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United States v. Nastri

United States District Court, D. Vermont

September 21, 2018

United States of America
v.
James Nastri

          REPORT AND RECOMMENDATION AND ORDER (DOC. 441)

          JOHN M. CONROY UNITED STATES MAGISTRATE JUDGE

         James Nastri, proceeding pro se, moves under 28 U.S.C. § 2255 to vacate the judgment imposed on him in this district in 2015. (Doc. 441.) He also requests an evidentiary hearing and court-appointed counsel. (Id. at 17.) Following a six-day trial where he was represented by counsel, Nastri was convicted of conspiring to distribute 100 grams or more of heroin, a violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). (Doc. 400 at 1.) He was sentenced to 210 months' imprisonment, to be followed by an eight-year term of supervised release. (Id. at 2.) Nastri appealed, with new counsel representing him. The Second Circuit affirmed the conviction and sentence; and the Supreme Court subsequently declined to issue a writ of certiorari. United States v. Nastri, 647 Fed.Appx. 51 (2d Cir.) (Summary Order), cert. denied, 137 S.Ct. 232 (2016); (see also Doc. 431).

         In his § 2255 Motion, which is accompanied by a supporting Affidavit, (Doc. 441-1), Nastri raises six ineffective assistance of counsel (IAC) claims, which he argues entitle him to vacatur of his conviction and renewed plea negotiations, as well as the opportunity either to accept his previously rejected plea offer, or to receive a new trial. (Doc. 441 at 17.) Nastri's IAC claims relate to Attorney Edgar Fankbonner's representation of Nastri in the trial court, (id. at 3-11, 14-16), Attorney Jesse Siegel's representation of Nastri on appeal, (id. at 11-13, 15-16), and “[t]he cumulative [e]ffect of counsel[]s['] errors.” (Id. at 16.)

         In response to Nastri's Motion, the government sought and received an order compelling an affidavit from Nastri's trial counsel, Attorney Fankbonner. (Docs. 443, 444.) Relying in part on Fankbonner's Affidavit and Supplemental Affirmation, (Docs. 445, 446), the government argues in its Memorandum in Opposition that Nastri's claims are meritless and the Court should thus deny his § 2255 Motion. (Doc. 447.) Nastri filed a Reply in response to the government's Opposition, wherein he renewed the arguments stated in his § 2255 Motion, including his request for appointed counsel. (Doc. 450.)

         For the reasons stated below, I conclude that Nastri has failed to establish that the performance of either his trial or appellate counsel was objectively deficient, or that Nastri suffered prejudice from any allegedly deficient performance. I therefore recommend that Nastri's § 2255 Motion (Doc. 441) and request for an evidentiary hearing be DENIED. Nastri's request to appoint counsel (id. at 17) is DENIED.

         Factual and Procedural Background

         The following facts are derived from the records of this Court, including the Presentence Report; the transcripts of the pretrial conference, the trial, and the sentencing hearing, (Docs. 412-417, 419); and the Opinion from the Second Circuit Court of Appeals' April 2016 Opinion affirming Nastri's conviction. United States v. Nastri, 647 Fed.Appx. 51 (April 26, 2016); (see also Doc. 431).

         I. Preliminary Proceedings

         An April 25, 2013 indictment charged Nastri and others with conspiring to distribute 100 grams or more of heroin from the Spring of 2011 through April 10, 2013, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B). (Doc. 47 at 1-2.) Attorney Robert Sussman was appointed under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, to represent Nastri. (Doc. 108.) On June 12, 2013, Nastri was arraigned and pled not guilty, and the Court ordered him detained. (Doc. 111.)

         In December 2013, Attorney Sussman filed a motion to suppress statements and tangible evidence seized from Nastri during a March 14, 2012 traffic stop. (Doc. 221.) Nastri waived a hearing on the motion, (Doc. 261), and on April 8, 2014, the Court denied the motion in a written Opinion and Order. (Doc. 285 at 1-2.) On March 20, 2014, the Court issued an order scheduling Nastri's jury draw for April 17, and setting April 28 as the date for commencement of testimony. (Doc. 262.) On April 1, 2014, the government filed a notice of prior conviction under 21 U.S.C. § 851, (Doc. 280), which had the effect of doubling Nastri's mandatory minimum term of imprisonment from five years to ten.

         On April 8, 2014, Attorney Sussman moved to withdraw as counsel for Nastri, (Doc. 284), and Nastri retained Attorney Fankbonner to represent him at trial. (Doc. 445 at 1, ¶ 1.) A day later, Fankbonner entered his appearance as counsel for Nastri, (Doc. 289), and moved to continue the jury draw and trial date. (Doc. 290.) The Court reset jury selection for May 6, 2014, and the start of testimony for May 27. (Doc. 299.)

         On April 11, 2014, the government wrote to Attorney Fankbonner, enclosing “a copy of all discovery and trial correspondence sent to prior counsel, as well as some additional discovery.” (Doc. 447-1 at 1.) The government sent additional discovery on a weekly basis throughout April and May until trial. (Id. at 3-13.) In an April 18 letter, the government stated that it reserved the option to introduce any recorded jail telephone call that had been produced to the defense and that it “specifically plan[ned]” to introduce certain calls that it identified by file name. (Id. at 4.)

         On April 24, 2014, the government conveyed two plea offers for Nastri to Attorney Fankbonner via email. (Doc. 445 at 1, ¶ 6.) Both plea offers required Nastri to plead guilty to violating 21 U.S.C. §§ 846 and 841(b)(1)(B), [1] which carried a mandatory minimum of five years' imprisonment, and one of the plea offers would have required Nastri to testify in a murder trial in Maine. (Id.)

         Attorney Fankbonner states that he and Nastri reviewed the entirety of the discovery material in Fankbonner's possession. (Id. at 2, ¶ 8.) Fankbonner explained that he expected the government to call numerous co-conspirators to testify, and that there would be other evidence beyond co-conspirator testimony, including “photographs of Mr. Nastri and his co-conspirators . . ., photographs of the narcotics and cash recovered from him and his co-conspirators, call logs, text messages, and other material culled from the conspirators' cell-phones, and other evidence of the organization's activities throughout New England.” (Id. ¶ 11.) Fankbonner explained the government's plea offers to Nastri, advising him of “the pros and cons of each.” (Id. ¶ 12.) Fankbonner told Nastri that he thought it possible for him to prevail at trial but that he should consider taking a plea to reduce his risk of a sentence of more than ten years' imprisonment. (Id. ¶ 13.) He “expressly told” Nastri that the decision was “highly personal” and “depended in part on [Nastri's] tolerance for risk.” (Id. ¶ 14.) Attorney Fankbonner states that Nastri responded that he did not wish to accept either plea offer and wanted to go to trial. (Id. ¶ 15.)

         On April 28, 2014, the Court held a pre-trial conference. The conference began at 9:30 a.m. but was postponed to 3:45 p.m. to allow the parties time to conduct further negotiations regarding a possible plea. (Doc. 417 at 2-8.) When the conference reconvened in open court, Attorney Fankbonner, in the presence of Nastri, explained that while the plea offers were substantially similar to a previous offer, the sentence the government would recommend was lower. (Id. at 9.) During the break, Fankbonner negotiated further with the government and secured an even lower recommended sentence. (Id.) He and Nastri “went over the offer several times in detail”; however, Nastri was not prepared to take the offer. (Id. at 8.) The government agreed to leave the offer open until the next morning so that Nastri could speak with his family about the offer. (Doc. 17.) During the hearing, the Court directly addressed Nastri, confirming that he understood the plea offers. (Id. at 6-7, 13-14.) Ultimately, Nastri declined to plead guilty, informing Fankbonner that he would not enter a plea agreement that called for him to testify at trial against other defendants for fear that he would be marked as an informant in prison, and that he “wished to take his chances at trial” because if he was acquitted, he would be able to see his father before he died. (Doc. 446 at 1-2, ¶¶ 10, 12; see Doc. 445 at 2, ¶ 15.)

         In early May, Attorney Fankbonner received additional discovery material, including recordings of calls made by Nastri from jail to his co-conspirators after his arrest, as well as cell-tower data, photos, and other electronic evidence from coconspirators' phones. (Doc. 445 at 3, ¶ 20.) On May 6, Fankbonner sent a copy of the discovery material to Nastri at the Northwest State Correctional Facility in Swanton, Vermont. (Doc. 445 at 3, ¶¶ 19, 21; Doc. 446 at 1, ¶ 4.) At some later date, however, the package was returned to Fankbonner's office unopened. (Doc. 446 at 1, ¶ 4.) On May 19, Fankbonner resent the discovery material to Nastri at the Essex County Jail in Lewis, New York. (Doc. 445 at 3, ¶¶ 22, 23.) Fankbonner now states: “My file and my case notes are silent as to what specific materials I sent to Mr. Nastri on May 19, 2014, but it is probable that it contained CDs because by that time Mr. Nastri had been moved to Essex, where (I believe) he would have been granted computer access[.]” (Doc. 446 at 2, ¶ 8.) The record confirms Fankbonner's belief. Specifically, on May 5, 2014, Fankbonner filed a motion requesting that Nastri be relocated to a facility that provided computer access so that Nastri could access the electronic evidence furnished in discovery. (Doc. 317 at 1-2.) But the motion was denied as moot after the United States Marshal's Office informed the Court that Nastri had already been relocated to a facility that permitted him access to electronic evidence. (Doc. 319.)

         II. Trial

         Nastri's trial began on May 27, 2014, and the government completed its case on May 30. (See Docs. 412-416; Doc. 416 at 253.) During the trial, the government sought to establish that Nastri participated in a large multi-member conspiracy to distribute heroin in Vermont from 2011 until 2013. (See Doc. 412 at 33-53.) To establish the conspiracy, the government presented the testimony of several investigators, who described seizing drugs, firearms, cellphones, vehicles, and other evidence of drug trafficking and connecting this evidence with Nastri and the other members of the conspiracy. (See Doc. 412 at 76-79, 97-113; Doc. 413 at 12-78; Doc. 415 at 15-36, 192-205.) Law enforcement witnesses also testified that confidential informants executed several controlled buys from the conspirators, which typically involved a confidential informant purchasing heroin, crack cocaine, or cocaine from the conspirators with currency for which the serial numbers had been recorded. (See Doc. 414 at 162-73; id. at 246-63.) To further establish Nastri's role in the conspiracy, the government presented the testimony of several conspirators who had previously pled guilty and who were cooperating with the government, including Raven Peres and Nastri's former girlfriends and coconspirators, Laura Urban and Nicole Rivers. (See Doc. 412 at 113-201; Doc. 413 at 96-236; Doc. 415 at 58-177.) The content of this testimony was corroborated by cellular telephone records, including location monitoring records and transcripts of text messages sent by the conspirators, (Doc. 412 at 263-82; Doc. 413 at 5-78; Doc. 415 at 6-15), recordings of Nastri's prison telephone calls in which Nastri made damaging admissions, (Doc. 412 at 64-71; Doc. 414 at 37, 161-62, 264; Doc. 415 at 251-52), and letters from Nastri to Urban. (Doc. 415 at 124-34.) Finally, the government presented evidence from a March 14, 2012 stop and search of Nastri's person and vehicle, which included $17, 763 in cash, a small quantity of marijuana, drug paraphernalia, and a black ledger book that appeared to reflect drug transactions. (See Doc. 413 at 230-34; Doc. 415 at 228-51.) The confiscated currency included a $20 bill that matched currency from a controlled buy on March 8, 2012. (Doc. 415 at 219.)

         After the government rested its direct case, Attorney Fankbonner informed the Court that he did not believe Nastri would testify but asked for the weekend so that Nastri could fully consider his decision. (Id. at 253.) The Court granted the request, agreeing to let Nastri have additional time over the weekend to reflect on his right to testify. (Id. at 254, 263-64.) Several minutes later, however, after Nastri conferred with his attorney and engaged in a dialog with the Court regarding his right to testify on his own behalf, (id. at 257-61), Nastri announced that he would not testify and stated: “[T]hat's my final decision, your Honor. I understand everything, and I'm not going to testify.” (Id. at 264). By the time Nastri made this announcement waiving his right to testify, the jury had been dismissed and so the Court did not close the evidence. (Id.) Ultimately, when the Court reconvened on Monday, June 2, 2014, Attorney Fankbonner announced that he would not present any evidence, and the defense rested. (Doc. 416 at 33-34.)

         After deliberating, the jury returned its verdict, finding Nastri guilty on the sole count of conspiracy, and by special verdict, finding that the conspiracy involved 100 grams or more of heroin. (Id. at 139-40.)

         III. Sentencing

         A Presentence Report (PSR) was prepared in anticipation of sentencing. The PSR determined that, with respect to the advisory United States Sentencing Guidelines, the adjusted offense level was 39, and Nastri's criminal history category was VI. With regard to the adjusted offense level determination, the PSR concluded that the conspiracy involved the distribution of at least one kilogram but less than three kilograms of heroin, giving rise to a base offense level of 30. (PSR ¶ 84.) Four additional levels were added for Nastri's possession of a firearm pursuant to USSG § 2D1.1(b)(2) and Nastri's commission of the offense conduct as part of a pattern of criminal livelihood under USSG § 2D1.1(b)(14)(E). (PSR ¶ 85.) Nastri also received a three-level managerial role enhancement under USSG § 3B1.1(b), as the evidence revealed that Nastri had directed several individuals to distribute drugs in Maine and Vermont. Finally, the PSR concluded that two additional levels were warranted because Nastri had engaged in obstruction of justice under USSG § 3C1.1 (PSR ¶ 88), by writing letters to his former girlfriend, Laura Urban, as part of an effort to dissuade Urban from testifying. (PSR ¶ 79.) These calculations resulted in an adjusted offense level of 39 under the advisory Guidelines, which carried an advisory imprisonment range of 360 months to life.

         On January 30, 2015, Nastri appeared in the Court for sentencing. The Court rejected the PSR's conclusion that Nastri should receive a two-level firearms enhancement, with the effect of lowering the offense level to 37. (Doc. 419 at 41-42.) Further, in light of various mitigating circumstances described by the Court, the Court adjusted the offense level to 32, with the resulting sentencing range of 210 to 262 months' imprisonment. (Id. at 45.) The Court then imposed a 210-month term of imprisonment, to be followed by eight years of supervised release. (Id. at 46.) Nastri was advised of his right to a direct appeal. (Id. at 48.) Judgment was entered against Nastri on February 4, 2015. (Doc. 400.)

         IV. Nastri's Appeals

         On February 11, 2015, Nastri, represented by Attorney Fankbonner, filed a Notice of Appeal. (Doc. 401.) Nastri also filed a pro se Notice of Appeal. (Doc. 403.) On appeal, represented by Attorney Jesse Siegel, substitute counsel under the CJA, Nastri raised four claims: (1) that he was deprived of a fair trial when the Court failed to excuse a juror; (2) that the prosecutor made improper and prejudicial remarks during summation; (3) that the Court erred in applying the criminal livelihood enhancement to his offense level calculation under the advisory Guidelines; and, (4) that the definition of a pattern of criminal conduct found in the advisory Guidelines is unconstitutionally vague. Nastri, 647 Fed.Appx. at 53-54. The Second Circuit Court of Appeals rejected each of these claims, and affirmed the conviction and sentence. Id. at 53-55.

         Nastri filed a petition for a writ of certiorari to the Supreme Court, which denied certiorari on October 3, 2016. Nastri ...


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