United States District Court, M.D. Pennsylvania
ROBERT C. CORDARO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Richard Caputo, United States District Judge
before me is Magistrate Judge Karoline Mehalchick's
Report and Recommendation (Doc. 34) to the Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) filed
by Petitioner Robert C. Cordaro (“Cordaro”).
Cordaro contends that he is entitled to have his conviction
and sentence vacated as a result of the United States Supreme
Court's decision in McDonnell v. United States,
___ U.S. ___, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016).
Although the Magistrate Judge found that Cordaro could
properly seek relief pursuant to McDonnell through
§ 2241, she concluded that even if the jury had been
instructed in accordance with that decision, Cordaro fails to
establish that it is more likely than not that no reasonable
juror would have convicted him. As such, the Magistrate Judge
recommends that the Petition be denied. Cordaro filed timely
objections to the Report and Recommendation. (Doc. 37).
Because Cordaro fails to demonstrate that he is entitled to
relief under 28 U.S.C. § 2241, the Report and
Recommendation will be adopted, the objections thereto will
be overruled, and the Petition will be denied.
a former Lackawanna County Commissioner, was previously
convicted of 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 commissioner. See United
States of America v. Cordaro, No. 3:10-CR-0075
(hereinafter Cordaro I). Cordaro was indicted on
March 16, 2010 for conduct relating to that position,
(see Cordaro I, Doc. 1), and a superseding
indictment was returned on October 5, 2010. (See Cordaro
I, Doc. 47). Subsequently, the Second Superseding
Indictment was returned on March 29, 2011. (See Cordaro
I, Doc. 94). Cordaro and his co-Defendant proceeded to
trial in June 2011 on the Second Superseding Indictment.
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.
Kalina of Highland Associates testified that he gave Cordaro
$30, 000 when no one was present at Highland's offices
except Cordaro and Kalina. James Finan, Lackawanna
County's Director of Transportation, testified that he
replaced the architect working on a project with Highland at
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
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.
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
foregoing are most of the significant claims of wrongdoing by
Cordaro that were presented to the jury.
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(C) (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 3839). Conversely, Cordaro was found not guilty
of Counts 1-12, 29-30, and 41.
Judgment was entered against Cordaro on February 13, 2012.
(See Cordaro I, Doc. 267). Cordaro was sentenced to
a term of imprisonment of 132 months.
and co-Defendant Munchak 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.
November 21, 2013, Cordaro filed a motion pursuant to 28
U.S.C. § 2255. (See Cordaro I, Doc. 321).
Subsequently, on February 24, 2014, Cordaro filed a motion
for new trial pursuant to Federal Rule of Criminal Procedure
33. (See Cordaro I, Doc. 338). The motion for a new
trial was denied on July 17, 2014. (See Cordaro I,
Doc. 383). Thereafter, following an evidentiary hearing,
Cordaro's § 2255 Motion was denied and a certificate
of appealability was not issued. (See Cordaro I,
Docs. 514-515). Cordaro applied to the Third Circuit for a
certificate of appealability, but that request was denied.
(See Cordaro I, Doc. 523).
McDonnell v. United States.
27, 2016, the Supreme Court issued its decision in
McDonnell v. United States, ___ U.S. ___, 136 S.Ct.
2355, 195 L.Ed.2d 639 (2016). There, former Virginia Governor
Robert McDonnell was convicted in the United States District
Court for the Eastern District of Virginia of honest services
fraud (18 U.S.C. §§ 1343, 1349) and Hobbs Act
extortion (18 U.S.C. § 1951(a)). See McDonnell,
136 S.Ct. 2366. During his tenure as Governor, McDonnell and
his wife accepted over $175, 000.00 in loans, gifts, and
other benefits from a Virginia businessman seeking
McDonnell's assistance in having Virginia's public
universities perform research studies on a nutritional
supplement. See id. at 2361. In exchange for those
loans, gifts, and benefits, McDonnell arranged meetings with
government officials, hosted and attended events at the
Governor's Mansion, and contacted other government
officials to encourage state research universities to
initiate studies on the supplement. See id. at 2365.
trial, the district court instructed the jury that to convict
McDonnell it must “find that he agreed to accept a
thing of value in exchange for official action.”
Id. at 2366 (citation and quotation omitted). The
district court then described the alleged “official
acts” set forth in the indictment, “which
involved arranging meetings, hosting events, and contacting
government officials.” Id. The trial court
next proceeded to quote the statutory definition of
“official act” and “advised the jury that
the term encompassed acts that a public official customarily
performs, including acts in furtherance of longer-term goals
or in a series of steps to exercise influence or achieve an
end.” Id. McDonnell requested, unsuccessfully,
that the jury be instructed that the “fact that an
activity is a routine activity, or a ‘settled practice,
' of an office holder does not alone make it an
‘official act, '” and that “merely
arranging a meeting, attending an event, hosting a reception,
or making a speech are not, standing alone, ‘official
acts, ' even if they are settled practices of the
official” because they “are not decisions on
matters pending before the government.” Id.