Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-10-2006
USA v. Massara
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3856
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 04-3856 & 05-1562
UNITED STATES OF AMERICA
v.
THOMAS MASSARA,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 02-cr-00616-3
(Honorable Michael M. Baylson)
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 9, 2006
Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges
(Filed: April 10, 2006)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Thomas Massara appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his sentence. In light of the District Court’s decision to re-sentence
Massara during post-judgment proceedings on his § 2255 motion, Massara also requests
direct review of his new sentence. With regard to C.A. No. 04-3856, we decline to issue
a certificate of appealability; with regard to C.A. No. 05-1562, we will vacate Massara’s
new sentence and remand with directions to reinstate the initial sentence pronounced on
April 23, 2004.
I.
Because we write for the parties, we will set forth only those facts necessary for
our analysis. Massara and five other defendants were tried on charges of mail fraud, 18
U.S.C. § 1341, and conspiracy to commit mail fraud, 18 U.S.C. § 371. Massara was a
sales representative for Universal Liquidators, a company which purported to offer
individuals the opportunity to broker sales of surplus and liquidation merchandise from
brand-name manufacturers. In order to induce “customers” to purchase these broker
opportunities, Massara and other Universal Liquidators representatives made several
misrepresentations about the company. One such misrepresentation was their claim that
Universal Liquidators developed a network of brand-name manufacturers and buyers who
were ready and willing to work with Universal Liquidators brokers. Massara also
asserted he was himself a successful broker. Neither representation was true.
The jury convicted Massara and one other defendant, Marsha Dobson, of several
counts of mail fraud. After trial, and before sentencing, Massara successfully moved for
new court-appointed counsel.1 Massara was sentenced on April 23, 2004, under the then-
1
Newly appointed counsel continues to represent Massara before this Court.
2
mandatory federal guidelines, to 27 months imprisonment, restitution, and supervised
release. On the advice of his new counsel, Massara did not appeal. Instead, he filed a 28
U.S.C. § 2255 motion, alleging ineffective assistance of counsel and challenging his
sentence under Blakely v. Washington, 542 U.S. 296 (2004). The District Court denied
the motion on September 23, 2004, but did not decide whether a certificate of
appealability should issue.
Massara appealed the denial of his § 2255 motion. On October 5, 2004, this Court
issued an order remanding the matter to the District Court for the sole purpose of deciding
whether to issue a certificate of appealability, and, if the District Court believed one was
warranted, to specify the issues. On January 12, 2005, the Supreme Court decided United
States v. Booker, 543 U.S. 220 (2005). Massara subsequently filed a motion with the
District Court seeking re-sentencing under Booker, or, in the alternative, permission to
file a notice of direct appeal nunc pro tunc, in light of counsel’s ineffectiveness in
advising him to seek collateral relief rather than direct review. Failing these, Massara
requested the issuance of a certificate of appealability with regard to the claims he raised
in his § 2255 motion. The government objected to re-sentencing under Booker on the
ground that Massara’s sentence was properly calculated and reasonable, but no party
addressed whether the District Court had jurisdiction to re-sentence Massara under this
Court’s limited remand.
On February 17, 2005, the District Court held a hearing on all issues, including the
issuance of a certificate of appealability and Booker re-sentencing. The following day,
3
the court issued an order vacating Massara’s sentence under Booker and imposing a new
sentence, which nevertheless was the same as the first sentence. To the extent a
certificate of appealability was required on Massara’s ineffective assistance of counsel
claim, the District Court declined to issue one.
Massara seeks direct review of his new sentence, arguing the District Court
incorrectly calculated the loss attributable to his conduct. In conjunction with his direct
appeal, Massara also seeks review of his collateral ineffective assistance of counsel and
Blakely claims. In the alternative, Massara asks us to grant a certificate of appealability
on the latter two issues.
II.
We first address the matter of the District Court’s jurisdiction to vacate Massara’s
sentence and impose a new sentence under this Court’s limited remand.2 In our order
dated October 5, 2004, we remanded to the District Court “for the purpose of either
issuance of a certificate of appealability or a statement of reasons why one should not
issue.” We retained jurisdiction over the appeal and stayed the appeal “pending
determination by the District Court.”
The District Court did not have authority to address matters beyond the scope of
our mandate, including the constitutionality of Massara’s sentence under Booker. See
United States v. Kikumura, 947 F.2d 72, 76 (3d Cir. 1991) (holding, on remand, a district
2
We reject Massara’s assertion of waiver based on the government’s failure to raise the
jurisdiction issue before the District Court.
4
court is bound to follow the mandate of the court of appeals); see also United States v.
Duncan, 427 F.3d 464, 465 (7th Cir. 2005) (holding the district court did not have
jurisdiction to re-sentence defendant because remand was limited to whether the district
court would impose a different sentence under an advisory guidelines system if it was
given the power to do so); United States v. Polland, 56 F.3d 776, 777–78 (7th Cir. 1995)
(citing cases holding a limited remand prevents the district court from considering issues
outside the scope of the court of appeals’ mandate).
Massara contends our remand order was invalid because, without the issuance of a
certificate of appealability, we did not have jurisdiction over his appeal and the District
Court retained jurisdiction. But it is the filing of a notice of appeal which vests this Court
with jurisdiction over a case, not the issuance of a certificate of appealability.
Fitzsimmons v. Yeager, 391 F.2d 849, 853–54 (3d Cir. 1968); see also Hohn v. United
States, 524 U.S. 236, 246 (1998) (disagreeing with the contention that “a request to
proceed before a court of appeals should be regarded as a threshold inquiry separate from
the merits which, if denied, prevents the case from ever being in the court of appeals”);
Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (“[T]he timely filing of a notice of
appeal is an event of jurisdictional significance, immediately conferring jurisdiction on a
Court of Appeals and divesting a district court of its control over those aspects of the case
involved in the appeal.”). Once a notice of appeal is filed, the certificate of appealability
requirement limits our authority to proceed with the appeal until a certificate is issued.
See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a COA has been issued
5
federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas
petitioners.”) (emphasis added); United States v. Williams, 158 F.3d 736, 741 (3d Cir.
1998) (“[A] certificate of appealability is required for this appeal to go forward . . . .”)
(emphasis added); Fitzsimmons, 391 F.2d at 854 (“It is true that § 2253 provides that an
appeal may not be ‘taken’ in habeas corpus actions attacking state detention unless a
certificate of probable cause is issued, but this must be read to mean, not that a notice of
appeal may not be filed with its usual effect, but that the appeal may not proceed until a
certificate of probable cause is issued.”).
On remand, the District Court had jurisdiction only over the limited issues we
directed it to consider. The validity of Massara’s sentence after Booker was not one of
these issues. Accordingly, we will vacate Massara’s new sentence and remand for
reinstatement of his original sentence, which, as noted, is identical.
6
III.
Without the direct appeal of his new sentence, Massara is left with the challenges
he made to his original conviction and sentence in his § 2255 motion — his ineffective
assistance of counsel and Blakely claims.3 The District Court denied both claims in its
September 23, 2004 order. Consequently, Massara must obtain a certificate of
appealability to maintain his appeal. 28 U.S.C. § 2253(c). The District Court declined to
issue a certificate of appealability on Massara’s ineffective assistance of counsel claim,
holding no “reasonable jurist would find Defendant’s trial counsel was so deficient that
Defendant was denied his constitutional right to counsel.” (App. 35.) The court did not
decide whether a certificate should issue on Massara’s Blakely claim.
We may grant a certificate of appealability if Massara demonstrates “a substantial
showing of the denial of a constitutional right.” Miller-El, 537 U.S. at 336 (quoting 28
U.S.C. § 2253(c)(2)). Because the District Court denied Massara’s motion on its merits,
3
Massara also filed a motion in this Court for leave to file a supplemental brief seeking
to challenge, for the first time, the jury instructions submitted at his trial. The motion is
denied. Massara waived any challenge he might have had to the jury instructions by
failing to raise the issue either on direct appeal, in his § 2255 motion before the District
Court, or before this Court in his briefs. Massara asserts he filed this motion directly after
learning his co-defendant, Dobson, obtained reversal of her conviction on this ground.
But Dobson, unlike Massara, raised the jury instruction issue on direct appeal.
In any event, Massara’s jury instruction claim is untimely under the one year
period of limitations set forth in the Antiterrorism and Effective Death Penalty Act of
1996, 28 U.S.C. § 2255. See United States v. Thomas, 221 F.3d 430, 436 (2000) (“[A]
party cannot amend a § 2255 petition to add a completely new claim after the statute of
limitations has expired.”). Massara’s new claim cannot relate-back to those alleged in his
original § 2255 petition because the claims are not “tied to a common core of operative
facts.” Mayle v. Felix, -- U.S. --, 125 S. Ct. 2562, 2574 (2005).
7
Massara “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). Under this standard, we engage in a “threshold inquiry” into Massara’s
constitutional claims. Miller-El, 537 U.S. at 336.
A.
On appeal, Massara contends the District Court incorrectly calculated the loss
attributable to his conduct, resulting in an incorrect guidelines range and an
“unreasonable” sentence under Booker.4 We have held Booker challenges to the federal
guidelines may not be raised on collateral review of cases that became final before the
date of that decision, January 12, 2005. Lloyd v. United States, 407 F.3d 608, 611 (3d
Cir. 2005). Massara’s sentence became final when the time for filing a direct appeal
expired — ten days after the April 23, 2004 imposition of his sentence.5 Fed. R. App. P.
4(b); Kapral v. United States, 166 F.3d 565, 572, 577 (3d Cir. 1999). Accordingly,
Booker may not be applied retroactively to Massara’s § 2255 motion.6
4
In his § 2255 motion, Massara originally grounded his claim under Blakely — that is,
he contended the district judge improperly found facts enhancing his sentence. However,
after Booker, Massara switched his focus to challenging the district judge’s calculations
as “unreasonable.”
5
We note the possibility that Massara’s sentence did not become final until ten days
after June 21, 2004, when judgment was entered on his conviction. (Compare Appellee’s
Resp. to Appellant’s Mot. for Leave to File Suppl. Br. 12 n.3, with Appellee’s Br. 35.)
But the later date would not change our analysis. Massara’s sentence would still have
become final before Booker was decided.
6
Massara asserts the government waived any argument that Booker cannot be applied
(continued...)
8
B.
Massara also contends his trial counsel provided inadequate assistance in
contravention of his Sixth Amendment right to counsel. Under Strickland, Massara must
demonstrate his attorney’s performance was deficient and that he was prejudiced by this
deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). That is, Massara must
prove counsel’s performance “fell below an objective standard of reasonableness,” id. at
688, and 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.
Massara argues trial counsel erred by introducing into evidence a letter that was
prejudicial. One of the issues at trial was whether Massara failed to inform potential
purchasers of an injunction entered against him. This injunction arose out of Massara’s
involvement as a salesman with a different company, Value Investments. The injunction
required Massara to disclose the injunction to all prospective purchasers of franchise or
business opportunities with which he was involved. As part of its burden, the government
had to prove Massara knew of the injunction. The government proffered testimony by
Robert Waldman, a former Federal Trade Commission attorney who was knowledgeable
about government proceedings against Value Investments and who would testify as to the
6
(...continued)
retroactively to his case by failing to raise the retroactivity issue during his re-sentencing.
However, the government asserted Blakely could not be applied retroactively in the
context of Massara’s original § 2255 motion. It is the denial of this motion that we now
review.
9
injunction court’s practice of regularly serving parties with orders issued in that case. In
addition, the government proffered a letter, written by “Thomas Massaro” to the court in
the Value Investments case, demonstrating Massara knew of the existence of the
injunction. Massara objected to the introduction of this letter, asserting there was no
evidence he was the “Massaro” who wrote the letter. Overruling the objection, the court
held the letter was probative of Massara’s notice of the injunction.
During Waldman’s cross-examination, Massara’s counsel asked Waldman about
the letter, but did not introduce it into evidence. Counsel’s questions were directed
toward highlighting the weaknesses of the document — that is, the government’s inability
to prove Massara was the “Massaro” who wrote the letter. Massara’s counsel testified at
the evidentiary hearing on Massara’s § 2255 motion that he hoped to preempt the
government on this issue. The record demonstrates counsel tried to raise doubt about the
nature of the document and its weight as probative evidence, calling into question
Massara’s knowledge of the injunction.
Massara asserts his counsel’s conduct in questioning Waldman about the letter was
unreasonable and prejudicial because the government had not yet offered the letter as
evidence. The District Court rejected Massara’s argument, holding his counsel’s conduct
was not deficient because it was reasonably calculated to minimize the impact of the letter
on the jury. Significantly, Massara’s counsel objected to the evidence and, when that
failed, could reasonably believe the government would introduce it at trial. Additionally,
the court found counsel’s conduct was not prejudicial because the letter was not the only
10
evidence of Massara’s knowledge — Waldman’s testimony was probative of Massara’s
knowledge of the injunction. Furthermore, the court found the government had other
evidence of notice, which it would have introduced if Massara’s counsel had not brought
the letter to the jury’s attention. On this point, Massara does not make a substantial
showing of ineffective assistance of counsel.
Massara also contends his counsel inadequately cross-examined government
witness Carol Brothers, Massara’s former co-worker at another company, Surplus Agents.
Massara worked as a salesman for Surplus Agents, a company which engaged in a
scheme of fraudulent conduct similar to that of Universal Liquidators. When the fraud at
Surplus Agents was revealed, the company disbanded and many of the same people
involved in Surplus Agents formed Universal Liquidators. Brothers testified that she told
Massara she had talked to the FBI and that Massara’s reaction was to advise her to quit
Surplus Agents.
According to Massara, his counsel should have “clarified” the subject matter of his
conversation with Brothers on cross-examination. In particular, Massara asserts Brothers
told him she called the FBI because Surplus Agents owed her money, not because of
fraudulent conduct. Because the subject of their conversation was not clarified through
cross-examination, Massara contends Brothers’s testimony “left the clear impression that
she told Mr. Massara that Universal Liquidators was perpetrating a fraud on its
customers.” (Appellant’s Br. 19.) The District Court disagreed. Regarding prejudice, the
court noted a co-defendant’s counsel attempted to impeach Brothers with the information
11
of the alleged debt owed to her by Surplus Agents. Also, the court found Massara’s
counsel was not deficient because his cross-examination was calculated to further his
reasonable strategy of distancing Massara from the fraud at Surplus Agents. In particular,
counsel elicited testimony that Massara left Surplus Agents before Brothers learned of the
fraudulent conduct and before he told Brothers to quit.
We see no error in the District Court’s analysis. The government attempted to link
Massara to the fraud at Surplus Agents, demonstrating his knowledge of similar fraud at
Universal Liquidators. (App. 236–38; Appellant’s Br. 20.) Counsel attempted to distance
Massara from the Surplus Agents fraud. Inquiry into the conversation between Brothers
and Massara on the fraudulent practices of Surplus Agents would not have furthered this
strategy, and might have hindered it. Massara cannot make a substantial showing that his
counsel’s failure to cross-examine Brothers about the content of her conversation with
Massara was constitutionally ineffective.
Also, Massara asserts his counsel failed to adequately investigate or prepare for
trial. In his § 2255 motion, Massara claimed his counsel should have investigated and
introduced evidence of successful Universal Liquidators brokers who were able to sell
brand-name goods. The District Court reviewed counsel’s performance and found his
actions were calculated to further a reasonable trial strategy. Furthermore, at the joint
trial, other defense counsel called witnesses who testified to their success as Universal
Liquidators brokers. (Appellant’s Br. 29.) We see no deficiency or prejudice.
12
On appeal, Massara asserts general claims of failure to investigate and inadequate
cross-examination. In particular, he cites his counsel’s failure to interview or call
witnesses. But Massara fails to show deficiency or prejudice. He does not assert what
information that more witnesses, further investigation, or more extensive cross-
examination would have revealed.
For the reasons stated, we find Massara has not made a substantial showing of the
denial of a constitutional right, on either his Blakely or ineffective assistance of counsel
claims, as required by 28 U.S.C. § 2253.
IV.
With regard to C.A. No. 05-1562, we will vacate the District Court’s order
imposing a new sentence and remand with directions to reinstate his original sentence
imposed on April 23, 2004. We also decline to grant Massara a certificate of
appealability on his Blakely and ineffective assistance of counsel claims raised on appeal
at C.A. No. 04-3856.
13