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Lustyik v. United States

United States District Court, D. Utah, Central Division

November 21, 2019

ROBERT G. LUSTYIK, JR., Plaintiff,



         On October 18, 2012, Robert G. Lustyik, Jr., was charged with one count of conspiracy, eight counts of honest services wire fraud, one count of obstruction of justice, and one count of obstruction of proceedings before a department or agency. (645 ECF No. 39.)[1] After pleading guilty to all eleven counts, he was sentenced to 120 months in custody. (645 ECF Nos. 896, 1030.)

         Mr. Lustyik has now filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, contending that his counsel in the original action was ineffective. (77 ECF No. 1.) He also requests a hearing to present evidence in support of his motion. (77 ECF No. 4.) For the reasons stated below, both motions are denied.[2]


         To succeed on his claim of ineffective assistance of counsel, Mr. Lustyik must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong, the petitioner must show that his attorney's representation fell below an objective standard of reasonableness. Id. at 688. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. As part of that deferential standard, the United States Supreme Court has established “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (citation and internal quotation marks omitted).

         Second, the petitioner must establish that he was prejudiced by the allegedly deficient representation. Id. at 687, 693 (the petitioner must “affirmatively prove prejudice”). “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Instead, when a petitioner challenges a conviction, he “must show that there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         The court may consider these two prongs in either order, or it may address just one of the prongs. Id. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.”).

         A petitioner “is entitled to an evidentiary hearing unless his motion and the files and records of the case ‘conclusively show that [he] is entitled to no relief.'” United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988) (quoting 28 U.S.C. § 2255).


         Mr. Lustyik's motion asserts seven grounds for relief, and each ground is supported by anywhere from two to eight factual allegations (though some of these facts are duplicative of one another). (See 77 ECF No. 1.) After reviewing Mr. Lustyik's motion, reply, and evidence, [3] the court has identified thirty-seven discrete allegations in support of his motion. These thirty-seven facts are attached as an appendix to this order, together with the source of each allegation.

         The court divides these claims into three categories: (1) Misconduct before trial; (2) Misconduct regarding the plea; and (3) Misconduct after the plea, including during the forfeiture hearing, sentencing, and appeal.

         I. Counsel's Conduct During the Pretrial Phase

         Most of Mr. Lustyik's complaints are leveled against his primary attorney, Raymond Mansolillo, and involve Mr. Mansolillo's allegedly ineffective approach to defending Mr. Lustyik in the years preceding the trial.[4] All of these allegations fail the first prong of the Strickland analysis because Mr. Mansolillo was not actually ineffective during this stage of the proceedings. Most of the allegations also fail to show resulting prejudice, as required by the second prong.

         A. Prong One

         1. Legitimate Strategic Choices

[S]trategic choices [by defense counsel] made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Strickland, 466 U.S. at 690-91.

         Nine of Mr. Lustyik's allegations involve legitimate strategic choices.

         First, Mr. Lustyik criticizes Mr. Mansolillo because he never objected to Mr. Lustyik's treatment during his arrest and the search of his home. (See Affidavit of Robert Lustyik (“Lustyik Decl.”) at ¶¶ 10-13, Motion Ex. B (77 ECF No. 1-2).)[5] But fighting over the search and arrest would have been a distraction from the substantive defense of the case. Relatedly, Mr. Lustyik complains that Mr. Mansolillo relied on Daniel Marino and Tillman Finley, the attorneys for Mr. Lustyik's co-defendant Michael Taylor, to pursue a motion to suppress evidence, rather than filing his own motion. (Id. at ¶ 28.) But in the court's view, it was reasonable to allocate sparse resources by relying on the work of others. In fact, counsel for Mr. Taylor did a thorough job advocating for the motion to suppress (see Oct. 15, 2013 Hearing Transcript, Reply Ex. FF (77 ECF No. 21-32)), even though it was ultimately denied. It was smart, not ineffective, for Mr. Mansolillo to let Mr. Taylor's counsel take the lead there.

         Somewhat confusingly, in addition to arguing that Mr. Mansolillo relied too much on other defendants' counsel, Mr. Lustyik also criticizes Mr. Mansolillo for not working more closely with them. He contends that Mr. Mansolillo was ineffective because he did not obtain a joint defense agreement with Mr. Lustyik's co-defendants. (Lustyik Decl. ¶ 40.) It is contradictory for Mr. Lustyik to simultaneously claim that Mr. Mansolillo was working too closely with the other defense counsel and that he was not working with them closely enough. In any event, not obtaining a joint defense agreement is another strategic choice.

         Mr. Lustyik also asserts that Mr. Mansolillo failed to seek a plea deal early in the case, despite Mr. Lustyik's request that he do so. (Id. at ¶¶ 8-9, 20-21, 30-35, 53, 55.) But when the court asked about the possibility of settlement, both sides indicated they were waiting for the other side to initiate negotiations. (See Mar. 27, 2014 Hearing Transcript at 22:11-25, Motion Ex. M (77 ECF No. 1-13). Waiting for the other party to make an initial settlement offer is a legitimate tactic.

         Mr. Lustyik next faults Mr. Mansolillo for not taking his discovery obligations seriously. Mr. Lustyik declares that Mr. Mansolillo sent his investigator, Charles Mulcahy, to review classified discovery, rather than review it himself; that he failed to conduct discovery into Blue Meadows Energy, LLC (“BME”), an entity allegedly used to funnel money between Mr. Taylor and Mr. Lustyik; and that he did not interview any of the numerous potential witnesses Mr. Lustyik urged him to contact. (Lustyik Decl. ¶¶ 42, 46-51). None of this conduct falls below the standard of care of a reasonable attorney. Relying on staffers like Mr. Mulcahy to take the lead in discovery is a common, reasonable practice. Notably, Mr. Lustyik has nothing but praise for Mr. Mulcahy's efforts. (Id. at ¶ 35.) And at the time in question, Michael Feldman, the founder of BME, had invoked his Fifth Amendment right against self-incrimination. (Id. at ¶ 50.) It would be reasonable in that context to assume that an investigation of BME would be both heavily resisted by Mr. Feldman and unlikely to lead to inculpatory information. Finally, Mr. Lustyik's own declaration explains that most of the witnesses identified by Mr. Lustyik were likely to be uncooperative because they were current or former government officials subject to nondisclosure agreements and the information Mr. Lustyik sought from them was classified. (Id. at ¶ 51.) Given these impediments, it makes sense for Mr. Mansolillo to focus his efforts elsewhere.

         Lastly, Mr. Lustyik argues that Mr. Mansolillo should have tried to convince the court that the whole case was a prosecutorial sham. Mr. Mansolillo never challenged the involvement of prosecutor Kevin Driscoll in the case, despite Mr. Lustyik's belief that Mr. Driscoll was biased against former FBI agents like Mr. Lustyik. (Id. at ¶ 16-18.) And Mr. Mansolillo never investigated whether the suit was brought in retaliation for the fact that Mr. Lustyik had been cleared of wrongdoing in an unrelated investigation, which had angered some Department of Justice officials. (Id. at ¶ 19). But again, in the court's view, it was a wise choice-and protected strategy-to avoid spending time on these issues. These arguments are both highly speculative and almost completely irrelevant, and it would have been a significant waste of time for Mr. Mansolillo to pursue these improbable defenses.

         In response to Mr. Lustyik's allegations, the United States suggests that Mr. Mansolillo essentially had one strategy throughout the trial preparation phase. He wanted to “graymail” the United States into dropping the charges against Mr. Lustyik by forcing them to choose between risking the exposure of classified information and going through with the trial. (See Memorandum in Opposition (“Opp.”) at 8 (77 ECF No. 10).) According to the United States, Mr. Mansolillo believed that if forced to make that choice, the United States would end the case against Mr. Lustyik rather than allow the disclosure of such information. Ultimately, that strategy was unsuccessful because the court issued an order preventing Mr. Lustyik from introducing any classified information in his defense. (See CIPA Section 6(A) Order (645 ECF No. 883).) But the United States contends it was a reasonable strategy, and that all of Mr. Mansolillo's other strategic decisions, discussed above, should be considered in light of this objective.

         The court agrees that this appears to have been Mr. Mansolillo's strategy. There is evidence in the record that supports this conclusion. For example, this is the same strategy Mr. Lustyik advised Mr. Taylor to take to avoid prosecution in an earlier action. (Email Exchange, Opp. Ex. 1 (77 ECF No. 10-1) (“[T]hey [the prosecutors] haven't seen any of the classified info.

         Now they will. And if your attny wants it all declassified then you can destroy their investigation.”).) Mr. Mansolillo also explicitly discussed this strategy in open court, when explaining how the Classified Information Procedures Act (CIPA) operates:

[T]he Court does not look at what the sensitivity of that [classified] information is, it looks at what the Federal Rules of Procedure and what the Rule[s] of Evidence are and whether it is going to benefit the defense.
It is up to the government, and if they want to keep it out, it is up to their policymakers, and they will probably do this, to send in a motion saying or a certification, they call it, saying that this information is too sensitive to be disclosed. That is kind of, quote, the warning that it is either a disclose or dismiss situation that they are getting down to.

(June 24, 2013 Hearing Transcript at 15:2-14, Reply Ex. AA (77 ECF No. 21-27).)

         And the court further agrees that this was a reasonable strategy, even though it proved unsuccessful. As the Supreme Court has noted, “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689. Mr. Mansolillo had a legitimate defense strategy and pursued it, and Mr. Lustyik cannot now use this § 2255 petition to second-guess that strategy.

         2. Competent Conduct

         The above allegations involve Mr. Mansolillo's omissions, such as defenses he chose not to pursue. But Mr. Lustyik also argues that when Mr. Mansolillo did act, he did so incompetently. For example, Mr. Lustyik claims that during his bond revocation hearing, Mr. Mansolillo was ineffective in challenging the conditions of Mr. Lustyik's home confinement, despite the impact that had on their ability to communicate about case preparation. (Lustyik Decl. ¶ 14.) But the court has reviewed the transcripts of the bond revocation hearings and finds that Mr. Mansolillo was an effective advocate, even if he did not achieve all that Mr. Lustyik wanted. (See Feb. 13, 2013 Hearing Transcript, Reply Ex. EE (77 ECF No. 21-31); Mar. 19, 2013 Hearing Transcript, Reply Ex. R (77 ECF No. 21-18); May 3, 2013 Hearing Transcript, Reply Ex. CC (77 ECF No. 21-29).)

         Mr. Lustyik next notes that Mr. Mansolillo was threatened with contempt of court when he failed to return certain unintentionally divulged classified information to the United States. (Id. at ¶ 22; 645 ECF No. 517.) But this shows only that Mr. Mansolillo was determined to keep discovery to which he believed he was entitled, which contradicts Mr. Lustyik's characterization of Mr. Mansolillo as being uninterested in the discovery issues that arose in the underlying case.

         Mr. Lustyik also suggests Mr. Mansolillo provided ineffective assistance of counsel when he failed to convince the court to allow Mr. Lustyik to use classified information as part of his defense. The court disagrees. The parties submitted exhaustive briefing related to the classified information issue, and the court thoroughly considered whether it needed to be disclosed to the defense. While the court ultimately ruled against Mr. Lustyik, that was due to the court's conclusion that the information was inadmissible under Federal Rules of Evidence, Rules 401 and 403. (See CIPA Section 6(A) Order (645 ECF No. 883).) It was not because Mr. Mansolillo's “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.[6]

         3. Conflict of Interest

         Mr. Lustyik also alleges that Mr. Mansolillo had a conflict of interest while representing him. (Lustyik Decl. ¶ 40.)

         In the underlying proceeding, the United States warned that Mr. Mansolillo had a conflict of interest with Mr. Taylor's original counsel, Steven Brooks, and moved to disqualify Mr. Mansolillo on that ground. (645 ECF No. 61.) But Mr. Lustyik waived any such conflict in order to keep Mr. Mansolillo as his attorney. (645 ECF No. 194.) Before he did so, the court appointed independent conflict counsel to advise Mr. Lustyik regarding how he should proceed. (645 ECF No. 174.) And the court personally examined Mr. Lustyik regarding his understanding of the consequences of waiving a conflict of interest. (645 ECF No. 194.) This process fully resolved any concerns regarding that conflict.

         Mr. Lustyik now argues there was an additional conflict between Mr. Mansolillo and Mr. Taylor. Mr. Mansolillo worked for Mr. Taylor at some time in the past, and this employment violated Mr. Mansolillo's contract with his other employer, the Drug Enforcement Agency. Knowledge of this violation gave Mr. ...

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