was confident that with competent immigration counsel, being unaware of ...

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