The opinion of the court was delivered by: Glasser, United States District Judge
On November 26, 1993, the defendant was convicted after a trial by jury of both counts of a two count indictment. Count One charged that between February 22, 1988 and May 3, 1988, the defendant and Robert Bisaccia, together with John Gotti, Salvatore Gravano, Giovanni Gambino, Giuseppe Gambino, Lorenzo Mannino and others, for the purpose of gaining entry to and maintaining and increasing their positions in the Gambino Family, an enterprise engaged in racketeering activity, conspired to murder Francesco Oliveri in violation of 18 U.S.C. § 1952B(a)(5). Count Two, re-alleging the foregoing premises, then charges that on May 3, 1988, the defendant and Robert Bisaccia, together with those named, murdered Francesco Oliveri in violation of 18 U.S.C. § 1952B(a)(1).*fn1
Represented by new counsel, Stantini moved for a new trial in April 1994, based on Fed. R. Cr. P. 33 and 28 U.S.C. § 2255 (calendar entry #66). He claimed that his Sixth Amendment right to counsel had been violated because his trial counsel, Charles Carnesi, simultaneously represented Lorenzo Mannino in the Southern District and by virtue thereof labored under a conflict of interest that adversely affected his representation of Stantini in this district with respect to both plea negotiations and the defense strategy selected at trial.
Oral argument on the motion was heard on May 26, 1994 (calendar entry #75). An evidentiary hearing was not held and in a Memorandum and Order dated April 12, 1995, the Court held that (1) the motion pursuant to Rule 33 was untimely; and that (2) the submissions in support of the motion pursuant to § 2255 were facially insufficient, did not warrant a hearing, and the motion was denied. As regards the denial of the § 2255 motion, the Court held that Stantini failed to establish that Carnesi was conflicted during plea negotiations and failed to establish that Carnesi's alleged concerns about the effect of a plea of guilty by Stantini upon Mannino's case in the Southern District were realistic. In addition, the court held that Stantini failed to establish a relationship between Carnesi's representation of Mannino and an available plausible strategy for his defense which was not pursued.
On June 14, 1995, Stantini was sentenced to a term of imprisonment for 324 months to be followed by a five year period of supervised release (calendar entry #90). His sentence was driven by Count Two, the substantive Count of Murder in Aid of Racketeering, because the conspiracy to commit that crime charged in Count One was punishable by a statutory maximum sentence of ten years. On June 21, 1995, he filed a Notice of Appeal (calendar entry #93).
The simultaneous representation of Mannino and Stantini by Carnesi and the alleged conflict of interest under which Carnesi labored thereby was again argued on appeal. He also argued that the ruling on that issue by this Court without a hearing was error, and for the first time he also argued that because the Court was aware of Carnesi's conflict of interest, the failure to inquire into it required an automatic reversal of his conviction. Finally, Stantini argued that the Court's instruction to the jury on the conspiracy to murder charge was legally wanting. The Court of Appeals affirmed his conviction and sentence in an opinion reported in 85 F.3d 9 (2d Cir. 1996), in which every claim that his conviction should be reversed was comprehensively addressed.
In a prior opinion, reported in 268 F. Supp. 2d 168, 170 (E.D.N.Y. 2003), I wrote that although the reader's familiarity with prior opinions is generally presumed, "perhaps I should also presume the unlikelihood that they will be accessed and read and that a summary historical evolution of this case" following the affirmance by the Court of Appeals would be useful. That affirmance did not terminate this case. In a real sense, it marked only the beginning of it.
On June 5, 1997, now acting pro se, Stantini filed a motion pursuant to 28 U.S. § 2255 reasserting and adding a new claim of Carnesi's ineffectiveness; asserting the ineffective assistance of Futerfas, his counsel on appeal; and adding a violation of the government's Brady obligation. Having taken note that his prior motion pursuant to Fed. R. Cr. P. 33 was also styled as being pursuant to 28 U.S.C. § 2255, I regarded this motion as a second and successive one pursuant to that section and transferred it to the Court of Appeals in accordance with Liriano v. United States, 95 F.3d 119 (2d Cir. 1996), for that Court to decide whether the filing of this second motion should be permitted. Stantini v. United States, 986 F. Supp. 736 (E.D.N.Y. 1997). The Court of Appeals decided to return that motion to me for further proceedings, holding that because Stantini had not yet been sentenced when I decided the first motion, this motion seeking leave to file a second motion was unnecessary. Stantini v. United States, 140 F.3d 424 (2d Cir. 1998).
Upon return to this Court, and now represented by new counsel, Stantini also joined the motion of his co-defendant, Robert Bisaccia, to disqualify me pursuant to 28 U.S.C. § 455, from proceeding further on his § 2255 motion. I will refrain from relating the seven asserted claims for my disqualification beyond stating that they were denied for the reasons stated in Stantini v. United States, Nos. 97-CV-3659 (ILG), 97-CV-6683 (ILG), 2000 WL 70314, at *1-5 (E.D.N.Y. April 12, 2000). Stantini's § 2255 claims were bottomed upon his assertion of conflicts of interest that were concealed from him, the ineffective assistance he received from his trial and appellate counsel, Carnese and Futerfas, in regard to his Rule 33 motion and on appeal and the government's violation of its obligation imposed by Brady v. Maryland. I will refrain here as well, from relating the elaboration of those claims and the extensive discussion of the reasons for denying them. See id. at *7-15.
Shortly thereafter, Stantini moved for reconsideration of the denial of his § 2255 motion and in the alternative, for an order altering or amending the judgment pursuant to Fed. R. Civ. P. 59(e), or granting relief from the judgment pursuant to Rule 60(b). Concluding that his motion, whether denominated as one under Rule 59(e) or Rule 60(b), must be viewed as a second or successive motion, I transferred them to the Court of Appeals for certification as a second or successive petitions. His motion for reconsideration was denied in accordance with Local Rule 6.3. Stantini v. United States, Nos. 97-CV-3659 (ILG), 97-CV-6683 (ILG), 2000 WL 1677747 (E.D.N.Y. Sept. 18, 2000).
The denial of his § 2255 motion and his motion to reconsider that denial or in the alternative his motion pursuant to Fed. R. Civ. P. 59(e) or 60(b), was followed by an application to this Court for a Certificate of Appealability. He also filed motions pursuant to the Fed. R. Civ. P. 59(e) and 60(b), addressed to those denials. In yet another lengthy and comprehensive opinion, his request for a Certificate of Appealability and relief pursuant to the Fed. R. Civ. P. were denied. Stantini v. United States, 268 F. Supp. 2d 168 (E.D.N.Y. 2003).
Mention should also be made of a letter motion dated February 25, 2003, in which Stantini requested a new trial based upon newly discovered evidence. That motion was also denied in Stantini v. United States, Nos. 97-CV-3659 (ILG), 97-CV-6683 (ILG), 2003 WL 21056981 (E.D.N.Y. March 3, 2003).
Notwithstanding the proliferation of motions already filed by Stantini, yet another motion, now pending, was filed by him, seeking an order that would modify and reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Ironically, he begins by writing that his motion "is brought on the entire record of proceedings . . . and section 2255 related petitions [which] is lengthy and complex, and a comprehensive review of those facts, or even a thorough summary of them would be voluminous, and is avoided here in the interest of judicial economy." Def. Memorandum of Law in Support of Motion at p.3 ("Def. Memo") (emphasis mine).
The Grounds Upon Which This Motion Is Based As has been already noted, Stantini and his co-defendant Robert Bisaccia were indicted on April 29, 1993, in a two count indictment charging them in Count One with conspiracy to murder Francesco Oliveri for the purpose of maintaining or increasing their position in a racketeering enterprise and, in Count Two they were charged with murdering Oliveri for the same purpose. That Count read as follows:
On or about May 3, 1988, in the Eastern District of New York, the defendants, Robert Bisaccia, also known as "Cabert" and Orazio Stantini, also known as "Ozzie" together with John Gotti, Salvatore Gravano, Giovanni "John" Gambino, Giusuppe "Joe" Gambino, Lorenzo Mannino and others, for the purpose of gaining entrance into, maintaining and increasing position in the Gambino Family, an enterprise engaged in racketeering activity, murdered Francesco Oliveri. (Title 18, United States Code, Sections 1952B(a)(1) (1984), 2 and 3551 et seq.) At trial, the Court instructed the jury as follows: The statute the defendants are charged with violating provides, in relevant part, as follows:
Whoever . . . for the purpose of maintaining or increasing position in an enterprise engaged in racketeering activity, murders . . . any individual in violation of the laws of any state or the United States . . . shall be punished.
The court then instructed them that the government was obligated to prove four elements beyond a reasonable doubt, among which were:
The Second Element that the government must prove beyond a reasonable doubt is that the defendant you are considering murdered Francesco Oliveri in violation of the New York Penal Law.
The Third Element that the government must prove beyond a reasonable doubt is that the defendant you are considering acted knowingly and wilfully. An act is done knowingly if it is done voluntarily and purposely, and not because of mistake, accident, negligence or any other innocent reason. An act is done wilfully if it is done with the specific intent to do something the law forbids, that is to say, with a bad purpose either to disobey or disregard the law.
New York Penal Law § 125.25 provides that:
A person is guilty of murder in the second degree when . . . with intent to cause the death of another person, he causes the death of such person.
The New York Penal Law was charged because § 1952B(a)(1) prohibits the murder of any individual in violation of the laws of any state or the United States. (Emphasis mine).
The only law of the United States addressing the murder with which Stantini was charged is 18 U.S.C. § 1111, set out below.
The Presentence Investigative Report ("PSI") prepared following the conviction of the defendants of both counts found the base offense level for both to be 43.
The guideline for an 18 U.S.C. § 1952B(a)(1) offense is 2E1.3(a)(2) which refers to the guideline for the underlying racketeering activity. Since the underlying racketeering activity is murder, the applicable ...