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Contino v. United States

December 28, 2007

JOHN CONTINO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

MEMORANDUM AND ORDER

John Contino ("Contino" or "petitioner") was charged along with nineteen co-defendants in a twenty-seven count indictment filed on March 24, 2004.*fn1 The indictment included racketeering, loansharking, gambling, extortion and related conspiracies counts. Contino himself was named in ten counts.*fn2

Following a lengthy period for the conduct of pretrial discovery and pretrial motions,*fn3 and the entry of guilty pleas by more than half of the co-defendants,*fn4 jury selection was scheduled to commence on January 3, 2007. After six weeks of negotiation between Contino's counsel and prosecutors, on December 5, 2006 Contino signed a plea agreement, and entered a plea of guilty to Count One of the indictment. The government then dismissed the remaining nine counts pending against him.

The following month trial proceeded as scheduled against the six remaining co-defendants. The jury, unable to reach a unanimous decision on many counts in the indictment, returned a partial verdict on February 27, 2007. As to those counts on which the jury was unanimous, it found Christopher Colombo and John Berlingieri guilty on Count Three (gambling conspiracy), and Count Four (operating an illegal gambling business), but found various co-defendants not guilty on Counts One, Five, Six, Nine, Ten, and Twelve respectively. On Count One, the substantive RICO count to which Contino had pled, the jury unanimously found Anthony Colombo and John Berlingieri not guilty, but did not reach a unanimous verdict on two other co-defendants named in that count.

Months later and just three days before Contino was scheduled to be sentenced, on May 14, 2007 this Court received a letter indicating that Contino wanted to switch attorneys, and that now, six months his plea, Contino might seek to withdraw his plea. However, after two conferences with this Court, and recognizing the risk inherent in challenging his plea prior to sentencing, and thereby perhaps losing the reduction in his offense level for acceptance of responsibility, Contino and his new counsel ultimately decided to refrain from challenging the plea until after Contino's sentencing. On June 21, 2007, consistent with his plea agreement Contino was sentenced to 37 months in prison.*fn5

Thereafter, on August 7, 2007, Contino filed this petition for a Writ of Habeas Corpus under 28 U.S.C. § 2255 seeking to vacate his guilty plea and sentence on the grounds of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Contino alleges that he received ineffective assistance, and therefore his guilty plea was not voluntary and intelligent. See Brady v. United States, 397 U.S. 742, 748 (1970)(holding that only an intelligent guilty plea is constitutionally valid). Contino advances three arguments to support the contention that he received ineffective assistance. First, he claims that his counsel failed to explain to him the elements of the offense to which he pled guilty, 18 U.S.C. § 1962, (the Racketeer Influenced and Corrupt Organizations Act ("RICO")), and also failed to explain the elements of the predicate racketeering acts that underlie the RICO offense. Second, Contino claims that his counsel failed to investigate the factual basis for the monetary loss amount suggested by the government in the plea agreement. Third, Contino claims that his counsel misled him as to the likelihood of this Court sentencing him below the 37-46 month range that was stipulated in the plea agreement, and counsel further misled him as to counsel's ability to argue for a sentence below that range despite explicit restrictions in the plea agreement that forbade any such arguments.

For the reasons set forth below, we deny Contino's petition in its entirety.

Background*fn6

A. The Indictment and Pre-Trial Proceedings

The original indictment in United States v. Colombo et. al., 04 CR 273 (NRB)(S.D.N.Y. filed Mar. 24, 2004) was 55 pages long. It began with a history of the Colombo Organized Crime Family, including the factional war between Carmine Persico and Victor Orena, and alleged that some of the 19 indictees in this case, including Contino, were part of a criminal organization that the government dubbed the "Colombo Brothers Crew," an "offshoot" of the Colombo Organized Crime Family. The enterprise existed to enrich its members and augment its powers and its members engaged in a host of criminal conduct to further its purposes.*fn7 The indictment specified the ranks assigned to the different indictees within the crime family, and labeled Contino as an "associate."*fn8

The charges against each indictee, including Contino, were specific, and comprehensively laid out. The focus here is on those aspects of the indictment to which John Contino pled, namely Count I, the substantive RICO count, and Racketeering Acts Eight (conspiracy to extort EDP) and Nine (extortion and fraud in connection with the no-show job of Anthony Colombo's immediate family member). In Racketeering Act Eight, the indictment alleged that Contino and others committed extortion of the EDP Entities ("EDP Entities"), a consortium of New York construction businesses owned by Dominic Fonti.*fn9 Contino and his co-defendants used corrupt influence over, and extortionate control of EDP Entities to obtain hundreds of thousands of dollars in compensation for themselves, and no-show jobs for members of Anthony Colombo's family and other employment benefits for members of the racketeering enterprise. Racketeering Act Nine alleged that Contino by means of extortion and/or mail fraud caused the EDP Entities to pay an immediate family member of Anthony Colombo tens of thousands of dollars. The government further alleged that after Contino gained extortionate control of the EDP Entities, he used that control to defraud DoubleClick, Inc., ("DoubleClick") a publicly-traded internet advertising company by the submission of fraudulent invoices for services allegedly rendered by the EDP Entities to DoubleClick and by paying kickbacks to an employee of DoubleClick .*fn10

For his counsel, Contino retained Vincent J. Martinelli, Esq., ("Martinelli"), an experienced criminal defense lawyer.

The volume of discovery, the number of defendants, the number of pretrial motions, a necessary counsel change due to the indictment of counsel for a lead defendant, all resulted in an extended pretrial period. Contino does not raise any issue with respect to Martinelli's performance during this entire period. Indeed, Martinelli attended all conferences, spoke up on behalf of his client, and submitted a thorough "Omnibus Motion" on Contino's behalf in August, 2005.*fn11 The Court ruled on Contino's motion, in conjunction with similar motions made on behalf of other defendants, in a 51 page opinion dated July 18, 2006.

B. Contino's Plea Negotiations

As the trial date neared, Contino's counsel and the government pursued plea negotiations. On October 19, 2006, the government offered Contino a plea agreement with a stipulated range of 37-46 months imprisonment. At this time, the government also informed Contino that if he proceeded to trial and was found guilty, his sentence range would be somewhere "in the vicinity of 97 months."*fn12

Upon receipt of this offer, Martinelli apparently told the Assistant United States Attorneys that the offer was "within the ballpark," and it "sounds like we're close."*fn13 Martinelli asked for a week to give his client time to consider the deal. The next week, on October 27, 2006, Martinelli counter-offered with a stipulated range of 27 to 33 months imprisonment. The government rejected Martinelli's counter-offer, and informed Martinelli that it stood firm in its initial offer of 37 to 46 months.

After considering the government's position for several weeks, on November 30, 2006 Contino agreed to accept the government's offer of 37-46 months. This was confirmed by a letter from Martinelli to the government, dated November 30, 2006, stating that Contino, "intends to plead guilty as per terms and conditions discussed (i.e. generally, level 20, 37-46 months, etc.)."*fn14

In response, on December 4, 2006 the government sent Contino a written plea agreement.*fn15 The written draft provided that Contino would plead guilty to Count One (the substantive RICO count), and he would allocute to Racketeering Act Eight (conspiracy to extort the EDP Entities), and Racketeering Act Nine (extortion and mail fraud in connection with a no-show job for an immediate family member of Anthony Colombo at EDP Entities).*fn16 Further, the plea agreement set forth a criminal history category of I, a loss amount of $800,000 to $1,500,000, and a corresponding offense level of 21.

The offer also contained so-called "Type A" restrictions, which prohibited either side from arguing for a sentence outside of the stipulated 37-46 month range.*fn17 Another provision stipulated that Contino would "neither appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range of 37-46 months."*fn18

Contino alleges that he and his attorney were disappointed with certain of the terms of the written plea offer when they received it on December 4, 2006. First, Contino states that December 4, 2006 was the first he heard that the plea offer would contain the "Type A" restrictions.*fn19 There is evidence, however, that the restrictions had always been part of the deal, and had been known to Contino prior to December 4. The government maintains that its offer had always been for a completely restricted, "Type A" plea,*fn20 and the record contains an e-mail from Martinelli to Contino's new counsel, Michael S. Washor, Esq., in which Martinelli writes that he and Contino had in fact discussed the restriction.*fn21

Martinelli and Contino's second concern with the written agreement was the stipulated monetary loss amount, and the corresponding "offense level" under the Sentencing Guidelines. During their negotiations, Martinelli and the government had proceeded on the understanding that Contino had a criminal history category of II, and that he would plead to a monetary loss amount which would equal an offense level of 20. The combination would correspond to a Sentencing Guidelines range of 37-46 months. The written agreement, however, indicated that Contino had a lower criminal history category, I not II, but called for Contino to plead to a higher monetary loss ($800,000 to $1,500,000), which would result in an offense level of 21, thereby maintaining the agreed upon Sentencing Guidelines range. Under either combination (II, 20) or (I, 21), the Sentencing Guidelines set forth a range of 37-46 months.

After receiving the draft, Martinelli made numerous calls to the U.S. Attorney's Office in an effort to eliminate the "Type A" restrictions and to reduce the offense level to 20. Martinelli called both Assistant U.S. Attorneys assigned to this case as well as their supervisors. The government, however, would not retreat from its consistent position that Contino had to plead to a Guidelines range of 37-46 months. The government also informed Contino that if he did not plead guilty as scheduled the following day, December 5, 2006, the offer would be taken off the table.

On the evening of December 4, 2006 Martinelli, Contino, and Contino's wife Denise debated whether or not to accept the deal. Contino met with Martinelli at Martinelli's office. After Contino left, Martinelli called Denise Contino to discuss the plea with her. Martinelli pointed out to both Contino and his wife that Contino faced a far greater sentence if he went to trial and was convicted.*fn22

Contino claims that he was deeply uncertain about whether or not to accept the plea agreement, and that he felt pressure to accept the plea both from the government and from Martinelli.*fn23

Contino claims that a pivotal factor in his analysis was Martinelli's assurance that the Court would be free to sentence Contino to a shorter jail term than the agreed upon 37-36 months, and that Martinelli would make submissions to persuade this Court to exercise its discretion.*fn24

C. Contino's Plea

Contino decided to proceed with his plea. The next morning, December 5, 2006, he signed the plea agreement, and appeared before this Court to plead guilty to Count One of the indictment.

Before accepting Contino's plea, this Court conducted an extensive allocution as prescribed by Rule 11 of the Federal Rules of Criminal Procedure. After placing Contino under oath, this Court asked Contino a series of questions to determine his competency.*fn25 Then the Court asked Contino whether he had had enough time to consider the offer, and whether he was satisfied with his legal representation:

COURT: Have you had sufficient time to discuss the charges against you and your plea with your attorney Mr. Martinelli?

DEFENDANT: Yes, your honor.

COURT: Have you been satisfied with the advice and counsel that ...


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