United States District Court, D. Massachusetts
OPINION AND ORDER
A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE
defendant was convicted by a jury of nineteen counts of mail
and wire fraud. His convictions were affirmed on direct
appeal. The defendant now brings numerous motions challenging
this Court's forfeiture and sentencing decisions, as well
as a motion to vacate his conviction and sentence under 28
U.S.C. § 2255 and a motion for a new trial pursuant to
Federal Rule of Criminal Procedure 33. I address each motion
Motion for Reconsideration of Forfeiture Order (dkt. no. 477)
defendant moves to reconsider the order of forfeiture. At the
sentencing hearing, I requested additional briefing from the
parties regarding their forfeiture arguments. (See Sentencing
Tr. 30-33 (dkt. no. 446).) After considering those additional
papers and arguments, I ordered forfeiture in the amount of
$14, 053, 715.52.
Court of Appeals has held:
Motions for reconsideration are not to be used as a vehicle
for a party to undo its own procedural failures or allow a
party to advance arguments that could and should have been
presented to the district court prior to judgment. Instead,
motions for reconsideration are appropriate only in a limited
No. of circumstances: if the moving party presents newly
discovered evidence, if there has been an intervening change
in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
United States v. Allen, 573 F.3d 42, 53 (1st Cir.
2009) (citations and internal quotation marks omitted). The
defendant fulfills none of those requirements here.
primary argument is that his forfeiture amount should be
reduced by the amount of money he and his company, BPETCO,
“voluntarily” paid out to all Exchangors in 2000
and 2001, which, he argues, should be accounted for as
statutory “direct costs.” See 18 U.S.C. §
981(a)(2)(B). This argument fails for several reasons.
this argument was not raised prior to the Court's
forfeiture decision, despite extensive briefing. (See, e.g.,
Daniel E. Carpenter's Mem. in Reply to Gov't
Sentencing Mem. 1-2 (dkt. no. 434); Def. Daniel E.
Carpenter's Resp. in Opp'n to U.S.' Suppl. Br. in
Supp. of Entry of Money J. in the Amount of $14, 053, 715.52
(dkt. no. 455); Assented-To Mot. For Leave to File Sur-Reply
(dkt. no. 470) (sur-reply attached to motion).) Instead, the
defendant's argument then focused on whether this Court
had the power to order forfeiture and how the amount to be
forfeited should be calculated. He had ample opportunity to
develop a theory that payments to Exchangors were a direct
cost within the statutory meaning. The defendant's
contention that arguments on direct costs were
“premature” or “not in dispute” at
the time is not persuasive. The burden of proof of direct
costs lies with the defendant. See 18 U.S.C. §
981(a)(2)(B). After discussion on forfeiture at the
sentencing hearing, I requested additional briefing
specifically to address forfeiture issues. That was the time
to present all arguments regarding the issue.
the defendant makes no attempt to link the payments paid to
the Exchangors with the specific counts for which forfeiture
the statutory term “direct costs” clearly refers
to the costs of doing business in the ordinary course of
transactions that would have been legal but for the fraud.
extent that the defendant makes other arguments about
forfeiture elsewhere in his filings, including in his Section
2255 petition, (see Mot. to Vacate Conviction & Reduce
Sentence 41-44 (dkt. no. 497)), those arguments merely
reexamine issues already decided in the original forfeiture
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (dkt. no. 496)
motion for post-conviction relief under 28 U.S.C. §
2255, the defendant makes a variety of arguments why his
conviction and sentence should be vacated. Relief under
§ 2255 “is an extraordinary remedy, available only
on a sufficient showing of fundamental unfairness.”
Singleton v. United States, 26 F.3d 233, 236 (1st
the lengthy history of this litigation, it should be
unsurprising that many, if not all, of the issues raised by
the defendant now have already been addressed by this Court
or by the First Circuit. Generally speaking, “issues
disposed of in a prior appeal will not be reviewed again by
way of a 28 U.S.C. § 2255 motion.” Singleton, 26
F.3d at 240 (quoting Dirring v. United States, 370
F.2d 862, 864 (1st Cir. 1967)). Absent some working of
significant injustice, relitigating points already decided is
wasteful and undercuts confidence in the judicial process.
See Ellis v. United States, 313 F.3d 636, 646-47
(1st Cir. 2002); see also United States v.
Matthews, 643 F.3d 9, 12- 13 (1st Cir. 2011) (discussing
the doctrine of law of the case).
defendant raises a No. of arguments regarding venue. Whether
venue was proper has been extensively litigated in this case
and is addressed in previous decisions by this Court. See,
e.g., United States v. Carpenter (Carpenter I), 405
F.Supp.2d 85, 88-92 (D. Mass. 2005). The defendant has put
forward no new reason to reexamine this issue.
Ineffective Assistance of Counsel
v. Washington, 466 U.S. 668 (1984), requires that a
defendant make two showings in order to prove that his
counsel was constitutionally ineffective: (1) “that
counsel's performance was deficient, ” and (2)
“that the deficient performance prejudiced the
defense.” Id. at 687.
deficient performance, “there is a ‘strong
presumption' that counsel's strategy and tactics fall
‘within the range of reasonable professional
assistance,' and courts should avoid second-guessing
counsel's performance with the use of hindsight.”
Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)
(quoting Strickland, 466 U.S. at 689). “Judicial
scrutiny of the defense counsel's performance is
‘highly deferential,' and the defendant must
overcome a ‘strong presumption . . . that, under the
circumstances, the challenged action “might be
considered sound trial strategy.”'” Bucci
v. United States, 662 F.3d 18, 30 (1st Cir. 2011)
(alteration in original) (quoting Strickland, 466 U.S. at
689). Concerning prejudice, the defendant must show that
there is a reasonable probability that the outcome of the
prior proceedings would have been different but for
counsel's deficiencies. Strickland, 466 U.S. at 694.
defendant raises a host of alleged errors committed by his
privately retained counsel. The defendant is relatively brief
in describing the “litany of errors,
” (Mot. to Vacate Conviction & Reduce
Sentence 20), and I shall be as well.
the defendant complains that his counsel “[f]ail[ed] to
discover, investigate, or even get a copy of the February
2008 Iantosca lawsuit.” (Id.) The defendant in
no way explains what specifically about that lawsuit would
have helped his case, or how the opinion he attached, decided
in November 2008, could have helped him during his trial in
June of that year. See Iantosca v. Merrill Lynch Pierce
Fenner & Smith, Inc., Opinion No. 106524, Docket No.
08-0775-BLS2, 2008 Mass. Super. LEXIS 479 (Mass. Super. Ct.
Nov. 25, 2008). That case was dismissed at the motion to
dismiss stage, and thus it is unclear what, if anything, the
fruits of additional investigation into that case might have
the defendant cites the lack of objection to the
prosecutor's statement of “that's fraud”
during his closing argument. The First Circuit concluded that
“[t]aken in context, it is clear that the
prosecution's comments were permissible comments on the
evidence in the case rather than the prosecutor's own
opinion.” United States v. Carpenter (Carpenter
IV), 736 F.3d 619, 632 (1st Cir. 2013). While the
Circuit's analysis was under plain error review, it is
equally clear that under the Strickland standard, this
comment is not so extreme that counsel's failure to
object fell below an objective standard of reasonableness.
the defendant argues that his counsel failed to move for a
new trial based on newly discovered evidence concerning
Merrill Lynch. He claims that his counsel failed to so move
because they were representing Merrill Lynch and had
conflicting interests. The defendant's argument is
factually inaccurate. Defense counsel did argue for a new
trial on that basis. (See Def.'s Reply in Supp. of His
Suppl. Mem. Concerning New Evid. (dkt. no. 359).) I rejected
that particular argument but did grant a new trial for a
different reason. See United States v. Carpenter
(Carpenter III), 808 F.Supp.2d 366, 386 (D. Mass. 2011).
The Court of Appeals reversed that order. Carpenter IV, 736
F.3d at 632.
the defendant complains that counsel was deficient in failing
to press for a particular jury instruction based on a case
decided long after his trial. See United States v.
Gray, 780 F.3d 458 (1st Cir. 2015). Not only is it
impossible for counsel to be ineffective for failure to
predict an appellate decision seven years in the future, but
the jury instructions in this case were affirmed on direct
review. See U ...