United States v. Romano

15-992-cr (L)
United States v. Romano
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 10th day of February, two thousand twenty-two.
PRESENT: JOSÉ A. CABRANES,
GERARD E. LYNCH,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee, 15-992-cr (L)
19-3507-cr (CON)
v. 19-3573-cr (CON)
19-3815-cr (CON)
JOSEPH ROMANO, VINCENT ROMANO,
and KEVIN WELLS,
Defendants-Appellants,
SALVATORE ROMANO, MICHAEL
DIBARI, AKA Bob Atwell, BILL
GRAYSON, AKA Mark Vaith, and RUSSELL
BARNES, AKA Rusty, AKA Russ, AKA
Kevin Wells,
Defendants. *
_____________________________________
*
The Clerk of Court is directed to amend the caption as set forth above.
1
FOR APPELLEE: Susan Corkery and Lauren Howard
Elbert, Assistant United States Attorneys,
for Mark J. Lesko, Acting United States
Attorney for the Eastern District of New
York, Brooklyn, NY
FOR DEFENDANT-APPELLANT JOSEPH ROMANO:
Andrew H. Freifeld, New York, NY
FOR DEFENDANT-APPELLANT VINCENT ROMANO:
Lawrence D. Gerzog, New York, NY
FOR DEFENDANT-APPELLANT KEVIN WELLS:
Peter J. Tomao, Garden City, NY
Appeal from amended judgments, entered October 16, 2019, by the United States District
Court for the Eastern District of New York (Sterling Johnson, Jr., Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the October 16, 2019 amended judgments of the District
Court be and hereby are VACATED and that the cause be REMANDED to the District Court for
further proceedings.
Defendants Joseph Romano, Vincent Romano, and Kevin Wells appeal amended judgments
entered by the District Court ordering restitution, jointly and severally, in the amount of
$19,070,401.25 (as to Joseph Romano and Vincent Romano) and $13,975,339.60 (as to Wells). In
2010, all three Defendants pleaded guilty to wire fraud conspiracy. After the case was reassigned to
Judge Johnson, 1 the District Court referred the matter of restitution to Magistrate Judge Vera M.
Scanlon. Magistrate Judge Scanlon conducting a hearing, and on January 6, 2015, she issued a report
and recommendation (“R&R”) recommending that the District Court order restitution jointly and
severally in the amount of $13,975,339.60 as to Wells and jointly and severally in the amount of
$19,070,401.25 as to the remaining Defendants. Vincent Romano and Wells filed timely objections
to the R&R. After more than four and a half years, the District Court adopted the R&R’s
recommended restitution amounts and issued amended judgments on October 16, 2019. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
1
The case was reassigned after Joseph Romano’s separate indictment for perpetrating a
murder-for-hire conspiracy targeting the judge and the Government attorney handling the case at
the time. See United States v. Romano, 630 F. App’x 56, 58 (2d Cir. 2015) (summary order) (affirming
Joseph Romano’s conviction for that offense following a jury trial).
2
I.
All parties — including the Government — agree that the District Court erred by failing to
properly review the R&R before adopting it on October 9, 2019. They disagree, however, on what
the District Court’s proper standard of review should have been; Defendants argue that their
objections to the R&R should have been reviewed de novo, while the Government argues that those
objections need only have been reviewed for clear error. In any event, all parties agree that the
District Court’s review of the R&R was insufficient and that remand is necessary, a conclusion with
which we also agree.
A.
While we assume the parties’ familiarity with the case below, we find it useful to lay out a
roadmap of events before the District Court in helping to explain our decision today. Magistrate
Judge Scanlon issued her R&R on January 6, 2015, and Vincent Romano and Wells filed timely
objections within two weeks. As background, the methods used to calculate the restitution awards
recommended by the Magistrate Judge in the R&R were based on a methodology adopted by the
same Magistrate Judge during earlier separate proceedings against Michael Romano and William
Kearney, who had been involved in perpetrating a related scheme. In a decision dated July 27, 2015,
we held that the same District Court — before whom the cases against Michael Romano and
Kearney were then pending — had failed to perform a proper review of the report and
recommendation prepared by Magistrate Judge Scanlon in that earlier case. United States v. Romano,
794 F.3d 317, 341 (2d Cir. 2015) (“Michael Romano”).
In the instant case, the Government filed a letter on October 19, 2017 — more than 33
months after the R&R was issued — requesting that the District Court review the R&R, overrule the
timely objections filed by Vincent Romano and Wells, and enter amended judgments adopting the
R&R’s recommended restitution amounts. District Court ECF No. 690. The Government wrote
another letter on October 1, 2018 — now 45 months since the R&R was issued — asking the
District Court to order restitution “as soon as practicable” and noting that “a number of victims in
these cases are elderly and many of them have passed away in recent years, during the cases’
pendency” and that “[r]estitution disbursements cannot be made to the victims until amended
judgments, stating the correct amount of restitution imposed upon each defendant, are issued by the
Court.” District Court ECF No. 697. All the while, letters on behalf of numerous victims asking
for a ruling on restitution were also received and ignored by the District Court. 2
2
See, e.g., District Court ECF No. 696 (letter received May 15, 2018, from a victim of the fraud
“beg[ging]” the District Court to order that restitution “be disbursed to the victims of this appalling
3
The District Court eventually set a status conference for February 6, 2019. At that
conference, the Government again asked the District Court to adopt the R&R’s findings and
represented that once the Court ordered the restitution, there were “about five million dollars[’]
worth” of forfeited funds that the Government was prepared to disburse to victims. App’x 1014-15.
The District Court promised to “look at [the R&R] again and if [it] adopt[ed] it, [it would] put it on
ECF.” Id. at 1016. The District Court set another conference for April 10, 2019, which it then
adjourned until May 1, 2019, then to June 20, 2019, and then to October 9, 2019. 3 Finally, at the
October 9, 2019 conference, the then-United States Attorney personally appeared on behalf of the
Government, and noted that his office had “received a number of communications, letters, calls,
. . . because the victims were elderly when the fraud was committed and it’s been a number of years
now, and they have really implored us to come before the Court and ask that the Court do anything
it can to move the restitution order forward so that they can get the money from the restitution and
at least try to somehow make better of the harm that they suffered.” App’x 1057. The District
Court then stated: “All right. I will adopt Magistrate Judge Scanlon’s, who is a good magistrate
judge, order.” Id. at 1058. At this point, more than 57 months had passed since the R&R was first
issued.
The District Court then issued amended judgments ordering restitution on October 16,
2019. In the amended judgments, the District Court ordered that Wells, Joseph Romano, and
Vincent Romano all be held jointly and severally liable in the amounts recommended by the R&R,
along with their co-Defendants Salvatore Romano, Thomas Arnold, and Michael Dibari. On the
same day, October 16, 2019, the Government filed a letter citing our decision in Michael Romano and
requesting that the District Court review Vincent Romano’s and Wells’s objections to the R&R for
crime”); District Court ECF Nos. 694 & 698 (letters received July 20, 2018, and December 26, 2018,
from the son of a victim who passed away after the fraud asking about the status of the restitution);
District Court ECF No. 695 (letter received July 26, 2018, from the son of a victim who passed away
complaining that the “wheels of justice have turned glacially in this case”); District Court ECF No.
699 & 713 (letters received on January 2, 2019, and October 16, 2019, from the daughter of a victim
of the fraud stating that her father, then aged 95, was “facing great financial strain,” asking that the
District Court “do whatever [it] can to expedite the restitution process,” and “begging [the District
Court] to please move this case forward and release the funds to the victims”); District Court ECF
No. 700 (letter received on January 3, 2019, from a victim of the fraud “struggling to maintain
financial liquidity” and asking the District Court for information about when restitution would be
ordered); District Court ECF No. 705 (letter received January 16, 2019, from a victim of the fraud
asking “when . . . the victims will be receiving some restitution for the losses inflicted upon us”).
3
In two instances, family members of victims wrote letters to the District Court requesting it
to not further adjourn the conference and expeditiously order restitution. See District Court ECF
Nos. 708 & 713.
4
clear error before issuing another order adopting the R&R in its entirety. The District Court took
no action in response to the Government’s letter.
B.
We now turn to assessing the sufficiency of the District Court’s review of the R&R in light
of the timely filed objections by Vincent Romano and Wells. “If a party timely objects to any
portion of a magistrate judge’s report and recommendation, the district court must ‘make a de novo
determination of those portions of the report or specified proposed findings or recommendations to
which objection is made.’” Michael Romano, 794 F.3d at 340 (quoting 28 U.S.C. § 636(b)(1)); see also
Fed. R. Crim. P. 59(b) (requiring a district judge to “consider de novo any objection to the
magistrate judge’s recommendation” for dispositive matters). But see Fed. R. Crim. P. 59(a) (stating
that for a nondispositive matter, i.e., “any matter that does not dispose of a charge or defense,” the
district judge “must consider timely objections and modify or set aside any part of the order that is
contrary to law or clearly erroneous”). The Government argues here that instead of de novo review,
the District Court was merely obliged to review the timely filed objections for clear error because
those objections were “perfunctory responses that simply rehashed arguments” already submitted to
Magistrate Judge Scanlon. Gov. Br. 30 (citing United States v. Peldomo, No. 10-CR-69 (RRM) (ALC),
2010 WL 5071489, at *1 (E.D.N.Y. Dec. 7, 2010)). We find it unnecessary to decide at this juncture
what standard of review the District Court was obliged to adopt in its review of the timely
objections to the R&R because we conclude — as all parties here agree — that under either
standard, the District Court’s review was insufficient.
When assessing the sufficiency of a district judge’s review of a magistrate judge’s
recommendation, we “normally presume that the district court has made [the proper] review unless
affirmative evidence indicates otherwise.” Michael Romano, 794 F.3d at 340 (internal quotation marks
omitted). This presumption, however, has its limits. For example, in Michael Romano, the district
court inquired as to whether a recommendation for forfeiture had been issued by the magistrate
judge during a hearing. Id. at 340-41. When the Government attorney responded affirmatively, the
district court immediately announced that it would adopt that recommendation. Id. We held there
that the record of the hearing “effectively eliminate[d] the presumption that the court gave the
recommendation proper consideration.” Id. at 341. We additionally noted that the “absence of any
discussion of defendants’ objections . . . raise[d] a question as to whether the court” properly
reviewed the recommendation. Id. We concluded in Michael Romano that remand was necessary to
allow the district court to properly consider the recommendation and properly raised objections. Id.
Similarly, we conclude here that the record shows that the District Court failed to sufficiently
review the R&R before adopting it. While the District Court did state that it had read the R&R and
that it would “look at it again” during the February 6, 2019 conference, App’x 1015-16, there is
nothing in the record showing that the District Court considered any of the timely filed objections
5
to the R&R. Additionally, during the October 9, 2019 conference, the sole explanation given by the
District Court as to its adoption of the R&R was that Magistrate Judge Scanlon “is a good magistrate
judge.” App’x 1058. Under these circumstances, we conclude that remand is necessary to allow the
District Court to properly review the R&R in light of the objections raised by Vincent Romano and
Wells. 4 This remand will also allow the District Court to correct any clerical errors in the amended
judgments issued on October 16, 2019. 5
C.
We briefly turn to Joseph Romano’s request to join his co-Defendants’ arguments
challenging the sufficiency of the District Court’s review of the R&R. The Government argues that
Joseph Romano failed to file a timely objection to the R&R in the District Court and is foreclosed
from challenging the restitution order on appeal. Joseph Romano maintains that he attempted to
file a timely objection, but it was never received because his mail had been tampered with. See
Joseph Romano Br. at 9; District Court ECF No. 648.
Our longstanding rule is that “failure to object timely to a magistrate judge’s report may
operate as a waiver of any further judicial review of the decision.” United States v. Male Juv. (95-CR-
1074), 121 F.3d 34, 38 (2d Cir. 1997). That rule is a “nonjurisdictional waiver provision whose
violation we may excuse in the interest of justice.” Id. (internal quotation marks omitted). Because
additional proceedings before the District Court are required in any event, we need not decide at this
time whether to permit Joseph Romano to receive the benefit of whatever changes, if any, are made
in response to his co-Defendants’ objections. Rather, we direct the District Court to consider on
remand whether, to the extent that it decides to alter the restitution award based on the objections
to the R&R raised by Vincent Romano and Wells, similar changes should also be made in the
restitution award imposed on Joseph Romano.
II.
Joseph Romano, who proceeded pro se during part of the proceedings below, now argues
through appellate counsel that the District Court deprived him of his Sixth Amendment right to
4
The Defendants raise before us several substantive challenges to the restitution amounts
recommended in the R&R. We decline to address those challenges at this juncture and instead deem
it appropriate for the District Court to rule on the timely raised objections to the R&R in the first
instance.
5
In particular, Wells argues — and the Government concedes — that the amended
judgments erroneously omitted certain co-Defendants from the list of Defendants held jointly and
severally liable for the restitution amount. See Wells’ Br. 30-31; Gov. Br. 31-32.
6
counsel. While he was represented by various counsel through his sentencing, shortly thereafter, he
indicated to the District Court his desire to proceed without counsel. The District Court conducted
an inquiry pursuant to Faretta v. California, 422 U.S. 806 (1975), and no attorney made a subsequent
appearance on his behalf.
On appeal, Joseph Romano points to three instances in which, while he was proceeding pro
se, he argues that he requested but was denied counsel. First, he points to his letter to the District
Court received May 1, 2013, in which he requested that the District Court set aside his plea and that
the District Court appoint counsel “upon [its] decision in the said matter.” App’x 269. The next
day, by minute order, the District Court summarily denied the motion to set aside the guilty plea and
denied the motion to appoint counsel. Second, he points to an April 16, 2014 conference before
Magistrate Judge Scanlon, at which, in response to a suggestion by his co-Defendant’s counsel that
appointing CJA counsel for Joseph Romano would expedite the restitution proceedings, Joseph
Romano requested such an appointment but refused to sign any financial affidavit for fear that he
would be accused of “perjur[ing]” himself. Id. at 323. Third, he points to a letter motion received
by the District Court on February 17, 2016, in which he “request[ed]” that the District Court
“appoint counsel to represent him in this case.” Id. at 1010. The cover letter for that February 17,
2016 letter motion, which was received the same day as a habeas petition pursuant to 28 U.S.C.
§ 2255, clarified that the request for counsel was made “due to the complexities of the ineffective
assistance of counsel and conflict of interest . . . claims stated in [the] 2255 Petition.” App’x 1012;
see also District Court ECF Nos. 658 & 659.
We have previously held that “when a defendant who elected to proceed pro se later demands
an attorney, there is broad consensus that, once waived, the right to counsel is no longer
unqualified.” United States v. Kerr, 752 F.3d 206, 220 (2d Cir. 2014) (citing cases). Accordingly, “once
a defendant voluntarily and intelligently waives his right to counsel and elects to proceed pro se, the
decision whether to grant or deny his post-waiver request for counsel is well within the discretion of
the district court.” Id. at 221 (internal quotation marks omitted). Still, we “will generally require a
district court faced with a post-waiver motion for new counsel to inquire into the defendant’s
reasons for the request and fully explain on the record the grounds for its ultimate decision,” though
we do not “insist upon a formal inquiry or colloquy where the rationales for the request and decision
are clearly apparent on the record.” Id. (internal quotation marks omitted); see also id. at 222 (stating
that “it would have been preferable for the district court to explain its reasons for denying the
request,” but concluding that the district court did not abuse its discretion because its reasons were
“clearly apparent on the record” (internal quotation marks omitted)).
In light of those standards, we conclude that Joseph Romano was not deprived of his rights
under the Sixth Amendment. His May 1, 2013 letter is fairly read as a conditional request for
counsel to assist in the proceedings, including a possible trial, that would ensue in the event the
District Court granted his request to “set[] aside Romano’s Plea.” App’x 269. The District Court did
7
not abuse its discretion in denying that request when it denied the motion to vacate the guilty plea.
Similarly, the February 16, 2016 letter requested counsel to aid with the Section 2255 habeas
petition, not with respect to the restitution proceedings. While the District Court’s failure to rule on
that request to date does cause us concern, Joseph Romano’s right-to-counsel claim must fail for a
separate reason: the Sixth Amendment provides no right to counsel in connection with habeas
corpus review of a criminal conviction. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
Finally, we conclude that the request made during the April 16, 2014 conference — the only
request for counsel in connection with the restitution proceedings — was abandoned. While Joseph
Romano stated that he sought representation from the CJA panel, he refused to sign a financial
affidavit or otherwise carry his burden to prove his financial inability to retain counsel. Moreover,
with no explicit ruling on his request, neither Joseph Romano nor his co-Defendants raised the issue
of his representation with the District Court, or otherwise inquired as to the status of his request, at
any time during the three-month period from that status conference through the date of the
restitution hearing, or at any time thereafter before either the Magistrate Judge or the District Court.
Joseph Romano continued to represent himself throughout the proceedings and expressed no
dissatisfaction with doing so. Under those circumstances, to the extent Joseph Romano’s statements
during the April 16, 2014 conference could be understood as a post-waiver request for
reappointment of new counsel, we find that he subsequently abandoned that request. As in Kerr,
while “it would have been preferable for the district court to explain its reasons for denying the
request,” the District Court did not abuse its discretion because its reasons were “clearly apparent on
the record.” 752 F.3d at 222 (internal quotation marks omitted).
III.
Finally, we conclude nostra sponte that this case should be reassigned upon remand. While
generally, cases should be remanded to the same judge from whom the appeal originated, we have
also recognized that “‘in a few instances there may be unusual circumstances where both for the
judge’s sake and the appearance of justice,’ an order of reassignment is appropriate.” Mackler Prods.,
Inc. v. Cohen, 225 F.3d 136, 146-47 (2d Cir. 2000) (quoting United States v. Robin, 553 F.2d 8, 9-10 (2d
Cir. 1977) (en banc)). We conclude that this is one of those rare cases.
We note that this is the second time we have reversed this same District Court for failure to
properly review a magistrate judge’s recommendation concerning restitution related to the same
underlying fraud. See Michael Romano, 794 F.3d at 340-41. Indeed, in its October 16, 2019 letter to
the District Court, the Government expressly alerted the District Court to our holding in Michael
Romano, but the District Court declined to act in response to that letter. We have, in the past, found
reassignment appropriate “where the district court has demonstrated something akin to an inability
or unwillingness to follow the Circuit’s direction.” Fed. Ins. Co. v. United States, 882 F.3d 348, 373 (2d
Cir. 2018); see, e.g., Vincent v. Comm’r of Soc. Sec., 651 F.3d 299, 308 (2d Cir. 2011) (reversing a
8
magistrate judge’s denial of fees to the same attorney on the same grounds twice in two years and
ordering that the case be reassigned upon remand); United States v. Hernandez, 604 F.3d 48, 56 (2d Cir.
2010) (reassigning after a district judge had twice imposed the same sentence without making
appropriate findings); see also Robin, 553 F.2d at 11 (“In the rare case where a judge has repeatedly
adhered to an erroneous view after the error is called to his attention, reassignment to another judge
may be advisable in order to avoid an exercise in futility in which the Court is merely marching up
the hill only to march right down again.” (cleaned up)).
Additionally, we note that in this case, victims of the underlying fraud — many of whom are
elderly — have been eagerly waiting for several years for the possibility of restitution. It took 57
months for the District Court to rule on the R&R. In vacating the amended judgments ordering
restitution, we worry about additional delays and the prejudice those delays may have on the many
victims of the fraud perpetrated by Defendants. 6 Many of those victims have written to the District
Court urging it to expeditiously resolve the matter, and we hope that reassignment can “preserve the
appearance of justice” and facilitate a timely resolution of the restitution issue. See Mackler Prods.,
225 F.3d at 147 (concluding that reassignment was “meant to bring this matter to an expeditious and
equitable conclusion in a manner designed to avoid any question, legitimate or not, about the justice
of that conclusion”).
IV.
For the foregoing reasons, the October 16, 2019 amended judgments of the District Court
are VACATED and the cause is REMANDED for further proceedings, with instructions to the
Clerk of the United States District Court for the Eastern District of New York to assign this case on
remand to a different judge. Upon reassignment, the District Court is instructed to:
(1) Review the timely filed objections of Vincent Romano and Wells to the R&R under what
it determines to be the proper standard of review;
(2) Correct any clerical errors in the amended judgments;
6
We feel compelled to point out that many of the problems created in this appeal and the
case below would have been avoided by the timely adjudication of motions on the District Court’s
docket. For example, on May 12, 2017, Joseph Romano’s appellate counsel filed a motion before
the District Court seeking access to sealed portions of the docket. With no ruling on that motion
from the District Court, appellate counsel sought relief from us on July 30, 2017. A panel of this
Court denied that motion without prejudice to its renewal “if the district court fails to rule on [the]
motion within a reasonable time.” ECF No. 87. Still, however, the District Court failed to rule on
appellate counsel’s motion. Appellate counsel renewed his motion before us on December 4, 2019,
asking us to compel the District Court to release sealed portions of the docket to appellate counsel.
With still no relief from the District Court, on April 14, 2020, a panel of this Court ordered the
District Court to grant access to those sealed documents to appellate counsel.
9
(3) If appropriate, determine whether Joseph Romano may join Vincent Romano and Wells
in their objections to the R&R to the extent that those objections alter the judgments;
and
(4) Complete these actions and such other proceedings as may be required in the interest of
justice within 90 days of the issuance of the mandate of this case.
At the close of those proceedings, any party seeking appellate review may file an appropriate letter
with the Clerk of Court, in which case the mandate shall be automatically restored in the Court of
Appeals. See United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994). In the interest of judicial
economy, any further appeal shall be directed to this panel.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
10