SCARFO v. UNITED STATES OF AMERICA

OCR transcription for search; preserved printed pages are authoritative

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# NOT FOR PUBLICATION

# UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

NICODEMO S. SCARFO,

Petitioner,
V.

UNITED STATES OF AMERICA,

Respondent.

Civil Action No. 23-22432 (MAS)

OPINION

## SHIPP, District Judge

This matter comes before the Court on Petitioner Nicodemo Scarfo's ("Petitioner" or
"Scarfo") motion to vacate sentence brought pursuant to 28 U.S.C. § 2255 (ECF No. 1), and
Petitioner's supplemental motion to vacate sentence (ECF No. 15). Following an order to answer,
the Government filed a response to the motion (ECF No. 7), to which Petitioner replied (ECF No.
11). Also before the Court is Petitioner's motion seeking appointed counsel. (ECF No. 9.) For
the following reasons, the Court will deny Petitioner's motions and will deny Petitioner a
certificate of appealability.

### I. BACKGROUND

In its opinion affirming Petitioner's conviction, the Third Circuit described the facts
underlying this matter as follows:

This case has its roots in organized crime, and, like other mob cases,
it gets its start with family - both biological and made. Nicodemo
Domenico "Little Nicky" Scarfo Sr. was the "boss" of the
Philadelphia branch, or "family," of La Cosa Nostra ("LCN") for
most of the 1980s. He oversaw nearly a decade of murders,
gambling, and extortion for the benefit of LCN.

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By the time [Petitioner and his codefendants] here began
their FirstPlus scheme, however, he was out of the game, serving a
lengthy prison sentence[.] His son, [Petitioner] Nicodemo Salvatore
"Nicky" Scarfo[,] wanted to fill the power vacuum, but his
attempted takeover of the Philadelphia LCN family did not go
according to plan. On Halloween 1989, as he was having dinner at
a restaurant, masked assailants ambushed him, shooting him several
times but, no doubt to their chagrin, not killing him.

When he recovered, Scarfo sought the help of the Lucchese
LCN family, which operated in northern New Jersey. He had an
"in" with the Luccheses: their boss was incarcerated in the same
prison as his father. According to the government's expert on the
structure and operations of LCN, eventually the Lucchese family
integrated Scarfo into their organizations as a "made member" -
someone who has been "fully inducted" and has "taken an oath of
loyalty to the family." Being a made member meant that he had to
generate money for the Lucchese family and share with it the profits
of any criminal activities he pursued.

Scarfo's longtime friend Salvatore Pelullo, although not a
blood relative, had a close relationship not only with Scarfo but with
Scarfo's father[,] too. The older Scarfo treated Pelullo as his
nephew. Pelullo became an "associate" of the Luccheses - a
criminal colleague who "hadn't been formally initiated into [the
family's] ranks." The government's expert testified that an associate
like Pelullo had to "share . . . the profits of any of [his] criminal
activity" with the family, and he had to answer to a made member,
such as Scarfo, who would "supervis[e] and direct[]" any of his
actions.

Before the events at issue in this case, Scarfo and Pelullo had
each earned criminal convictions. Scarfo was convicted in 1990 of
assaulting a woman in a hospital elevator, and then in 1993 for
racketeering conduct. In 2002, he was convicted of running an
illegal gambling business. Pelullo, meanwhile, was convicted of
bank fraud and making false statements to the SEC in 1999. Three
years later, he pled guilty to wire fraud.

#### ... .

In 2007, Scarfo and Pelullo stumbled on "the golden vein of
delas" - an opportunity that seemed so lucrative, they thought they
could ride it into retirement. That opportunity was FirstPlus, a
Texas-based mortgage company whose main operating subsidiary
had recently exited bankruptcy after falling on hard times.

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Following that restructuring, FirstPlus began receiving periodic,
multi-million-dollar "waterfall" payments from its bankruptcy
trust.[] At that point, it was essentially a dormant parent company
receiving the waterfall payments but doing no business.

After the payments started coming in, a former FirstPlus
employee, Jack Roubinek, had the idea to locate investors and gain
control of FirstPlus. In early 2007, he contacted his attorney,
William Maxwell, and asked him to research the possibility of
investing in FirstPlus. At around the same time, Pelullo learned
about FirstPlus from his business acquaintance David Roberts, a
mortgage broker from Staten Island. A group including Pelullo,
Roberts, Scarfo, Roubinek, and Gary McCarthy (Pelullo's attorney
and eventual codefendant) gathered in Philadelphia to discuss a
potential takeover of FirstPlus.

At first, according to Roberts, their thinking was "to try to
raise money to buy [FirstPlus's] stock[.]" That plan, however, fell
through: the group realized that none of them had the money needed
to buy the stock. Luckily for them, however, FirstPlus had recently
fired Jack Draper, a high-ranking employee. Draper had griped
about his firing to Roubinek - the two having become acquainted
while employed at FirstPlus - and to William Maxwell.[] Those
three were joined by Roberts and Pelullo for a meeting in Dallas,
where Draper, bearing a grudge, told the group he was willing to
"divulge all" and accuse the FirstPlus board and CEO Daniel
Phillips of financial improprieties.

That "completely changed the direction of the plan." Seeing
an opportunity, Pelullo, who was emerging as the leader of the
takeover group, worked with William Maxwell to send letters to
Phillips and other board members. The letters were purportedly
written by Draper and threatened that he would go to "the FBI, the
IRS[,] the U.S. Attorney's [O]ffice[,] [FirstPlus's] Bankruptcy's
attorney and the SEC" with claims of financial misconduct
including bribery, money laundering, and Sarbanes-Oxley
violations.[] They also threatened to tell Phillips's wife - who was
then divorcing him - that Phillips had raped an assistant and used
the company's moneys to pay off the victim when she got pregnant.
According to Phillips, all those claims were false, but he was
nonetheless concerned that their dissemination would cause grave
damage to his and the company's reputations.

The letters had their intended effect. Phillips met with
William Maxwell and Pelullo, who indicated the allegations would
be dropped if Phillips and the FirstPlus board handed the business
over to them. Evidently, it was an offer he couldn't refuse.

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Phillips swiftly persuaded the entire board to give up their
positions rather than try to engage in what would be a messy and
expensive fight with Pelullo's group. Pelullo then selected a new
board of directors for FirstPlus: William Handley (a friend of
Pelullo's who took over as Chief Financial Officer), John Maxwell
(William Maxwell's brother and the titular Chief Executive
Officer), Roberts (who became secretary of the company), Harold
Garber (Scarfo's father's attorney, who became the new board
chairman), and Robert O'Neal (one of William's clients, who later
succeeded Garber as chairman).[] The necessary corporate
formalities were followed and, on June 7, just four days after
sending the threatening letters, Pelullo and his cronies had total
control of the company.

.. . .

With FirstPlus in their power, the new officers and directors
went to work - making the company work for them. Pelullo, along
with William Maxwell, controlled the show. They even obtained
stamps of the directors' signatures so they could run the looting
scheme without interference.

The board entered into a "legal services agreement" with
William, who became FirstPlus's "special counsel." The contract
formally granted him significant power within the organization. It
purportedly gave him "[a]ll legal authority for any matter involving"
FirstPlus; the power to select and retain legal counsel, accountants,
and, "in [his] sole discretion," "any and all consulting firms"; and
the right to "spend funds, incur legal expenses, and to expend fees
in excess of [his] retainer and to seek reimbursement[.]" He could
also "restrict disclosure of the information ... to any person[,]"
including the members of the board. For his supposed labors,
William made $100,000 a month, plus expenses of up to $30,000.

With that authority, William hired Pelullo as a consultant to
FirstPlus, a role that shielded him from public scrutiny. In practice,
though, Pelullo was the "de facto president" of the company,
according to FirstPlus's public auditor, Anthony Buczek. John
Maxwell was named as CEO, but he largely functioned under
Pelullo's control.

Using his controlling position at FirstPlus, and with
William's help, Pelullo set up several channels through which
money flowed out of FirstPlus's accounts and into his and Scarfo's
coffers. For one, Pelullo set up a bogus trust that ostensibly had his
children as its beneficiaries. In practice, however, according to

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codefendant Cory Leshner [("Leshner")], the trust was "created for
the purposes of owning" Seven Hills Management, LLC, a company
with Pelullo's brother-in-law, Alexander Lyubarskiy, listed as its
head.[] Lyubarskiy's supposed management of Seven Hills was
strictly for show; "[e]verything he did was at the direction of Mr.
Pelullo."

William Maxwell, on FirstPlus's behalf, retained Seven
Hills to provide FirstPlus with "consulting services." The
agreement entrusted Seven Hills (and, through it, Pelullo) with a
"litany of duties" that Leshner summarized as "helping run the entire
operation" of FirstPlus. Seven Hills was compensated $100,000
each month plus $15,000 in expenses.

Scarfo, meanwhile, profited from FirstPlus as well. Like
Pelullo, he set up a trust that was nominally intended to "benefit[]
[his] daughter" but in actuality served as a vehicle for his own gain.
That trust, in turn, owned Learned Associates of North America,
LLC ("LANA"); both entities were run "[o]n paper" by Scarfo's
cousin and codefendant John Parisi. That was a ruse to keep
Scarfo's name off the books; "[i]n reality," it was Scarfo, not Parisi,
who controlled the trust and LANA. LANA enabled Scarfo to get
in on the take through a secondary consulting agreement between
LANA and Seven Hills. The agreement obliged LANA to perform
for FirstPlus "exactly the same" tasks that Seven Hills was already
being paid to do, according to an FBI investigator. In practice,
LANA performed no work, but the deal entitled LANA (and,
through it, Scarfo) to a roughly one-third cut of what Seven Hills
was getting from FirstPlus. As the government puts it, those
payments were "effectively 'tribute" to Scarfo.

Those arrangements were all facilitated by William
Maxwell, to whose attorney trust account the consulting fees and
expenses were wired. William generally passed those on to Seven
Hills, which in turn sent $33,000 a month, plus so called expenses,
to LANA. Pelullo was "completely involved with" and oversaw the
flow of money from FirstPlus to Maxwell and on to the consulting
firms.

Pelullo and Scarfo also profited from FirstPlus by having it
acquire three shell companies they owned. First up was Rutgers
Investment Group, LLC, an unsuccessful mortgage loan provider
majority owned by LANA and Seven Hills. Rutgers's single source
of revenue was receivables it supposedly got from Shore Escapes, a
defunct vacation sales company also owned by Seven Hills and
LANA. It was make-believe money, but on June 7, the new team's
first day in office, Pelullo got approval for the acquisition from the

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FirstPlus board, and the following month FirstPlus bought Rutgers
for approximately $1.8 million and 500,000 FirstPlus shares.

Two more acquisitions of companies owned by Seven Hills
and LANA followed soon after. FirstPlus bought Globalnet
Enterprises, LLC, a financially struggling cleaning company, for
around $4.5 million and more than one million shares of FirstPlus
stock. It then paid $725,000 - including $100,000 directly to each
of Seven Hills and LANA - to buy The Premier Group, LLC, a
company Pelullo set up in May 2007 to hold the assets of a company
at least nominally in the business of representing the interests of
insurance policyholders.

Pelullo made sure that FirstPlus bought his and Scarfo's
companies on preposterously favorable terms. To conduct
valuations of the target business, he brought in Kenneth Stein, the
head of a business brokerage firm. Stein told Pelullo that [Stein]
was unqualified to perform the valuations, but Pelullo said to "[j]ust
get it done[.]" Though Stein believed the companies' financials were
"horrific" and "atrocious," Pelullo pressured him into preparing
nominally "independent" valuation reports that overvalued the
businesses. William Maxwell covered up Pelullo's involvement by
listing his own name on the engagement letters and handling Stein's
payments.

Also helping grease the skids were two of Pelullo's attorneys
\- David Adler and Gary McCarthy. Although FirstPlus's public
filings said that the acquisitions were "completed on an arms-length
basis" that was not even remotely true. Pelullo had his lawyers on
both sides of the negotiating table, with Adler representing FirstPlus
and McCarthy representing the shell companies.

In the meantime, Scarfo, Pelullo, and William Maxwell
began to take advantage of their ill-gotten gains. Scarfo bought a
house and expensive jewelry for his wife; Pelullo purchased a
Bentley automobile; Scarfo and Pelullo together bought a yacht; and
William and Pelullo had FirstPlus acquire a plane for their personal
use. The scheme was working as planned.

Still, the fact that FirstPlus was a public company, with
disclosure requirements under federal securities laws, added
complications to the looting. To get around those requirements,
Pelullo hired Anthony Buczek as FirstPlus's auditor, based on a
referral by Howard Drossner, who later became a codefendant.
Pelullo pressured Buczek into hiding or obscuring material
information about the company - such as the Rutgers and Globalnet
acquisitions, the consulting agreements, and Pelullo's prior federal

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fraud convictions[] - even though FirstPlus was required to disclose
that information in it SEC filings.

The party had to come to an end, and eventually the actions
of the FirstPlus thieves caught up with them. While investigating a
tip that Scarfo was again trying to gain control of the Philadelphia
LCN, the Federal Bureau of Investigation became aware of the mob
ties and suspicious circumstances surrounding the resignation and
replacement of FirstPlus's former board. As FBI agents dug deeper,
they came to believe - rightly - that Pelullo and Scarfo were behind
the FirstPlus takeover and would systematically steal from it. They
obtained court permission to track the defendants' locations through
their cellphones and wiretap their calls over the course of several
months. Among the calls the agents picked up were communications
between Pelullo and his lawyers (Maxwell, McCarthy, and Donald
Manno). To weed out any discussions protected by Pelullo's
attorney-client privilege, the government asked the District Court to
review in camera the records of wiretaps assembled by a special
"filter team" before they were transmitted to prosecutors[] - all, of
course, unbeknownst to Pelullo.

The conspirators eventually came to suspect that they were
under investigation. For example, while on a long drive from Dallas
to deliver a gun to Scarfo's house in New Jersey, John Maxwell
suspected that the government had agents following him in a car and
in a helicopter.

The government's investigations escalated on May 8, 2008.
That day, the FBI executed search warrants at thirteen locations
across the country, including FirstPlus's offices in Texas and the
defendants' homes, offices, and law firms in Pennsylvania and New
Jersey. They also seized the plane, the Bentley, and the yacht, along
with guns they found on board the yacht and more guns and
ammunition found at Scarfo's and Pelullo's homes and Pelullo's
office. It took another three years for the government to obtain an
indictment from a grand jury, but that day did arrive. In unpacking
the evidence and building their cases, prosecutors set up additional
filter teams to review the evidence recovered from McCarthy's and
Manno's law offices and to set aside anything that was privileged
before turning the rest over to the team handling the prosecution of
the defendants.

When Scarfo, Pelullo, and their co-conspirators took over
the company in early June 2007, FirstPlus had almost $10 million in

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its accounts, and it received a $4.4 million waterfall payment later
that year. By the following May, when the FBI seized the accounts,
there was less than $2,000 left. Between the fraudulent consulting
and legal-services agreements channeled through bogus trusts and
the acquisitions of virtually worthless companies, the conspirators
had bled FirstPlus dry. It soon fell into bankruptcy, leaving its more
than 1,200 public stockholders with the company's husk.

United States v. Scarfo, 41 F.4th 136, 157-62 (3d Cir. 2022) (internal citations and record citations
omitted).

##### II. LEGAL STANDARD

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

28 U.S.C. § 2255(a). Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to relief the moving party must show that an error of law or fact constitutes
"a fundamental defect which inherently results in a complete miscarriage of justice, [or] an
omission inconsistent with the rudimentary demands of fair procedure." United States v. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.
denied, 444 U.S. 865 (1979); Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J. 2003).

##### III. DISCUSSION

###### A. No evidentiary hearing is necessary in this matter

A district court need not hold an evidentary hearing on a motion to vacate where "the
motion and files and records of the case conclusively show that the prisoner is entitled to no relief."

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28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545-56 (3d Cir. 2005); United States
v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). "Where the record, supplemented by the trial judge's
personal knowledge, conclusively negates the factual predicates asserted by the petitioner or
indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required." Judge
v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); Gov't of V.I. v. Nicholas, 759 F.2d 1073,
1075 (3d Cir. 1985); United States v. Tuyen Quang Pham, 587 F. App'x 6, 8 (3d Cir. 2014); Booth,
432 F.3d at 546. Because Petitioner's claims are all either barred or clearly without merit for the
reasons expressed below, no evidentiary hearing is necessary in this matter.

###### B. Petitioner's claims related to the timing of his investigation and indictment

In his first pair of claims, Petitioner contends that a state witness, Case Agent Gilson, lied
in testifying that the investigation into the FirstPlus scheme did not begin until 2007. Based on
the final page of the sealed indictment in his criminal matter, which contains a file number,
2005R01468, Petitioner believes that the investigation into his criminal conduct began in 2005, as
soon as he left prison to begin his term of supervised release, rather than in 2007. (See Docket
No. 11-740 at ECF No. 1 at 108.) Plaintiff further speculates that this tracking number must mean
that there is favorable information that was not disclosed to him by the Government regarding a
pre-2007 investigation which he further speculates would have been both material and beneficial
to his case. Plaintiff's claim, which appears to be based upon a U.S. Attorney's Office internal
tracking number as it does not relate to any court docket number (see ECF No. 7 at 33), both
overstates any significance this reference on the indictment may have and its relevance to
Petitioner's conviction in this matter. Even assuming, arguendo, that this tracking number relates
to surveillance or oversight of Petitioner prior to the onset of the FirstPlus scheme, it does not
actually undermine or prove false any testimony by Agent Gilson. Gilson testified that the
investigation into the FirstPlus scheme did not begin until 2007. He also testified that law

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enforcement had remained aware of Petitioner prior to the investigation following his supervised
release from federal prison.1 As a factual matter, then, Petitioner has not shown perjury or the
suborning of such. That the Government kept tabs on Petitioner prior to the onset of the
investigation about which Agent Gilson was speaking is not in and of itself any violation of
Petitioner's rights.

Petitioner's chief contention in his first ground is less concerned with perjury. Instead,
Petitioner contends that this internal tracking number indicates a Brady violation - i.e., that the
Government suppressed material favorable evidence which would have benefitted Petitioner at
trial. See Brady v. Maryland, 373 U.S. 83 (1963). Petitioner, however, first received a copy of
the true bill, which contained the tracking number, at his indictment in 2011. He thus had the
means and ability to present his claim that the Government may be suppressing unknown evidence
based on the tracking number both before the trial court and on direct appeal. Because Petitioner
could have presented this claim long before his conviction or on direct review, the claim is
procedurally defaulted.

Petitioner argues in his reply that any investigation or surveillance of him prior to 2007 would
render this testimony suborned perjury, rather than a misunderstanding or Agent Gilson and
defense counsel talking past one another. Petitioner has provided no evidence to support his
contention that Gilson's testimony was perjury. Petitioner likely could not support his contention
in light of the fact that Gilson did testify that Petitioner was on the radar of law enforcement prior
to the FirstPlus investigation, and that some limited surveillance of Petitioner had been conducted
in 2006. Petitioner's perjury-related arguments are thus based on a skewed reading of Gilson's
testimony and are based entirely on speculation that some untoward activity not in the record
occurred prior to the FirstPlus investigation. Further, Petitioner attempts to strengthen his claim
by asserting that this portion of Gilson's cross examination was the central point of his defense
strategy. However, it is doubtful that Gilson's testimony on this point-the date upon which the
investigation started in earnest-had any great effect upon the outcome of his case. In light of the
overwhelming evidence of Petitioner's guilt, it is clear that any misunderstanding between Gilson
and defense counsel as to what Gilson meant about the onset of the investigation was entirely
harmless. See Fry v. Pliler, 551 U.S. 112, 115-16 (2007) (stating that trial error is generally
harmless and there is no basis for collateral relief in a habeas proceeding unless it had a "substantial
and injurious effect or influence in determining the jury's verdict").

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Because "[h]abeas review is an extraordinary remedy and 'will not be allowed to do service
for an appeal,'" Bousley v. United States, 523 U.S. 614, 621 (1998) (first quoting Reed v. Farley,
512 U.S. 339, 354 (1994); and then quoting Sunal v. Large, 332 U.S. 174, 178 (1947)), any claim
that could have been, but was not, raised before the trial court or on direct appeal is considered
procedurally defaulted for the purposes of a § 2255 motion. See Massaro v. United States, 538
U.S. 500, 504 (2003); United States v. Frady, 456 U.S. 152, 167-68 (1982); Parkin v. United
States, 565 F. App'x 149, 151-52 (3d Cir. 2014). A petitioner may not receive relief on a defaulted
claim unless he either shows that he is factually innocent of the charged offenses, or shows cause
and actual prejudice sufficient to overcome his default. Parkin, 565 F. App'x at 151-52; see also
Lawrence v. United States, No. 18-16006, 2023 WL 6392918, at *1 (D.N.J. Oct. 2, 2023). Cause
in this context requires that "'some objective factor external to the defense impeded counsel's
efforts' to raise the claim." Id. at 151 (quoting United States v. Pelullo, 399 F.3d 197, 223 (3d Cir.
2005)). Even where he shows cause, a petitioner will still not be entitled to relief unless he shows
actual prejudice, i.e., that the alleged errors "worked to his actual and substantial disadvantage
infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170.
Establishing actual innocence sufficient to overcome the default bar instead requires a petitioner
to show that "in light of all the evidence it is more likely than not that no reasonable juror would
have convicted him," i.e., that he is factually innocent. Bousley v. United States, 523 U.S. 614,
623-24 (1998).

Given the overwhelming evidence of Petitioner's guilt, see Scarfo, 41 F.4th at 191, 195,
228 (noting, repeatedly, the overwhelming evidence of guilt provided at trial), and the fact that
Petitioner provides no more than mere speculation that this tracking number indicates undisclosed
evidence or perjury on the part of the testifying agent, Petitioner has failed to show that he is
actually innocent or that he was prejudiced by the agent's testimony that the investigation began

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in 2007, which appears to be essentially accurate. Petitioner, consequently, has failed to show any
basis upon which to evade the procedural default bar as to these claims. The evidence presented
at trial clearly established Petitioner's guilt, the testimony in question was at best of very limited
value to Petitioner at trial, and Petitioner has not alleged any specific information to support his
assertion that he was denied or the Government suppressed evidence. Petitioner, thus, cannot show
that he was prejudiced. Petitioner's base speculation provides no basis for habeas relief.

Petitioner next claims, again basing his belief solely on the tracking number issue, that he
was not ever properly indicted by a federal grand jury. This claim is belied by the record, which
shows that a federal grand jury returned a bill of indictment as to Petitioner and his co-conspirators.
(See Docket No. 11-740 at ECF No. 1 at 1-108.) Petitioner's claim is clearly false, and provides
no basis for habeas relief.

## C. Petitioner's claims related to the Botsvynyuk human trafficking case

In his next series of claims, Petitioner contends that the Government suppressed material
related to a human trafficking case in the Eastern District of Pennsylvania in which Petitioner
believes both Leshner and Pelullo were involved. Petitioner contends that had he possessed this
information, he could have used it to impeach Leshner and to seek a severance of his trial from
Pelullo. The Third Circuit summarized the background of this claim as follows:

[After trial, Petitioner sought to subpoena new evidence which
would have purportedly shown a Brady issue.] The new information
consisted of certain witness statements taken prior to the trial and
pursuant to an unrelated investigation of human-trafficking activity,
an investigation that was ultimately prosecuted in the United States
District Court for the Eastern District of Pennsylvania ("the
Botsvynyuk case"). [The government, for its part, first learned about
the witness statements when Pelullo's attorney notified the
government that he had received documents from a defense attorney
in the Botsvynyuk case. Prosecutors then obtained copies of the
statements from their counterparts in the Eastern District of
Pennsylvania before furnishing them to the District Court here for
in camera review.] [Petitioner] and his codefendants wanted access

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to those witness statements, memorialized on FBI forms known as
302s, because they might mention Pelullo. [These documents
apparently indicated that Pelullo was involved with a company that
had hired some of the human-trafficking victims from the
Botsvynyuk case, but the government had not uncovered any
evidence to suggest Pelullo or Leshner had been complicit in any of
the criminal conduct in that matter. The Government provided
Pelullo's attorney the opportunity to review all documents
mentioning him in that case, but Petitioner sought an entire copy of
the file of the E.D. Pa. case.] And, because of Pelullo's involvement
in the human trafficking, the Defendants thought the documents
might in turn show criminal conduct by Cory Leshner - Pelullo's
"right hand man" and later a key government witness - and therefore
provide helpful impeachment evidence.

Pelullo thus filed a sealed motion to compel disclosure of the
302s, and [Petitioner] filed a motion to subpoena the documents
pursuant to Federal Rule of Civil Procedure 17.[] After reviewing
the 302s in camera - and entertaining multiple rounds of briefing
plus a hearing - [Judge Kugler] denied the motions as seeking
irrelevant and non-exculpatory information and because the 302s
never mentioned Leshner. The Court also made clear that it would
not entertain any more motions from [Petitioner] before sentencing.

[Petitioner] then requested leave to move for a new trial.[]
[Judge Kugler] denied the request as "probably untimely" and
because the 302s simply did not contain the information claimed by
[Petitioner].

Scarfo, 41 F.4th at 224-25, 224 nn.109-19.

Petitioner now seeks to essentially reconstrue and assert these claims as Brady/Giglio
violations. Petitioner argues that, had he possessed the "superior knowledge" of the Botsvynyuk
case that the Government allegedly possessed, he could have better challenged the credibility of
Leshner and other witnesses, could have better moved for severance of his case, and could have
argued for a lower loss amount by suggesting that some of the money was paid as kickbacks by
Pelullo to persons involved in the human trafficking scheme.

As Judge Kugler and the Third Circuit previously explained to Petitioner in denying his
request for subpoenas and for permission to file a motion seeking a new trial, however, Petitioner's

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speculation is entirely misplaced. The uncontradicted certifications submitted by prosecutors and
Judge Kugler's in camera review of the relevant 302s indicate that: (1) neither Pelullo nor Leshner
were persons of interest involved in the human trafficking case; (2) prosecutors and investigators
in that case developed no evidence reflecting Leshner's involvement in that case; and (3) Pelullo's
involvement was at best tangential and never rendered him a person of interest or suggested that
he had any criminal exposure in relation to the human trafficking scheme. See Scarfo, 41 F.4th at
224-26; (see Docket No. 11-740 at ECF No. 1252-1; ECF No. 1278.)

Petitioner's claim relies entirely on his own assumptions and speculations rather than any
actual information in the record. Petitioner has not shown that there was any suppressed material
or impeaching information that would support a proper Brady or Giglio claim. Likewise, to the
extent Petitioner's claims are essentially a reassertion or re-presentation of the claims he presented
to Judge Kugler and the Third Circuit in post-trial motions and in his prior appeal, he may not
pursue them in this habeas matter. See United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir.
1993) (§ 2255 motion may not "be used to relitigate matters decided adversely" in prior appeal);
see also United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (stating that "issues resolved
in a prior direct appeal will not be reviewed again by way of § 2255 motion"); Cvjeticanin v.
United States, No. 19-549, 2022 WL 280185, at *3 (D.N.J. Jan. 21, 2022) (stating that § 2255
motion may not be used to relitigate issues decided adversely on appeal or in post-trial criminal
motions).

Petitioner has not shown that the Botsvynyuk case or surrounding investigation produced
any favorable material or impeaching evidence. In addition, Petitioner provides no more than base
speculation that any such suppressed evidence was in the Government's possession. Petitioner's
speculation is also contrary to the evidence in the record submitted during post-trial motion
practice. Petitioner, consequently, has failed to show that the Government violated his Giglio or

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Brady rights or that Judge Kugler erred in refusing to permit him to pursue post-trial subpoenas or
motions for a new trial by denying him further access to the 302s and related documents from the
Botsvynyuk case. Petitioner has failed to show that there was any valuable information which
could have been used to better impeach Leshner or any other witness, or that there was any
information contained in that file which would have provided a good basis for severing his case
from Pelullo's insomuch as the Botsvynyuk case did not reveal any relevant potential criminality
by Pelullo. The denial of access to those records did not violate Petitioner's rights, and provides
no basis for habeas relief.

Petitioner further argues that he could have used knowledge of the human trafficking issue
to try to reduce the loss amount attributable to him by arguing that some of the money was related
to Pelullo paying kickbacks or hiring illegal aliens. Putting aside that this argument is based on
the same unsupported speculation as his preceding claims related to the human trafficking case, as
the Third Circuit explained on direct appeal, the loss amount in this case was determined in a
straightforward manner. The loss was determined by calculating the total amount of funds
possessed or obtained by FirstPlus when Petitioner and his codefendants gained control over it
through their criminal conspiracy and comparing it to the paltry amount left when the scheme came
to a close. See Scarfo, 41 F.4th at 212-13. That calculation resulted in a "conservative number"
of over fourteen million dollars. Id. Indeed, for any recalculation to have an effect upon
Petitioner's sentencing calculation, the loss amount would have to be reduced by more than five
million dollars, a reduction of approximately thirty-five percent. Id. at 213. Petitioner's
unsupported speculation does not support such a massive reduction in the loss amount. In addition,
Petitioner has not provided any valid argument to suggest why the loss amount from the FirstPlus
scheme would be reduced merely because Pelullo allegedly used that money in furtherance of his

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other schemes. Petitioner, thus, cannot show that he was prejudiced in relation to the loss amount
calculation, and that claim is thus no basis for relief in this habeas matter.2

## D. Petitioner's unadmitted evidence claims

In his next series of claims, Petitioner contends that his rights were violated when a
significant number of exhibits used at trial were permitted into the jury room in electronic form
without being specifically and explicitly moved into evidence. Most of these exhibits were
recorded conversations that were played, at least partially, during trial. Petitioner also contends
that it was improper for the Government to reference these exhibits in its opening and summation,
and for the trial and appellate courts to rely on those exhibits in rendering their decisions
throughout the trial and appeal process. Petitioner has not attempted to show that any of these
unadmitted exhibits were not admissible at trial. Indeed, many were determined to be admissible
by Judge Kugler prior to trial. In addition, Petitioner has not identified a single exhibit that was
found to be inadmissible which was provided to the jury on tablets during deliberations. Instead,
Petitioner's claims focus on the procedural failure to explicitly move the exhibits into evidence
prior to the close of trial.

During an April 23, 2019, conference, Judge Kugler described the way in which exhibit
admissions had been handled at trial as follows:

The court doesn't, never had and probably never will keep an
official exhibit list. The official record of the exhibits is that which
is found in the transcript. Every transcript has an entry for every
exhibit that's been introduced successfully in evidence and there's
an index of them. Having said that, in this case, the court also never
retains exhibits. In this case the way we handle[d] the exhibits [was]
at the end of each week. . . I asked counsel and I appointed Mr.
Catanzaro as the defense liaison counsel for exhibits to make sure

2 Even if Petitioner's argument was of greater merit, the Court further notes that claims of
guidelines errors, such as miscalculated loss amounts increasing the recommended guidelines
range, are generally not cognizable in a § 2255 proceeding. See United States v. Folk, 954 F.3d
597, 604 (3d Cir. 2020).

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that those exhibits that had been introduced were successfully
uploaded into our system. And at the end of the trial I made sure all
counsel were in accord as to what was uploaded and each and every
one of you said that it had been examined and it was, you agreed
that the exhibits that we had uploaded into our system [for jurors to
view] were those exhibits which had been successfully introduced
in evidence and I got that from[] agreement from everybody on the
record before the jury sought any exhibit whatsoever.

(Appellate Joint Appendix, Third Circuit Docket No. 15-2811 at ECF No. 174 at E3866.)

When the issue of discrepancies between the exhibit list uploaded by the parties and
provided to the jury and the exhibits formally entered into evidence at trial was brought to Judge
Kugler's attention, he noted that during the trial parties regularly forgot to enter things into
evidence as they were discussed or played at trial only to be entered later in proceedings, and that
many exhibits were entered in batches. (Id. at E3891.) When defense counsel raised the issue of
unadmitted exhibits being placed before the jury, Judge Kugler further noted that counsel
themselves had been in charge of making sure only admitted exhibits were uploaded for juror
viewing, that defense counsel was supposed to have been checking weekly to make sure there were
no missed exhibits, and that exhibits were only permitted to go to the jury after all parties had
assured the Court that all the uploaded exhibits were proper. (Id. at E3891-92.) Judge Kugler
further noted that defense counsel had an opportunity to object to any evidence before it was
viewed by the jury during trial, and that he had resolved each objection that had been made. (Id.
at E3893-94.)

Considered in total, these conversations make it clear that defense counsel was provided
opportunities to oppose or object to any of the exhibits used at trial, was given ample opportunity
to challenge any exhibit that went to the jury prior to deliberations if there were questions of its
provenance, and that counsel did not raise the issue until several years after the trial had been
completed and the direct appeal was proceeding at pace. The record also makes it clear that any

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failure to formally move exhibits into evidence prior to them being uploaded for juror view on
tablets during deliberations was inadvertent, with both defense counsel and the government under
the impression that everything had been properly admitted. Given the absence of any argument to
suggest that any of the exhibits were inadmissible or would have been excluded had the admission
issue been timely raised, it is also clear that the only issue here is that the formal procedural act of
admitting the exhibits into evidence was inadvertently not completed prior to the close of trial. To
the extent Petitioner contends that the Government's use of the exhibit list before Judge Kugler or
on direct appeal amounts to a fraud on the Court, Petitioner has made no such showing, nor has
Petitioner made an attempt to show anything approaching fraud rather than mere mistake.

More to the point, it is clear from the record that Petitioner was aware of this issue and
could have raised it on direct appeal, and did not. These claims are therefore procedurally
defaulted and cannot serve as grounds for relief absent a showing of actual innocence, which
Petitioner does not assert, or cause and prejudice. Petitioner's only cause argument is that counsel
failed to raise the issue on appeal after it was discovered during appeal preparations. For prejudice,
Petitioner turns to the Government's candid admission that had the evidence been excluded from
trial entirely, the Government's case against him would have been weaker, which, while true,
would not have been the case here. Even if these exhibits were not permitted onto the tablets
available to jurors during deliberations, the jury had already been exposed to the information in
the challenged exhibits. Petitioner's assertion of actual prejudice is thus dubious.

Even if the Court were to excuse Petitioner's default, these claims would still fail to provide
a basis for habeas relief. It is "ordinarily the responsibility of counsel to check the exhibits and
failure to object in a timely manner can under some circumstances constitute a waiver." The Third
Circuit, however, has permitted criminal defendants on direct appeal to challenge the provision of
unadmitted documents to the jury where counsel did not object prior to deliberations provided the

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defendant can show that there was error, it was plain, and the error affected the defendant's
substantial rights and was not harmless. See, e.g., United States v. Streeval, 70 F. App'x 646, 650
(3d Cir. 2003) (quoting Gov't of V.I. v. Joseph, 685 F.2d 857, 864 (3d Cir. 1982)). Under a direct
appeal plain error standard, even the inadvertent provision of extraneous overly prejudicial
unadmitted documents, annotations, or contraband may support the overturning of a conviction.
See, e.g., United States v. Lee, 573 F.3d 155, 162 (3d Cir. 2009); Joseph, 685 F.2d at 864 (finding
that the submission of a letter and signed confession which had not been presented during trial but
directly corroborated a contested witness's version of events to the jury during deliberations was
plain error warranting reversal). If exhibits are presented to the jury during trial but not formally
admitted, and all parties assumed their admission before they were provided to the jury during
deliberations, it will not automatically warrant reversal, even on direct appeal. Reversal would
only be necessary upon a showing that the jurors' access to the material they had previously seen
during trial "seriously affect[ed] the fairness, integrity, or public reputation of the judicial
proceedings." Thus, the error is often harmless. See, e.g., Streeval, 70 F. App'x at 650-51; see
also United States v. Jenkins-Watts, 574 F.3d 950, 963-64 (8th Cir. 2009) (finding that submission
of unadmitted demonstrative exhibit which the jury had previously seen but was not entered into
evidence to the jury during deliberations was not plain error warranting reversal); accord United
States v. Samak, 7 F.3d 1196, 1197 (5th Cir. 1993).

On habeas review, an error will not warrant relief merely for meeting the plain error
standard. Instead, an error, even of constitutional dimension, will generally only provide a basis
for habeas relief in a collateral attack proceeding where the error had a "substantial and injurious
effect or influence in determining the jury's verdict." Fry, 551 U.S. at 115-16. Here, Petitioner's
case did not involve an extraneous or outside the record item being secreted or accidentally
provided to the jury, but instead involved exhibits, previously used during his trial, being uploaded

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for jury access without formally being entered into evidence, without objection and with the parties
apparently believing at the time that all items had been properly entered over the course of a
lengthy trial that contained innumerable documents, recordings, and exhibits. None of these
exhibits was truly new, extraneous, or inadmissible. Petitioner's case is thus far afield from cases
finding plain error on direct appeal. See Joseph, 685 F.2d at 864. Petitioner's case is far more
akin to cases excusing minor procedural errors regarding documents being entered into evidence
as failing to affect the fairness or integrity of a petitioner's trial. Streeval, 70 F. App'x at 650-51;
see also Jenkins-Watts, 574 F.3d at 963-64. In light of the overwhelming evidence of Petitioner's
guilt at trial, the procedural posture of this claim, and the fact that the jury had already been
exposed to the items in question during trial, the Court concludes that any error in failing to
formally enter exhibits into evidence was not capable of having a substantial and injurious effect
on the jury's verdict, and that any such error was thus harmless and not a basis for habeas relief.
Fry, 551 U.S. at 115-16. Petitioner's claims asserting that he was denied a fair trial by the
submission of various unadmitted exhibits, or that his rights were impugned when those documents

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were considered by the trial judge or Third Circuit on direct appeal, or that the Government's
inadvertent failure to enter them into evidence amounts to a fraud on the court are thus denied.3

## E. Petitioner's intrinsic evidence claim

Petitioner next challenges the admission of testimony at trial regarding his violation of the
terms of his supervised release as part of the Government's case in chief with respect to Petitioner's
conspiracy to commit obstruction charge. Petitioner contends that this evidence should not have
been admitted in light of its prejudicial nature. Petitioner, however, ignores that the evidence in
question was intrinsic to the obstruction charge because that charge was based, at least in large
part, on the lies told to the officers overseeing Petitioner's supervised release. Evidence of the
other bad acts of a criminal defendant will be admissible and not subject to Rule 404(b)'s limits
on the introduction of evidence of prior bad acts as intrinsic evidence where it "directly proves"
the charged offense or the bad acts in question "facilitate the commission of the charged crime."
United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010). In seeking to admit intrinsic evidence,
the Government need not meet the notice requirements of Rule 404(b), nor must a limiting
instruction under that rule necessarily be provided. Id. at 247. Such evidence must still be relevant,

3 In the midst of asserting his unadmitted exhibits claims, Petitioner also briefly asserts that some
of the exhibits involving co-conspirators making admissions of guilt violated the Confrontation
Clause. Petitioner, however, has not attempted to show that these recordings were testimonial in
nature, and thus cannot show a Confrontation Clause violation. See United States v. Berrios, 676
F.3d 118, 126 (3d Cir. 2012) (stating that the Confrontation Clause protects against the admission
of only testimonial hearsay statements of unavailable declarants, and nontestimonial statements or
recordings are governed only by the rules of evidence); see also United States v. Hendricks, 395
F.3d 173, 179-80 (3d Cir. 2005) (noting that statements are generally testimonial when they: are
actual testimony; its functional equivalent; contained in testimonial documents such as affidavits,
depositions, or confessions; or are "made under circumstances which would lead an objective
witness reasonably to believe that the statement[s] would be available for use at a later trial"). As
Petitioner has not shown that the statements are testimonial in nature, or that they would be
otherwise inadmissible, Petitioner has failed to show that the use of these recorded statements of
co-conspirators at trial violated his constitutional rights separate and apart from the issue regarding
the failure to formally admit exhibits after being played at trial.

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must not be admitted solely to show the defendant's propensity for criminal activity, and must not
be so unduly prejudicial that its admission runs afoul of Rule 403. Id. Even evidence of bad acts,
such as violent threats, uncharged murders, or uncharged rapes, can meet these hurdles where
relevant and sufficiently probative of the defendant's guilt. Id. at 252.

Here, Petitioner challenges the admission of testimony regarding false statements he gave
to the officers overseeing his supervised release about his involvement with LANA, his felon
co-conspirators, and other aspects of the FirstPlus scheme, which resulted in a violation of the
terms of his supervised release. That evidence was highly probative of Petitioner's guilt in regards
to the conspiracy to obstruct justice charge and was not so unduly prejudicial in light of the charged
crimes and other evidence presented that its suppression would have been warranted or granted
had counsel moved to suppress or bar that testimony. Likewise, as the evidence of the false
statements to the officers directly proved aspects of the conspiracy, it was intrinsic to the charged
offense and therefore was not subject to the strictures of Rule 404(b). As the evidence was clearly
admissible, and any attempt to suppress it would have failed, Petitioner's claim related to this
evidence provides no basis for habeas relief.4

## F. Petitioner's claim regarding the use of the term "Offender"

Petitioner next contends that his rights were violated when witnesses, the prosecution, and
the trial judge referred to him as an "offender" in relation to his having violated the terms of his
supervised release as part of the FirstPlus scheme. The term was used by witnesses, the parties,
and the trial judge at trial in relation to Petitioner's violation of supervised release by committing
further federal crimes. The use of the term, therefore, was not a gloss or insult, but rather a
statement of fact regarding Petitioner's status. Petitioner having previously committed a federal

4 The Court further notes that this claim could have been, but was not raised on appeal, and is for
that reason also procedurally defaulted.

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crime, his supervised release status, and his violation of his supervised release status were all
entered into evidence at trial. In light of the factual nature of the statement in that context,
Petitioner cannot show that the use of the term offender at trial caused a substantial and injurious
effect on the outcome of his trial. The use of the term, to the extent it could be considered
erroneous, was therefore harmless and serves as no basis for habeas relief. See Fry, 551 U.S. at
115-16.

## G. Petitioner's contention that his rights were violated by the actions of codefendant Manno

Petitioner also argues that his rights, either under the Sixth Amendment or Due Process
clause, were violated by actions taken by the Government and codefendant Donald Manno in
relation to the prosecution of Manno, Petitioner's former counsel in a number of unrelated criminal
matters. Petitioner chiefly contends that his rights were violated when the trial court conducted a
conference with Manno and the Government without the presence of Petitioner's counsel after
Manno filed a motion seeking severance of his case from Petitioner's. This conference, however,
centered on the trial court's suggestion to Manno that he acquire counsel rather than represent
himself, as he might otherwise open himself to ethics issues, and was only conducted in chambers
to give Manno a chance to correct misleading statements made in his motion for severance before
those statements were contested in open court. See Scarfo, 41 F.4th at 185, 185 n.44.

Petitioner has not shown that his rights were in any way infringed or otherwise affected by
the discussion between the trial judge, the Government, and Manno in relation to Manno's filings,
and has thus not shown that he had any entitlement to have his counsel present during this
conversation. That the conversation, which did not affect Petitioner's substantial rights and
focused on the risks to Manno should he represent himself going forward, occurred without
Petitioner or his counsel did not violate petitioner's Sixth Amendment or Due Process rights. See,

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e.g., Missouri v. Frye, 566 U.S. 134, 140 (2012) (stating that the Sixth Amendment right to have
counsel present applies to "critical stages" of the criminal proceedings where necessary to protect
the defendant's substantial rights, such as arraignments, post-indictment interrogations, post-
indictment lineups, guilty pleas, etc.); United States v. Wade, 388 U.S. 218, 227-28 (1967) (noting
that right to counsel does not require counsel's presence during proceedings where there is
"minimal risk that his counsel's absence ... might derogate from his right to a fair trial"). Because
Petitioner's rights and risks were not the subject of this hearing, and the discussion focused on
Manno and there was, at most, minimal risk that the absence of Petitioner and his counsel affected
Petitioner's right to a fair trial, Petitioner cannot show that his rights were violated by his absence
at this conference. Petitioner's claim, therefore, provides no basis for habeas relief.

## H. Petitioner's ineffective assistance of counsel claims

In his motion to vacate sentence, Petitioner raises a number of claims in which he asserts
that his trial counsel was constitutionally deficient. The standard applicable to such claims is well
established:

[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court's opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that "counsel's performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
'counsel' guaranteed by the Sixth Amendment." Id. at 687; see also
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To
succeed on an ineffective assistance claim, a petitioner must also
show that counsel's allegedly deficient performance prejudiced his
defense such that the petitioner was "deprive[d] of a fair trial . . .
whose result is reliable." Strickland, 466 U.S. at 687; Shedrick, 493
F.3d at 299.

In evaluating whether counsel was deficient, the "proper
standard for attorney performance is that of 'reasonably effective
assistance."" Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel's representation "fell below an objective standard of

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reasonableness" under the circumstances. Id. The reasonableness
of counsel's representation must be determined based on the
particular facts of a petitioner's case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel's
performance, courts "must be highly deferential . . . [and] a court
must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689.

Even where a petitioner is able to show that counsel's
representation was deficient, he must still affirmatively demonstrate
that counsel's deficient performance prejudiced the petitioner's
defense. Id. at 692-93. "It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding." Id. at 693. The petitioner must demonstrate that "there
is a reasonable probability, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Id. at 694; see also Shedrick, 493 F.3d at 299. Where a
"petition contains no factual matter regarding Strickland's prejudice
prong, and [only provides] . . . unadorned legal conclusion[s] . . .
without supporting factual allegations," that petition is insufficient
to warrant an evidentiary hearing, and the petitioner has not shown
his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d
386, 395 (3d Cir. 2010). "Because failure to satisfy either prong
defeats an ineffective assistance claim, and because it is preferable
to avoid passing judgment on counsel's performance when possible,
[Strickland, 466 U.S. at 697-98]," courts should address the
prejudice prong first where it is dispositive of a petitioner's claims.
United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).

Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).

In his first ineffective assistance claim, Petitioner contends that, had counsel
properly investigated the tracking number issue discussed in relation to ground one above, he
would have produced information which would have led to Petitioner's acquittal or the overturning
of his conviction. As one court in this District has explained,

[i]n Strickland, the Supreme Court held that trial counsel "has a duty
to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's judgments."

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466 U.S. at 691. "The failure to investigate a critical source of
potentially exculpatory evidence may present a case of
constitutionally defective representation," and "the failure to
conduct any pretrial investigation generally constitutes a clear
instance of ineffectiveness." United States v. Travillion, 759 F.3d
281, 293 n.23 (3d Cir. 2014) (internal quotations omitted); see also
United States v Gray, 878 F.2d 702, 711 (3d Cir. 1989) (noting that
a complete absence of investigation usually amounts to ineffective
assistance because a counsel cannot be said to have made an
informed, strategic decision not to investigate); United States v.
Baynes, 622 F.2d 66, 69 (3d Cir. 1980).

Where a Petitioner can show that counsel's failure to
investigate amounts to deficient performance, he must still show
prejudice. In order to do so,

a defendant basing an inadequate assistance claim on
his or her counsel's failure to investigate must make
"a comprehensive showing as to what the
investigation would have produced. The focus of the
inquiry must be on what information would have
been obtained from such an investigation and
whether such information, assuming admissibility in
court, would have produce[d] a different result."

United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)
(quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987));
see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011)
("[w]hen a petitioner alleges that counsel's failure to investigate
resulted in ineffective assistance, the petitioner has the burden of
providing the court with specific information as to what the
investigation would have produced"); United States v. Green, 882
F.2d 999, 1002 (5th Cir. 1989) ("A defendant who alleges a failure
to investigate on the part of his counsel must allege with specificity
what the investigation would have revealed and how it would have
altered the outcome" of [p]etitioner's case); accord United States v.
Garvin, 270 F. App'x 141, 144 (3d Cir. 2008).

Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016).

In this matter, Petitioner has failed to show or even properly allege any specific information
which would have been discovered had counsel looked further into the tracking number. Petitioner
relies on mere speculation that something surely must have been discoverable, when everything in
the record before the Court instead suggests that the FirstPlus investigation did begin in 2007 and

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the tracking number on which Petitioner bases his speculation is, at best, a red herring. Because
Petitioner has not alleged specific information that would have been discovered had counsel delved
deeper on this issue, he has failed to make a prima facie showing of ineffective assistance of
counsel and this claim provides no basis for relief. See Brown, 2016 WL 1732377, at *4-5.

In a related claim, Petitioner contends that appellate counsel proved ineffective in failing
to raise the claim that the tracking number implies suppressed evidence or perjury or that Petitioner
was never actually indicted on direct appeal. While appellate counsel's decisions are subject to the
same ineffective assistance standard applicable to trial counsel claims, see Smith v. Robbins, 528
U.S. 259, 285 (2000), "it is a well established principle that counsel decides which issues to pursue
on appeal," Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (citing Jones v. Barnes, 463 U.S.
745, 751-52 (1983)), and appellate counsel need not raise every nonfrivolous claim a defendant
wishes to pursue, Jones, 463 U.S. at 751. As the chief component of effective appellate advocacy
is the winnowing out of weaker claims in favor of those with a greater chance of success, id. at
751-52; Smith v. Murray, 477 U.S. 527, 536 (1986), the Supreme Court has held that "[g]enerally,
only when ignored issues are clearly stronger than those presented, will the presumption of
effective assistance of [appellate] counsel be overcome[,]" See Robbins, 528 U.S. at 288 (quoting
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). As discussed above, Petitioner is incorrect in
asserting that he was never indicted, and his claims related to the tracking number rely entirely on
speculation and are unsupported by allegations of any clear wrongdoing. It is thus evident that
these claims were not clearly stronger than those counsel raised on direct appeal - which resulted
in an extremely detailed and lengthy published decision from the Third Circuit. Here, Petitioner
cannot show that he was prejudiced by counsel not raising these seemingly spurious issues on
direct appeal. These claims thus provide no basis for relief.

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Petitioner also argues that appellate counsel proved ineffective in failing to make his
arguments related to the Botsvynyuk case on direct appeal. Petitioner, however, did raise a claim
on direct appeal asserting that he should have been permitted to file a motion for a new trial on
that basis, and the Third Circuit rejected the claim as meritless. Likewise, as discussed above,
Petitioner's claims regarding the Botsvynyuk case and its relevance to this matter are entirely
speculative and belied by the record. Had counsel attempted to raise those claims on direct appeal,
they almost certainly would have been rejected as meritless, and those claims clearly were not
obviously stronger than those counsel did raise. Petitioner thus cannot show that appellate counsel
proved ineffective for failing to raise these claims in the exact form Petitioner preferred.
Petitioner's ineffective assistance of appellate counsel claim based on the failure to raise the
Botsvynyuk issues is without merit.

Petitioner's next series of ineffective assistance claims assert that his trial and appellate
counsel were ineffective in not fully raising his claims related to the unadmitted exhibits during
trial and on direct appeal. As explained more fully above, Petitioner's claims related to the
unadmitted exhibits did not warrant relief because Petitioner failed to show that he was prejudiced
by the inadvertent failure to admit them formally. Further, Petitioner's claims related to these
issues, even if raised on direct appeal, would not have met the plain error standard sufficient to
warrant relief. Likewise, had the issue been raised prior to deliberations rather than post-trial or
on direct review, the issue would have been resolved by the Government entering them into
evidence and correcting the oversight because nothing Petitioner has submitted demonstrates that
any of the exhibits were inadmissible. Moreover, Petitioner had ample opportunity to address that
issue in his pretrial motions before Judge Kugler. As Petitioner's claims could not meet the plain
error standard, Petitioner has not shown he was actually prejudiced by the jury having access to
these exhibits. Petitioner, therefore, has failed to show that these claims were clearly stronger than

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the claims counsel did raise on appeal or that he was prejudiced by counsel's failure to raise them.
These ineffective assistance claims are therefore without merit.

Petitioner also argues that both his trial and appellate counsel were ineffective in failing to
object to or raise a claim based on the intrinsic evidence discussed above in relation to his
conspiracy obstruction charge. As discussed above, that evidence was clearly admissible and any
motion to suppress it on the basis Petitioner provides would have failed. Counsel therefore was
not ineffective in failing to raise it either at trial or on direct appeal. See United States v. Aldea,
450 F. App'x 151, 152 (3d Cir. 2011) (counsel cannot be ineffective in failing to raise a meritless
objection); Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (same).

Petitioner relatedly argues that counsel proved ineffective in objecting to Manno
mentioning during his summation that he advised Petitioner to plead guilty to the supervised
release violation. Given the readily admissible evidence in the record that Petitioner had, in fact,
violated his supervised release and lied about it on several occasions, including the intrinsic
evidence discussed above regarding the violation proceedings, Petitioner cannot show that he was
prejudiced by this portion of Manno's summation. Petitioner's ineffective assistance of counsel
claim on that basis therefore fails.

Petitioner also argues that counsel's failure to object to Petitioner being referred to as an
offender in relation to his supervised release and violation thereof amounted to ineffective
assistance of counsel. As discussed above, however, Petitioner's prior conviction, supervised
release status, and violation of his supervised release status were all in evidence during the trial.
Petitioner, therefore, cannot show that he was prejudiced by counsel's failure to object to the use
of the term offender regarding Petitioner with respect to his supervised release. Here, Petitioner
cannot show that there is any likelihood that the outcome of his case would have differed had

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counsel moved and successfully had the term forbidden or stricken from the record. Petitioner's
ineffective assistance claim on this basis is, thus, without merit.

Petitioner also asserts that his trial and appellate counsel proved ineffective in failing to
more adequately brief and argue his claim regarding counsel's absence during the conference
between the Government, Manno, and the trial judge on Manno's severance motion, and in failing
to move for severance from Manno. Counsel, however, did raise the issue of the conference with
the Third Circuit. The Third Circuit rejected any finding of error on that basis because nothing
that occurred during that conference, which focused solely on Manno and had little, if anything,
to do with Petitioner, violated Petitioner's rights. As the Court discussed above, Petitioner has
failed to show that he had any right to counsel's presence at the conference. Petitioner,
accordingly, has failed to show that he was prejudiced by counsel's alleged failure to "better"
argue that the conference violated his rights. Petitioner likewise has failed to present any valid
basis for a severance from Manno. Given the admissibility of the evidence regarding his violations
of his supervised release discussed above, Petitioner has not shown that he was prejudiced by
counsel's failure to move to sever his case from Manno based on the intrinsic evidence or the
conference in chambers. These claims thus also fail to state a basis for habeas relief.

In the final claim of his motion to vacate sentence, Petitioner argues that his counsel proved
ineffective insomuch as counsel had no direct background in securities law, and did not call any
securities law experts at trial and instead focused his defense on attempting to dispute the idea that
the FirstPlus scheme was an LCN operation. In so doing, Petitioner fails to identify any specific
failing-any specific legal theory that was not presented, any specific motion that was not filed,
or any specific expert witness who was available to testify that counsel declined to call-to support
his belief that counsel was ineffective in addressing the securities aspects of his criminal case. In
the absence of any allegation of a specific failing, Petitioner cannot show that counsel's

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performance was deficient or that he was prejudiced by counsel's strategic choice to focus on
dispelling the LCN aspect of the case rather than engaging in unspecified litigation related to
securities law. Petitioner has thus failed to show that counsel was ineffective, and this claim must
be denied as meritless. This Court has considered Petitioner's claims and finds that they are
procedurally barred, without merit, or both barred and meritless. Petitioner's motion to vacate
sentence, consequently, must be denied.

## I. Petitioner's supplemental motion to vacate sentence and motion seeking appointed counsel

In a supplemental motion to vacate, Petitioner contends that his securities fraud conviction
cannot stand in light of the Supreme Court's decision in Macquarie Infrastructure Corp. v. Moab
Partners, L.P., 601 U.S. 257 (2024). Essentially, Petitioner argues that his securities conviction
is based on a pure omission, which he believes renders his conviction infirm. Even were the Court
to put aside the timeliness of Petitioner's supplemental claim, the dubious merits of his assertions
given the fact that the omissions in this case rendered the other statements made by FirstPlus in
the relevant documents materially misleading, see, e.g., Roofers Loc. No. 149 Pension Fund v.
Amgen Inc., 751 F. Supp. 3d 330, 347-55 (S.D.N.Y. 2024) (post-Macquarie it remains unlawful
under Rule 10b-5 to make omissions that render other provided information materially
misleading), and the fact that Petitioner's Macquarie claim appears to be procedurally defaulted
because he could have, but did not, raise the issue at trial or on direct appeal,5 the Court need not
address this claim because it would, if meritorious, at most undermine only one of Petitioner's
convictions for which he received a concurrent sentence.

5 Although Macquarie post-dated Petitioner's conviction, relevant Third Circuit precedent and the
fact that Macquarie did not present a new rule of law but rather a logical extension of the relevant
rule and statutory plain text made the claim readily available even before the Supreme Court ruled.
See, e.g., Macquarie, 601 U.S. at 264-65 (describing ruling as a logical outcome of the plain text
of the relevant rules and statutes); Oran v. Stafford, 226 F.3d 275, 288 (3d Cir. 2000).

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"Under the concurrent sentence doctrine, a court has 'discretion to avoid resolution of legal
issues affecting less than all counts in an indictment if at least one will survive and sentences on
all counts are concurrent." Parkin, 565 F. App'x at 152 (quoting United States v. McKie, 112
F.3d 626, 628 n.4 (3d Cir. 1997)); see also Duka v. United States, 27 F.4th 189, 194-95 (3d Cir.
2022) (extending doctrine to cases involving even a consecutive sentence in a habeas proceeding
where victory on the claim asserted would not change the fact or length of the petitioner's sentence
in light of an unchallenged life sentence); Gardner v. Warden Lewisburg USP, 845 F.3d 99, 104
(3d Cir. 2017). This doctrine serves as an independent basis to decline to review a collateral attack
so long as success on the claim would not alter the length of the petitioner's detention in light of
the concurrently imposed sentences and the petitioner fails to show that there are other unique
continuing consequences from the challenged count which would warrant a decision on the merits.
Duka, 27 F.4th at 195-96.

Because a habeas petitioner, including a petitioner in a § 2255 proceeding, may not use his
habeas challenge to attack fines, fees, or special assessments and may instead only challenge the
fact or length of his detention, such fines and fees arising from the challenged count are not a basis
to avoid the application of the concurrent sentencing doctrine in a habeas proceeding. Id. As
Petitioner's Macquarie claim goes only to his securities conviction, and as Petitioner received a
240-month sentence on his RICO, wire fraud, and money laundering charges and a concurrent
360-month sentence on his conspiracy to commit bank fraud charge, which was made concurrent
to his 60-month sentence on his securities fraud related conviction, the Court need not reach the
merits of Petitioner's Macquarie claim because it falls within the ambit of the concurrent
sentencing doctrine. (See Docket No. 11-740 at ECF No. 1306.) Petitioner's Macquarie claim
thus provides no basis for habeas relief in light of the concurrent sentences he received.

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Finally, Petitioner also filed a motion seeking appointed counsel. (ECF No. 9.) As all of
Petitioner's claims are either barred or without merit for the reasons discussed above, the Court
finds that the appointment of counsel is not warranted in this matter. See, e.g., Shelton v.
Hollingsworth, No. 15-1249, 2015 WL 2400780, at *3 (D.N.J. May 18, 2015) (stating that there
is no right to counsel in a habeas proceeding, and counsel may be appointed only if the court finds
that the interests of justice so require and that the petitioner is indigent). Petitioner's counsel
motion (ECF No. 9) is therefore denied.

## J. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes "a substantial showing of the denial of a
constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Because all of Petitioner's claims are meritless or barred for the reasons expressed above,
Petitioner has failed to make a substantial showing of a denial of a constitutional right, and his
motion is not adequate to receive encouragement to proceed further. This Court therefore denies
Petitioner a certificate of appealability.

# IV. CONCLUSION

For the reasons set forth above, Petitioner's motion to vacate sentence (ECF No. 1) is
DENIED, Petitioner's supplemental motion (ECF No. 15) is DENIED, Petitioner's motion

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seeking appointed counsel (ECF No. 9) is DENIED, and Petitioner is DENIED a certificate of
appealability. An appropriate order follows.

Mashing
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

Dated: October 13th, 2026