16‐2368‐cr
United States v. Torriero
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 11th day of October, two thousand seventeen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JANE A. RESTANI,
Judge. *
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UNITED STATES OF AMERICA,
Appellee,
v. 16‐2368‐cr
DONALD TORRIERO, AKA Sealed Defendant #2,
Defendant‐Appellant,
JULIUS DESIMONE, AKA Sealed Defendant #1,
CROSS NICASTRO, AKA Sealed Defendant #3,
DOMINICK MAZZA, AKA Sealed Defendant #4,
Jane A. Restani, Judge for the United States Court of International Trade, sitting by
*
designation.
MAZZA & SONS, INC., AKA Sealed Defendant #5,
Defendants.
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FOR APPELLEE: THEKLA HANSEN‐YOUNG (Allen M.
Brabender, Todd W. Gleason, on the brief), for
Jeffrey H. Wood, Acting Assistant Attorney
General, Washington DC.
FOR DEFENDANT‐APPELLANT: DANIEL S. NOOTER, Washington, DC.
Appeal from the United States District Court for the Northern District of
New York (Hurd, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the amended judgment of the district court is
VACATED, and the case is REMANDED for further proceedings consistent with this
order.
Defendant‐appellant Donald Torriero appeals from an amended judgment
of conviction entered June 30, 2016, requiring him to pay an additional $765,561 in
restitution to the Environmental Protection Agency (the ʺEPAʺ) for costs incurred in
cleaning up a 28‐acre property in Frankfort, New York (the ʺFrankfort siteʺ). Torriero
and others used the Frankfort site as an illegal landfill. We assume the partiesʹ
familiarity with the underlying facts, procedural history, and issues on appeal.
Torriero pled guilty in October 2012 to one count of conspiracy, in
violation of 18 U.S.C. § 371, and two counts of wire fraud, in violation of 18 U.S.C.
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§ 1343, and was sentenced in July 2013 to 36 monthsʹ imprisonment and restitution,
jointly and severally with his co‐defendants, in the amount of $492,494.44. Some
$471,209.14 of the restitution was to reimburse the EPA for cleanup costs it incurred as
of the sentencing date. In its restitution order, the court noted that the judgment could
be amended to account for new cleanup costs. Torriero appealed his sentence, but not
the restitution amount.
On appeal, Kenneth Moynihan, Esq., who represented Torriero in the
district court proceedings and was assigned to represent him on appeal, moved to be
relieved as counsel. Moynihan explained: ʺMr. Torriero wants a new lawyer to handle
his appeal because he wants to pursue a claim that I provided ineffective assistance of
counsel below. I know, for example, that Mr. Torriero alleges that I coerced his plea on
the first day of trial.ʺ S. App. at 465. By order entered November 4, 2013, this Court
granted the motion, relieving Moynihan, and appointing new counsel for Torriero. On
December 4, 2014, another panel of this Court affirmed Torrieroʹs sentence.
On January 9, 2015, the United States moved in the district court to amend
the restitution order to account for cleanup costs incurred after the sentencing. A
hearing on the motion was set for April 29, 2015. By letter to the district court dated
March 27, 2015, the government requested a ʺtelephonic status conference.ʺ Id. at 416.
The letter reported that the government had inquired of ʺall defense counsel currently
listed on ECF to confirm they were still representing their respective clients,ʺ and that
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Mr. Moynihan advised that the Second Circuit relieved him of his representation
and that he would no longer represent defendant Torriero. He did not respond
to further inquiries as to who would be representing Mr. Torriero at the April 29,
2015 hearing or whether Mr. Torriero has received the relevant filings (let alone
whether he intended to oppose).
Id.
On March 31, 2015, the district court issued an order granting the request
for a telephonic status conference and directed the attorneys listed in the order ‐‐
including Moynihan as counsel for Torriero ‐‐ to provide their respective clients with
copies of the relevant documents and, if they were not continuing to represent their
clients, to ʺadvise replacement counsel, if any, to file a notice of appearance.ʺ Id. at 419.
The listed attorneys and ʺany newly‐appearing counselʺ were directed to participate in
a telephone conference on April 14, 2015. Id.
The district court held a telephone conference on April 14, 2015. Torriero
was not a party to the conference call, and it is not clear from the present record
whether he was aware of the proceedings, as he was incarcerated at the time. The
conference was not held on the record and no transcript exists of the proceedings. The
docket entry notes that ʺCourt and Counsel review status of repre[s]entationʺ and that
the district court ʺdirects Attorney[] Moynihan . . . be appointed for these proceedings.ʺ
On May 25, 2016, Torriero wrote a letter himself to the district court
requesting new counsel.
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On June 23, 2016, the district court held in a written order that Torriero
waived his rights to be present at the restitution proceedings, denied the request for
new counsel, and granted the governmentʹs motion to require Torriero to pay
additional restitution. The district court entered an amended judgment against Torriero
requiring an additional restitution payment of $765,561. Torriero timely appealed and
was appointed new counsel after he again indicated that he wanted to raise an
ineffective assistance of counsel claim against Moynihan, this time for ʺfail[ing] to put
forward his defense to the governmentʹs affidavit in support of its motion to amend the
judgment as to restitution.ʺ Attorneyʹs Affirmation in Support of Motion to be
Relieved, at 2, No. 16‐2368, ECF No. 6.
Three questions are presented: (1) whether Torrieroʹs Sixth Amendment
right to counsel was violated by the reappointment of Moynihan to represent him in the
restitution proceeding and the denial of Torrieroʹs subsequent request for new counsel;
(2) whether the district court abused its discretion in denying Torrieroʹs application for
expert services; and (3) whether the amended judgment is substantively unreasonable.
We address the first two issues in turn and, for reasons set forth below, we decline to
reach the third.
1. Sixth Amendment Right to Counsel
The Sixth Amendment guarantees that ʺ[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.ʺ U.S.
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Const. amend. VI. The right to counsel includes ʺan absolute right under the Sixth
Amendment to be represented by an attorney who has no conflict of interest.ʺ United
States v. Curcio, 680 F.2d 881, 885 (2d Cir. 1982). ʺTo ensure that this right to conflict‐free
counsel is not abridged, a district court has two distinct obligations during criminal
proceedings: (1) to initiate an inquiry whenever it is sufficiently apprised of even the
possibility of a conflict of interest, and (2) to disqualify counsel or seek a waiver from
the defendant whenever the inquiry reveals that there is an actual or potential conflict.ʺ
United States v. Cohan, 798 F.3d 84, 88 (2d Cir. 2015) (quoting United States v. Rogers, 209
F.3d 139, 143 (2d Cir. 2000)). Restitution proceedings are part of criminal prosecutions,
and thus the Sixth Amendment right to conflict‐free counsel applies to restitution
proceedings as well. See id. at 89.
On this record, we are unable to determine whether there was an actual or
potential conflict and, if so, whether Torriero waived the conflict. There was certainly
the possibility of a conflict, as this Court granted a motion to relieve Moynihan in 2013
and appointed new counsel for Torriero. Indeed, Moynihanʹs motion cited a conflict of
interest because Torriero intended to raise an ineffective assistance of counsel claim in
part on the basis that Moynihan allegedly coerced him into pleading guilty. In its letter
of March 27, 2015, the government thus ʺapprisedʺ the district court of ʺthe possibility
of a conflict of interest,ʺ id. at 88, and the district court should have conducted a Curcio
hearing to determine whether there was an actual or potential conflict and, if so,
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whether Torriero knowingly and intelligently waived this conflict. See Garcia v. Teitler,
443 F.3d 202, 212 (2d Cir. 2006) (citing United States v. Velez, 354 F.3d 190, 198 (2d Cir.
2004)). As the April 2015 telephone conference was not transcribed and Torriero did
not attend, it is unclear to what extent the district court considered the representation
issues or whether Torriero waived any conflict before Moynihan was reappointed. For
these reasons, we are unable to determine whether Torrieroʹs right to counsel was
violated.
Accordingly, we remand to the district court for clarification of the record
with respect to the representation issues, to explain its reasons for reappointing
Moynihan, and for further proceedings as may be appropriate.
2. Application for Expert Services
The district court may appoint an expert for an indigent defendant
pursuant to 18 U.S.C. § 3006A(e)(1) ʺwhen the defense attorney makes a timely request
in circumstances in which a reasonable attorney would engage such services for a client
having the independent financial means to pay for them.ʺ United States v. Durant, 545
F.2d 823, 827 (2d Cir. 1976) (citation omitted). The defendant must show that the
expertʹs services are ʺreasonably necessaryʺ to an adequate defense. Id. We review a
district courtʹs decision to deny such funding for abuse of discretion. United States v.
Bah, 574 F.3d 106, 118‐19 (2d Cir. 2009).
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Here, the district court denied Torrieroʹs request for funding for expert
services principally because of its conclusion that the request was untimely. The district
court concluded that Torriero waited until May 10, 2016, when expert disclosures were
due, to request funding for an expert. In fact, however, Torriero made an ex parte
application for expert services on April 20, 2016, just a few days after Moynihan was
reappointed to represent Torriero. Hence, Torrieroʹs request was timely and the district
court abused its discretion in denying the request on this basis.
Moreover, the district court never addressed whether expert services were
ʺreasonably necessaryʺ for an adequate defense. The government filed a computer‐
generated report of the costs associated with the clean‐up, as well as an expert affidavit
and over 5,000 pages of supporting documentation. In denying Torrieroʹs request for
an expert to analyze the costs submitted by the government, the district court only
stated that ʺTorriero will not be prejudiced or his defense impaired by this Courtʹs
rejection of his untimely requests.ʺ App. at 244. The district court provided no analysis
of whether an expert would be reasonably necessary for an adequate defense. While
the government now asserts that none of the costs incurred by the EPA is ʺbeyond the
ability of the average attorney to analyze and assess,ʺ Government Br. at 30‐31, the
district court should have considered this issue in the first instance. We note that the
district court clearly contemplated the need for expert services in this case, as it set a
schedule for expert disclosures.
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Accordingly, the district court abused its discretion in denying Torrieroʹs
request for expert services on the grounds that it was untimely, and we remand for the
district court to determine whether the requested expert services were ʺreasonably
necessaryʺ to Torrieroʹs defense.
3. Substantive Reasonableness
As we are vacating the amended judgment for the reasons set forth above,
we do not reach the issue of substantive unreasonableness.
A question arose at oral argument, however, as to the timeliness of the
governmentʹs motion to amend the restitution order, and the district court should give
the parties an opportunity to address this issue on remand.
. . .
Accordingly, we VACATE the judgment of the district court and we
REMAND the matter for further proceedings consistent with this order. Torrieroʹs
request for reassignment of the case on remand to a different judge is DENIED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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