USA v. Romano et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA 	:
AMENDED MEMORANDUM
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MICHAEL ROMANO, 	: 	22 Civ. 02444 (DC)
09 Cr. 00168 (DC)
Defendant 	:
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APPEARANCES: 	JOSEPH NOCELLA, JR., Esq.
United States Attorney for the
Eastern District of New York
By: 	Irisa Chen, Esq.
Assistant U.S. Attorney
271 Cadman Plaza East
Brooklyn, NY 11201
MALVINA NATHANSON, Esq.
120 Wall Street
28th Floor
New York, NY 10005
CHIN, Circuit Judge:
Defendant Michael Romano moves, pursuant to 28 U.S.C. § 2255, to
vacate, set aside, or correct his sentence on the grounds that he received ineffective
assistance of counsel at trial, at sentencing, and on appeal. Dkt. 633-2 at 1-2.
On June 13, 2011, following a month-long jury trial, Romano was
convicted in the United States District Court for the Eastern District of New York
(Bianco, J.) of one count of conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349
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("Count 1"), and one count of conspiracy to commit money laundering, id. §§
1956(a)(1)(A)(i) and 1956(h) ("Count 2"). Dkt. 661-19 at 3054-56; United States v. Romano,
859 F. Supp. 2d 445, 450 (E.D.N.Y. 2012). The trial court denied Romano's motion for
acquittal and a new trial. See Romano, 859 F. Supp. 2d at 467. On November 22, 2013,
after the case was reassigned, the district court (Johnson, J.) conducted a Fatico hearing
to consider Romano's objections to sentencing enhancements proposed by the Probation
Department. Dkt. 398 at 2-3. On February 27, 2014, the court sentenced Romano to 240
months' imprisonment on each count, to run concurrently. Dkt. 661-20 at 24.
Romano appealed to the Second Circuit. On July 27, 2015, the Second
Circuit affirmed the judgment and sentence, except that it remanded for further
proceedings with respect to restitution and forfeiture. See United States v. Romano, 794
F.3d 317, 341 (2d Cir. 2015).1
In his present motion, Romano contends that three deficiencies on the part
of trial counsel entitle him to relief: (1) trial counsel failed to request an instruction
precluding the jury from considering conduct occurring before July 30, 2002, the date
that the statute criminalizing conspiracy to commit mail or wire fraud, 18 U.S.C. § 1349,
was enacted; (2) trial counsel failed to object at sentencing when the court mistakenly
assumed that Count 1 carried a maximum sentence of thirty years; and (3) trial counsel
1 	The issues of restitution and forfeiture are not presently before the Court. See Dkt. 661 at
5 n.4.
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failed to object to Romano's twenty-year sentence on Count 2, when the jury's general
verdict failed to specify whether it was finding Romano guilty of acts carrying a twenty-
year maximum sentence or acts carrying a ten-year maximum. Dkt. 633-2 at 1-2.
Romano also claims that he received ineffective assistance from his appellate counsel,
who failed on appeal to raise trial counsel's errors below. Id. at 2.
For the reasons that follow, the motion is DENIED.
BACKGROUND
I. 	The Facts
The facts are set forth in detail in the Second Circuit's opinion on direct
appeal, which extensively reviewed the government's evidence at trial. Romano, 794
F.3d at 321-29. I summarize the facts here.
From the 1990s until November 2008, Romano owned and operated three
successive companies that engaged in a scheme to fraudulently sell rare coins to
collectors. Romano and his co-defendants sold the coins by falsely representing their
grade, value, and profitability. Romano and his salesforce targeted elderly customers in
particular, falsely representing that the coins were collectibles worth much more than
their actual value. The scheme cost the victims millions of dollars. See Romano, 794 F.3d
at 321-25, 338; see also Dkt. 661 at 1-2; Dkt. 661-20 at 21.
Romano "closely supervised the companies' sales forces," Romano, 794 F.3d
at 324, and "[t]he company-approved sales pitches contained numerous false
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representations, with salesmen stating that they were offering bargains . . . when in fact
the quality of the offered coins was simply lower than represented," id. Salesmen were
instructed, for example, to tell customers that the companies employed three graders
and that coins were graded in accordance with the highest standards when "in fact the
only 'grader' was Romano, and he did not examine the coins." Id. at 325. Salesmen
knew that their descriptions of the companies' grading process were false and that the
grades themselves were inflated. Id. Although they knew that Romano's companies
had falsely inflated the value of the coins, the salesmen "regularly told customers that
owning the coins would be profitable." Id. The salesmen also falsely told customers
that if they ever wanted to sell the coins in the future, the Romano companies would
buy the coins back or help resell them. Id. at 326.
Most of the conduct occurred after July 30, 2002. For example, Robert
Bentzinger paid about $7,000 to purchase coins from Romano's companies in or about
2005. Dkt. 661-9 at 1517-18. In 2008, Richard Bruni, who was 77 years old at the time of
trial (2011), paid one of Romano's companies $15,490 for a 1908 twenty-dollar St.
Gauden's piece that he never received. Dkt. 661-3 at 547, 553-54. In 2007 and 2008, after
receiving numerous telephone calls from Romano's salesmen, Betty Lou Fox purchased
several thousand dollars' worth of coins, although she did not get the coins she thought
she had ordered. Dkt. 661-10 at 1832-34, 1839-41. Frank Miser bought more than
$180,000 in coins from two of Romano's companies beginning in 2005. Dkt. 661-5 at
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944-45; Dkt. 661-6 at 976, 991. Sharon Oldham bought $147,000 in coins from Romano's
companies from around 2007 to 2009. Dkt. 661-7 at 1316-17, 1322. There were others as
well who bought coins from Romano's companies after July 30, 2002. See Dkt. 661
App'x A (Summary Table of Fact Witnesses' Testimony).2
Bank records showed that between 2000 and 2008, Romano's companies
sold coins to 1,450 customers, generating revenue of some $32 million. Romano
personally received approximately $6.7 million. Romano, 794 F.3d at 326-27.
II. 	Prior Proceedings
The prior proceedings are summarized above. In light of Romano's
arguments in support of his motion, I provide some detail as to the sentencing before
Judge Johnson on February 27, 2014.
After hearing from Romano and counsel, the district court noted that the
Guidelines range was 262 to 327 months' imprisonment and stated that he was going to
sentence Romano to 262 months. Dkt. 661-20 at 23. The following colloquy ensued:
[AUSA]: Your Honor, there's two counts, they are each 20-
year counts, so was the Court intending to split the 262, because 262 is
more than 20, between the two counts?
THE COURT: Well, one is for 30 years. The first count is for
30 years, I think, and one is for 20 years, I think.
[AUSA]: I have to look, Your Honor. I thought they were
both 20. Just give me one moment.
2 	Also testifying at trial were Romano's salesmen and other employees at his companies
who provided services after July 30, 2002. See Dkt. 661 App'x A.
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THE COURT: I looked at the statute and one was 30, I think.
[DEFENSE COUNSEL]: Your Honor, there may be a statute
of limitations issue if the Court were to impose 30 years on one count
because I don’t know when the change was made and whether all of the
conduct that was alleged in the indictment took place after the applicable
date of any change.
THE COURT: Okay. I will make it, to simplify it, I'll make it
240 months to run concurrently.
[AUSA]: Yes, Your Honor.
Id. at 23-24.3
Defense counsel did not raise, prior to or during trial or at sentencing, the
issue of conduct prior to the effective date of the statute. Dkt. 661-1 ¶¶ 2-3. Defense
counsel also did not object, at sentencing, to a sentence exceeding ten years with respect
to Count 2. Id. ¶ 11. Nor did defense counsel raise, on appeal to the Second Circuit, the
purported errors of trial counsel. See Romano, 794 F.3d at 321, 329-30, 336-37. While
Romano did raise sentencing issues on appeal, he did not raise the issues presently
before the Court.4
3 	Defense counsel contends that his comments were not correctly transcribed. Dkt. 661-1
¶ 7.
4 	In June 2022, Romano was released from prison and placed on home confinement. After
just a few weeks, however, he was directed by the Bureau of Prisons to report to a halfway
house and was then returned to prison. In May 2023, he commenced proceedings pursuant to
28 U.S.C. § 2241 in the United States District Court for the District of New Jersey to challenge
the revocation of his release. The district court, while raising concerns about the manner in
which Romano's release was revoked, granted the government's motion to dismiss. The matter
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III. 	The Instant Motion
In the instant motion, Romano seeks relief pursuant to § 2255 on
ineffective-assistance-of-counsel grounds. Dkt. 633. He contends that trial counsel
provided ineffective assistance in three respects and that appellate counsel was
ineffective for failing to raise the errors on appeal. The government opposed the motion
on July 5, 2022. Dkt. 653. Romano filed a reply on July 20, 2022. Dkt. 660.
The case was reassigned to the undersigned on August 1, 2025.
DISCUSSION
I. 	Applicable Law
The Second Circuit has held that "a collateral attack on a final judgment in
a federal criminal case is generally available under § 2255 only for a constitutional error,
a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a
fundamental defect which inherently results in a complete miscarriage of justice.'"
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S.
424, 428 (1962)); accord United States v. Hoskins, 905 F.3d 97, 102 (2d Cir. 2018); Graziano v.
United States, 83 F.3d 587, 589-90 (2d Cir. 1996).
To establish a violation of the Sixth Amendment right to effective
assistance of counsel, a defendant must (1) show that counsel's performance was so
is now pending in the Third Circuit. See Letter of Federal Public Defender, District of New
Jersey, to the Court, dated Aug. 22, 2025 & Exh. 1.
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deficient as to fall below "an objective standard of reasonableness," and (2) establish
prejudice by demonstrating 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. 669, 688, 694 (1984). "The likelihood of a different
result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112
(2011).
The Strickland two-part test is "highly demanding," Kimmelman v. Morrison,
477 U.S. 365, 382 (1986), and "'[t]he benchmark for judging any claim of ineffectiveness
must be whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result,'"
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 686).
II. 	Application
First, I address the three purported errors of trial counsel: (a) the failure to
request an instruction regarding conduct pre-dating the effective date of the conspiracy
statute; (b) the failure to object at sentencing when the court mistakenly assumed that
Count 1 carried a maximum sentence of thirty years; and (3) the failure to object to the
twenty-year sentence on Count 2. Second, I address the purported failures of counsel
on appeal.
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A. 	Trial Counsel
1. 	The Effective Date of the Conspiracy Statute
Romano was convicted on Count 1 of violating the mail and wire fraud
conspiracy statute, 18 U.S.C. § 1349, which became effective July 30, 2002. Trial counsel
did not request a jury instruction limiting the use of evidence of conduct predating the
effective date of § 1349. Romano argues that this failure constituted ineffective
assistance in violation of the Sixth Amendment. I am not persuaded.
Even assuming that Romano has met the first prong of the Strickland test
because trial counsel's failure to request an instruction was so deficient as to fall below
an objective standard of unreasonableness, he clearly has failed to establish the second
prong: He has not shown that there is a reasonable probability that but for this error, the
result of the proceeding would have been different.
First, when continuing conduct violates a statute, the statute may be
applied "to an enterprise that began prior to, but continued after, the effective date of
the statute." United States v. Harris, 79 F.3d 223, 229 (2d Cir. 1996) (alterations accepted).
Second, the evidence of conduct predating the effective date of the statute surely would
have been admissible as Rule 404(b) evidence, including to show, e.g., the genesis of the
conspiracy, the relationship among the coconspirators, and the operations over time.
See United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) ("When it is shown that a
conspiracy straddled the enactment of a statute, the government may introduce pre-
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enactment evidence to demonstrate the conspiracy's genesis, its purpose, and its
operation over time."). Third, there was extensive evidence offered at trial of post-
enactment conduct. Indeed, most of the evidence presented at trial was about conduct
after July 2002. See Dkt. 661 App'x A; see also United States v. Marcus, 628 F.3d 36, 42 (2d
Cir. 2010) ("[T]he Government presented post-enactment evidence sufficient to satisfy
the elements of the forced labor statute."). Finally, there was no "reasoned basis to
differentiate between [Romano's] pre- and post-enactment conduct." Id. at 43.
Accordingly, Romano's contention that he was denied effective assistance
of counsel and a fair trial because of trial counsel's failure to request a jury instruction
limiting the use of evidence of pre-enactment conduct fails. See id. at 40, 42 (holding as
to forced labor conviction, where trial court failed to instruct jury with respect to
enactment date of criminal statute, "there is no reasonable probability that the jury
would have acquitted [the defendant] absent the error").5
2. 	The Sentence on Count 1
The record shows that, at least initially, the district court was under the
mistaken impression that Count 1 carried a thirty-year maximum sentence. Dkt. 661-20
5 	In Marcus, while affirming the forced labor conviction, the Second Circuit vacated as to
the sex trafficking conviction. Id. at 43-44. The defendant eventually brought a § 2255 motion to
challenge the forced labor conviction for, inter alia, ineffective assistance of counsel with respect
to the straddling issue; the motion was denied in all respects. See Marcus v. United States, No.
14-CV-5780 (ARR), 2015 WL 3869689, at *22 (E.D.N.Y. June 22, 2015).
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at 23. Romano argues that his trial counsel was constitutionally ineffective for failing to
correct the district court. The argument fails.
Although the district court was initially inclined to impose a sentence of
262 months' imprisonment, the government noted that "there's two counts, they are
each 20-year counts." Id. After some further discussion, the district court reduced the
sentence from the 262 months he was initially inclined to impose to 240 months, on each
count, to run concurrently. Id. at 24. While the district court did not explicitly explain
its decision to modify the proposed sentence, the record is clear that the Guidelines
range would have been 262 to 327 months' imprisonment but for the statutory
maximums and that the district court was initially inclined to impose a 262-month
sentence, but that it imposed a sentence of only 240 months once the government raised
the issue.
Under these circumstances, Romano has failed to show a substantial
likelihood that the outcome of the proceedings would have been different if his trial
counsel had also raised the issue. As trial counsel explains in his affirmation, "Because
the Court reduced the sentence on Count One in response to comments both by the
Government and by defense counsel, it was my view that there was nothing further I
could do at sentencing to ameliorate any prejudice resulting from the initial
misunderstanding by the Court." Dkt. 661-1 ¶ 9.
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3. 	The Sentence on Count 2
Count 2 charged a money laundering conspiracy, and Romano notes that
where the statute is violated by conducting financial transactions knowingly involving
proceeds of mail and wire fraud, 18 U.S.C. § 1956(a)(1)(A)(i), the crime carries a possible
20-year sentence, and where it is violated by engaging in a monetary transaction in
property valued at $10,000 or more derived from unlawful activity, 18 U.S.C. §§ 1957(a)
and 1956(h), the crime carries a maximum 10-year sentence. He argues that his trial
counsel was constitutionally ineffective by not objecting to a twenty-year sentence on
Count 2. Dkt. 633-2 at 22. This claim is also meritless.
It is clear from the record that Romano was guilty of at least the first form
of money laundering -- conducting financial transactions knowingly involving proceeds
of mail and wire fraud. The record is replete with evidence of numerous telephone calls
made by Romano's salesmen as well as many transfers of money. Indeed, the sales
generated by communications with 1,450 customers generated revenue, as shown in
bank records, of some $32 million. Romano, 794 F.3d at 323-27; see also id. at 321 (noting
that Romano was convicted of "conspiracy to engage in money laundering, in violation
of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h)"). Indeed, Romano was convicted of wire
and mail fraud conspiracy on Count 1. It is difficult to see how anything would have
been different if trial counsel had asked for a special verdict or raised the issue at
sentencing.
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Moreover, Romano was sentenced to 240 months' imprisonment on each
count, to run concurrently. Even if trial counsel had objected to a 20-year sentence on
Count 2, the sentence on Count 1 would not have changed. See United States v. Henry,
325 F.3d 93, 101 (2d Cir. 2003) ("[A]n erroneous sentence on one count of a multiple-
count conviction does not affect a defendant's substantial rights where the total term of
imprisonment remains unaffected."); United States v. Outen, 286 F.3d 622, 639-40 (2d Cir.
2002). Hence, particularly in the context of a § 2255 motion, Romano has not shown a
miscarriage of justice as he was properly sentenced to a concurrent term of
imprisonment of 240 months on Count 1.
B. 	Appellate Counsel
Finally, Romano argues that appellate counsel was constitutionally
ineffective for failing to raise the issues identified above and for failing to argue that
trial counsel was ineffective. Dkt. 633-2 at 25. This claim likewise provides no basis for
relief.
The two-part Strickland test applies to ineffective assistance claims
involving appellate counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) ("[T]he
same test is used with respect to appellate counsel."). In the appellate context, "it is not
sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous
argument, for counsel does not have a duty to advance every nonfrivolous argument
that could be made." Id.
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Here, appellate counsel's decision to pursue other issues on appeal does
not amount to ineffective assistance. As discussed above, the claims raised on this
motion lack merit, and even assuming they are nonfrivolous, it was not unreasonable
for appellate counsel to raise other issues instead. See Aparicio v. Artuz, 269 F.3d 78, 100
(2d Cir. 2001) ("Petitioner's appellate counsel was not ineffective for failing to raise the
meritless argument."); see also United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999)
("Failure to make a meritless argument does not amount to ineffective assistance.").
Even if appellate counsel had raised these issues, Romano has not shown that a
different outcome in the proceedings would have resulted. Moreover, appellate counsel
raised several meritorious issues for appeal, as the Second Circuit's detailed and
comprehensive opinion demonstrates. Indeed, appellate counsel succeeded in
obtaining a remand with respect to restitution and forfeiture. See Romano, 794 F.3d at
340-41.
CONCLUSION
For the reasons set forth above, Romano's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED in all respects. The Court
declines to issue a certificate of appealability, as Romano has not made a substantial
showing of a denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be
taken in good faith and thus denies in forma pauperis status should Romano appeal. See
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Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully
directed to enter judgment and close the civil case, No. 22 Civ. 2444, and to mail a copy
of this Memorandum and Order to Romano at his last known address.
SO ORDERED.
Dated: 	Brooklyn, New York
September 30, 2025
Amended: 	November 20, 2025
DENNY CHIN
United States Circuit Judge
Sitting by Designation
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