United States District Court, W.D. Pennsylvania
OPINION AND ORDER SYNOPSIS
Donetta W. Ambrose Senior Judge, U.S. District Court
October 24, 2016, a jury convicted Defendant, on a
superseding indictment, of violating 18 U.S.C. §§
1349 and 1344. On October 28, 2016, following the jury
verdict, the Court appointed new counsel for Defendant. On
November 11, 2016, Defendant moved for a new trial, on
grounds that his Sixth Amendment right to counsel had been
violated at trial. Following a hearing, by Opinion and Order
dated May 1, 2017, the Court granted Defendant's Motion.
The jury verdict was vacated, and a new trial scheduled.
Thereafter, on August 29, 2017, Defendant withdrew his plea
of not guilty and entered a plea of guilty to one Count of
the superseding indictment, which charged wire and bank fraud
conspiracy in violation of 18 U.S.C. § 1349. On January
10, 2018, Defendant was sentenced to a term of imprisonment
of 78 months, followed by a term of supervised release. No.
appeal was taken.
11, 2019, Defendant filed a pro se Motion to Vacate pursuant
to 28 U.S.C. § 2255. Following Miller notice, Defendant
notified the Court that he wished to have his Motion ruled on
as filed; the Motion is now ripe for review. For the
following reasons, Defendant's Motion will be denied, and
no certificate of appealability shall issue.
is available under Section 2255 only under exceptional
circumstances, when the claimed errors of law are "a
fundamental defect which inherently results in a complete
miscarriage of justice," or "an omission
inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S.
424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A district
court need not hold an evidentiary hearing on a Section 2255
motion if the motion, files, and records show conclusively
that the defendant is not entitled to relief. United
States v. Ritter, 93 Fed.Appx. 402 (3d Cir. 2004).
Further, pro se pleadings are to be liberally construed, and
I have considered Defendant's submissions accordingly.
See United States v. Otero, 502 F.3d 331, 334 (3d
Cir. 2007). In this case, a hearing is unnecessary, and the
Motion will be disposed of on the record.
Motion rests on three arguments: 1) that the Government did
not disclose information related to a trial witness, Mark
Wolper, in violation of Brady v. Maryland, 83 S.Ct.
1194 (1963); 2) the proceeding, related to the Court-ordered
new trial, violated his right against double jeopardy, and
counsel was ineffective for failing to so argue; and 3) he
was entitled to, and did not receive, a restitution hearing.
The Government opposes the Motion on timeliness grounds, and,
in the alternative, on substantive grounds.
recited supra, Defendant was convicted by a jury on October
24, 2016. On November 11, 2016, after the appointment of new
counsel, Defendant moved for a new trial. By Opinion and
Order dated May 1, 2017, the Court granted Defendant's
Motion. The jury verdict was vacated, and a new trial
scheduled. Thereafter, on August 29, 2017, Defendant entered
a plea of guilty. He was sentenced on January 10, 2018. No.
appeal was taken.
Brady claim centers on the Government's alleged failure
to disclose impeachment information regarding Mark Wolper, a
witness at trial. Defendant, referring to the trial that led
to his now-vacated 2016 conviction, characterizes Wolper as
the Government's primary witness. He contends that the
Government failed to disclose Wolper's criminal history.
In particular, Defendant points to the criminal proceeding
against Wolper in this Court, at W.D.Pa. Docket No. 16-07,
which was commenced by Information on January 26, 2016.
Wolper pleaded guilty in that matter on March 7, 2016, and
was sentenced on January 5, 2017. Defendant further contends
that Wolper is the subject of three sealed indictments that
were withheld from him. This Court's docket reflects no
such indictments, and Defendant has not identified them by
court, case number, or otherwise, or cited to the source of
Defendant's trial, on October 6, 2016, Wolper was subject
to cross-examination. On cross examination, defense counsel
questioned Wolper about his guilty plea to the federal fraud
charge, and the fact that Wolper's sentencing had been
postponed pending his assistance at Defendant's trial.
Docket No. 173, pp. 81-83, 90. Defense counsel specifically
addressed Wolper's hope that “the Government will
find that [his] testimony was satisfactory and will recommend
to Judge Ambrose that you be spared of jail time[.]”
Id. at 83. On redirect, the Government likewise
addressed Mr. Wolper's plea agreement. Id. at
response to Defendant's Motion, the Government submits a
September 14, 2016 letter to defense counsel, enclosing a CD
containing Jencks Act materials, along with the contents of
that CD. This submission reflects that the Government
provided various pertinent information to defense counsel,
and that it provided a copy of Wolper's plea agreement,
along with a letter dated October 19, 2015, that Government
counsel wrote to Denise Bonfilio (“Bonfilio
letter”), a defendant in a different case who had filed
a Section 2255 Motion alleging a Brady violation. The letter
to Ms. Bonfilio recounted Government evidence-gathering in
the course of the present Defendant's trial, related in
part to Wolper. Defendant does not challenge the
Government's submission, in terms of its validity,
occurrence, or otherwise.
addition to Wolper's criminal history, defendant also
asserts that the Government failed to disclose unspecified
“information relating to two mortgage fraud
schemes” related to Wolper: one involving Citizens
Settlement Services (“CSS”), and one involving
Lender's Corner, which worked with CSS. The Bonfilio
letter disclosed to the defense divulges significant
information about both CSS and Lender's Corner. Defendant
points to the involvement in one scheme of Michelle Barone,
who testified at Defendant's trial. Ms. Barone entered a
plea of guilty on May 22, 2014, at this Court's docket
no. 14-113. She was sentenced on October 7, 2015. During her
testimony at Defendant's trial on October 17, 2016, both
counsel for the Government and Defendant questioned Ms.
Barone about her federal charges and related plea agreement.