Fiumano v. United States

Background

Dionysius Fiumano, representing himself, moved under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence on specified constitutional or legal grounds. A jury had convicted him of wire fraud and conspiracy to commit wire fraud. The government’s evidence showed that Fiumano played a central role in mortgage-modification fraud schemes that used calls and emails to induce homeowners to pay for services that did not exist. The schemes obtained approximately $31 million from more than 30,000 victims, and Fiumano received approximately $593,000 in commissions.

The court had sentenced Fiumano to two concurrent 16-year prison terms and ordered him to pay $11,975,404 in restitution. The United States Court of Appeals for the Second Circuit later affirmed his conviction and sentence. In his § 2255 motion, Fiumano raised two general grounds: ineffective assistance of trial counsel and a constitutional challenge to the phrase “scheme to defraud” in the federal wire-fraud statute.

Ineffective Assistance of Counsel

The court applied the two-part test from Strickland v. Washington. Under that test, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness and that the alleged errors probably affected the result.

Fiumano claimed that trial counsel, Dean Steward, failed to investigate the Clear Blue scheme, federal regulations concerning mortgage-assistance providers, and alleged hearsay in the government’s evidence. The court rejected these arguments. It found that Fiumano did not identify what useful evidence further investigation would have produced, that the regulations did not affect the criminal trial, and that the government’s case relied on properly admitted testimony and documents rather than the unsupported hearsay claim Fiumano described. The court also found that counsel’s decision not to call proposed witnesses who had participated in the fraud scheme was reasonable trial strategy.

Fiumano argued that counsel should have objected to the jury instructions on the conspiracy charge. The court found that the instructions were proper and that counsel was not ineffective for failing to object to a legally correct instruction.

Fiumano also argued that counsel inadequately prepared and presented a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29. The court noted that counsel had made an oral Rule 29 motion, which the court denied after finding more than enough evidence for the jury to consider. The court ruled that the brief oral motion was reasonable given the government’s evidence, including testimony from three cooperating witnesses and incriminating emails.

Finally, Fiumano claimed that counsel prevented him from testifying. The court relied on the trial transcript, which showed that Fiumano understood he had a right to testify and confirmed that, after consulting with counsel, it was his decision not to testify. The court also relied on Steward’s sworn statement that he advised Fiumano that testifying would damage his case and that Fiumano accepted that advice. The court concluded that Fiumano was not deprived of the opportunity to testify.

No Evidentiary Hearing

The court declined to hold an evidentiary hearing. It found that the trial record and Steward’s affidavit contradicted Fiumano’s allegations and conclusively showed that he was not entitled to relief. The court therefore decided the ineffective-assistance claims on the written record.

Vagueness Challenge

Fiumano argued that “scheme to defraud” was so unclear that it failed to give him fair notice of what conduct the wire-fraud statute prohibited. The court first ruled that the claim was procedurally defaulted because Fiumano could have raised it on direct appeal but did not. The court found that he offered no reason excusing the default and did not claim actual innocence.

The court also addressed the substance of the vagueness argument and rejected it. It explained that the statute’s language, together with judicial decisions describing a scheme to defraud as a plan to deprive someone of something valuable through deceit or overreaching, gave adequate notice. The court concluded that Fiumano’s multi-year mortgage-modification fraud scheme plainly fell within the prohibited conduct.

Disposition

Judge John F. Keenan denied Fiumano’s § 2255 motion to vacate, set aside, or correct his sentence. The court declined to issue a certificate of appealability, certified that an appeal would not be taken in good faith, denied permission to proceed without paying court fees, directed the clerk to terminate the motion, and closed the civil case.