United States v. Nigro
1:09-cr-01239
| S.D.N.Y. | Jun 9, 2016Background
- Arthur Nigro and Fotios ("Fred") Geas—members/associates of the Genovese crime family—were indicted in the S5 Indictment on RICO-related counts, including murders of Adolfo Bruno and Gary Westerman, and tried together in March–April 2011.
- Trial evidence included testimony from four cooperating witnesses, wiretap recordings, surveillance photos, phone records, and other physical evidence; jury convicted Nigro and Geas on multiple counts and acquitted them on one count (Count Three).
- Nigro retained private counsel; Geas was represented by CJA-appointed counsel (including death-penalty learned counsel until the death penalty was removed). Both had ample trial preparation time and access to discovery; the government produced Jencks material ~33 days before trial.
- Sentences: Nigro and Geas received principal life terms and concurrent 240-month terms; forfeitures and special assessments were imposed. Appeals were unsuccessful (Second Circuit affirmed; cert. denied for Geas).
- Each filed timely 28 U.S.C. § 2255 motions: Nigro alleged Brady/Giglio suppression and ineffective assistance of trial counsel; Geas alleged ineffective assistance (trial and appellate), due process violations for sealed ex parte material, improper forfeiture, and defects in indictment charging.
- The district court denied both § 2255 motions, concluding (inter alia) that late disclosures were not prejudicial Brady violations and counsel’s performance (trial and appellate) was within reasonable strategic judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Late production of ~6,000 pages (Brady claim) | Nigro: government suppressed exculpatory/impeachment material by producing voluminous material 33 days before trial that could shift blame to Bologna | Govt: materials were routine Jencks/3500 material; produced earlier than required; defense had time and resources to use them; only limited items arguably Brady/Giglio | Denied — disclosure was timely for effective use; no reasonable probability of a different result (no prejudice) |
| Failure to impeach/coerce witnesses (IAC at trial) | Nigro & Geas: trial counsel failed to pursue various impeachment lines (e.g., Bologna hearsay via Rule 806, Presentence Report timing, Santaniello, Nigro’s 2002 incapacitation) | Govt: attorneys made strategic choices (cross‑examination, not calling risky witnesses); available evidence already exploited impeachment themes; additional evidence unlikely to change outcome | Denied — counsel’s performance was strategic and objectively reasonable; no prejudice established under Strickland |
| Failure to obtain continuance / plea negotiation (Geas IAC) | Geas: denial of additional continuance and counsel’s failure to convey plea interest undermined trial preparation and plea options | Govt: court granted multi-month continuance; no objective evidence a plea offer existed; counsel demonstrated adequate preparation | Denied — no deficient performance or prejudice shown |
| Appellate counsel errors (IAC on appeal) | Geas: counsel misrepresented RICO experience, did not participate in oral argument, and failed to seek rehearing en banc | Govt: counsel selected issues strategically; forewent oral argument for reasoned tactical reasons; rehearing/en banc is discretionary (no constitutional right) | Denied — appellate advocacy was objectively reasonable; no prejudice shown |
| Non-disclosure of sealed ex parte material from District of Massachusetts | Geas: sealed transcript should have been disclosed under Brady/Giglio | Govt: material was not Brady/Giglio; disclosure not required | Denied — material not Brady/Giglio and nondisclosure did not deprive fair trial |
| Forfeiture & indictment sufficiency challenges | Geas: forfeiture violated due process; certain counts vagueness/insufficient identification of victims/facilities | Govt: forfeiture is noncustodial and not cognizable under § 2255; indictments track statutory language and meet Sixth Amendment notice requirements | Denied — forfeiture challenge not appropriate in § 2255; indictment language adequate |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- Brady v. Maryland, 373 U.S. 83 (prosecution’s duty to disclose favorable evidence)
- Strickler v. Greene, 527 U.S. 263 (Brady components; materiality/prejudice standard)
- United States v. Coppa, 267 F.3d 132 (Brady suppression and materiality analyses)
- United States v. Gil, 297 F.3d 93 (late disclosure may constitute Brady violation in some circumstances)
- United States v. Douglas, 525 F.3d 225 (timely disclosure for effective use at trial)
- United States v. Luciano, 158 F.3d 655 (deference to trial counsel’s strategic choices)
- Smith v. Robbins, 528 U.S. 259 (Strickland standard applies to appellate counsel)
- Jones v. Barnes, 463 U.S. 745 (appellate counsel may select issues to maximize success)
- United States v. Nigro, 529 F. App’x 81 (Second Circuit opinion affirming convictions)