Michael Spataro v. Warden Fort Dix FCI , 684 F. App'x 117 ( 2017 )


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  • DLD-162                                                        NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 16-3710
    ____________
    MICHAEL SPATARO,
    Appellant
    v.
    WARDEN FORT DIX FCI
    __________________________________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civ. No. 1-15-cv-01736)
    District Judge: Noel L. Hillman
    __________________________________
    Submitted on a Motion for Summary Affirmance
    Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
    March 16, 2017
    Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges
    (Opinion filed: April 4, 2017)
    ____________
    OPINION*
    ____________
    PER CURIAM
    Michael Spataro appeals from an order of the District Court dismissing his petition
    for writ of habeas corpus, 
    28 U.S.C. § 2241
    , for lack of jurisdiction. For the reasons that
    follow, we will summarily affirm.
    Spataro was charged in the United States District Court for the Eastern District of
    New York with participating in a conspiracy to murder Joseph Campanella, an alleged
    soldier in the Colombo crime family. The evidence at trial consisted of witness
    testimony, telephone records, audio recordings, and photographs, showing that, on July
    16, 2001, Campanella was shot by Vincent DeMartino and that Spataro had participated
    in the planning of that unsuccessful attempt to murder Campanella. Following a jury
    trial, Spataro was convicted of conspiracy to commit murder in aid of racketeering, in
    violation of 
    18 U.S.C. § 1959
    (a)(5), assault with a dangerous weapon in aid of
    racketeering, in violation of 
    18 U.S.C. § 1959
    (a)(3), and using and carrying a firearm
    during and in relation to a crime of violence, in violation of 
    18 U.S.C. § 924
    (c)(1)(A)(iii).
    The Court of Appeals for the Second Circuit affirmed the criminal judgment, but vacated
    and remanded for resentencing, see United States v. Persico, 293 F. App’x 24, 27 (2d Cir.
    2008). The sentencing court resentenced Spataro on October 15, 2009, to 120 months’
    imprisonment on the third count, to run consecutively to the 168- and 120-month
    concurrent sentences previously imposed on Counts 1 and 2, respectively, for a total
    sentence of 288 months.
    Spataro filed a motion to vacate sentence, 
    28 U.S.C. § 2255
    , in the sentencing
    court, arguing that his trial counsel made numerous errors that amounted to ineffective
    assistance of counsel. Specifically, he asserted that counsel failed to adequately
    investigate and present a viable alibi defense, failed to effectively challenge the
    Government’s primary witness, and failed to retain a reliable expert witness regarding
    certain telephone records. On February 19, 2013, the § 2255 motion was denied on the
    merits, see Spataro v. United States, 
    2013 WL 618426
     (E.D.N.Y. Feb. 19, 2013).
    2
    At issue in this appeal, on March 9, 2015, Spataro filed a pro se petition for writ of
    habeas corpus, 
    28 U.S.C. § 2241
    , in the United States District Court for the District of
    New Jersey, where he is currently confined. Spataro alleged that he is actually innocent
    of aiding and abetting a § 924(c) offense, in light of the Supreme Court’s decision in
    Rosemond v. United States, 
    134 S. Ct. 1240
     (2014); and, in the alternative, he argued that
    he may proceed under § 2241 because Rosemond is in direct conflict with the Pinkerton
    instruction given at his trial, see Pinkerton v. United States, 
    328 U.S. 640
    , 646-48 (1946)
    (permitting conviction of defendant for acts by a coconspirator that were “done in
    furtherance of the conspiracy” and that could have been “reasonably foreseen as a
    necessary or natural consequence” of the conspiracy). Specifically, Spataro argued that
    he did not know that Martino possessed a gun until moments before it was used to wound
    Campanella. Spataro contends that the trial court’s aiding and abetting instructions were
    erroneous because they did not require the jury to find that he knew in advance that a gun
    would be involved in the crime, as required by Rosemond.
    The Government moved to dismiss the § 2241 petition for lack of jurisdiction,
    arguing that its burden of proof at Spataro’s trial actually was more stringent than
    Rosemond’s standard because, in the Second Circuit prior to Rosemond, a defendant
    could only be convicted of aiding and abetting a § 924(c) offense if he performed some
    act that directly facilitated or encouraged the use or carrying of a firearm. Citing a not
    precedential summary order, the Government argued that the Second Circuit has since
    noted that Rosemond effectively lightened the standard for proving aiding and abetting in
    that circuit, see United States v. Rivera, 571 F. App’x 55, 59 n.5 (2d Cir. 2014) (holding
    of Rosemond “expanded aiding and abetting liability under Section 924(c) as previously
    3
    recognized by this Court”). With respect to Spataro’s argument that the breadth of the
    Pinkerton theory of liability is incompatible with Rosemond, the Government argued that
    “the same discordance” identified by Spataro between the Pinkerton and “aiding and
    abetting” standards of proof existed at the time of his conviction under the law of aiding
    and abetting law in the Second Circuit, and thus he could have made that argument on
    direct appeal or in his § 2255 motion.
    Counsel then entered an appearance on behalf of Spataro and submitted a response
    in opposition to dismissal, arguing that the Rosemond claim had merit because the
    sentencing court did not charge the jury that the Spataro must have had advance
    knowledge that a firearm would be used, and that the court’s charge that a defendant must
    have performed some act that directly facilitated or encouraged the perpetrator in the use
    or carrying of a firearm was not tantamount to a charge that a defendant must have
    advance knowledge that a firearm would be used.
    In an order entered on July 21, 2016, the District Court granted the Government’s
    motion and dismissed the § 2241 petition for lack of jurisdiction. The District Court
    agreed with the Government that Rosemond effectively lightened the standard for
    proving aiding and abetting a § 924(c) offense in the Second Circuit. The Court also held
    that Spataro had an earlier opportunity to seek judicial review of his claim that the
    Pinkerton theory of liability is incompatible with the Second Circuit standard for proving
    aiding and abetting a § 924(c) offense, and, that, in any event, the holdings in Rosemond
    and Pinkerton address two distinct and separate theories of vicarious liability.
    4
    Spataro appeals. We have jurisdiction under 
    28 U.S.C. § 1291.1
     The Government
    has moved to summarily affirm the order of the District Court, pursuant to Third Cir.
    LAR 27.4 and I.O.P. 10.6. Spataro submitted a brief and a response in opposition to the
    motion for summary affirmance, which we have considered.
    We will summarily affirm the order of the District Court because no substantial
    question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The
    District Court properly dismissed Spataro’s § 2241 petition for lack of jurisdiction
    because a motion filed under § 2255 in the sentencing court is the presumptive means for
    a federal prisoner to challenge the validity of his conviction or sentence. See Okereke v.
    United States, 
    307 F.3d 117
    , 120 (3d Cir. 2002). In certain limited circumstances, a
    petitioner may seek relief under § 2241 if the remedy provided by § 2255 is inadequate or
    ineffective to test the legality of his detention, see In re: Dorsainvil, 
    119 F.3d 245
    , 249-
    251 (3d Cir. 1997). Section § 2255 is not inadequate or ineffective, however, simply
    because the petitioner is unable to meet the gatekeeping requirements, 
    28 U.S.C. § 2255
    (h), for a second § 2255 motion. See Cradle v. United States ex rel. Miner, 
    290 F.3d 536
    , 539 (3d Cir. 2002) (per curiam).
    We have, as yet, only applied the § 2255 “safety valve” where the petitioner has
    had no prior opportunity to challenge his conviction for actions deemed to be non-
    criminal by an intervening change in law. Okereke, 
    307 F.3d at
    120 (citing Dorsainvil,
    
    119 F.3d at 251
    ). In Rosemond, the Supreme Court addressed what the Government
    must prove when it accuses a defendant of aiding or abetting the § 924(c) offense of
    using or carrying a firearm during and in relation to a crime of violence or drug
    1
    A certificate of appealability is not required to appeal from the denial of a § 2241
    petition. See Burkey v. Marberry, 
    556 F.3d 142
    , 146 (3d Cir. 2009).
    5
    trafficking crime. 
    134 S. Ct. at 1243
    . The Court held that the Government must prove
    that the defendant “actively participated in the underlying drug trafficking or violent
    crime with advance knowledge that a confederate would use or carry a gun during the
    crime’s commission.” 
    Id.
     “[A]dvance knowledge,” the Court stated, means “knowledge
    at a time the accomplice can do something with it -- most notably, opt to walk away.” 
    Id. at 1249-50
    .
    Here, even assuming that the trial court’s instructions violated Rosemond, when a
    petitioner claims he is incarcerated based on conduct that subsequently has been rendered
    non-criminal, we must consider whether the record supports his claim of innocence. See
    United States v. Tyler, 
    732 F.3d 241
    , 247 (3d Cir. 2013). This was a planned execution.
    The evidence, as summarized by the sentencing court in denying Spataro’s criminal Rule
    29 motion for judgment of acquittal, indicates that, because the attempted murder was a
    planned execution, Spataro had advance knowledge that a gun would be used during the
    commission of the crime. The sentencing court explained:
    [A] cooperating witness, Giovanni Floridia …, implicated Spataro in
    the murder conspiracy, testifying about Spataro’s role in the plan to
    murder Campanella, as well as the unsuccessful attempt. Floridia’s
    testimony about Spataro’s participation in the murder conspiracy
    included references to meetings in which Spataro participated as
    well as incriminating actions by Spataro both before and after
    Campanella was shot on July 16, 2001. Had the government relied
    exclusively on Floridia’s testimony -- which was not incredible on
    its face -- to establish Spataro’s guilt beyond a reasonable doubt …
    this evidence would have been enough to sustain Spataro’s
    convictions…. But there was more evidence beyond Floridia’s
    testimony that incriminated Spataro. For example, the government
    introduced telephone records that corroborated Floridia’s testimony
    about Spataro’s role in the murder conspiracy. These telephone
    records reflected that, in the period leading up to and immediately
    following the attempted murder, a significant number of telephone
    calls were placed between the cellular telephones of Spataro and
    Vincent DeMartino…, the person who actually shot Campanella. In
    6
    particular, Floridia testified that, as he and DeMartino were driving
    away from the location where DeMartino shot Campanella,
    DeMartino called Spataro and said, in part, “Hey, Mike. We
    missed.” The telephone records received into evidence indeed
    reflected that a call had, in fact, been placed from DeMartino’s
    telephone to Spataro’s telephone immediately after DeMartino shot
    Campanella. As far as the Court is concerned, no doubt exists that a
    rational trier of fact could conclude -- as this jury did -- that Spataro
    was guilty of all three charges.
    United States v. Spataro, 
    2006 WL 2010788
    , *1-2 (E.D.N.Y. July 10, 2006).
    In sum, § 2255 is inadequate or ineffective to test the legality of detention in a
    case where the gatekeeping provisions bar a successive petitioner who can successfully
    allege actual innocence of the crime of which he was convicted and who, at the time of
    his earlier § 2255 motion could not demonstrate that innocence. But, in Spataro’s case,
    denying him access to federal court under § 2241 is proper because he cannot allege facts
    to support his claim of actual innocence, and therefore the unavailability of relief under §
    2255 does not render that provision inadequate or ineffective as to him.
    As to Spataro’s alternative argument, we agree with the District Court that the
    holdings in Rosemond and Pinkerton address two distinct and separate theories of
    vicarious liability, and that a conviction under a theory of vicarious liability pursuant to
    Pinkerton serves as an alternate basis for conviction. Because Pinkerton and Rosemond
    address two separate theories of liability, there has been no intervening change in law and
    thus the “safety valve” to § 2255 does not apply to Spataro. He has failed to bring his
    Pinkerton claim within the Dorsainvil rule and thus the District Court lacked jurisdiction
    to consider it in a § 2241 petition.
    For the foregoing reasons, we will summarily affirm the order of the District Court
    dismissing Spataro’s § 2241 petition for lack of jurisdiction.
    7