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United States v. Sarno

United States District Court, N.D. Illinois, Eastern Division

August 30, 2016



          Ronald A. Guzmán United States District Judge

         For the reasons stated below, the Court denies Sarno's § 2255 motion [1] and declines to issue a certificate of appealability. Civil case terminated.


         The Court assumes familiarity with the facts of the case. Briefly, Michael Sarno was charged in 2009 along with several others with: (1) conspiring to participate in the affairs of a criminal enterprise, which engaged in numerous illegal activities, including but not limited to armed robberies, arson, and using threats, violence, and intimidation to advance the interests of the enterprise, and (2) knowingly conducting an illegal gambling business. (3d Superseding Indictment, United States v. Sarno, 08 CR 115, Dkt. # 310.) The criminal enterprise was alleged to have been involved in the bombing of a competitor's video gambling business as well as home and jewelry-store robberies, among other things. After a trial, the jury convicted Sarno of both counts, and the Court sentenced him to 300 months in prison. United States v. Volpendesto, 746 F.3d 273, 278 (7th Cir. 2014). Sarno's sentence and conviction were upheld on appeal. Id.

         In his current motion under 28 U.S.C. § 2255, Sarno alleges the following grounds for relief:

         (1) A due process violation based on the government's failure to turn over exculpatory evidence regarding its investigation of another suspect as the leader of the relevant robberies;

         (2) Ineffective assistance of counsel based on trial counsel's failure to cross-examine witnesses regarding exculpatory evidence;

         (3) Ineffective assistance of counsel in failing to investigate and present evidence that rebutted the government's claims regarding Sarno's leadership role in the enterprise;

         (4) A due process violation based on the government's failure to turn over the exculpatory evidence relating the benefits received by its cooperating witness, Mark Hay;

         (5) The court erred in classifying him as a career offender under the residual clause of U.S.S.G. § 4B1.2(a)(2), which is worded identically to the residual clause of the Armed Career Criminal Act (“ACCA), which was declared unconstitutional in Johnson v. United States, 135 S.Ct. 2551 (2015).

         (6) Ineffective assistance of trial counsel for failing to obtain the sealed portion of Hays' sentencing transcript in which the agents discuss the extent of Hays' cooperation;

         (7) Ineffective assistance of trial counsel in failing to attempt to rebut the government's factual claims that Sarno was responsible for the robberies committed by his co-defendants.


         Section 2255 allows a defendant to move to vacate, set aside, or correct a sentence that was imposed in violation of the Constitution of the United States. See 28 U.S.C. § 2255(a). Relief under § 2255 is an extraordinary remedy, because a § 2255 petitioner has already had “an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).

         A. Ineffective Assistance of Counsel

         A defendant asserting an ineffective assistance of counsel claim must show that counsel's performance was objectively deficient and this lack of competent representation resulted in prejudice. See United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1993)). To show prejudice, the defendant must demonstrate there is a reasonable probability that but for counsel's mistakes, the result of the proceedings would have been different. See id. Regarding the deficient-performance prong, great deference is given to counsel's performance, and the defendant has a heavy burden to overcome the strong presumption of effective performance. See id. at 690; Coleman v. United States, 318 F.3d 754, 758 (7th Cir. 2003) (citation omitted). A defendant must establish specific acts or admissions that fall below professional norms. Strickland, 466 U.S. at 690. If one prong is not satisfied, it is unnecessary to reach the merits of the second prong. Id. at 697.

         1. Failure to Cross-Examine John Scardina

         Sarno contends that his trial lawyer was ineffective for failing to cross-examine John Scardina, a government witness, about inconsistent statements he made regarding who had threatened Vincent Dublino for providing gambling devices on more favorable terms that those offered by Sarno. Sarno contends that when Scardina appeared before the grand jury, he testified that Dublino had told him that Rudy Fratto had sent people to threaten him, but at trial, Scardino testified that it was Sarno who made threats against Dublino. Sarno faults his trial counsel for failing to raise Scardina's purportedly inconsistent statements during cross-examination, particularly in light of the Court's “invitation” to do so after the parties engaged in a sidebar on the issue after all cross-examination had been completed.

         As an initial matter, the government states in its response that “Scardina's grand jury statement made clear that Sarno had instructed Dublino to stay away from his stop and that Fratto had sought street tax from Dublino.” (Gov't's Resp., Dkt. # 9, at 27) (emphasis in original). The government notes that the “Chicago Outfit traditionally collects street tax, namely, extortion payments or ‘protection money' required as the cost of operating a legal or illegal business.” (Id.) (citation omitted). Thus, given that Scardina implicated both Sarno and Fratto as potentially having made threats in his grand jury testimony, there was no inherent inconsistency, and thus no need for impeachment.

         In any event, to the extent that counsel wanted to generally discredit Scardina, and his fingering Sarno for the bombing of Dublino's business, he did so in the following exchange during Scardina's cross-examination at trial:

Q. Well, let me ask you about October 12th [, 2010]. Did you talk to this assistant United States attorney and, again, with Special Agent Thomas Coleman about your grand jury testimony [in a pretrial interview]?
A. Yes.
. . ...

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