United States District Court, S.D. New York
P. GRIESA U.S. DISTRICT JUDGE.
Barbarino ("Petitioner"), proceeding pro se, brings
this motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. For the reasons set forth
below, Petitioner's motion is denied.
Trial and Sentencing
2010, Barbarino was charged with securities fraud, wire
fraud, and conspiracy in connection with his decade-long
participation in an organized plan to defraud investors-many
of whom were elderly individuals- of $12 million. Barbarino
pled not guilty and was tried before a jury in March 2013.
Barbarino was represented by defense counsel Joel Stein in
connection with pretrial and trial proceedings.
heart of the Government's case was that for a decade,
Barbarino conspired with a group of men working for Powercom
Energy Services Corp. and Empire Energy Services Corp.
(collectively "Powercom/Empire") to defraud
innocent investors of millions of dollars. Barbarino and
Power com/Empire employees solicited investments from
potential investors and told them that the money would be
invested in a particular company, when in fact 40% of the
money was paid to Barbarino or a co-conspirator as
commission. One company Barbarino solicited investments in
was a small Florida-based company called RealCast. Barbarino
and his co-conspirators falsely represented to potential
investors that RealCast was on the verge of great success. In
the course of soliciting investments, Barbarino engaged in
deceptive practices, such as distributing misleading
documents to investors, misrepresenting the amount of
commission to be collected, mischaracterizing which company
he worked for, and misleading investors about the potential
of their investments. At the trial, the Government repeatedly
used the terms "boiler room, " "fraudsters,
" "cronies, " and "partners in
crime" to describe the scheme. Defense counsel
repeatedly objected to the Government's use of the
language. Trial Tr. 395, 399, 403, 483.
prove its case, the Government played recordings of Barbarino
and other co-conspirators discussing their roles in seeking
investments and their activities in furtherance of the plan
to defraud investors. The Government's witnesses included
several investors who never received returns on their money.
Dr. Frank Moore, an aggrieved investor, traveled from Alaska
to testify at trial, and was only available for limited
cross-examination before he needed to return home. Dr. Moore
was made available for further cross-examination via
telephone, but the parties reached an agreement that did not
require further cross-examination. Instead, the Government
stipulated to the admissibility of a document concerning Dr.
Moore's communication with Barbarino, and the defense was
satisfied. The Government also called Barbarino's
co-defendant, cooperating witness Jamil Fuller, to testify.
Fuller worked with Barbarino for many years and his testimony
directly implicated Barbarino in the plan to defraud
investors. Defense counsel cross-examined Fuller at length.
defense's key strategy at trial was to portray the
statements made to investors by Barbarino and his
co-conspirators as genuine and to attempt to demonstrate the
viability and potential of RealCast. The defense also
highlighted the supporting documentation Barbarino and his
co-conspirators sent to investors to demonstrate their
candor. The defense called a witness to testify about
RealCast's bank records.
and during trial, Barbarino suffered illness due to ongoing
health issues, including chronic obstructive pulmonary
disease. On the third scheduled day of trial, Barbarino
collapsed while waiting to enter the courthouse. An alternate
juror witnessed Barbarino's collapse and spoke to at
least one other juror about the incident. The court
questioned the alternate juror as well as another juror who
had heard about the incident. The court concluded that the
jurors could remain fair and impartial.
jury convicted Barbarino on all counts. On April 25, 2014,
the court sentenced Barbarino to 97 months' imprisonment
followed by three years' supervised release based on a
loss calculation of $12 million.
appeal to the Second Circuit, Barbarino made two primary
arguments. United States v. Barbarino, 612
F.App'x 624, 626 (2d Cir. 2015). First, Barbarino argued
that he was denied a fair trial by the cumulative effect of
several errors he claimed were committed by this court and by
the Government before and during his trial, including: (1)
this court's denial of his request for a continuance
based on his health; (2) this court's management of the
situation arising from Barbarino's illness in front of a
juror; (3) this court's decision to cut short the
cross-examination of Dr. Moore; and (4) the Government's
use of improper remarks, such as the terms "boiler room,
" "fraudsters, " "cronies, " and
"lies." Id. at 626-27. Second, Barbarino
argued that his sentence was unreasonable because the
applicable United States Sentencing Guidelines
("Guidelines") range was calculated using a loss
amount of $12 million, which was larger than the loss amount
attributed to his coconspirators. Id. at 626.
Second Circuit affirmed this court's judgment in its
entirety, reasoning that many of the alleged errors were
"adequately addressed, " and that any errors that
did occur could "not be said to have deprived
[Barbarino] of a fair trial." Id. at 627-28.
The Second Circuit also found that this court "did not
clearly err in determining that the entire $12 million loss
was foreseeable to Barbarino, and chargeable to him in its
sentencing calculation." Id. at 628.
Motion to Vacate, Set ...