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Barbarino v. The United States

United States District Court, S.D. New York

April 11, 2017

LANCE BARBARINO, Petitioner,
v.
THE UNITED STATES OF AMERICA, Respondent.

          OPINION

          THOMAS P. GRIESA U.S. DISTRICT JUDGE.

         Lance 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.

         BACKGROUND

         I. Trial and Sentencing

         In June 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.

         The 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.

         To 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.

         The 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.

         Before 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.

         The 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.

         II. Appeal

         On 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.

         The 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.

         III. Motion to Vacate, Set ...


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