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Cordaro v. United States

United States District Court, M.D. Pennsylvania

December 11, 2017

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

          MEMORANDUM

          A. Richard Caputo, United States District Judge

         Presently 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.

         I. Background

         A. Cordaro I.

         Cordaro, 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)[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.

         At 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.

         Don 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 Cordaro's request.

         Michael 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 Cordaro's calendar.

         There 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.

         Marc 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 Angeles.

         The foregoing are most of the significant claims of wrongdoing by Cordaro that were presented to the jury.

         At the 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.

         A 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.

         Cordaro 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.[2]

         On 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).[3] Cordaro applied to the Third Circuit for a certificate of appealability, but that request was denied. (See Cordaro I, Doc. 523).

         B. McDonnell v. United States.

         On June 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.

         At 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. The ...


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