United States District Court, D. Utah, Central Division
ROBERT G. LUSTYIK, JR., Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER AND MEMORANDUM DECISION
CAMPBELL, U.S. DISTRICT COURT JUDGE.
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.) After pleading guilty to all eleven
counts, he was sentenced to 120 months in custody. (645 ECF
Nos. 896, 1030.)
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.
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).
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.
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
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. §
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,  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.
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.
Counsel's Conduct During the Pretrial Phase
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. 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
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
Strickland, 466 U.S. at 690-91.
Mr. Lustyik's allegations involve legitimate strategic
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).) 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
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.
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.
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
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.
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.
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.
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
[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
(June 24, 2013 Hearing Transcript at 15:2-14, Reply Ex. AA
(77 ECF No. 21-27).)
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.
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).)
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.
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.
Conflict of Interest
Lustyik also alleges that Mr. Mansolillo had a conflict of
interest while representing him. (Lustyik Decl. ¶ 40.)
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.
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.