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United States v. Nassida

United States District Court, W.D. Pennsylvania

October 17, 2019

UNITED STATES
v.
JAMES NASSIDA

          OPINION AND ORDER SYNOPSIS

          Donetta W. Ambrose Senior Judge, U.S. District Court

         On 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.

         On July 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.

         OPINION

         I. SECTION 2255

         Relief 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.

         II. DEFENDANT'S MOTION

         Defendant's 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.

         A. BACKGROUND

         As 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.

         Defendant's 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 his information.

         During 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 103-04.

         In 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.

         In 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. ...


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