United States District Court, M.D. Pennsylvania
ROBERT C. CORDARO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE.
the Court is a motion for release from custody and bail
pending habeas corpus proceedings filed through counsel by
Petitioner Robert C. Cordaro. (Doc. 3). In the
present motion and underlying petition for writ of habeas
corpus filed the same day, Cordaro argues that the Supreme
Court's decision in McDonnell v. United States,
__U.S.__, 136 S.Ct. 2355 (2016), results in an
interpretation of the law decriminalizing the conduct for
which he was convicted. Cordaro seeks release pending a
ruling on his habeas petition, on the grounds that
McDonnell constitutes “special reasons for
granting release” and exceptional and extraordinary
circumstances warrant his release. (Doc. 3). In
addition to the motion for release, the Government has filed
a motion to strike Cordaro's second reply brief on this
matter under Local Rule 7.7. For the rationale
below, the Court finds that Cordaro does not meet the
standards for release, and accordingly his motion should be
denied. Additionally, his second reply brief shall be
Background and Procedural History
the factual predicate to this case is discussed at length
elsewhere, the Court only mentions the facts relevant to
consideration of the instant motion.
21, 2011, a jury convicted Cordaro of: one count conspiracy
to commit theft or bribery concerning programs receiving
federal funds; two counts bribery concerning programs
receiving federal funds; one count conspiracy to commit
extortion under color of official right;two counts
extortion under color of official right; one count money
laundering conspiracy;three counts money
laundering; one count racketeering; one count
racketeering conspiracy;one count conspiracy to defraud the
United States; three counts subscribing and filing a
materially false tax return; and two counts tax
evasion. USA v. Cordaro, No.
3:10-CR-00075-ARC-1 (hereinafter “Cordaro
I”). (Cordaro I, Doc. 132). On
February, 12, 2012, Cordaro was sentenced to a prison term of
132 months, to be served concurrently, followed by a three
year term of supervised release, as well as monetary fines.
(Cordaro I, Doc. 267). Cordaro appealed his
conviction, with the Third Circuit affirming a majority of
the District Court's sentence on May 31, 2013. United
States v. Munchak, 527 F.App'x 191 (3d Cir. 2013).
On November 21, 2013, Cordaro filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255, citing
ineffectiveness of trial counsel. Cordaro v. United
States, No. 3:13-CV-02835. (Cordaro I, Doc.
321). On August 18, 2015, following an evidentiary
hearing on the matter, Judge Caputo denied Cordaro's
motion to vacate and declined to issue a certificate of
appealability. (Cordaro I, Doc. 515).
27, 2016, the Supreme Court issued the opinion that
precipitated Cordaro's currently pending petition for
writ of habeas corpus: McDonnell v. United States,
136 S.Ct. 2355 (2016). In McDonnell, the Court determined
that the jury instructions, which provided the text of the
statute without limitations, could be construed as overly
broad and inclusive of fairly routine acts not intended by
Congress to be deemed “official” such as
arranging meetings, phone calls, etc. McDonnell, 136
S.Ct. at 2371. The Court reasoned that the jury may have
convicted McDonnell based on acts that were not unlawful, and
therefore could not ensure that the errors in the
instructions were harmless beyond a reasonable doubt.
McDonnell, 136 S.Ct. at 2375.
that McDonnell announced a new rule of
constitutional law that was unavailable at the time of his
conviction and retroactively applied, Cordaro sought leave to
file a second or successive § 2255 petition. The Third
Circuit denied Cordaro's application, stating
McDonnell “did not announce a new rule of
constitutional law, but rather clarified the meaning of what
constitutes an official act.”
February 3, 2017, Cordaro instituted the matter presently
before this Court, filing a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). At
Cordaro's trial, the jury instructions did not include
any limitation to 18 U.S.C. § 201's definition of
“official acts.” Based on McDonnell,
Cordaro argues that the jury instructions at his trial were
erroneous and the jury may have convicted him of non-criminal
conduct. (Doc. 1, at 16). He argues the
McDonnell decision articulates a new standard of
law, constituting exceptional circumstances warranting §
2241 habeas relief.
with the filing of his habeas petition, Cordaro filed the
instant motion for release from custody and bail pending
habeas corpus proceedings. (Doc. 3). In support of
his motion, Cordaro argues that McDonnell
constitutes “special reasons for granting
release” and that exceptional and extraordinary
circumstances exist warranting release. (Doc. 3).
Expanding on the former, Cordaro argues McDonnell
“articulated a new, narrower interpretation for the
‘official act' requirement of Hobbs Act extortion
and bribery charges. Mr. Cordaro was never given the
opportunity to challenge his conviction based on this change
in substantive law.” (Doc. 3, at 5). Cordaro
argues release is warranted and cites precedent from
United States v. Silver, where the District Court
for the Southern District of New York granted a petitioner
convicted of similar offenses release pending disposition of
his habeas petition based on McDonnell. United
States v. Silver, 203 F.Supp.3d 370 (S.D. N.Y. 2016),
vacated and remanded on other grounds United
States v. Silver, 864 F.3d 102 (2d Cir. 2017). (Doc. 3,
at 7). Cordaro also argues that exceptional and extraordinary
circumstances exist warranting release, including his ties to
the community, lifelong residence in Pennsylvania, no risk of
flight or threat to society, lack of violent offenses, and
prior release on bail during the underlying proceedings.
(Doc. 3, at 8).
Government responds that Cordaro is not entitled to release,
based on different considerations. Citing Landano v.
Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992), the
Government contends that Cordaro must show “substantial
constitutional claims upon which he has a high probability of
success, and . . . extraordinary and exceptional
circumstances exist which make the grant of bail necessary to
make the habeas remedy effective.” (Doc. 16,
at 47). The Government states that Cordaro cannot establish a
high probability of success, or the existence of
extraordinary or exceptional circumstances. (Doc.
16, at 48). Again citing Landano, the
Government contends that the latter considerations are
reserved for cases of poor health or impending completion of
a sentence by a petitioner, neither of which are applicable
to Cordaro. (Doc. 16, at 48).
April 24, 2017, Cordaro filed a reply brief wherein he
reiterated his positions, arguing McDonnell
constitutes a change in the law and that special reasons
warrant his release while the Court considers his petition.
(Doc. 19, at 7). On June 9, 2017, Cordaro filed a
supplemental reply brief, focused primarily on his connection
to the community, the fact that he is not a flight risk, and
the fact that he poses no risk to society. (Doc.
20). On June 16, 2017, the Government moved to strike
this reply pursuant to Local Rule 7.7. (Doc.
parties attended oral argument on July 19, 2017, in which
they affirmed their respective positions. (Doc. 27).
This matter is ripe for review.
Cordaro Has Not Met the Standards For Release, as He Has
Not Established a High Probability of Success On the Merits,