Messina v. United States

NEIL MESSINA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

11-CR-31(KAM)

16-CV-3724 (KAM)

16-CV-6774 (KAM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

July 21, 2020

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, United States District Judge

On April 4, 2014, this court sentenced Neil Messina ("Mr. Messina" or "petitioner") to an 18-year term of imprisonment and three years of supervised release after Mr. Messina pleaded guilty to Racketeering Conspiracy, 18 U.S.C. § 1962(d), pursuant to a plea agreement with the United States of America (the "Government"). (See generally ECF No. 311, Amended Judgment filed May 22, 2014.) Presently before the court are Mr. Messina's petitions to vacate his sentence pursuant to 28 U.S.C. § 2255.¹ For the reasons set forth below, the court respectfully denies and dismisses Mr. Messina's petitions as meritless.

Background

I. The Indictment

On January 12, 2011, a grand jury in the Eastern District of New York returned an indictment charging Mr. Messinaand three other defendants. (ECF No. 1, Indictment filed January 12, 2011, at 1.) On August 16, 2012, the grand jury returned a superseding fifteen-count indictment against Mr. Messina. (See generally ECF No. 190, Superseding Indictment (S-1) filed August 16, 2012.)

A. Count One

Count One charged Mr. Messina with conspiracy to conduct racketeering activity in violation of 18 U.S.C. Section 1962(c) between February 1989 and January 2011 within the Eastern District of New York. (Id. at 6-7.)

Count One charged Mr. Messina with nine separate Racketeering Acts, as asset forth below. (See generally Id.) Racketeering Act One charged Mr. Messina with the conspiracy, attempt, and solicitation of another to cause the death of Michele Maniscalco, on or about February 16, 1989 in violation of New York Penal Law Sections 20.00, 100.10, 105.15, 110.00, and 125.25(1). (Id. at 7-8.) Racketeering Act Two(A) charged Mr. Messina with the conspiracy to rob Joseph Pistone, while armed with a deadly weapon, and in violation of New York Penal Law Sections 160.15(2) and 105.10, and Racketeering Act Two(B) charged Mr. Messina with the murder of Joseph Pistone while armed with a deadly weapon in violation of New York Penal Law Sections 20.00 an 125.25(3), on or about August 17, 1992. (Id. at 8-9.). Racketeering Act Three charged Mr. Messina withIllegal Gambling - Sports Betting, including the illegal transmission of wagering information and use of interstate facilities in-aid of racketeering between 2008 and May 2009 in violation of New York Penal Law Section 225.05 and 18 U.S.C. Sections 1084(a) and 2, 1952(a)(2)(A) and 2. (Id. at 9-10.) Racketeering Act Four charged Mr. Messina with Extortionate Collection of Credit Conspiracy, between January 2007 and January 2011, in violation of 18 U.S.C. Section 894(a)(1). Racketeering Acts Five and Six charged Mr. Messina with Extortionate Extension of Credit to John Doe #1 and John Doe #2, respectively, in violation of 18 U.S.C. Sections 892(a) and 2. (Id. at 10-11.)

Racketeering Act Seven charged Mr. Messina with Extortionate Collection of Credit Conspiracy in relation to John Doe #3, between approximately December 2009 and March 2010, in violation of 18 U.S.C. Section 894(a)(1) and New York Penal Law, Sections 105.10, 155.40(2), 155.05(2)(e)(i), 155.05(2)(e)(ii), and 105.10. (Id. at 11-12.) Racketeering Act Eight charged Mr. Messina with Illegal Gambling - Sports Betting, including the transmission of wagering information, between approximately April 2010 and December 2010, in violation 18 U.S.C. Sections 1084(a) and 2, and use of interstate facilities in-aid-of racketeering in violation of 18 U.S.C. Sections 1952(a)(2)(A) and 2, between April 2010 and December 2010. (Id. at 12-13.)Racketeering Act Nine charged Mr. Messina with conspiracy and participation in extortionate extension and collection of credit from John Doe #4, between approximately April 2010 and January 2011, in violation of 18 U.S.C. Sections 892(a) and 2, and 894(a)(1) and 2. (Id. at 14-15.)

B. Other Counts

Count Two charged Mr. Messina with Collection of Unlawful Debt Racketeering Conspiracy, between approximately January 2007 and January 2011, in violation of 18 U.S.C. Sections 1961(6), 1962(c), 1963 and 3551 et seq., and New York Penal Law Section 190.40. (Id. at 15-16.) Count Three charged Mr. Messina with Transmission of Wagering Information, between approximately 2008 and May 2009, in violation of 18 U.S.C. Sections 1084(a), 2 and 3551 et seq. (Id. at 16-17.) Count Four charged Mr. Messina with the use of interstate facilities in-aid-of Racketeering between 2008 and May 2009. (Id. at 17-18.) Count Five charged Mr. Messina with conspiracy to participate in the extortionate collection of credit between January 2007 and January 2011. (Id. at 18.) Counts Six and Seven charged Mr. Messina with the extortionate extension of credit to John Doe #1, between April 2009 and January 2011, and Jon Doe #2 between September 2009 and December 2010, respectively. (Id. at 18-19.)

Count Eight charged Mr. Messina with Extortionate Collection of Credit Conspiracy from John Doe #3, between approximately December 2009 and March 2010. (Id. at 19-20.) Count Nine charged Mr. Messina with Transmission of Wagering Information between approximately April 2010 and December 2010, in violation of 18 U.S.C. Sections 1084(a), 2 and 3551 et seq. (Id. at 20.) Count Ten charged Mr. Messina with Use of Interstate Facilities in-aid-of Racketeering between approximately April 2010 and December 2010, in violation of 18 U.S.C. Sections 1952(a)(2)(A), 2 and 3551 et seq. (Id. at 21.) Counts Eleven, Twelve, Thirteen and Fourteen charged Mr. Messina with Extortionate Collection of Credit Conspiracy and Extortionate Extension of Credit, in regard to John Doe #4, between approximately April 2010 and January 2011, in violation of 18 U.S.C. Sections 892(a), 894(a)(1) and 3551 et seq. (Id. at 21-23.) Count Fifteen charged Mr. Messina with knowingly and intentionally Using, Carrying and Possessing a Firearm, during and in relation to a crime of violence, to wit: the crime charged in Count One, as well as the knowing and intentional possession of firearms in furtherance of this crime of violence, which firearms were brandished and discharged. (Id. at 24-25.)

II. The Plea

Mr. Messina, represented by Gerald J. McMahon, Esq. ("Mr. McMahon"), and Mathew Mari, Esq. ("Mr. Mari"), engaged inplea negotiations with the Government.² On January 28, 2013, the Government extended the first plea offer, pursuant to Federal Rule of Civil Procedure 11(c)(1)(B) ("Rule 11(c)(1)(B)"), which would carry no mandatory minimum sentence and a 20-year maximum sentence and fell within an estimated Guidelines range of 324 to 405 months of imprisonment, for an effective range of 20 years, i.e. the statutory maximum. (ECF No. 333-1, Affidavit of Gerald J. McMahon ("McMahon Affidavit") ¶ 9.) On February 4, 2013, the Government extended a second plea offer under Rule 11(c)(1)(B) that contained the same terms as the first plea offer, with no changes to the applicable statutory range of imprisonment or Guidelines range. (Id.) Under the first and second plea offers, Mr. Messina would not be required to allocute to the murder of Joseph Pistone and or to plead guilty to the Section 924(c) charge. (Id. at 6.) The second plea offer differed from the initial offer in that Mr. Messina would allocute to the extortionate collection of credit from John Doe #1 rather than conspiracy to commit extortionate collection of credit as to John Doe #3, the forfeiture provision was removed, and the new offer included coverage for racketeering and racketeering conspiracy. (Id. at 5-6 & n.2.)

Having been advised by counsel of these considerations, Mr. Messina decided to accept the agreement offered on February 4, 2013. (Id. ¶ 11.) According to Mr. McMahon's Affidavit, the Government "never extended a plea offer under Rule 11(c)(1)(C)" and "never offered a plea that would have 'capped' Mr. Messina's sentence at ten years[.]" (Id. ¶¶ 12-13.) The Government's memorandum confirmed Mr. McMahon's statement that a plea with a ten-year cap was never offered by the Government. (ECF No. 332, Response in Opposition dated June 2, 2017 ("Gov. Mem.") at 13-14.) Further, Mr. Mahon averred that the Government advised him that "it would not enter any agreement unless Mr. Messina allocuted to the events underlying either the murder of Pistone or the attempted murder of Maniscalco." (Id. ¶ 13.)

The second, signed, plea agreement stipulated that Mr. Messina would plead guilty to Count One charging racketeering conspiracy, 18 U.S.C. Section 1962(d), including Racketeering acts 2(A) (Conspiracy to Rob Joseph Pistone, 3 (Illegal Gambling - Sports Betting), and 5 (Extortionate Extension of Credit - John Doe #1). (Plea Agreement at 2-3.) Count One in the plea agreement carried a maximum term of imprisonment of 20 years with no mandatory minimum, a maximum supervised release term of 3 years, restitution to be determined by the Court, and a fine. (Id.) The stipulated adjusted offense level, including a two-level reduction pursuant to U.S.S.G. Section 3E1.1(a) for acceptance of responsibility and an additional one-level reduction pursuant to U.S.S.G. Section 3E1.1(b) for timely acceptance of responsibility, resulted in an adjusted offense level of 40, with a range of imprisonment of 324 to 405 months assuming defendant was within Criminal History Category II. (Id. at 3-4.) Due to the statutory maximum, the effective range under the Guidelines was 240 months. (Id. at 4.) The Government agreed to recommend that a term of imprisonment of 120 months is appropriate, pursuant to Fed. R. Crim. P. 11(c)(1)(B). (Id.)

The agreement states that the "defendant understands that although imposition of a sentence in accordance with the United States Sentencing Guidelines (the 'Guidelines' and 'U.S.S.G.') is not mandatory, the Guidelines are advisory and the Court is required to...