 11-1165-pr
 Yannotti v. United States

                             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 COURT’S
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 “SUMMARY ORDER”). 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
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 17th day
 of April, two thousand twelve.

 Present:
          DENNIS JACOBS,
                      Chief Judge,
          ROBERT A. KATZMANN,
                      Circuit Judge,
          JOHN F. KEENAN,
                      District Judge.*
 ________________________________________________

 MICHAEL YANNOTTI,

              Petitioner-Appellant,

                       v.                                 No. 11-1165-pr

 UNITED STATES OF AMERICA,

          Respondent-Appellee.
 ________________________________________________

 For Petitioner-Appellant:            SETH GINSBURG, Law Offices of Seth Ginsburg, New York,
                                      N.Y.



         *
           The Honorable John F. Keenan, of the United States District Court for the Southern
 District of New York, sitting by designation.
For Respondent-Appellee:           BRIAN R. BLAIS (Katherine Polk Failla, on the brief), Assistant
                                   United States Attorneys, for Preet Bharara, United States
                                   Attorney for the Southern District of New York, New York,
                                   N.Y.


       Appeal from the United States District Court for the Southern District of New York
(Scheindlin, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

        Petitioner-appellant Michael Yannotti appeals from a March 14, 2011 final judgment of

the United States District Court for the Southern District of New York (Scheindlin, J.), denying

his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Yannotti is

currently serving a 20-year sentence for a Racketeer Influenced and Corrupt Organizations Act

(“RICO”) conspiracy conviction sustained after a jury trial. At trial and on appeal, Diarmuid

White, Esq. (“counsel”) represented Yannotti. Because counsel admits that he was unaware that

Yannotti could be convicted of RICO conspiracy on the basis of two timely predicate acts in

which Yannotti was neither named as a participant nor personally involved, Yannotti argues that

counsel made a number of ill-advised strategic decisions that collectively led to Yannotti’s

conviction. On appeal, Yannotti contends that counsel’s failure to understand the law constitutes

ineffective assistance of counsel and requires a new trial. We presume the parties’ familiarity

with the facts and procedural history of this case.

       “Upon an appeal from the denial of a § 2255 motion, we review the district court’s

factual findings for clear error and its legal conclusions de novo.” Rosario v. United States, 164

F.3d 729, 735 (2d Cir. 1998). “Section 2255 allows a federal prisoner to attack collaterally his

sentence on the grounds that it was ‘imposed in violation of the Constitution.’” Morales v.

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United States, 635 F.3d 39, 42-43 (2d Cir. 2011) (quoting 28 U.S.C. § 2255(a)). “Because the

Sixth Amendment provides criminal defendants with the right to effective assistance of counsel,

inadequate representation is a basis for relief under section 2255.” Id. at 43 (internal citation

omitted).

          The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall

enjoy the right to . . . have the Assistance of Counsel for his defence.” U.S. CONST. amend. VI.

In order to prevail on an ineffective assistance of counsel claim, petitioner must show (1) “that

counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694

(1984). In evaluating whether counsel’s performance was deficient, “[t]he question is whether

an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’

not whether it deviated from best practices or most common custom.” Harrington v. Richter,

131 S. Ct. 770, 788 (2011). We “‘must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,’ bearing in mind that ‘[t]here are

countless ways to provide effective assistance in any given case’ and that ‘[e]ven the best

criminal defense attorneys would not defend a particular client in the same way.” United States

v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689)). In

evaluating whether the proceeding would have been different but for counsel’s error, “[t]he

likelihood of a different result must be substantial, not just conceivable.” Harrington, 131 S. Ct.

at 792.




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       Without addressing whether counsel was deficient due to his misunderstanding of RICO

conspiracy law, we conclude that Yannotti cannot prevail on his ineffective assistance of counsel

claim because he has not demonstrated a substantial likelihood that, but for counsel’s allegedly

deficient performance, the result of the proceeding would have been different. See id.; see also

Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, . . . that course should be followed.”). As an initial matter, we

reject Yannotti’s contention that because counsel “fail[ed] to subject the prosecution’s case to

meaningful adversarial testing,” he is entitled to a presumption of prejudice. See United States v.

Cronic, 466 U.S. 648, 659 (1984). After all, Yannotti concedes that counsel’s performance led

to his acquittal of two murders and a substantive RICO charge. He thus does not argue “that his

counsel failed to oppose the prosecution throughout the . . . proceeding as a whole, but that his

counsel failed to do so at specific points.” Bell v. Cone, 535 U.S. 685, 696-97 (2002). Because

“the attorney’s failure must be complete” in order for the presumption of prejudice to apply, id.

at 697, Yannotti is not entitled to a presumption of prejudice.

       We further conclude that Yannotti cannot demonstrate actual prejudice within the

meaning of Strickland in light of the substantial evidence of his guilt. Contrary to Yannotti’s

contention, there was ample evidence that he was a member of the Gambino family, including,

inter alia, (1) testimony that he was a longtime associate in Nicholas Corrozzo’s crew, which

made money through wide-ranging criminal activities, including loansharking, gambling, drug

dealing, and extortion, (2) testimony that by the mid to late 1990s he was “promoted to the rank

of soldier in the Gambino family,” Tr. 2975, and was “formally introduced” to multiple people,

including cooperating witnesses DiLeonardo and Fappiano, as “a made member,” meaning an


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“official member,” of the Gambino family, id. at 132, 2977, and (3) phone records, stipulations,

and testimony indicating that Yannotti was in contact with multiple Gambino members and

associates up until the time of his arrest. The government also adduced extensive evidence that

two foreseeable predicate acts were committed during the limitations period. Specifically, there

was extensive testimony detailing both the Gambino family’s extortion of the construction

industry and the Gambino family’s securities fraud. While Yannotti contends that had counsel

properly understood the law, he would have cross-examined the government’s witnesses about

the securities fraud and construction industry extortion predicates, he provides no specific line of

attack the attorney could have pursued. Given that counsel for his co-defendants rigorously

cross-examined the government’s witnesses on the securities fraud and construction industry

extortion schemes, Yannotti cannot demonstrate that had counsel similarly attacked the

government’s evidence of these predicate acts, it is likely that the result would have been

different. As to Yannotti’s argument that counsel could have argued that securities fraud was not

foreseeable because the Gambino family barred trading in securities, the testimony he cites

suggests (1) that Gambino family rules were routinely violated, App. 300 (referring to family

rules as “complete hypocrisy”), and (2) that the rule may have only barred dealing in

“government stocks and bonds,” App. 63, not all securities. Thus, Yannotti can demonstrate that

had counsel advanced this argument “[t]he likelihood of a different result [would] be

substantial.” See Harrington, 131 S. Ct. at 792.

       Yannotti also contends that due to counsel’ s misunderstanding of RICO conspiracy law,

he did not request a special verdict sheet, which would have required the jury to specify the two

predicate acts that the government proved in connection with the RICO conspiracy charge.


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Yannotti contends that there is a risk that the jury found that the loansharking conspiracy

contributed to the conviction, which would be improper given the district court’s conclusion that

“the Government did not present any evidence that Yannotti continued the charged loansharking

conspiracy after July 21, 1999.” United States v. Yannotti, 415 F. Supp. 2d 280, 288 (S.D.N.Y.

2005). However, because the district court properly instructed the jury about RICO conspiracy

law and because “we must presume that the jury followed the court’s instructions,” United States

v. Joyner, 201 F.3d 61, 69 (2d Cir. 2000), there is no basis to conclude that the jury’s verdict was

improper. Moreover, while Yannotti now insists that the decision to waive the special verdict

form stemmed from counsel’s misunderstanding of RICO conspiracy law, counsel never makes

this claim in his affirmation. It is, indeed, plausible that the decision to waive the special verdict

form was a strategic decision to avoid the possibility that the jury would find the murders proved

for the purposes of RICO conspiracy, thus increasing Yannotti’s sentencing exposure.

       Finally, while Yannotti contends that counsel could have pursued a withdrawal defense,

given the substantial evidence that Yannotti continued to associate with Gambino family

members up until his arrest, we similarly are not persuaded that this defense would have been

likely to succeed. Accordingly, we conclude that the district court did not err in denying

Yannotti’s § 2255 motion for failure to demonstrate actual prejudice.

       We have considered all of the defendant’s remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




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