Spirito v. United States

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KENNETH R. SPIRITO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CRIMINAL ACTION No. 4:19-CR-43

United States District Court, E.D. Virginia, Newport News Division

December 12, 2024

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, UNITED STATES DISTRICT JUDGE.

Before the Court is Kenneth R. Spirito's (“Petitioner”) Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to Title 28, United States Code Section 2255 (“§ 2255 Motion). ECF No. 181 (“Pet'r's Mot.”). The Government filed a Response in Opposition and Petitioner replied. ECF No. 190 (“Resp. Opp'n”); ECF No. 191 (“Pet'r's Reply”). The Court held a hearing on Petitioner's alleged Brady violation and this matter is now ripe for judicial determination. ECF No. 194. For the reasons below, Petitioner's Motion is DENIED.^[1]

I. FACTUAL BACKGROUND

On September 9, 2019, Petitioner was named in a 24-count Superseding Indictment. ECF No. 29. Counts One through Eleven and Nineteen charged Petitioner with Conversion and Misapplication of Property from Organization Receiving Federal Funds, in violation of 18 U.S.C. §§ 666(a)(1)(A) and 2. Id. Counts Twelve through Seventeen charged Petitioner with Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity, in violation of 18 U.S.C. §§ 1957 and 2 Id. Count Eighteen charged Petitioner with Falsification of Records in Federal Investigations, in violation of 18 U.S.C. § 1519. Id. Counts Twenty through Twenty-three charged Petitioner with Perjury, in violation of 18 U.S.C. § 1623(a). Id. Count Twenty-four charged Petitioner with Obstruction of Justice, in violation of 18 U.S.C. § 1503. Id.

Petitioner retained Attorney Trey Kelleter in 2019. See ECF No. 11. A ten-day jury trial began on February 25, 2020. ECF No. 56. On March 10, 2020, a jury found Petitioner guilty on all Counts except Count Twenty-two. ECF Nos. 86-87.

According to the Presentence Investigation Report (“PSR”), Petitioner misapplied and laundered money from The Peninsula Airport Commission between June 11,2014, and November 2015. Present. Investig. Rep. ¶ 6. The Peninsula Airport Commission (PAC) was created by the Virginia Legislature to establish and operate the Newport News/Williamsburg International Airport (“PHF”). Id. ¶ 7. The PAC handled economic development and the day-to-day affairs of the airport. Id. Petitioner was the PAC's Executive Director from January 4, 2009, to May 15, 2017. Id. ¶ 8.

Amid changes at PHF that resulted in approximately a 50% decrease in passenger traffic, Petitioner and the PAC Board searched for solutions. Id. ¶ 11,16. Michael Morisi set out to start a new low-cost airline called People Express Airlines (“PEX”). Id. ¶ 12. In 2014, Defendant devised a plan for a loan guaranty that benefited PEX. Id. ¶ 25. Shortly after acquiring the loan, PEX defaulted, and the PAC was left responsible for PEX's obligations to TowneBank. Id. ¶ 42, 45. Petitioner misapplied funds and then used these funds to make payments on the loan. Id. ¶ 50.

On April 21, 2020, Petitioner moved for Judgment of Acquittal. ECF No. 98. On July 10, 2020, this Court granted Petitioner's Motion on Count Twenty-four and denied the Motion on the remaining Counts. ECF No. 123. On July 16, 2020, Petitioner was sentenced to 48 months' probation and restitution in the amount of $2,511,153.16. See ECF Nos. 127-129. Petitioner appealed. ECF No. 132. On October 5, 2022, this Court amended its Judgment after the United States Court of Appeals for the Fourth Circuit Vacated Count 19. ECF No. 171.

Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 on January 9, 2024. On February 20, 2024, this Court ordered Attorney Kelleter, Attorney Littel, and Assistant Federal Public Defender Kmet (“AFPD Kmet”) to provide affidavits in response to Petitioner's § 2255 Motion. ECF No. 185. On April 29,2024, the Government responded to Petitioner's Motion. ECF No. 190. On May 20, 2024, Petitioner replied. ECF No. 191. On November 20, 2024, the Court held a hearing to determine the credibility of Petitioner's alleged Brady violation. ECF No. 194.

II. LEGAL STANDARD

A. Section 2255

Section 2255 allows a federal prisoner “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 ... [to] move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255. In a § 2255 motion, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

When deciding a § 2255 motion, the Court must promptly grant a hearing “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Motions under § 2255 generally “will not be allowed to do service for an appeal.” Sunal v. Large, 332 U.S. 174,178-79 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013). Issues that should have been raised on direct appeal are deemed waived, procedurally defaulted, and cannot be raised on a § 2255 Motion. United States v. Mikalajunas, 186 F.3d 490, 492 (4th Cir. 1999).

However, an individual may raise a procedurally defaulted claim if he or she can show (1) “cause and actual prejudice resulting from the errors of which he complains;” or (2) that “a miscarriage of justice would result from the refusal of the court to entertain the collateral attack.. . . [meaning] the movant must show actual innocence by clear and convincing evidence.” Id. at 492-93. To demonstrate cause and prejudice, a petitioner must show the errors “worked to [his or her] actual and substantial disadvantage, infecting [his or her] entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Ineffective assistance of counsel claims should generally be raised in a collateral motion instead of on direct appeal and constitute sufficient cause to review a procedurally defaulted claim. See United states v. Benton, 523 F.3d 424,435 (4th Cir. 2008); Mikalajunas, 186 F.3d at 493.

B. Brady Violation

The suppression of evidence favorable to the accused violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 86 (1963). A court must vacate a conviction and order a new trial if the prosecution suppressed materially exculpatory evidence. United States v. King, 628 F.3d 693, 701 (4th Cir. 2011) (citing Brady, 373 U.S. at 83). To secure reliefunder Brady, a defendant must: (1) identify the existence of material evidence favorable to the accused; (2) show that the Government suppressed the evidence; and (3) demonstrate that the suppression was material. Id. at 701. When a Brady violation is alleged, the burden of proof rests with the defendant. Id. at 701-02 (citing United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001)).

C. Ineffective Assistance of Counsel

A viable ineffective assistance of counsel claim arises when “the counsel's conduct so undermined the proper functioning of the adversarial process that the trial did not result in a just outcome.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove a claim of ineffective assistance of counsel, a petitioner must make two showings.

First, a petitioner must show that counsel's performance was deficient (“performance prong”). Id. at 687. Counsel's errors must have been so serious that he or she was not actually functioning as counsel as guaranteed by the Sixth Amendment. Id. To demonstrate deficient performance, a petitioner must show “that counsel's representation fell below an objective standard of reasonableness” under the prevailing norms of the legal community. Id. at 688.

“Judicial scrutiny of counsel's performance must be highly deferential,” so “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. That presumption is even greater when counsel's decisions represent strategic, tactical decisions requiring “assessment and balancing of perceived benefits against perceived risks.” United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004). A petitioner bears the burden of rebutting this presumption. Strickland, 466 U.S. at 689.

Second, a petitioner must show that the deficient performance prejudiced the defense (“prejudice prong”). Id. at 687. In other words, counsel's errors must have been so serious that the petitioner was deprived of a fair trial with a reliable result. Id. To demonstrate prejudice, a petitioner must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Supreme Court defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Id. In short, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgement of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.

III. DISCUSSION

In his § 2255 Motion, Petitioner raises two grounds for relief. First, Petitioner asserts that the Government committed a Brady violation by suppressing the report of their pre-trial interview with Michael Morisi (“Morisi”). Pet'r's Mot. at 1 and 5. In support of his Brady claim, Petitioner attaches the sworn Declaration of Michael Morisi (“Declaration”) Pet'r's Mot. at Ex. 1. Morisi was sentenced to two years in prison after pleading...