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Palermo v. United States

August 16, 2010

GIROLAMO PALERMO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION

Girolamo Palermo was convicted by a jury of racketeering in violation of 18 U.S.C. § 1962(c), racketeering conspiracy in violation of 18 U.S.C. § 1962(d), and conspiracy to commit murder in aid of racketeering activity in violation of 18 U.S.C. § 1959. He was sentenced principally to a prison term of 132 months on each of the first two counts, to run concurrently with a sentence of 120 months on the third count. Palermo, who is currently in prison serving his sentence, has petitioned this Court pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons below, the petition should be denied.

I. BACKGROUND

A. Trials, Sentencing, and Motion to Vacate

In 2002, Palermo was indicted in the United States District Court for the District of New Jersey in an 11-count indictment. Counts 3 through 7, consisting of one count of conspiracy to commit Hobbs Act extortion and three substantive counts of Hobbs Act extortion, were dismissed by the Court prior to the jury verdict, see Minutes, United States v. Palermo (D.N.J. filed Oct. 29, 2002), apparently on a motion under Fed. R. Crim. P. 29, see Memorandum of Law in Support of Post-Verdict Motion for Judgment of Acquittal Pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, dated Nov. 11, 2004 (annexed as Ex. A-2 to Memorandum of Law of the United States of America in Opposition to Petition of Girolamo Palermo Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct His Sentence (Docket # 5) ("Resp. Br.")) ("Post-Verdict Mem."), at 6. The jury was given the following counts to consider: racketeering conspiracy with racketeering acts consisting of Hobbs Act extortion, bribery of a public servant, and travel and use of interstate facilities to bribe a public servant (Count 1); racketeering as a substantive offense (Count 2); conspiracy to travel and use interstate facilities to bribe a public servant (Count 8); and three counts of travel and use of interstate facilities to bribe a public servant (Counts 9, 10, and 11). See Superseding Indictment, United States v. Palermo (D.N.J. filed June 6, 2002) (annexed to Letter from Harris Fischman to the Hon. Gabriel W. Gorenstein (June 17, 2010), filed July 28, 2010 (Docket # 720) ("June 17 Letter")); Judgment of Acquittal, United States v. Palermo (D.N.J. filed Nov. 22, 2002) (annexed to "June 17 Letter") ("Judgment of Acquittal"). After trial, the jury acquitted Palermo of count 11 -- the third count of travel and use of interstate facilities to bribe a public servant, and a mistrial was declared as to counts 1, 2, 8, 9, and 10. See Judgment of Acquittal.

Separately, Palermo was charged in the United States District Court for the Southern District of New York with the following crimes: Count 1: racketeering in violation of 18 U.S.C. §§ 1962(c) based on predicate acts of (a) conspiracy to commit murder in violation of N.Y. Penal Law §§ 105.15, 125.25 and N.J. State Law §§ 2C:5-2, 2C:11-3, (b) construction industry extortion in violation of 18 U.S.C. § 1951, and (c) financing extortionate extensions of credit and conspiracy to make and collect extortionate extensions of credit in violation of 18 U.S.C. §§ 892- 94;*fn1 Count 2: racketeering conspiracy in violation of 18 U.S.C. § 1692(d); Count 3: conspiracy to commit murder for the purpose of gaining entrance to and maintaining and increasing his position in the racketeering enterprise or for a promise of payment from the enterprise in violation of 18 U.S.C. § 1959; Count 4: financing extortionate extensions of credit; Count 5: conspiracy to make extortionate extensions of credit; Count 6: conspiracy to collect extortionate extensions of credit; and Count 7: construction industry extortion. See Indictment, filed Aug. 6, 2003 (Docket # 442 in S.D.N.Y. 00 Cr. 1118), at 1-16. Following trial in 2003, a jury convicted Palermo on counts 1, 2, 3, and 7, and acquitted him on counts 4, 5, and 6. See Judgment in a Criminal Case, filed July 18, 2006 (Docket # 612 in 00 Cr. 1118) ("Criminal Judgment");*fn2 see also 7/7/06 Tr. 3.*fn3

After his conviction, Palermo's counsel made a motion for entry of a judgment of acquittal on all counts based on the Government's failure to prove venue and, as to counts 1, 2, and 7, on the ground that prosecution of those counts was barred by the Double Jeopardy Clause of the Fifth Amendment because Palermo had previously been tried on charges involving similar conduct in the New Jersey case. See Post-Verdict Mem. at 5-19. Palermo also moved for a new trial, alleging that the court erred in admitting guilty pleas of his co-defendants into evidence and failing to admit a tape-recording offered into evidence by Palermo under the doctrine of completeness. See id. at 1-4, 19-23; 7/6/06 Tr. 3. Prior to sentencing, Judge Michael B. Mukasey granted the motion to dismiss count 7 on both venue and double jeopardy grounds, but denied the remaining motions. (7/6/06 Tr. 3-10).

On July 13, 2006, Palermo was sentenced by Judge Mukasey to terms of imprisonment of 132 months on each of counts 1 and 2 and to a term of 120 months' imprisonment on count 3, all to run concurrently, followed by concurrent terms of supervised release for three years, and a mandatory special assessment of $300. See 7/13/06 Tr. 6; Criminal Judgment.

B. Appeal

Palermo appealed his conviction to the Second Circuit. See United States v. Palermo, 291 F. App'x 418 (2d Cir. 2008). The court held that the admission of the co-conspirators' plea allocutions did not violate the Confrontation Clause of the Sixth Amendment, "[t]here was sufficient evidence to establish that Palermo's crimes were committed at least in part in the Southern District of New York," the admission of evidence of an uncharged crime was not an abuse of discretion, and any error in the exclusion of a tape-recorded conversation was harmless. Id. at 420-21. Palermo filed a petition for certiorari to the Supreme Court, which was denied on March 2, 2009. See Palermo v. United States, 129 S.Ct. 1538 (2009).

C. The Instant Petition

Palermo's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 was received by the Pro Se Office of this Court on December 3, 2009. See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed Jan. 6, 2010 (Docket # 1) ("Pet.").

II. LAW GOVERNING REVIEW OF SECTION 2255 PETITIONS

Section 2255(a) of Title 28 of the United States ...


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