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Cordaro v. United States

United States District Court, M.D. Pennsylvania

September 1, 2017

ROBERT C. CORDARO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE.

         Before 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 stricken.

         I. Background and Procedural History

         Because the factual predicate to this case is discussed at length elsewhere, the Court only mentions the facts relevant to consideration of the instant motion.

         On June 21, 2011, a jury convicted Cordaro of: one count conspiracy to commit theft or bribery concerning programs receiving federal funds;[1] two counts bribery concerning programs receiving federal funds;[2] one count conspiracy to commit extortion under color of official right;[3]two counts extortion under color of official right;[4] one count money laundering conspiracy;[5]three counts money laundering;[6] one count racketeering;[7] one count racketeering conspiracy;[8]one count conspiracy to defraud the United States;[9] three counts subscribing and filing a materially false tax return;[10] and two counts tax evasion.[11] 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).

         On June 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.

         Arguing 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.”

         On 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.

         Simultaneous 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).

         The 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).

         On 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. 21).

         The parties attended oral argument on July 19, 2017, in which they affirmed their respective positions. (Doc. 27). This matter is ripe for review.

         II. Discussion

         A. Cordaro Has Not Met the Standards For Release, as He Has Not Established a High Probability of Success On the Merits, Nor ...


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