United States District Court, E.D. New York
April 14, 2004.
NICOLAS COLUCCIO, Petitioner, -against- UNITED STATES, Respondent
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Nicolas Coluccio ("Coluccio" or "Petitioner") moves this Court to
vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255 and 2241. Coluccio also asks the Court for an order
"permitting defendant to withdraw [his] guilty plea and conducting an evidentiary hearing [on his claims in the instant petition]." Pet.
at 1. For the reasons stated below, Coluccio's petition, motion to
withdraw his guilty plea, and request for an evidentiary hearing are
denied in their entirety.
Nicolas Coluccio was charged as being a co-conspirator in a
Klein scheme in the early to mid 1990s to defraud the United
States by "impeding, impairing, obstructing, and defeating the law
government functions of the Internal Revenue Service" in violation of
18 U.S.C. § 371. Indictment at 2-3. Specifically, Coluccio participated
in "a wide-spread scheme of Royce Aerospace to obtain cash to pay kick
backs." Sent. Mins. at 15. He personally cashed approximately $76,000 in
Royce Aerospace checks, some of which were issued to fictitious
companies, and then he gave the money to his co-defendants to enable them
to pay kickbacks to secure Government contracts. The cash received from
these checks was not declared and these checks were fraudulently recorded
as business deductions on Royce's corporate income tax returns.
On June 12, 1998, Coluccio pled guilty before this Court to the sole
count in the indictment, namely, conspiracy-to-defraud, in violation of
18 U.S.C. § 371. During his allocution, Coluccio stated that "during
the early to mid 90s, I agreed with others to defraud the government by
impairing the ability of the IRS to ascertain income taxes. As part of
that agreement, I cashed checks on a number of occasions at Chemical
Bank. Although not personally aware of many of the allegations in the
indictment, and although I did not personally derive any benefit from engaging in such conduct, I was aware and
knew that my actions would somehow result in the government being
frustrated in ascertaining income tax." Plea Mins. at 21-22. Coluccio
further acknowledged that, when he "cashed the checks," he knew that
"this was part of a conspiracy to prevent somebody from paying taxes."
Id. at 22. In addition, he stated that he realized that these
cashed checks would have to be "legally report[ed] but that [he was]
helping them in the scheme to hide . . . the failure to pay taxes."
Id. The Court accepted Coluccio's guilty plea.
On October 16, 1998, this Court sentenced Coluccio to probation for
three years, a $5,000 fine and a $100 special assessment. Coluccio did
not directly appeal his conviction to the Second Circuit or seek any
other post-conviction relief.
On October 15, 1999, Coluccio filed the instant petition, alleging that
(1) he was denied the effective assistance of counsel by Andrew J.
Weinstein, Esq., in that counsel failed to properly advise him of the
"deceitful/dishonest means" element of a Klein conspiracy before
he pled guilty and counsel did not conduct an adequate investigation; (2)
his guilty plea was obtained in violation of Rule 11 of the Federal Rules
of Criminal Procedure because the Court "failed to personally inform and
discuss with Mr. Coluccio the four essential elements of the
Klein conspiracy," Pet. at 13; and (3) his due process rights
were violated because his guilty plea was not knowing, intelligent, or
voluntary due to the fact that he was unaware of the "deceitful/dishonest
means" element of the conspiracy charge at the time he pled guilty.
Coluccio also claims that the indictment was deficient as to informing
him of this element. Coluccio concludes that he "realize[s] now that [he is] in fact
innocent of the crime to which [he] pled guilty" because there was
insufficient evidence to prove the "deceitful/dishonest means" element of
the conspiracy. Pet'r Aff. at 3. He bases this conclusion, in large part,
upon the fact that his co-defendants, Anthony Sainato and Vincent
Sainato, utilized this defense at trial and were acquitted. Pet. at 10.
Because Coluccio claims he was uninformed of all the essential elements
of a Klein conspiracy at the time of his guilty plea, he also
moves to withdraw his guilty plea and asks the Court to conduct an
evidentiary hearing on his claims.
The crux of Coluccio's petition is that he was never informed by
counsel, the Court, or the prosecution, of the "deceitful/dishonest
means" element of a Klein conspiracy under 18 U.S.C. § 371.
This argument mirrors the claim raised by his co-defendants Anthony and
Vincent Sainato, in their motion to dismiss a separate superceding
indictment as deficient for failure to explicitly state the "deceitful or
dishonest means" by which the IRS was impeded. See United States v.
Sainato, 33 F. Supp.2d 155 (E.D.N.Y. 1998). The Court notes that
Dale L. Smith, Esq., Petitioner's present counsel, also represented
Vincent Sainato in that motion, which addressed Mr. Sainato's
responsibility in the Klein conspiracy involving Royce
Aerospace. That indictment reflects the same exact language used in the
As this Court held in Sainato, "`it is well-established that
the term `defraud' as used in section 371 . . . `not only reaches
schemes which deprive the Government of money or property, but also is designed to protect the integrity of the
United States and its agencies.'" Sainato, 33 F. Supp.2d at 158
(quoting United States v. Ballistrea, 101 F.3d 827, 831 (2d Cir.
1996)). This Court noted that "[Section 371] covers acts that `interfere
with or obstruct one of [the United States] lawful Governmental functions
by deceit, craft or trickery, or at least by means that are dishonest.'"
Sainato, 33 F. Supp.2d at 158 (quoting Ballistrea, 101
F.3d at 831). As enunciated in Ballistrea, the four elements of
a Klein conspiracy are: (1) the defendant entered into an
agreement with one or more people; (2) to obstruct a lawful Government
function; (3) by deceitful or dishonest means; and (4) committed at least
one overt act in furtherance of the conspiracy. Id. at 832
(citing United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir.
This Court finds, as it did in Sainato, that the indictment
was sufficient as a matter of law and that it fully informed the
Petitioner of the "deceitful/dishonest means" element of the crime to
which he pled guilty. Similar to the Sainato indictment, the
present indictment used the same exact language to describe Section 371
and specified the time frame of the conspiracy, the checks involved, and
the periods of the conspiracy. Utilizing the "Second Circuit's `common
sense' approach to reading indictments . . . the allegation that the
defendants conspired to defraud the IRS by issuing checks to fictitious
individuals and entities makes out an act of `dishonesty and deceit,'
even without the ritualistic recitations of the words `deceitful and
dishonest.'" Sainato, 33 F. Supp.2d at 159. Therefore,
Coluccio's claim that he only pled guilty because he believed he would be
found guilty of this crime by simply cashing the Royce checks lacks merit, because he was well-informed
by the indictment that the prosecution must prove that he committed an
act of dishonesty or deceit. See Coluccio Aff. at 3.
Further, the Petitioner admitted in his plea allocution that he "agreed
with others to defraud the government by impairing the ability of the IRS
to ascertain income taxes." Plea Mins. at 21. He stated that, "when he
cashed the checks," he knew that "this was part of a conspiracy to
prevent somebody from paying taxes . . . and these cashed checks would
have to be "legally report[ed] but that [he] was helping them in the
scheme to hide . . . the failure to pay taxes." Id. at 21-22.
Therefore, Coluccio was aware of the "deceitful or dishonest means"
element at the time of his guilty plea and he cannot claim that counsel
never informed him of this element, or that the Court never advised him
of this element, and that the indictment did not clearly properly set
forth this element.
In addition, Andrew J. Weinstein, Esq., Coluccio's then counsel, states
in an affidavit that he properly advised Coluccio of all the
Klein elements. In his affidavit, Mr. Weinstein states that he
extensively discussed the defenses available to Petitioner, including
challenging the "deceitful or dishonest means" element. See
Andrew J. Weinstein Aff. at 7-10. Based upon Petitioner' desire to avoid
a trial and to prevent further charges on his "uncharged criminal
conduct," counsel reached a favorable disposition that avoided any time
in prison for the Petitioner. Id. at 5-6. Mr. Weinstein also
informed Coluccio that if he proceeded to trial, the Government would
have to prove more than the mere fact that Petitioner cashed these checks in order to convict him. Id. at 8 ("I very clearly
told Mr. Coluccio that he could not be convicted if all that he
did was innocently cash the Royce checks as part of his regular banking
and job responsibilities").
In any event, the Court finds that Mr. Weinstein was constitutionally
effective as counsel, including his decision not to further investigate
Royce employees. See Strickland v. Washington, 466 U.S. 668,
691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("counsel has a duty to
make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary").
Also, Petitioner did not pursue a direct appeal on his claim that he
did not give a knowing and voluntary plea. "A motion under § 2255 is
not a substitute for an appeal." Rosario v. United States,
164 F.3d 729, 732 (2d Cir.), cert. denied, 527 U.S. 1012,
119 S.Ct. 2355, 144 L.Ed.2d 250 (1999) (citing United States v. Munoz,
143 F.3d 632, 627 (2d Cir. 1998)). Because Coluccio did not file a direct
appeal, he can only bring this Section 2255 petition upon a showing of
cause and prejudice resulting therefrom or actual innocence.
Rosario, 164 F.3d at 732. Coluccio fails to demonstrate cause
and prejudice and he does not claim actual innocence. Moreover, his
argument that he "would have filed a notice of appeal and challenged his
conviction if he had been made aware of the [deceitful/ dishonest
element]," Pet. at 5, lacks merit because he was cognizant of all the
Klein elements at the time of his plea allocution and, well
before his time to appeal expired.
With the benefit of hindsight and apparently expressing envy upon
hearing of his co-defendants' acquittal, Petitioner insists on blaming counsel for his own
knowing decision to plead guilty. The Court notes that Petitioner avoided
serving any prison time and in fact, his probation sentence has now been
completed. In sum, after reviewing his petition, the Court believes that
Petitioner was not denied the effective assistance of counsel; his guilty
plea was properly obtained; and his due process rights were not violated.
Coluccio gave a knowing, intelligent, and voluntary guilty plea.
Accordingly, the Court denies Coluccio's petition and declines
to permit him to withdraw his guilty plea pursuant to Rule 32(d) of the
Federal Rules of Criminal Procedure.
For the reasons stated above, Coluccio's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2255 and 2241, motion to withdraw his
guilty plea, and request for an evidentiary hearing are DENIED in their
entirety. Pursuant to Fed.R.App.Pro. 22(b) and
28 U.S.C. § 2253(c)(2), a certificate of appealability is denied, as
Coluccio has not made a substantial showing of a denial of a constitutional
right. Miller-El v. Cockrell, 537 U.S. 332, 336, 123 S.Ct. 1029, 1039,
154 L.Ed.2d 931 (2003); Luciadore v. New York State Div. of
Parole, 209 F.3d 107, 112 (2d Cir. 2000).
The Clerk of the Court is directed to close this case.
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