16

‐ 2368

‐ cr

United States v. Torriero

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

ʺ SUMMARY ORDER ʺ ). 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 11 th day of October, two thousand seventeen.

PRESENT: DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges

, JANE A. RESTANI,

Judge. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

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.2 MAZZA & SONS, INC., AKA Sealed Defendant #5,

Defendants

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

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 ʺ EPA ʺ ) for costs incurred in

cleaning up a 28

‐ acre property in Frankfort, New York (the ʺ Frankfort site ʺ ). Torriero

and others used the Frankfort site as an illegal landfill. We assume the parties ʹ

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.3 § 1343, and was sentenced in July 2013 to 36 months ʹ 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: ʺ Mr. 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 Torriero ʹ s 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 ʺ telephonic status conference. ʺ Id

. at 416.

The letter reported that the government had inquired of ʺ all defense counsel currently

listed on ECF to confirm they were still representing their respective clients, ʺ and that4 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 ʺ advise replacement counsel, if any, to file a notice of appearance. ʺ Id. at 419.

The listed attorneys and ʺ any newly

‐ appearing counsel ʺ 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 ʺ Court and Counsel review status of repre[s]entation ʺ and that

the district court ʺ directs Attorney[] Moynihan

. . . be appointed for these proceedings. ʺ

On May 25, 2016, Torriero wrote a letter himself to the district court

requesting new counsel.5 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 government ʹ s 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 ʺ fail[ing] to put

forward his defense to the government ʹ s affidavit in support of its motion to amend the

judgment as to restitution. ʺ Attorney ʹ s Affirmation in Support of Motion to be

Relieved, at 2, No. 16

‐ 2368, ECF No. 6.

Three questions are presented: (1) whether Torriero ʹ s Sixth Amendment

right to counsel was violated by the reappointment of Moynihan to represent him in the

restitution proceeding and the denial of Torriero ʹ s subsequent request for new counsel;

(2) whether the district court abused its discretion in denying Torriero ʹ s 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.6 Const. amend. VI. The right to counsel includes ʺ an 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). ʺ To 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, Moynihan ʹ s 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 ʺ apprised ʺ the district court of ʺ the 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,7 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 Torriero ʹ s 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) ʺ when 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

expert ʹ s services are ʺ reasonably necessary ʺ to an adequate defense. Id

. We review a

district court ʹ s decision to deny such funding for abuse of discretion. United States v.

Bah

, 574 F.3d 106, 118

‐ 19 (2d Cir. 2009).8 Here, the district court denied Torriero ʹ s 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, Torriero ʹ s 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

ʺ reasonably necessary ʺ 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 Torriero ʹ s request for

an expert to analyze the costs submitted by the government, the district court only

stated that ʺ Torriero will not be prejudiced or his defense impaired by this Court ʹ s

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 ʺ beyond 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.9 Accordingly, the district court abused its discretion in denying Torriero ʹ s

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 ʺ reasonably

necessary ʺ to Torriero ʹ s 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

government ʹ s 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 ma tt er for further proceedings consistent with this order. Torriero ʹ s

request for reassignment of the case on remand to a di ff erent judge is DENIED

.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk