United States District Court, D. Minnesota
David J. MacLaughlin, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.
Robert D. Richman, for defendant.
PATRICK J. SCHILTZ, District Judge.
In October 2007, defendant Michael Fiorito pleaded guilty before Senior Judge Paul A. Magnuson to one count of aiding and abetting mail fraud. Before sentencing, though, Fiorito sent three letters to Judge Magnuson, each asking for permission to withdraw his guilty plea. The letters were sent by Fiorito from his jail cell against the advice of his appointed counsel, who warned Fiorito that withdrawing his plea would be a mistake. In response to the third letter, Judge Magnuson granted Fiorito's request to withdraw his plea; Judge Magnuson did so without holding a hearing or otherwise discussing the request with Fiorito or his counsel. The next day, Judge Magnuson recused himself from further involvement in Fiorito's case, and the case was assigned to the undersigned.
After further disagreements with his appointed counsel, Fiorito sought permission to represent himself. The Court conducted a Faretta hearing and, at the conclusion of that hearing, granted Fiorito's request. See Faretta v. California, 422 U.S. 806 (1975). The case proceeded to trial, and Fiorito was convicted by a jury of six counts of mail fraud and one count of conspiracy to commit mail fraud. The Court sentenced Fiorito to 270 months' imprisonment, to be served consecutively to a 120-month term of imprisonment that Fiorito was already serving on an unrelated state-court conviction. Fiorito's conviction and sentence were affirmed on direct appeal. See United States v. Fiorito, 640 F.3d 338 (8th Cir. 2011).
This matter is before the Court on Fiorito's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Fiorito raises 17 grounds for relief in his § 2255 motion. The Court appointed counsel to represent Fiorito with respect to two of those grounds. Fiorito had a falling out with that attorney and asked for a replacement. The Court granted Fiorito's request and appointed Robert D. Richman to represent him with respect to those two grounds. Richman has done excellent work, for which the Court expresses its appreciation.
Roughly speaking, the 17 grounds for relief raised by Fiorito can be grouped into three categories. First, Fiorito alleges that Judge Magnuson erred by allowing Fiorito to withdraw his guilty plea without first holding a Faretta -type hearing and confirming that his pro se request was made voluntarily, knowingly, and intelligently. Second, Fiorito alleges that his trial attorney provided ineffective assistance in many respects during the course of the pre-trial proceedings - especially by not doing more to persuade Judge Magnuson to deny Fiorito's request to withdraw his guilty plea. See Strickland v. Washington, 466 U.S. 668 (1984). Third, Fiorito raises a variety of other grounds for relief, including claims regarding juror misconduct, prosecutorial misconduct, sentencing errors, and violations of the Double Jeopardy Clause.
The Court held an evidentiary hearing over the course of four days and received posthearing briefing from the parties. Having considered the evidence and the parties' submissions, the Court finds that Fiorito is not entitled to relief on any of his claims. Accordingly, Fiorito's § 2255 motion is denied.
On June 19, 2007, the government filed an indictment charging Fiorito with three counts of mail fraud under 18 U.S.C. § 1341, one count of conspiracy to commit mail fraud under 18 U.S.C. § 371, and one count of engaging in a financial transaction with criminally derived property under 18 U.S.C. § 1957. See Indictment [ECF No. 1]. According to the indictment, Fiorito and a co-conspirator defrauded homeowners through an equity-stripping scheme. That scheme took two forms. In one version, the defendants caused "vulnerable homeowners to refinance their homes and then [stole] some or all of the proceeds of the refinancing...." Id. ¶ 3. In the other version, the defendants induced "homeowners to sell their homes to the defendants or others and then [stole] the checks paid to the victims out of the closing of the sale." Id. The case was assigned to Judge Magnuson, who appointed attorney Douglas B. Altman to represent Fiorito. See ECF Nos. 13-14; 18 U.S.C. § 3006A.
Fiorito told Altman shortly after the indictment was filed that he was innocent of the crimes charged. See Def. Ex. 42 at 1 ("It probably doesn't mean a whole lot to you but I am innocent."); Evid. Hr'g Tr. 1 at 35-36. At the same time, Fiorito indicated to Altman that he was amenable to pleading guilty. Id. In late August or early September 2007, the government offered Fiorito two different plea deals. See Def. Ex. 5. Under either deal, Fiorito would plead guilty to one count of mail fraud, and the remaining four counts would be dismissed. Also under either deal, the government would promise not to prosecute Fiorito's wife for her alleged involvement in the equity-skimming scheme. Finally, under either deal, the government would recommend a three-point downward adjustment in Fiorito's offense level for acceptance of responsibility under § 3E1.1 of the United States Sentencing Guidelines - if, in fact, Fiorito accepted responsibility for his offense. Beyond that, however, the two plea offers differed significantly.
Under the first option - referred to by the parties (and therefore by the Court) as the "Column A" option - the government would recommend that Fiorito receive a 100-month term of imprisonment; such a term would equal the bottom of the range recommended by the Sentencing Guidelines for a defendant in criminal-history category VI with an offense level of 24. In return, Fiorito would give up most of the arguments that he might otherwise make for why the range recommended by the Sentencing Guidelines should be even lower. Fiorito could not, for example, dispute the amount of loss caused by his offense, or contend that he played only a minimal or minor role in the offense, or argue that his classification in criminal-history category VI substantially over-represented the seriousness of his criminal record.
The second option - referred to by the parties (and therefore by the Court) as the "Column B" option - was "an agreement to disagree on practically everything...." Evid. Hr'g Tr. 1 at 41. Fiorito would still plead guilty to one count of mail fraud, but under the Column B agreement, he would be permitted to dispute just about every assertion in the Presentence Investigation Report ("PSR") about his conduct and about how the Sentencing Guidelines should apply to him, including assertions about amount of loss, his role in the offense, and his criminal-history category. There was a catch, however: Under the Column B approach, the government would not recommend a 100-month sentence, and the government could attempt to show at the sentencing hearing that Fiorito's offense level under the Sentencing Guidelines was higher than the offense level that had been anticipated under the Column A offer.
The Column B option was obviously far riskier than the Column A option. If Fiorito chose the Column B option and won each of his arguments at the sentencing hearing, the bottom of the range recommended by the Sentencing Guidelines might end up significantly lower than 100 months. But if Fiorito lost most of his arguments, the Guidelines range would likely end up above the range contemplated under the Column A option - perhaps well above that range if Fiorito struck out completely.
Despite those risks, Fiorito chose Column B. On October 2, 2007, Fiorito pleaded guilty to one count of mail fraud with the understanding that he would be permitted to contest nearly everything about the scope of his offense and the application of the Sentencing Guidelines. See Def. Ex. 6. Indeed, the plea agreement was explicit that "[t]he government and Michael Fiorito disagree fundamentally about how the United States Sentencing Guidelines should apply to this case." Id. ¶ 6. On the government's version of events, the offense level under the Sentencing Guidelines for Fiorito's count of conviction, after taking into account the number of victims, amount of loss, and all other considerations, was 31. Id. ¶ 12. If Fiorito "fully acknowledge[d] complete responsibility for the offense of conviction and all relevant conduct, " the government would recommend a three-point reduction for acceptance of responsibility, resulting in a final offense level of 28 and a recommended range of 140 to 175 months. Id. ¶ 13. However, Fiorito reserved the opportunity under the plea agreement to argue at the sentencing hearing that his recommended sentencing range should be substantially lower. Id. ¶ 6.
Judge Magnuson conducted a plea colloquy and verified that Fiorito understood and accepted the plea agreement as described in the written document. See Def. Ex. 7. The colloquy was not entirely smooth. Altman, not the prosecutor, elicited from Fiorito the factual basis for the guilty plea. Id. at 13. Fiorito did not admit to either of the equity-skimming schemes alleged by the indictment and described above. Instead, Fiorito admitted that, in the course of financing one victim's home, he mailed to the lender a power-of-attorney form that he suspected was forged, and that the lender likely relied on the forged form in agreeing to provide the money for the refinancing. Id. at 16-17. Fiorito also acknowledged that he made certain promises to one victim with respect to home-sale and credit-repair services but then failed to perform those services. See id. at 15-16. Judge Magnuson initially expressed reluctance to accept the plea agreement, see id. at 18, but after Fiorito acknowledged that he was paid about $13, 000 for credit-repair services that he did not perform, Judge Magnuson accepted Fiorito's guilty plea and ordered that U.S. Probation and Pretrial Services prepare a PSR in anticipation of Fiorito's sentencing.
The PSR largely, although not entirely, agreed with the positions set forth by the government in the plea agreement. See Def. Ex. 8. Specifically, the PSR concluded that Fiorito was responsible for over $400, 000 in loss as a result of his offense; that the offense involved more than 10 victims; that Fiorito knew or should have known that some of his victims were vulnerable; that Fiorito abused a position of trust in committing the offense; and that Fiorito had obstructed the administration of justice during the course of the investigation. See id. ¶¶ 42-49. Critically, the PSR also concluded that because Fiorito had obstructed justice, he was not entitled to a three-point reduction in offense level for acceptance of responsibility. Id. ¶ 40. Based on those conclusions, the PSR calculated Fiorito's offense level at 29, which would result in a recommended imprisonment term of 151 to 188 months (assuming a criminal-history category of VI).
The government did not object to any statement in the PSR. See Def. Ex. 9 at 1. Fiorito, by contrast, objected to just about everything, contesting "the loss amount, the number of victims, the vulnerability of the victims, the adjustment for obstruction of justice, and the inapplicability of acceptance of responsibility, " along with numerous factual assertions. Id .; see also Def. Ex. 11 (raising objections to 46 paragraphs of the PSR); Def. Ex. 13. Judge Magnuson scheduled an evidentiary hearing regarding these disputes.
Two months before the evidentiary hearing was set to occur, the government extended "an offer to settle [the] case" to Fiorito similar to the Column A plea offer that he earlier rejected. Def. Ex. 15 at 1. Specifically, the government offered "to enter into a supplemental stipulation contemplating a joint sentencing recommendation of 100 months in the custody of the bureau of prisons." Id. In addition, the government would recommend that this sentence be served concurrently with the 120-month term of imprisonment that Fiorito was already serving as a result of a state conviction for engaging in a pattern of harassment. Id. In return, Fiorito would agree not to pursue the bevy of arguments that he had made regarding his offense level.
The government set a hard deadline of about two weeks for Fiorito to accept this offer. Id. at 2. If Fiorito did not accept the offer by the deadline, the government warned that it would " insist on the evidentiary hearing" and would "be asking the District Court to impose an entirely consecutive sentence upon Mr. Fiorito at the top of whatever guideline range is determined to apply which, if the position of the probation officer is sustained, will be 188 months." Id.
Fiorito regarded the government's ultimatum as a breach of the plea agreement. See Def. Ex. 16. According to Fiorito, the government had already committed itself in the plea agreement to recommending a three-point reduction in offense level for acceptance of responsibility. By threatening to argue "the position of the probation officer, " Def. Ex. 15 at 2, the government was implicitly suggesting that Fiorito was not entitled to this three-point reduction. This, said Fiorito, amounted to the government retracting one of the few concrete benefits that Fiorito received under the Column B plea agreement. See Def. Ex. 16. at 1. Fiorito also believed that the government's threat to recommend that his federal sentence be imposed consecutively to his state sentence violated the spirit, if not the letter, of the plea agreement. Id. For its part, the government denied that it was in breach of the plea agreement and pointed out that its recommendation of the three-point acceptance-of-responsibility reduction was contingent on Fiorito "fully acknowledg[ing] complete responsibility for the offense of conviction and all relevant conduct." Def. Ex. 6 ¶ 13. The government told Fiorito that if he admitted that he had engaged in "equity stripping, as alleged in the Indictment, then the government would have to revisit its current disinclination to recommend the acceptance reduction." Def. Ex. 17 at 2.
The government's response did not go over well with Fiorito, who continued to believe that the government was in breach of the plea agreement. Altman filed a "motion to enforce [the] plea agreement, or, in the alternative, to withdraw [the] guilty plea." Def. Ex. 19. As Altman was drafting this motion, Fiorito was writing a pro se letter to Judge Magnuson, informing Judge Magnuson that "the Government has breached the plea agreement in my case & I want to withdraw my plea of guilty and set a date for trial." Def. Ex. 18. The government, for its part, agreed that "Fiorito should be allowed to withdraw from his plea agreement, " as "Fiorito absolutely denies engaging in any of the conduct charged in the indictment. He should not have pled guilty in the first place." Def. Ex. 20.
Before Judge Magnuson could respond to any of these documents, Altman filed a motion to withdraw the two motions to withdraw Fiorito's guilty plea - that is, to withdraw both (1) the motion filed by Altman on Fiorito's behalf and (2) Fiorito's pro se "motion." See Def. Ex. 21. This new motion reiterated, however, that Fiorito believed that the government was in violation of the plea agreement, and Altman again asked that Judge Magnuson enforce the plea agreement. Id. In response, the government denied that it was in violation of the plea agreement and continued to urge that Fiorito be let out of his plea agreement. See Def. Ex. 22 at 3 ("Some matters need to be tried. This is one of them. Mr. Fiorito should have his plea back.").
On July 23, 2008, Judge Magnuson denied the motion to enforce the plea agreement. See Def. Ex. 23. In his order, Judge Magnuson noted that a defendant who enters a guilty plea is not necessarily entitled to a three-point reduction for acceptance of responsibility and that Fiorito had "consistently denied some or all of the conduct described in the Indictment." Id. at 2. The order also noted that the government had not violated the plea agreement by threatening to recommend a sentence consecutive to Fiorito's state sentence, as the plea agreement was silent on the issue of whether the federal sentence should be imposed concurrently with or consecutively to the state sentence. Id. at 2-3. Finally, the order warned that "Defendant's Motion is yet another example of Defendant's refusal to accept responsibility for his conduct in this matter. Should Defendant persist in this vein, the Court will sua sponte reject the Plea Agreement and order Defendant to stand trial." Id. at 3.
The next day, Fiorito wrote a second pro se letter to Judge Magnuson, again complaining about the government's alleged breach of the plea agreement, and again asking to withdraw his guilty plea. See Def. Ex. 24. (It is unclear from Fiorito's letter whether he was aware that Judge Magnuson had found that the government was not in breach of the plea agreement.) For a third time, the government urged that Fiorito be allowed to withdraw his guilty plea. See Def. Ex. 26 at 2 ("Mr. Fiorito's repeated denials of his guilt to the government, the probation office, and this Court have been fundamental and unwavering. It appears that trying this matter would therefore be in the interests of justice."). Judge Magnuson did not respond to Fiorito's second letter or to the government's response.
A few weeks later, Fiorito sent a third pro se letter to Judge Magnuson and again asked to withdraw his guilty plea. See Def. Ex. 27. In this third letter, Fiorito indicated that Altman had recently uncovered evidence favorable to his case. Id. at 2. Fiorito also indicated that the terms of the plea agreement were different than he had believed at the time he entered into that agreement - likely a reference to the dispute over the reduction for acceptance of responsibility. Id. at 2-3. Fiorito mentioned at the end of his letter that "[m]y attorney and I are not communicating and I anticipate his withdrawl [sic] from my case as counsel, " id. at 4 - an assertion that was somewhat inconsistent with an assertion earlier in the letter that Fiorito had recently spoken to Altman about the case, id. at 1.
Altman weighed in on the situation in a confidential letter mailed to Judge Magnuson on August 13, 2008. See Def. Ex. 28. According to Altman, his relationship with Fiorito had become strained since Judge Magnuson's denial of the motion to enforce the plea agreement, although he continued to work on Fiorito's behalf. Id. at 2. Altman also explained that Fiorito instructed him "to file another motion to withdraw his guilty plea on the ground that there had been a miscommunication between lawyer and client, " but that Altman had refused to file such a motion - presumably because there had been no such "miscommunication." Id.
On August 18, 2008, Judge Magnuson finally relented and gave Fiorito permission to withdraw his guilty plea. See Def. Ex. 29. In his order, Judge Magnuson noted that
[i]t appears to the Court that Defendant is asserting that he is innocent of the crimes charged in the Indictment. Moreover, the Government has agreed that Defendant should be permitted to withdraw his guilty plea and the case should go to trial. Thus, although a significant amount of time has passed since Defendant's guilty plea, the Court finds that Defendant has established the requisite fair and just reason to withdraw his plea of guilty.
Id. at 1-2 (quotation omitted). The following day, Judge Magnuson recused himself from the case, and the case was assigned to the undersigned. See ECF No. 97.
A few days later, Altman moved to withdraw from representing Fiorito. See ECF No. 101. The Court conducted a hearing at which it questioned both Altman and Fiorito. Following that hearing, the Court denied Altman's request, finding that "[n]either Fiorito nor Altman has alleged the existence of a conflict of interest or an irreconcilable conflict in this matter, and none is apparent from the record." ECF No. 104 at 2. Moreover, "[a]fter hearing the testimony of Altman and Fiorito, the Court conclude[d] that there [was] likewise no evidence of a complete breakdown in communication between the two." Id. (quotation omitted).
The relationship between Fiorito and Altman continued to be strained, however. Eventually, Fiorito wrote to the Court and asked that he be appointed new counsel or, in the alternative, that he be permitted to proceed pro se. See ECF No. 142. The Court conducted a thorough Faretta hearing on February 3, 2009, and, following that hearing, the Court granted Fiorito's request to proceed pro se and appointed Altman as standby counsel. See ECF No. 151.
The government had filed a seven-count superseding indictment on October 7, 2008, charging Fiorito with six counts of mail fraud and one count of conspiracy to commit mail fraud. See ECF No. 108. Trial began on May 4, 2009 - nearly two years after the original indictment had been filed - with Fiorito representing himself and Altman appearing as standby counsel. After hearing evidence for about three weeks, the jury returned a verdict of guilty on all seven counts of the superseding indictment. See ECF No. 277.
A new PSR was prepared, and that PSR differed in important respects from the previous PSR, in part because the new PSR reflected information that had come to light during the trial. The new PSR determined that Fiorito's offense level was 33 and criminal-history category was VI, resulting in a recommended sentencing range of 235 to 293 months' imprisonment. See ECF No. 420 at 1-2. Fiorito objected to most of the factual statements and legal conclusions in the PSR, and the Court conducted a lengthy evidentiary hearing. After that hearing, the Court issued a 79-page order resolving Fiorito's numerous objections. See ECF No. 420. The Court overruled the vast majority of Fiorito's objections but did conclude that Fiorito's offense level was 31 (not 33, as proposed by the PSR), resulting in a recommended Guidelines range of 188 to 235 months. Id. at 79. The government asked that Fiorito be sentenced to a 293-month term of imprisonment - the top of the sentencing range determined by the PSR, and a substantial upward variance from the top of the sentencing range determined by the Court. See ECF No. 422. The Court granted in part the government's motion for an upward variance, imposing a sentence of 270 months' imprisonment - 240 months on each of the mail-fraud counts (with those terms to run concurrently), and 60 months on the conspiracy count (with 30 months of that term to run concurrently and 30 months to run consecutively to the mail-fraud counts). See ECF No. 436. That 270-month sentence was imposed consecutively to Fiorito's state conviction for engaging in a pattern of harassing conduct, as the crimes which gave rise to the federal sentence had no relationship to the crime which gave rise to the state sentence. Id. Fiorito's conviction and sentence were affirmed on direct appeal. See Fiorito, 640 F.3d at 353.
Now before the Court is Fiorito's motion to vacate, set aside, or correct his sentence under § 2255. See ECF No. 503. Fiorito raised 14 grounds for relief in his original motion, but he has repeatedly amended that original motion, raising an additional five grounds for relief and withdrawing two, leaving 17 in total. The vast majority of Fiorito's claims relate to whether Altman provided effective assistance during the pre-trial proceedings in this case. Fiorito also challenges Judge Magnuson's decision to allow him to withdraw his guilty plea without first conducting a Faretta -type hearing to determine whether that withdrawal was voluntary, knowing, and intelligent. Finally, Fiorito raises miscellaneous claims for relief that relate neither to Altman's representation nor to Judge Magnuson's decision. The Court will first address the claims regarding Judge Magnuson, then the claims regarding Altman, and finally the miscellaneous claims.
A. Withdrawal from the Plea ...