Petition for Writ of Certiorari — Aiello v. United States
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8 if FIL
8 I I 06 TEC tO S88
PGE SERN, JR.
| CLERK
In The |
Supreme Court of the Hnited States
October Term 1988
No.
ANDREA AIELLO, a/k/a "ANTONIO AIELLO,"
and LORENZO SCADUTO,
Petitioners,
—against—
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
WILLIAM E. LORE, Esq.
Attorney for Petitioner Aiello
118-21 Queens Boulevard
Forest Hills, New York 11375
(718) 544-8006
MICHAEL VINCENT RICCI, Esq.*
Attorney for Petitioner Scaduto
11-01 154th Street
Whitestone, New York 11357
(718) 767-2230
*Attorney of Record
QUESTIONS PRESENTED
. Do Ethical standards apply equally throughout the
United States to give equal protection to U:S. citi-
zens (with No waivers) in reversing convictions or do
ETHICS apply only to California and only in favor of
the Government in affirming convictions (with waivers)?
. Should the trial judge have held a Rule 44(c) or Sixth
Amendment inquiry when he knew of at least six con-
flicts in the record and who also should have known
about conflicts which were “common knowledge” and
“all of Brooklyn knew”?
. Does the U.S. Government have an affirmative ethical
duty to disclose conflicts which were “common know-
ledge” or do they only disclose, oppose or “manu-
facture” conflicts when defense counsel do a “fantastic
job”
. Was it impermissible for Evseroff to exclusively control
all referrals and
. Was it constitutional, after a successful appeal, for the
trial judge to resentence Scaduto in absentia?
. Was it fair to convict and upon resentence for the trial
judge to increase Scaduto’s sentence from 35 years to 45
years on an 848 count where the sole evidence is a note-
book found in someone else’s house and which had
coded names?
ae
10.
Il.
12.
13.
14.
Is it fair for a Court and a Government in order to get a
fugitive, to hold U.S. citizens hostage?
Was the trial judge prejudiced against Scaduto?
Can an Orwellian videotape based only upon a “search
warrant order” be used against U.S. citizens without any
Title II] or Fourth Amendment safeguards?
After a successive motion and recusal of the trial judge,
should the new District Judge have vacated the con-
victions after saying:
“I can tell you, if this was my trial, and I dont say
this critically of anybody, that I would have granted
a new trial”?
After finding only “minimum standards of competency,”
“appearance of impropriety,” “disturbing nature,”
“laundering,” “delicts,” and ethics only “for the future,”
should the District Judge have vacated the convictions?
Should the same Trial Judge, Government & Court of
Appeals have used different standards compared to
Ruggiero on the juror issue?
Should the Federal Government in New Jersey
(Gambino) have higher standards than in New York?
When a Father controls, should the Court of Appeals
apply different standards for trial in a Federal Court as
compared to a State trial?
17.
18.
ill
. Were petitioners Fourth Amendment rights violated?
Were petitioners Fifth Amendment rights violated?
Were petitioners Sixth Amendment rights violated?
After a successive motion to expand before a determina-
tion on the merits, locating hidden information in a
10,000 page record, comments by the trial judge, and
sworn testimony, should the Court of Appeals have
restricted petitioners Constitutional and Ethical rights?
. Is this case “on all fours” or a fortiori to Wheat?
We en ano
TABLE OF CONTENTS
Page
OD 6. s:o da dnc bbs dUEiw ees kbs vARE ORE
Pe FOE PTE CET ET PTL PELE ere errr ee
Constitutional, Statutory, and Other
PE ND, 6 ck vtec veaddeseandeavieuaxern
OE RD ccc cdcncdsepuaa dpxadescoanwen
Bee ee NS bs do hk de RW aR See SUR ER eA eered
Ue PD REG dino os base cadexeseueruen
Judge Costantino’s Behavior................00008-
Successive Motion to Expand ................000-
Judge Weinstein’s Oral Determination .............
Evseroff’s Insensitivity to Ethics...................
Rabin as Evserofi’s Employee ..........ccccsccees
Evseroff/ Rabin’s Representation
i SN ica Saw bees ws cs sb cekweaen 10
Evseroff’s Recruitment of
Coogerative Co-Counsel .....ccccccccccsccsccees 13
Evseroff’s Control of Legal Fees ................. 14
Impermissible Division of Fees ...............4.. 15
eg BO RC err 16
The Warehouse Videotape—Pretrial.............. 17
The Warehouse Videotape—At Trial ............. 19
ORIN OE WRU NOE so eek ness bbb0b5 se seewe 21
PEE OO Ge WIE oon ccc ccccccsceccnseees 22
No Confrontation of Witnesses ..............206. 23
po er ee er re 24
Comvestiets GG BemtOMG? 20.6 cc ccccvcsenncaceenn 25
Motion to Expand the Remand.................. 26
SUR TH OO inns ccnaccccesacévvsess 27
The Appeal Below (Aiello Ill) ................4.. 27
Cs 65.65 wv cen i ob b.caveneee sentersneneee 29
APPENDIX
. Order of U.S. Court of Appeals, 2d Circuit, 10/21/88
. Order, 3/3/88, on decision of U.S.D.J. Weinstein
. Memorandum & Order, 2/29/88 (Weinstein, U.S.D.J.)
. Oral determinations in proceedings, 2/8/88 (" ")
. Opinion, U.S.C.A.2d, 3/18/87
. Decision, 6/5/86 (Costantino, U.S.D.J.)
. Opinion, U.S.C.A.2d, 3/18/87
. Order, U.S.C.A.2d, 5/6/86
. Order, U.S.C.A.2d, 6/27/88
TABLE OF AUTHORITIES
Page
U.S. Constitution
pe REPT ER er ery 2, 19
gs 665s 5 a6 on wale eae 23, 24, 28, 30
Sixth Amendment.............02. 5, 23, 24, 25, 28, 30
Cases
Alderman v. United States, 394 U.S. 165 (1969)...... 19
Berger v. New York, 388 U.S. 41 (1967).............. 3
Bruton v. United States, 391 U.S. 123 (1968) .... 25, 28
Camara v. Municipal Court, 387 U.S. 523 (1967)...... 3
Camera v. Fogg, 658 F.2d 80 (3rd Cir. 1981) ........ 14
Curler v. Sullivan, 446 U.S. 335 (1980) ..... 4, 5, Il, 28
Dalia v. United States, 441 U.S. 238 (1979). .......... 3
Davis v. Alaska, 415 U.S. 308 (1974) ........... 25, 28
In re Evans, 452 F.2d 1239 (D.C. Cir. 1971),
cert. denied, 408 U.S. 903 (1972) ............ ee eee 3
Green v. United States, 365 U.S. 301 (1961) ......... 28
Hill v. United States, 368 U.S. 424 (1962) ........... 28
Holloway v. Arkansas, 435 U.S. 475 (1978)....... 5, 28
Osborn v. United States, 385 U.S. 323 (1966) ......... 3
People v. Gallina, 95 A.D.2d 336,
466 N.Y.S. 2d 414 (2nd Dept. 1983) .............. 16
Pe Rt ae Cres cacéveves hha odes s cad euedn 4
Solina v. United States, 709 F.2d 160
es bebe ke oe eso 6eeeee eames 28
Strickland v. Washington,
Re Ais CUD nob hoes caceccewcvseees 5, 27, 28
United States v. Aiello, 771 F.2d 621
Ce Ge, See 8 PD kciaccadncsss Appendix “G”,
3, 4, 6, 12, 19, 20, 25, 26, 27
United States v. Aiello, 814 F.2d 109
(2d Cir. 1987) (“Aiello II”) ..... Appendix “E”, 6, 8, 9
United States v. Aiello, 681 F.Supp. 1019
Cs SD £6 debs wear scans Appendix “C”, 2, 27
United States v. Aiello,
(Oral Determinations) ............. Appendix “D”, 8
United States v. Aiello, unreported ..... Appendix “A”,
2, 28
United States v. Biasucci, 1988, 786 F.2d 1986,
cert. denied, — U.S. —, 107 S.Ct. 104............ 27
United States v. Cancilla, 725 F.2d 867
SE Meld dank ba bad ONE NEO EUR RAO Ue 64a soos 5, 9, 28
United States v. Cataldo, 625 F.Supp. 1255
ive wh cea deh oe eeek award en naeneee 28
United States v. Curcio, 680 F.2d 881 |
ee ee stbadecedasun 28
United States v. Gambino, (D.N.J.
AG he Vata Nabe toa wn 4be 86 6a. 4,9, 16, 26
United States v. Garcia- Duarte,
Fe ee ee ED hn cduceccdanvécasacnaen 24
United States v. Giordano, 416 U.S. 505 (1976) ....... 3
United States v. Hess, 482 F.2d 38
a NE teeta ik Sr las bis 6a ce k-4 a 8 0-4-0 de de 3
United States v. Katz, 389 U.S. 347 (1967) ........... 3
United States v. Lilla, 699 F.2d 99
og REE Ee Fe ern 3
United States v. New York Telephone Co.,
a oe wok eae ae ee 3
United States v. Ruggiero, 88-1083
aces bebe cata sans 4
United States v. Scafidi, 564 F.2d 633
gre ee a soa rn ep a ead s 18
United States v. Torres, 751 F.2d 875
(7th Cir. 1984), cert. denied,
ee ee a ek ede daeaneeeas 3
United States v. Tortorello, 480 F.2d 764
(2d Cir.), cert. denied, 414 U.S. 866 (1973) ......... 3
United States v. Tortorello
ee ee case eeeeanas penned 2)
Wheat v. United States,
Se a ee Uo oko d006 aoe wneedeoane 27, 28
Wood v. Georgia, 450 U.S. 261 (1981) ............... 5
Statutes
Title I11, Omnibus Crime Control and Safe Streets
Acts of 1968, 18 U.S.C. 2510-2520 ............ 3, 18
ee SE So inc ance kes hh eae dnees eek ban 4, 11, 25
ee EE Fu eee ee Eh eSKKEE HS wee Appendix “B”
Rules
= NN os racine vieewncanens 20
Rule 32(a)(1) - 1966 Amendment,
Ee le ean eas bees owe 28
ee ick secs edeuatexewanees 27
ee ka daadeu been eh seanmees 3
ee ee Lo acta cede dasadeea paws 24
ee Se GE. ob ho beens ba bedeen ons 20 3
Code of Professional Responsibility
N.Y. Code of Professional Responsibility ............ 5
DR 2-106(C), N.Y. Code of
POCMIORS! MesPOmsibility . . 2. ccc ccsscscccess 26
EE Chews eee cn er ccéessveadnssendce Ie ae
EC 2-20, N.Y. Code of
Professional Responsibility ...............eeee0e. 26
In The
Supreme Court of the United States
October Term 1988
No.
ANDREA AIELLO, a/k/a "ANTONIO AIELLO,"
and LORENZO SCADUTO,
Petitioners,
—against—
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
WILLIAM E. LORE, Esq.
Attorney for Petitioner Aiello
MICHAEL VINCENT RICCI, Esq.
Attorney for Petitioner Scaduto
OPINION BELOW
The opinion below (Appendix A) arises under docket
number 88-2140 under the title UNITED STATES OF
AMERICA, Defendant-Appellee, against ANDREA
AIELLO a/k/a ANTONIA AIELLO and LORENZO
SCADUTO, Petitioners-Appellants. Andrea Aiello and
Lorenzo Scaduto seek certiorari from this Court to review
the order of the Second Circuit Court of Appeals affirming
the judgment of the District Court, Eastern District of
New York, 681 F. Supp. 1019(E.D.N.Y. 1988) (Appendix C).
JURISDICTION
The Circuit Court order was filed October 21, 1988, and
this petition was filed within 60 days.
CONSTITUTIONAL, STATUTORY AND OTHER
PROVISIONS INVOLVED
The law involved in this case is the Fourth, Fifth, and Sixth
Amendments to the Constitution of the United States.
STATEMENT OF THE CASE
The first appeal. Andrea Aiello and Lorenzo Scaduto, both
law-abiding US citizens with no prior criminal record, were
arrested in September 1983 and convicted in July 1984 on
federal drug charges, though it was not shown they sold or
possessed any drugs, records, equipment or proceeds.' Con-
fined since arrest, petitioners appealed. Both joined in each
other’s Briefs.
'In contrast, Salvatore Bartolotta (“Sal”), his wife Francesca, nee Ragusa,
and Carlogero Salemi were found to have made sales and possessed drugs, para-
phernalia, guns, and drug records.
iced ten LN LINEA A BN Sivoo renin
DA Ma ee a AEH beacon’ 8.9 are vi aah
Aiello argued: The surreptitious videotaping of his ware-
house was unlawful and unconstitutional, and its admission
was plain error, requiring reversal. No statute or rule
authorized the district court to permit the videotaping. Title
111 of the Omnibus Crime Control and Safe Streets Act of
1968, 18 USC 2510-2520, encompasses only the interception
of spoken communications, not visual activities. United
States v. Torres, 751 F.2d 875 (7th Cir. 1984), cert. denied,
470 U.S. 1087 (1985). Rules 41(b) and 57(b) are restricted to
ordinary search warrants for physical evidence and authori-
zations for pen register devices, which are far less intrusive.
United States v. New York Telephone Co., 434 U.S. 159
(1977) (dissenting opinion). Courts have no inherent power to
issue video warrants, and even if they did, the order here was
unconstitutional, because the standards for assessing its
validity: must be as stringent as those for Title III] orders,
United States v. Katz, 389 U.S. 347 (1967), United States v.
Giordano, 416 U.S. 505 (1974), /n re Evans, 452 F.2d 1239
(D.C.Cir. 1971), cert. denied, 408 U.S. 903 (1972). The video-
taping was not shown to be necessary and thus was consti-
tutionally unreasonable. Berger v. New York, 388 U.S. 41
(1967), Osborn v. United States, 385 U.S. 323 (1966), Camara
v. Municipal Court, 387 U.S. 523 (1967), United States \.
Tortorello, 480 F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866
(1973), United States y. Lilla, 699 F.2d 99 (2d Cir. 1983),
Dalia v. United States, 441 U.S. 238 (1979), United States v.
Hess, 482 F.2d 38 (2d Cir. 1973).
The Circuit Court found the record insufficient to review
the order and held that petitioners waived the issue because
their trial counsel had failed to raise constitutional or Title III
grounds to suppress, failed to object on those grounds, and
made affirmative use of the videotaped evidence. Aiello’s
conviction was affirmed. United States v. Aiello, 771 F.2d
621 (2d Cir. 1985) (“Aiello 1”) (Appendix G).
The Circuit Court found meritless Scaduto’s arguments
that a notebook found in the Bartolotta house was er-
roneously admitted into evidence as a co-conspirator’s state-
ment without a showing that it was authored by a co-
conspirator; that his counsel’s summation was unreasonably
curtailed; that one of the search warrants was defective; and
that the trial judge’s instructions permitted the jury to convict
Scaduto of managing a criminal enterprise in the absence of
proof he supervised five other persons. It rejected his point
that the trial judge’s failure to excuse a juror who doubted her
own impartiality, and his ex parte contacts with her and an
FBI agent, denied petitioners a fair trial? and upheld an
extended wiretap of a co-conspirator’s phone, but did vacate
Scaduto’s conviction and remand for the purpose of com-
bining his convictions and resentencing him.
Motion for a new trial. ln December 1985, after the Aiello /
decision but before Scaduto’s resentencing, petitioners
moved under Rule 33 for a new trial “in the interests of
justice.” Aiello asserted that his trial counsel, Taub, was
forced on him and was the “puppet” of Evseroff, trial counsel
for Scaduto, whose motion was based on Evseroff’s in-
effective assistance of counsel. Judge Costantino resentenced
Scaduto in absentia over objection. He gave Scaduto an
additional ten years on the 848 count. After two mandamus
*Judge Costantino denied the defense request fora mistrial because he did not
want to waste a ten-week trial. Contrast United States v. Ruggiero (2d Cir. 88-
1083), where someone contacted only an ex-juror, yet at the government's
request he granted a mistrial after seven months of trial.
Some of the counsel in that case—Carnesi, Lombardino, Fischetti—are the
same as here. Carnesi was also involved in Gambino, infra, and the Pizza case
and testified at a post-conviction hearing on Evseroff’s conflicts of interest
between his clients in the Gambino and Pizza cases.
hes AC lilt RROT CRORE rll tgs os obese
petitions (Appendix H), he denied the motion summarily,
finding no denial of the effective assistance of counsel
(Append:x F).
On appeal, petitioners maintained that their Sixth Amend-
ment rights were violated. They cited the failure to raise Title
III or constitutional objections to a videotape; the admission
of the Bartolotta notebook; Evseroff’s conflicts of interest in
his representation of the fugitive “number one” co-defendant
Filippo Ragusa and co-conspirator Sal Bartolotta and the
failure to call Sal as a witness, United States v. Cancilla, 725
F.2d 867 (2d Cir. 1984), DR 5-105(C) Code of Professional
Responsibility; Evseroff’s failure to discuss the conflicts with
Scaduto and Judge Costantino’s failure to inquire under
Rule 44(c), Strickland v. Washington, 466 U.S. 668 (1984),
Curler v. Sullivan, 446 U.S. 335 (1980), Holloway v.
Arkansas, 435 U.S. 475 (1978); Evseroff’s recruitment of
Taub and other lawyers, Wood v. Georgia, 450 U.S. 261
(1981); the improper division and exclusive control of cash
fees, Code of Professional Responsibility; the failure to have
petitioners testify; the simultaneous representation of
Scaduto, Francesca, Sal and Salemi by Jeffrey Rabin,
Evseroff’s employee, and other breaches of professional
responsibility; and Scaduto’s in absentia resentence was
illegal and unconstitutional.
In its decision the Circuit Court began:
Loyalty of a lawyer to his client’s cause is the sine
qua non of the Sixth Amendment’s guarantee that
an accused is entitled to effective assistance of
counsel.
The Circuit Court cited allegations—“troublesome ones that
may not properly be ignored”—of Rabin’s association with
Evseroff, Evseroff’s control of the defense, the failure to call
Sal Bartolotta or to discuss potential conflicts with clients,
contacting defendants without counsel’s knowledge or
consent, and the failure to preserve the confidences of clients
—all “genuine issues of material fact”. It “reversed and re-
manded for further inquiry into appellants’ claims.” United
States v. Aiello, 814 F.2d 109 (2d Cir. 1987) (“Aiello IT’)
(Appendix E).
Judge Costantino’s behavior. Taub swears *** “Frankly if
Mr. Costantino wasn't the judge there, Scaduto would have
been acquitted” and “I believe that Judge Costantino’s
handling of the case prejudiced Scaduto completely.”
In open court, Judge Costantino at various times said:
Power, I have. I told a group of children how
powerful | am.
The Court of Appeals can recommend anything
they want. I’m still the trial judge and I will do it my
way. If they don’t like it they can send it back again.
That’s where I stand with it.
Let the Court of Appeals tell me | am wrong again.
It doesn’t make any difference.
I don't care what the Court of Appeals says. If they
want to make a mockery of it—but not in my court.
I know he would never testify in this court. | am
certain of it. | am certain Bartolotta would never
have testified.
| am not the Court of Appeals. Some day they are
going to learn about people in the courtroom at a
trial. That is the kind of judge I am. I don't quote
sections of law. This thing works very well for me,
thank God, until the Lord takes it away from me.
No more.
When I speak from the bench, if Costantino said it,
he won’t back off on it. They know me well in the
Court of Appeals.
Okay, I will have an order issued for Sal Bartolotta
*** | will bring in Sal Bartolotta ***. This is my
hearing not your hearing. I ask all the questions and
I become the lawyer ***. I will set up the hearing.
***I’m not concerned how other judges handle
their courtroom. I’m not concerned and they all
know it***,
***One thing nobody believes, | have a photo-
graphic mind. | can tell you what they were doing
the day of the trial. | don't have a piece of paper in
front of me when I try a case. I have no minutes. |
don't write anything in a book or anything else. |
can tell you what happens during the trial.
The law gave me a photographic memory, and |
never can erase it until I desire to do so.
***Isn't it plain here, Mr. Esroth held back
$500,000 unless they agreed to certain things which
they gave to him; Isn't that so?
If | had to look at how all the lawyers are hired in
the case I couldn't come out on the bench. |
wouldn't be able to live with myself. If | examined
how every lawyer was retained I wouldn't come out
on the bench. Take that and put it in your pipe and
smoke it.
She [Francesca] has her method of release and she
doesn’t want to do it; that’s her business, not mine. |
told her to turn in her father and she'll be released
from jail.
You don’t want to waive for resentencing? ***The
Court finds there is no need [for Scaduto] to be
present and it’s the Court’s ruling and not the
defendant’s ruling that’s being recessed.
Successive motion to expand. After the remand,
petitioners made a successive motion to expand. After Judge
Costantino’s recusal, the matter was assigned to District
Judge Weinstein, who granted the motion. Depositions were
conducted and the transcripts accepted into evidence, along
with the motion to expand and the testimony of Evseroff and
several other witnesses taken at a brief hearing before Judge
Weinstein.
Judge Weinstein’s oral determination. At oral argument
(Appendix D), Judge Weinstein stated:
I can tell you, if this was my trial, and I don’t say this
critically of anybody, that | would have granted a
new trial.”
Evseroff's insensitivity to ethics. Evseroff’s history is well
known to the Circuit Court, which observed in Aiello //:
The affidavits submitted, including those submitted
by counsel, if true, raise disquieting questions about
trial counsel’s insensitivity to issues of professional
responsibility.
Evseroff confessed his ignorance of the law on conflicts of
interest in representing multiple defendants. His involvement
in conflicts came to petitioners’ attention when they learned
that Evseroff was the unnamed attorney in the Cancilla case.
Evseroff knew he was the target of a criminal investigation in
Cancilla before the superseding indictment in the case at bar
was filed. Rabin knew of the investigation and knew Evseroff
knew of it. The government knew Evseroff was a target and
had told him so. “All of Brooklyn knew,” except petitioners.
After Aiello //, petitioners learned of at least three other
cases involwng Evseroff in conflicts of interest. In a State
case, he had represented a defendant, who was convicted
and sentenced to 12 to 25 years; a prosecution witness who
could have been the actual perpetrator was the client of
Evseroff’s co-tenant/landlord, and Rabin did a criminal
motion on his behalf. Judge Weinstein noted the “disturbing
nature” of Evseroff’s conflicts also in United States v.
Gambino (D.N.J. 84-CR-98),3 and United States vy.
Tortorello (E.D.N.Y. 80-CR-574).
Rabin as Evseroff's employee. Evseroff called Rabin his
“employee” or “associate.” Rabin was his de facto employee
for years, being paid, as Judge Weinstein noted, a monthly
stipend, extra for appeals, motions, trials and additional time
spent on Evseroff’s matters. He got extra income from clients
Evseroff referred to him where “there were multiple de-
fendants and possible conflicts *** both in the state court
[and] the federal court.” In this case, Rabin had no file of his
own, worked with Evseroff’s, and left it in Evseroff’s file
cabinet when he moved out. He did motions in Evseroff’s
3The US Attorney has opposed Evseroff representing any client inthe District
of New Jersey ever since.
10
name only, and the government always reached him at
Evseroff’s phone number.‘
Evseroff/Rabins’ representation of co-conspirators.
Evseroff was the lawyer and instrumentality of the Ragusa
family. He and Rabin had a prior relationship with Filippo
(“Tarzan”) Ragusa, the fugitive “number one” defendant in
this case, and with his son-in-law and co-conspirator Sal, a
drug dealer. Evseroff represented Ragusa in 1982 on a drug
conviction in absentia in Sicily,5 and Ragusa and Sal ona
customs matter in 1983. Ragusa and Sal came to Evseroff’s
suite often then, as did another drug dealer named Rina.
Ragusa paid Evseroff $5000 (later given to Francesca and
then to Rabin) on the drug matter. Petitioners had nothing to
do with these matters and never met Rabin or Evseroff until
after their arrest.
On September 19, 1983, Aiello was arrested and arraigned
in Buffalo, later transferred to New York City; Scaduto and
Sal were arrested at Ragusa’s pasiry shop and arraigned in
the Southern District. Ragusa, under constant surveillance
since early 1983, “pranced out” of the pastry shop with Rita
Volpe. Ragusa’s daughters Francesca and Maria asked
Evseroff to represent all the defendants. He demanded
$500,000 for himself and co-counsel, and got $63,000 to rep-
resent Sal. He gave Rabin $10,000 cash to represent Scaduto.
Rabin appeared for Scaduto and “of counsel” to Evseroff for
Sal in the Southern District.
In October 1983 the case was moved to the Eastern
‘The government knew, based on information accumulated over the years,
that Rabin was in Evseroff’s suite.
‘The government knew during the prosecution of the case at bar, that
Evseroff previously represented Ragusa.
District. Sal was dropped for prosecution in State court, but
he and co-defendant Salemi were still regarded as co-
conspirators. Sal was indicted on two A-! felonies, which
Evseroff told him carried a potential maximum sentence of
50. years to life. A superseding federal indictment was filed
January 13, 1984, adding “848” counts against Ragusa,
Scaduto, and Aiello.
Defense and prosecution regarded the federal and state
cases to be essentially the same case. Assistant US Attorney
Summers told Judge Costantino it was a “single operation
*** covered by different violations of law.” He and his
partner Cunningham (like Summers, now in private practice)
made frequent contact with the State prosecutors, who came
to the federal wiretap hearings and were “having the same
problems *** establishing the legality of the wiretaps.”
Summers spoke with them “dozens of times” and claims they
would ‘have prosecuted Sal on an 848 count had the State
finished its case before the federal trial started. He says that
prosecuting Sal on an 848 count remains a viable prospect,
that Evseroff knew this, and that the government spurned
attempts by his lawyers to get Sal a plea covering both federal
and State cases.®
On October 31, 1983, in the Eastern District, on behalf of
Scaduto, Rabin filed a formal notice of appearance. See
Cuvler, supra at 352 (J. Brennan). No withdrawal is on
record. Rabin represented Scaduto in December 1983 before
Judge Costantino. Though he was assigned to represent
Francesca in January 1984, he continued as Scaduto’s de facto
lawyer, being obligated, as Evseroff’s employee, to do
*The fact is. however, that 848 counts were not lodged against Scaduto and
Aiello until after Sal was dropped from the federal case. and the US Attorney
has yet to reinstate federal charges against him.
12
Scaduto’s motions without returning the $10,000 retainer.
Evseroff/ Rabin represented Sa! until after the federal trial.
Even after Steven Scaring was substituted for Evseroff, Rabin
was present for Sal’s plea negotiations.
Rabin was asked to represent Salemi and spoke with him
often until May 1984, when a State prosecutor calied atten-
tion to the conflict between Salemi and Sal. The State judge
ordered Rabin off the case’ but, disregarding the order, Rabin
continued sub rosa, advising Salemi on his guilty plea prior to
the federal trial. Evseroff also spoke with Salemi.
Rabin was asked to represent Francesca after her arrest in
1984.8 for a fee of $25,000, $10,000 of which was paid by
crediting the cash he got to represent Scaduto, plus later cash
payments. Rabin represented ber through her first appeal.’
’In contrast, Rabin had filed a notice of appearance for Scaduto and appeared
before Judge Costantino on his behalf, then later appeared for his co-defendant
Francesca before Judge Costantino, who said and did nothing about it.
Judge Costantino also knew Evseroff was the lawyer for both Scaduto and
Sal. Evseroff told him no less than three times during the course of the trial. The
government knew of the multiple representation: Summers calls it “common
knowledge.”
In addition, before the trial, Letters Rogatory arrived from Italy, requiring
the US Attorney to produce Scaduto, Aiello, Sal, Ragusa and others to answer
criminal charges arising in Italy from the same allegations in the case at bar.
Defense counsel knew of these charges before the trial; Rabin even told Judge
Costantino on the record that Italian judges were here conducting inquiries “for
at least the last week” and that an Assistant US Attorney had been appointed
“special commissioner.” Summers, so appointed by Judge Costantino, deposed
Scaduto (who needed an interpreter) and Sal. who were both represented by
Evseroff at the hearing, and Aiello, who was represented by his counsel in
Aiello 1.
‘Actually, Rabin’s notice of appearance was filed by another of Evseroff's
employees, Joseph Levy, a non-lawyer.
*The constant shuffling of clients between Evseroff and Rabin succeeded in
confusing even co-counsel. Sussman was not sure whether Evseroff or Rabin
represented Sal; others thought Rabin did.
ed a etl
ae ee
tam
22 A adel Rt
)
13
Evseroff's recruitment of cooperative co-counsel. To rep-
resent the rest of the co-conspirators, Evseroff enlisted
attorneys with little or no federal experience (Candelaria,
Carnesi, Taub!®) and his suitemates (Candelaria, Sussman,
Rabin), recommended them to the Ragusa family, and set
their fees (only Taub denies this), which were never discussed
with the clients. Evseroff handled all Candelaria’s “financial
details” and introduced her to Volpe after first advising Volpe
in regard to a grand jury subpoena. Candelaria asked
Evseroff to set her legal fee and did not discuss it with Volpe.
She admitted that Evseroff, not Volpe, had retained her.!!
Evseroff brought in Lombardino to replace a lawyer who
was representing an informant in another matter, and set his
fee. Taub was brought in to replace Aiello’s attorney in
Buffalo, Ragusa’s family fearing Aiello might turn informant.
Rabin was sent to Buffalo to oust the prior attorney. Aiello
was told the Ragusa family would pay for his lawyer only if it
was Taub, who got cash payments even before Evseroff
introduced him at MCC, and admits the fee was not discussed
with Aiello. Aiello was upset with Taub throughout the case
and strongly stated he wanted another lawyer, complaining to
Rabin, Maria, and others that Taub did not visit him or
discuss the case with him.!?
Cunningham, in a letter to the Circuit Court, excluded Taub from a dis-
cussion of experienced federal lawyers.
''She notarized an affidavit filed in support of the motion for a new trial.
'2Evseroff brought Auerbach, a Bronx attorney employed by Richman for
$400 weekly and a free office in exchange for a third share of a!l his private and
CJA fees, into the case as a CJA. Judge Costantino made several phone calls
and appointed him, though the client owned a house and a business. After the
trial, he submitted a CJA voucher for $18,000. but Judge Costantino allowed
him only $12,000, a third of which he turned over to Richman. Auerbach re-
ceived free daily copy of pretrial and trial minutes, almost 6000 pages, which
“everyone grabbed for.” Before the trial ended, Auerbach told Evseroff about
(footnote continued on next page)
4
As Judge Costantino confessed:
If | had to look at how all the lawyers are hired in
the case I couldn’t come out on the bench. |
wouldn't be able to live with myself. If | examined
how every lawyer was retained I wouldn't come out
on the bench. Take that and put it in your pipe and
smoke it.
Evseroff’s control of legal fees. Defense counsel deny knowing
the source of the legal fee monies. Assistant US Attorney
Gregory O’Connell indicates it was Ragusa (father of co-
defendant Francesca) and Rina who “controlled the purse
strings,” Camera v. Fogg, 658 F.2d 80 (2d Cir. 1981).
Ragusa’s daughters brought up the first payment but later
payments came from the Ragusa’s cohorts, Nick Aiello
(cousin to Ragusa, no relation to petitioner) and Rina. Pack-
ages of cash were brought only to Evseroff or Rabin and dis-
tributed only by them. Payments were always turned over to
the lawyers at Evseroff’s suite, always by Evseroff or one of
his employees.
Evseroff had the Circuit Court wondering “how he knew
that the money was distributed according to each lawyer's fee
arrangement when he has ignorant of what those arrange-
ments were.” He kept no ledger or other record of revenues
other than bank deposit slips, which fail to identify the
sources of cash. Co-counsel say Rabin distributed some pay-
ments and knew how much they were.
(footnote continued from preceding page)
his arrangement with Richman. Evseroff told Maria during the trial that he had
hired Auerbach, who would start working for him after the trial, and already
referred him a Criminal Court. Evseroff brought Auerbach into his suite just
after the trial, with the incentive of an arrangement similar to Rabin’s. Like
Rabin, Auerbach got clients from Evseroff’s multiple defendant cases.
15
Impermissible division of fees. As Judge Costantino
observed:
Isn’t it plain here, Mr. Esroth held back $500,000
unless they agreed to certain things which they gave
to him; Isn’t that so?
Rabin told Ragusa’s daughter that Taub, who was to receive
$75,000, got only $25,000. Rabin, Sussman and Carnesi were
slated for $75,000 but only got $25,000; Lombardino got only
$25,000 of his $62,500. Deposition testimony showed that
Candelaria received only $14,500 of the $25,000 promised
her, and Burke only two thirds of his $25,000 fee. Sussman
complained his fee was $3,000 to $5,000 short, and Carnesi
received only $15,000 of his $25,000.
To Candelaria, the case was “a learning experience,” as to
“Evseroff’s greed” and “his manipulation of lawyers and
clients.” Candelaria in person and Burke by telephone ad-
mitted a referral fee. At the hearing, Samuel Neuman, a
disabled health administrator, testifed he overheard her
complaining:
A [Candelaria] was explaining that she had to give
back a certain percentage of the money.
She said, “I have to give back a third of what-
ever fee is, whatever I got from Mr. Evseroff.”
THE COURT: Who?
THE WITNESS: Mr. Evseroff.
THE COURT: You heard her say the word
“Evseroff™?
A Yes.
Q Did she mention anything about money to give
to Mr. Evseroff?
A She said, “He even stuck me for $40.”
16
Sussman testified similarly:
Q__sDid you make any statement *** that could in
any way, shape or form have been construed by
him to have been to the fact that you returned
one-third of your fee for representing Mr.
Logalbo to Mr. Evseroff?
A It is possible. ***
Evseroff’s pretrial team. Evseroff organized a team of
lawyers and employees, based in his suite and led by Rabin, to
handle all pretrial matters. This team included a retired police
detective named Boccio, who interpreted for petitioners.'3 In
many “ad hoc” meetings at Evseroff’s suite, defense counsel
discussed various legal issues. Taub, called “taciturn” and
“stuffy” by co-counsel, attended none of these meetings; he
was based in Queens and had a heavy trial schedule.'* Dis-
covery materials were delivered exclusively to Evseroff’s suite,
where Rabin logged them in. The videotapes of Aiello’s ware-
house were obtained by this team and had to be communi-
cated to Taub, who saw them only a month before trial.
'3Aiello hardly spoke English and spoke only Italian. Scaduto spoke a “halt-
ing English” and was unable to understand the word or concept of “conflict”
without an interpreter. Scaduto needed an interpreter at trial and at the
Rogatory depositions. Boccio, sworn as an interpreter twice on the record, says
petitioners could not speak English well enough to understand legal concepts.
Nevertheless, Taub and Evseroff, who speak no Italian, say they used no
interpreter.
'*Taub began a trial only a month before Aiello’s trial. About the same time,
Evseroff went to Palermo and Rome, consulted with Ragusa’s Sicilian lawyer,
“one of the same lawyers involved in the Gambino case,” and went to Bagheria.,
Ragusa’s hometown.
iSPeople v. Gallina, 95 A.D.2d 336, 466 N.Y.S.2d 4!4 (2d Dept. 1983).
Summers assumed, from comparing papers received from the State prosecutor
concerning the Gallina case and papers submitted in the case at bar, that
Evseroff had hired the same Gallina defense lawyer, Steven Scaring.
Raabe wale me a,
3
F3
17
Prior to his retainer by Francesca and while he was still
representing Scaduto, Rabin did legal research and made
motions for all the defendants. Rabin’s “assignment” and
“obligation” as Evseroffs “lawman” was to review the
warrants and the wiretap orders on the issue of standing and
to draft a discovery letter, which he did on the request and
consent of “everybody,” including Taub. He researched and
prepared a motion, pressed on Sal’s behalf but submitted for
everyone in the federal case, which relied on Gallina to attack
two Salemi wiretaps and led to several suppression
hearings. '®
The warehouse videotape—pretrial. In time, however,
Rabin tired of his pretrial duties and approached co-counsel
for money. He made no motion on the videotape because he
was swamped with work on the other issues, was getting no
help or compensation from co-counsel and, after Francesca
Bartolotta’s arrest, was concentrating on her case, which did
not involve the videotape. Rabin says “anybody who was on
the videotape would have an interest in bringing a motion to
suppress,” and on the record (with Taub present representing
Scaduto, not Francesca) before Judge Costantino in
December 1983 argued that the government's “entire case
basically is the video.” He recalls no one raising the videotape
as an issue, except at trial, and may have never seen the video-
tape orders, though he was “going over the orders” and had
“gone over the videotapes.”
Other lawyers whose clients appeared on the videotape
made no motion to suppress. Taub, whose client owned the
‘Although by March 5, 1984, 167 days had elapsed since the petitioners’
arrest, no speedy trial motion was made. Likewise, Taub and Evseroff made no
written motion for severance.
18
warehouse and whose unsigned name appears on a pretrial
motion to suppress the videotape as “tainted” under Gallina,
says he never discussed a videotape motion with Rabin, saw
no videotape order at any time, is not sure there even was
such an order, and says he made no written motion. Evseroff
recalls “Rabin making motions in connection with this,” and
says Rabin’s “obligation *** was to draw the motion for
everybody.” Therefore, Taub’s “taint” motion may have been
prepared without his knowledge.!’
No motion was made, by Taub, Evseroff or anyone else, to
suppress the videotape on that grounds that it violated the
Fourth Amendment or Title III or its rationale. On the
“taint” motion, a supporting memorandum discussed Title
III, but only as to whether it authorizes break-ins like the one
to Aiello’s warehouse and Ragusa’s pastry shop, and argued
that legislative history and Fourth Amendment considera-
tions should sway the trial judge to overrule Scafidi.'* It also
raised noncompliance with the break-in orders, treating the
video order as a “search warrant” instead of a wiretap. Ignored
was the issue that lies at the heart of Title II] and eaves-
dropping and wiretap orders—the feasibility of normal
investigative methods.'? As Judge Weinstein observed in oral
argument, “every defense lawyer would normally make such
a motion, *** just a way to go behind the court order to see
whether there is a basis.”
'7The notice of motion and Taub’s affirmation were apparently typed on the
same typewriter as Rabin’s affirmations.
"United States v. Scafidi, 564 F.2d 633 (2d Cir. 1977).
''The defense was not alerted by a wiretap ruling pretrial: “The motion by all
defendants to suppress wire tap evidence on the grounds that the wire tap
application for Salemi number one failed to establish that normal investigative
techniques were exhausted, is denied” (emphasis supplied).
19
In pretrial proceedings, Taub argued the “taint” motion,
but made no mention of Title III or the Fourth Amendment
and no other objection or motion to suppress on the grounds
raised in Aiello /.° Neither Taub nor Evseroff, who calls
himself a “trial man, not a motion man,” believed a sup-
pression motion was appropriate, Evseroff incorrectly con-
cluding that Scaduto lacked standing. A/derman v. United
States, 394 U.S. 165 (1969). Judge Costantino denied Taub’s
motion to suppress but did not preclude later motions,
saying:
There may be other motions that have to be made
in this case. Any other motions, if they are not
heard now, will be heard sometime during the trial,
if you happen to think of one. *** A lot will become
perfunctory, and when that time comes, I will say
take your exception and save it for your appeal.?!
The warehouse videotape—at trial. The videotape was
perhaps the government’s most potent piece of evidence and
certainly the most harmful to Aiello. It was referred to in
opening statements and was the subject of a motion by
WABC-TV to obtain and broadcast it. The government pro-
duced the witness who had installed the video equipment in
the warehouse. Evseroff pointed out that “the order for the
video taping didn’t ask, didn’t seek sound.” Taub orally
moved to suppress on the ground that the lack of sound made
the videotape more prejudicial than probative, which Judge
As the Circuit Court observed, Taub’s motion “argued that the court author-
ization for videotaping at the warehouse was based in part on the fruits of the
allegedly unlawful wiretap ***. Aside from this there was no motion to suppress
the videotaped evidence on constitutional or other grounds.”
*!The Circuit Court in Aie//o / held that the nature of Taub and Evseroff’s
objections at trial failed to preserve the Title II] and constitutional questions.
20
Costantino denied and the Circuit Court rejected in Aiello /.
The witness testified that sound equipment was not in-
stalled because the acoustics were bad and microphones or
transmitters were difficult to install. The government tried to
elicit that sound would have required a Title III order, which
would have been too time-consuming. In a lengthy sidebar,
Judge Costantino said he did not know what Title III was.
The prosecutors called the video order a “search warrant,”
not involving Title III, and said “sound has to be done under
the statute, video doesn’t.” No one disagreed; Taub was mum
throughout.
The witness testified to the “so-called search-warrant
order” and agreed that getting authorization for sound could
have taken only two hours. The government stipulated that
no authorization for sound was sought. Sound equipment
was not installed, the witness admitted, not because of
acoustical or other practical considerations but because
authorization was never sought. Still Taub and Evseroff
made no Title III or constitutional objections. Evseroff
instead raised the lack of a foundation, and Taub repeated
that the prejudice outweighed the probative value. Neither
lawyer even mentioned the videotape in his terse Rule 29
motions.
Both Taub and Evseroff swore that the videotape was
damaging, indeed devastating, to their clients, that it would
have been better for their clients had the tape nos been in
evidence and that it was not their tactical decision to let it in.*
*At oral argument following the hearing in the court below, Assistant US
Attorney O'Connell said, “! can't imagine how [the tape] would be viewed as
helpfu! to either Scaduto or Aiello’s case.”
21
Some lawyers felt the videotape was the turning point of the
whole case. Burke played portions of it so his client could
clarify the ambiguous activities shown on it. Carnesi
produced an expert to prove that sound could have been
monitored. The government cross-examined as to Title III
and asked specifically about soundless video, which the
expert insisted is:
*** definitely done under the wiretap statute. ***
I’m not a lawyer but I’m sure.
Even this testimony did not move Evseroff or Taub to object
to the videotape on Title III grounds. Only two pages of
Taub’s 24-page summation and a part of one page of
Evseroff’s 25 pages touched on the videotape. In contrast, the
government played a portion of the videotape in its summa-
tion and spent almost half of its 12-page rebuttal discussing it.
Evseroff as “trial leader.” Evseroff was regarded by the
lawyers and the judge as lead defense counsel, and the trial
record confirms this. With one notable exception, it was
Evseroff who substituted for absent lawyers during the trial,”
drawing unnecessary attention to Scaduto.?3 Judge Costan-
tino warned Evseroff not to raise objections or conduct
22Candelaria indicated she could not be present for testimony regarding tapes
of a telephone call from “Evseroff's client” to Volpe, and thought it inappro-
priate for Evseroff to stand in, as it “would present a potential conflicting
situation.” While surprising for its rare reference to the issue of conflicting
interests, it is noted here to illustrate that Evseroff, as lead defense counsel, was
assumed the first choice to stand in.
23Standing infor Lombardino, Evseroff asked Judge Costantino to advise the
jury he was doing so and then calling unnecessary attention to Scaduto:
THE COURT: ***. Now, just in retrospect, Mr. Lombardino is
not here, but Mr. Evseroff at this time with the consent of Mr.
Lombardino is representing Mr. Altamura.
MR. EVSEROFF: As well as my own client.
22
examination not pertinent to the defense of his own client.”4
At first Evseroff represented Sal and Rabin had Scaduto.
With Ragusa a fugitive, Scaduto became the first named
defendant on trial. In taking over Scaduto’s defense, Evseroff
was able to remain lead defense counsel, and to open first and
examine first. When the superseding indictment added
Francesca as the last named defendant, Rabin was assigned
to defend her, and thus allowing him to open and examine
last. The tandem of Evseroff and Rabin thus had the first and
last word on every witness.
Failure to call witnesses: Evseroff referred to potential
defense witnesses as “our people.” He felt all defendants
should testify. He approached Francesca without Rabin’s
consent and told her he planned tocall her to the stand, but-he
did not let Scaduto testify.
Aiello wanted to testify, but Taub would not let him. After
seeing the warehouse videotape, Evseroff believed Aiello
“didn't have a prayer unless he got on the stand and explained
what was going on there,” and told Taub Aiello wanted to
testify. Taub asked co-counsel whether Aiello should testify,
but Aiello was not present for these discussions. Petitioners
did not take the stand and were convicted. As many have
observed, all defendants who testified were acquitted.
At the end of the government's case, the indictment against
Volpe was dismissed. As Ragusa’s mistress and waitress-
cashier at his pastry shop, she knew where Ragusa was and
4 Judge Costantino encouraged defense counsel to agree on who would
examine the various witnesses, saying: “No one has to be afraid they don't have
the prominence of being the trial leader ***.”
23
knew aboui airline reservations made to Buffalo for Scaduto,
which was part of Scaduto’s defense. Evseroff says that
Volpe’s testimony would have helped Scaduto and that she
would have been a good witness, and even before the dis-
missal recommended that she testify. After the dismissal,
Volpe would have been unable to invoke the Fifth Amend-
ment, yet Evseroff did not put her on the stand.
Lina Picozzi was hired by Evseroff to make defense-version
Sicilian transcripts and English translations of them. The
exact meaning of certain conversations was at issue, the
government claiming that certain words referred to “heroin,”
“Godfather,” and “pallet,” the defense contending that the
words meant that a “godfather” in the religious sense “has
arrived OK” to see about “a small racehorse.” The defense
versions were never submitted to the jury; only the govern-
ment’s were.?°
No confrontation of witnesses. No defense lawyer called
Salemi. Many of the undercover’s conversations with Sal
occurred in Salemi’s apartment. Moving to strike hearsay
Statements attributed to Salemi and introduced through the
undercover, Rabin argued that confronting Salemi would
have profited the defense, calling him a declarant available to
the government and criticizing the prosecution for not
producing him, when all the while Salemi was available to the
defense and never called. Nonetheless, the government’s
introduction of Salemi’s hearsay statements without first
showing his unavailability was in violation of petitioners’
Sixth Amendment right to confrontation and cross-
examination.
This was fatal, by design or blunder. Judge Costantino had ruled earlier
that, since most of the conversations in evidence at trial were not in English.
transcripts would be provided to the jury but minutes of cross-examination
would not.
f4
Petitioners insist that they wanted Sal called. Rabin notes a
potential benefit to Scaduto in having Sal testify and Evseroff
claims he “suggested but did not recommend” Sal testify.
Evseroff indicates Sal might have exculpated Scaduto on the
question of whether the codename “Lorenzo” found in the
Bartolotta notebook meant Scaduto.”° Burke says co-counsel
should have shifted more culpability onto Sal than they did.
No one called Sal, who was willing to take the stand. Had
anyone done so, Evseroff says he would not have let him
testify and would have told him to invoke the Fifth.?” The
introduction of Sal’s hearsay statements without first showing
his unavailability denied petitioners’ Sixth Amendment right
to confrontation and cross-examination.
The notebook. Since Sal was never called by Evseroff or
subpoenaed by any other lawyer, and thus never required to
take the Fifth, his unavailability was never shown. Neverthe-
less, the notebook found, nor on Scaduto or in his house,
United States v. Garcia- Duarte, 718 F.2d 42 (2d Cir. 1983),
but in the Bartolotta house was admitted into evidence on the
government's direct case. The notebook, naming a “Lorénzo”
who Scaduto claims is not him, provided the sole basis for the
*Some of the other codenames were “Tarzan,”’“Sal,”“Edi,”“Mike,” “Aldo,”
“Ciarli,” “Gino,” and “Cic.”
In summation, all Summers could say was:
“ *** right under Tarzan, right underneath the King of the Jungle.
ladies and gentlemen, on the back page which shows the payout, is
the name Lorenzo. There is no evidence in this case, ladies and
gentlemen, that that indicates anything other than that Lorenzo,
the man sitting right over there at that table with the white jacket
on, Lorenzo Scaduto, and just under Tarzan, the name Lorenzo,
and just under that the amount of money Tarzan received.”
Evseroff said absolutely nothing on “Lorenzo™ or the notebook.
27Had Sal been called to the stand, Evseroff would have stood up as his
lawyer, and Judge Costantino would have been compelled, by the obvious
potential conflict of interests, either to follow Rule 44(c) or to order Evseroff off
the case entirely, at the risk of his legal fees.
25
848 count.28 The government noted in Aiello / that Rabin
resolved the question as to whether the notebook actually
belonged to “co-conspirator Salvatore Bartolotta” in the
cross-examination of government witnesses. Specifically,
Rabin, without objection or severance motion from Evseroff,
elicited from an FBI agent the /ay opinion that the hand-
writing in the notebook appeared to be Sal’s?? and, from
another FBI agent, Francesca’s statement that the notebook
was her husband’s. The government, knowing the notebook’s
importance, gave copies of it to the jury prior to its summa-
tion, in which the notebook was repeatedly mentioned.
Francesca’s statement that the notebook must be her
husband's was a hearsay statement nos made in furtherance of
the alleged conspiracy. Though obviously damaging to her
husband, Sal was not a defendant or witness in the federal
trial. It was Scaduto who was on trial, and that statement of
his co-defendant Francesca was being used against him, in
violation of his Sixth Amendment right of confrontation
under Davis and Bruton, infra.
Convictions and sentences. Scaduto was found guilty on all
counts, including the 848, and sentenced to a total of 64 years.
In contrast, after the federal verdict Sal, with Rabin present,
2*The notebook was crucial, not only on the “fourth essential” in the jury
charge (managing five or more persons) but also on the “fifth essential”
(obtaining substantial resources or income), which was the last matter the jury
wanted clarified before announcing its verdict.
Thus Rabin relieved the government of having a handwriting expert
identify who wrote the entries in the notebook, which were printed in black
letters, not cursive script.
THE COURT: If it is found inside it is attributable to the person whose
premises it was found. '
I don't make these rules. These are the rules | have to follow. | don’t make
them. I'm not going to change them. | will tell you right now | am not stretching
the rules one way or another. | am just not doing it.”
26
pled guilty and was sentenced to the minimum sentence of
only I5 years to life; the whereabouts of Evseroff’s first client,
Ragusa, were never exposed, and his daughter Francesca
received only a five-year sentence.
Aiello was found guilty of conspiracy and importation and
sentenced to a total of 26 years. Taub and Evseroff reserved
but never made post-verdict motions. Taub offered his
services for Aiello’s appeal, but Aiello turned him down.
Evseroff instead recommended the firm of Fischetti Feigus &
Pomerantz for Scaduto,*® and Gerard Lynch for Aiello,?!
with Rabin handling Francesca’s appeal.32 No request for
Taub’s assistance on the appeal was never made.
Motion to expand the remand. Besides indicating t.iat he
would have granted a new trial, Judge Weinstein at oral argu-
ment, with the foregoing evidence before him, recognized the
conventional wisdom in attacking the videotape order and
acknowledged the lapses in representation of the petitioners
but nonetheless suggested that the claimed ineffective assist-
ance of counsel did not arise from the obvious conflicts of
interest, and urged petitioners to move the Circuit Court to
expand the remand to permit him toconsider all the evidence,
not just the questions of Sal as a witness and the division of
fees. He refused to entertain a motion to renew based on the
Fischetti, recommended by Evseroff, was the lawyer who substituted for
Rabin when he was ordered off Gambino. Evserotftold him of his multiple rep-
resentation of Scaduto and Bartolotta, and the government mentioned it in its
brief in Aiello J, but Feigus’ initial and reply briefs for Scaduto said nothing
of this.
3! Feigus stood with Lynch at Aiello’s Rogatory deposition.
8Rabin received $7500 to $10,000 ($5000 received from Evseroff through
Francesca) of the agreed retainer of $25,000, the balance being due if the appeal
were successful, thus an impermissible contingent fee. DR 2-106(C), EC 2-20.
Code of Professional Responsibility.
eee “Ve
4
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27
additional evidence, so a motion was made for an order
compelling or permitting Judge Weinstein to consider all the
evidence, whether or not directly attributable to a specific
conflict of interest, on the assertion that the original Rule 33
motion for a new trial was not restricted to those two issues
and that, in the interests of justice, all the evidence should be
considered. The motion was denied (Appendix I) in a terse
and belated order entered after Judge Weinstein had already
issued a written decision on the motion for a new trial.
Judge Weinstein’s order. His order (Appendix C) and judg-
ment (Appendix B) now found petitioners’ trial counsel “met
minimal standards of competency,” implied that the Title II
motion would have been “fruitless,” and denied the motion
for a new trial, nonetheless finding the “appearance of impro-
priety,” noting Evseroff’s “delicts” and the “disturbing nature”
of his conduct in prior cases, enumerating “suggestions for the
future”4 as to cash fees and referrals to suitemates, “related
case” and granting a “certificate of probable cause.”
The appeal below. On appeal, both peiiticners joined in
each other’s briefs. Aiello adopted his argument in Aiello /,
now with the benefit of the subsequent holding in United
States v. Biasucci, 786 F.2d 504 (1986), cert. denied, — U.S.
—, 107 S.Ct. 104, that the videotaping of his warehouse was
unlawful and unconstitutional. He argued that he did not
waive his constitutional objection to the videotaping, on the
grounds that Taub made no affirmative use of it, that the
record now showed that the underlying order ignored the
8Contrast the higher standard of “reasonably effective assistance”
enunciated in Strickland, supra at 687.
“Not yet having the precedent of Whear, infra, Judge Weinsiein applied
ethical standards only as a warning to the bar and not with the force of law.
28
issue of necessity,25 and that Taub had abdicated to Rabin
and Evseroff’s pretrial exam—out of incompetence, Srrick-
land, supra, or the control exerted by Evseroff or the Ragusa
family, Cuvier, supra—his duty to research the facts and law.
Scaduto maintained that Fifth and Sixth Amendment
rights were violated because he was never given the oppor-
tunity to make intelligent and knowing waivers of his right to
a conflict-free attorney, United States v. Cataldo, 625
F.Supp. 1255 (S.D.N.Y.), United States v. Curcio, 680 F.2d
881 (2d Cir. 1982), and Solina v. United States, 709 F.2d 160
(2d Cir. 1983), Cancilla, Strickland, Holloway, Cuvler, supra,
and DR 5-105(C), Code of Professional Responsibility. He
was denied the right to confront his lawyers’ other clients
Francesca, Sal and Salemi, Davis v. Alaska, 415 U.S. 308
(1974), Bruton v. United States, 391 U.S. 123 (1968), and to be
heard at his resentencing, Green v. United States, 365 U.S.
301 (1961), Hill v. United States, 368 U.S. 424 (1962), Rule
32(aX 1).
In their joint Reply brief, petitioners, relying on Wheat v.
United States, 56 U.S.L.W. 4441 (1988), pressed the point
that they have been urging for the three years that have passed
since the motion for a new trial was first made, namely, that
the breaches of ethics mandated a new trial and were not
merely the concern of bar associations and grievance com-
mittees. Ignoring Wheat, the Circuit Court (Appendix A)
characterized many of petitioner’s arguments, without saying
which, as being “beyond the scope of the remand,” refused to
consider the evidence assembled as a result of the inquiry it
3$Copies of the order, the application for it, the supporting affidavit and the
required authorization letter were submitted to Judge Weinstein and the Circuit
Court. None cited the necessity of videotaping, in lieu of normal investigative
procedures.
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29
had ordered and the successive motion granted before Judge
Weinstein’s determination on the merits, and affirmed “sub-
stantially for the reasons stated” in Judge Weinstein’s opinion.
CONCLUSION
Had the petitioners been told in advance that Evseroff rep-
resented the Ragusa family and was being investigated by the
very same US Attorney prosecuting the petitioners; that
Evseroff would have exclusive control of the legal fees and
would dominate the defense; that Rabin was Evseroff’s
employee; that Taub was brought into keep Aiello from
turning informant; that tenable severance and suppression
motions would not be made because of Evseroff’s trial hubris
and Taub’s undue reliance on Rabin and other suitemates;
that a notebook would be introduced with help from the
defense; that their lawyers would meet only minimum
standards of competency; that the conduct of their lawyers
would create the appearance of impropriety; that defense
transcripts of key conversations would not be introduced into
evidence; that certain admittedly helpful witnesses would not
be called to the stand because, if called, they would have
indicated Evseroff was their lawyer and thus caused him to be
relieved as defense counsel; that they would be denied the
right to confront three of Evseroff/ Rabin’s clients whose
statements were used against them at trial; that their lawyers
would pull punches in their defense to curry favor with the
US Attorney or the Ragusa family; and that no defense
attorney or prosecutor or trial judge was going to fulfill his
affirmative ethical duty to point out their constitutional
rights, one can certainly say petitioners, two Italian-speaking
US citizens without prior criminal records, finding them-
selves in jail facing the severest of drug charges, would have
30
thought twice about who their lawyers were, or at least
should have been given the opportunity, whether under Rule
4{c), the Sixth Amendment, or the fundamental principles
of fairness embodied in the Fifth Amendment, to hear what
all of Brooklyn knew and make a knowing and intelligent
choice of counsel.
In sum, the evidence adduced since the remand has not
enlarged the issues, only the proof of petitioners’ original
contentions, and the courts below simply found excuses to
disregard it, reserving for the future their disturbance at the
breaches of ethics. Petitioners ask the Court to examine this
case, as it did in Wheat, in the interest of preserving the
confidence of the public in the integrity of the legal system.
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APPENDIX A
RJC EDNY
83 cr 429
Weinstein
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
Ata stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in
the City of New York, on the 2Ilst day of October, one
thousand nine hundred and eighty-eight.
Present:
HONORABLE J. EDWARD LUMBARD
HONORABLE RICHARD J. CARDAMONE
HONORABLE LAWRENCE W. PIERCE
Circuit Judges
United States Court of Appeals
Filed
October 31, 1988
Elaine B. Goldsmith, Clerk
Second Circuit
A-2
UNITED STATES OF AMERICA,
Defendant-A ppellee,
—against—
ANDREA AIELLO a/k/a ANTONIA AIELLO and
LORENZO SCADUTO,
Petitioners-Appellants.
ORDER
Docket No.
88-2140
Andrea Aiello and Lorenzo Scaduto appeal from the
February 29, 1988 decision and order of the United States
District Court for the Eastern District of New York
(Weinstein, J.) denying their petition to set aside their
conviction.
This case is before us for the third time. Petitioners were
convicted of heroin importation and distribution charges in
1984. We affirmed those convictions in United States v.
Aiello (Aiello I), 771 F.2d 621 (2d Cir. 1985). Following
denial of petitioners’ motion for a new trial on the ground of
newly discovered evidence, we remanded for assessment of
petitioners’ claims of ineffective assistance of counsel caused
by conflict of interest. United States v. Aiello (Aiello 11), 814
F.2d 109 (2d Cir. 1987). We directed the district court to
examine, first, the fee arrangement of petitioners’ lawyers to
see if attorney Evseroff had controlled other defense counsel
to the extent that he had de facto represented co-defendants,
and thereby created an impermissible conflict. Second, the
district court was directed to ascertain whether “Mr. Evseroff
had an actual conflict of interest in representing both Scaduto
Meee eC cor Vine Cte ete ere el
A-3
and Salvatore Bartolotta,” focusing on the absence of
Bartolotta’s testimony at trial. (Aiello //, 814 F.2d at 114).
Petitioners appeal the findings made pursuant to our
remand. Arguments raised beyond the scope of the remand
are not properly before us. Hence, we do not consider them.
We affirm substantially for the reasons stated in Judge
Weinstein’s thorough opinion dated February 29, 1988.
The order of the district is affirmed.
J. Edward Lumbard, U.S.C.J.
Richard J. Cardamone, U.S.C.J.
Lawrence W. Pierce, U.S.C.J.
N.B. This summary order will not be
published in the Federal Reporter and
should not be cited or otherwise relied
upon in unrelated cases before this or any
other court.
APPENDIX B
Filed
in Clerk’s Office
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
UNITED STATES OF AMERICA
—against—
ANDREA AIELLO, a/k/a ANTONIO AIELLO
and LORENZO SCADUTO,
Petitioners.
x
JUDGMENT
CR 83-429 (JBW)
A memorandum and order of Honorable Jack B. Wein-
stein, United States District Judge, having been filed on
March 2, 1988, denying the petitioner’s motion to set aside
the judgments of conviction pursuant to 28 USC § 2255, and
granting the issuance of a certificate of probable cause, it is
ORDERED and ADJUDGED that the petitioners take
nothing of the respondent; that the petitioners’ motion to set
aside the judgments of convictions is denied; and that the
issuance of a certificate of probable cause is granted.
ROBERT C. HEINEMANN
Clerk of Court
Dated: Brooklyn, New York
March 3, 1988
APPENDIX C
UNITED STATES DISTRICT COURT
EAS? RN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
—against—
ANDREA AIELLO, a/k/a ANTONIO AIELLO
and LORENZO SCADUTO
Petitioners
4
MEMORANDUM
AND ORDER
83-CR-429
APPEARANCES
Andrew J. Maloney
United States Attorney
By: Gregory J. O’Connell
Assistant U.S. Attorney
U.S. Dept. of Justice
225 Cadman Plaza East
Brooklyn, New York 11201
Attorneys for the United States
William E. Lore
118-21 Queens Boulevard
Forest Hills, New York 11375
{
Attorney for Petitioner Andrea Aiello
C-2
Michael Vincent Ricci
11-01 154th Street
Whitestone, New York 11357
Attorney for Petitioner Lorenzo Scaduto
WEINSTEIN, Ch. J.:
Defendants Andrea Aiello, Lorenzo Scaduto, and
Francesca Bartolotta were convicted in July of 1984 follow-
ing trial on various charges of importation and distribution of
heroin and conspiracy to import and distribute heroin. Five
other defendants were acquitted. The conviction was
affirmed on direct appeal in United States v. Aiello, 77\ F.2d
621 (2d Cir. 1985).
Defendants then moved for a new trial in February of 1986
based on the alleged discovery of new evidence tending to
prove prejudicial attorney conflicts of interest. The district
court treated the motion asa writ of habeus corpus, 28 U.S.C.
§ 2255, and denied it without a hearing. The Court of Appeals
reversed the denial on the ground that the appellants were
entitled to a fuller inquiry into their claim, and remanded the
matter to the district court for further proceedings. United
States v. Aiello, 814 F.2d 109 (2d Cir. 1987). The trial judge
then recused himself and the matter was assigned to another
judge by random selection.
Ms. Bartolotta subsequently withdrew her petition. She
had already been released from incarceration.
l. Facts
Federal and state agents arrested Mr. Scaduto, Mr. Aiello,
and Salvatore Bartolotta in September 1983 in connection
with a heroin importation and distribution scheme. Filipo
Ragusa, whom agents believed to be the ringleader of the
operation, escaped arrest and remains a fugitive. Ms. Barto-
lotta and Rita Volpe were arrested and indicted several
months later. A superceding indictment filed in February,
1984 named Mr. Scaduto, Mr. Aiello, Mr. Ragusa, Ms.
Volpe, Ms. Bartolotta, and five others in various counts of
heroin importation and distribution and conspiracy. Federal
charges were dropped against Mr. Bartolotta, who had orig-
inally been indicted in the federal proceeding; he was charged
in state court and convicted there upon a plea together with
another implicated person, one Charles Salemi.
Most of these defendants are closely related or socially
connected. Mr. Ragusa is the father of Francesca Bartolotta,
wife of Salvatore Bartolotta, and of Maria Scaduto, wife of
Lorenzo Scaduto. Defendant Michael Ducato is Mr. Aiello’s
nephew. Defendants Domenico Logalbo and Pietro Graffeo
are godfathers to one another's children. Mr. Logalbo and
Mr. Ragusa are cousins. Ms. Volpe is Mr. Ragusa’s girl-
friend. Defendant Michele Altamura was Mr. Ragusa’s
landlord.
Shortly after the initial arrests, the two sisters— Francesca
and Maria—approached Jacob Evseroff, Esq., and asked
him to represent all of those who had been arrested in con-
nection with the drug ring. He agreed to represent Mr.
Bartolotta, and recommended a number of other attorneys to
represent the other defendants. After federal charges were
dropped against Mr. Bartolotta, the two women asked Mr.
C4
Evseroff to represent Mr. Scaduto, which he agreed to do,
while at the same time continuing to represent Mr. Bartolotta
in the state proceeding.
Among the attorneys to whom Mr. Evseroff referred the
other defendants were Jeffrey Rabin, Esq. Arnold Taub,
Esq., Raymond Sussman, Esq., and Maria Candelaria, Esq.
Mr. Rabin was in effect, if not in name, of counsel to Mr.
Evseroff in his defense of both Mr. Bartolotta in the state
proceeding and Mr. Scaduto in the federal proceeding; Mr.
Taub was retained to represent Mr. Aiello; Mr. Sussman rep-
resented Mr. Logalbo; and Ms. Candelaria represented Ms.
Volpe. Mr. Rabin, Mr. Sussman, and Ms. Candelaria shared
Mr. Evseroff’s office suite at the time of trial. Mr. Rabin had
worked for Mr. Evseroff until 1985 in the law firm of Evseroff
& Sonenshine, and although the employment relationship
was Officially discontinued at that time, Mr. Rabin continued
to receive from Mr. Evseroff a $400 minimum weekly
stipend, free office space, free secretarial services, and tele-
phone privileges in exchange for services provided to Mr.
Evseroff. Paul Auerbach, Esq., who was appointed by the
court as counsel for the indigent co-defendant Angelo Golio,
moved into Mr. Evseroff’s suite a month after the district
court trial ended.
At the time Ms. Scaduto and Ms. Bartolotta agreed to
retain Mr. Evseroff and the other attorneys, they allegedly
brought a bag of cash to Mr. Evseroff’s suite which they
intended for him to distribute to co-counsel. Ms. Scaduto
alleges that all fees were thereafter paid only to either Mr.
Evseroff or Mr. Rabin, although Mr. Taub states that he was
paid directly on several occasions. Mr. Rabin stated in his
deposition that the cash brought to Mr. Evseroff’s suite was
distributed among co-counsel by separating it into piles
C-5
containing bills of various denominations, each fastened with
a rubber band and marked with a slip of paper containing an
attorney’s name.
The trial resulted in the conviction of Mr. Aiello, Mr.
Scaduto, and Ms. Bartolotta and the acquittal of five other
defendants. The charges against Ms. Volpe were dismissed on
a Rule 29 motion. All of those who were acquitted had taken
the stand, and those who were convicted had not. Neither Mr.
Bartolotta, Mr. Salemi, or Ms. Volpe were called to testify for
any of the defendants.
The chart below outlines the relationships among the
defendants and the disposition of their cases:
DEFENDANTS CHARGED IN FEDERAL COURT
Relationship to
Defendant Other Defendants Attorney Status
Filipo Ragusa Father of Francesca None Fugitive
Bartolotta; father-in-
law of Salvatore
Bartolotta and
Lorenzo Scaduto
Lorenzo Scaduto Son-in-law of Filipo Evseroff Convicted
Ragusa; brother-in-
law of Salvatore and
Francesca Bartolotta
Andrea Aiello Uncle of Ducato Taub Convicted
Domenico Godfather of Pietro Sussman Acquitted
Logalbo Graffeo’s children;
Cousin of Filipo
Ragusa
cs |
Relationship to
Defendant Other Defendants Attorney Status
Pietro Graffeo Godfather of Carnesi Acquitted |
Domenico Logalbo's
children |
Michele Altamura Landlord of Lombardino Acquitted
Filipo Ragusa
Michael Ducato Nephew of Burke Acquitted
Andrea Aiello
Angelo Golio None indicated Auerbach Acquitted
Francesca Wife of Salvatore Rabin Convicted
Bartolotta Bartolotta; daughter
of Filipo Ragusa
Rita Volpe Girlfriend of Candelaria Dismissed
Filipo Ragusa
Salvatore Husband of Evseroff Pleaded in
Bartolotta Francesca Bartolotta; State
son-in-law of Court
Filipo Ragusa
The trial court was not informed that (1) several of the co-
defendants’ attorneys were sharing office space, (2) the fees of
all defense counsel were for the most part being drawn from
cash distributed by Mr. Evseroff; (3) defense counsel had
been selected on Mr. Evseroff’s recommendation; or (4) Mr.
Evseroff and Mr. Rabin were involved in the defense of Mr.
Bartolotta in state court.
C-7
Il. Issues for Review
The court of appeals outlined two major areas of conflict of
interest. The first involves petitioners’ accusations of cor-
ruption stemming from the manner in which counsel fees
were distributed. Defendants claim that the fee arrangement
allowed Mr. Evseroff to control co-counsel both by giving
him excessive input into who was to be appointed to repre-
sent the co-defendants, and by allowing him to use the threat
of withholding fees as leverage to ensure that co-counsel
cooperated with his chosen defense strategy throughout the
trial. There was also disagreement regarding the amount of
the original lump sum payment—Ms. Scaduto claims that it
was $500,000, while Mr. Evseroff claims that it was sub-
stantially less—and regarding the defendants’ allegations that
Mr. Evseroff’s co-counsel paid kickbacks to Mr. Evseroff in
exchange for the referrals. The court of appeals presented this
issue in terms of four factual questions to be resolved on
remand: who paid trial counsel, how much counsel received,
whether fees were withheld, and whether fees were divided as
a form of referral fee. See 814 F.2d at 112, 114.
A second issue revolves around allegations that Mr.
Evseroff’s joint representation of Mr. Bartolotta and Mr.
Scaduto, coupled with his alleged control over the other
defendants’ attorneys, resulted in none of the attorneys being
willing to call Mr. Bartolotta as a witness at trial. The evi-
dence is in conflict over whether the defendants wanted Mr.
Bartolotta to testify: Mr. Scaduto and Mr. Aiello insist that
they asked their attorneys to call him but that Mr. Evseroff
refused because Mr. Bartolotta might get “50 years to life,”
while Mr. Evseroff and Mr. Taub aver that their clients did
not want Mr. Bartolotta to take the stand. None of the
C-8
petitioners’ affidavits indicate what Mr. Bartolotta’s testi-
mony would have been, and the attorneys cite tactical reasons
for the failure to call him as a witness. The specific questions
which the court of appeals ordered decided on remand are
whether petitioners wanted Mr. Bartolotta to testify, and
whether the defense counsel did or did not want him to
testify, and if not, why not. See 814 F.2d at I11-12, 114.
At the hearing, petitioners added to their claims by con-
tending that their sixth amendment rights were violated by
certain other lapses in the quality of their defense, among
them (1) the failure of Mr. Evseroff to call Ms. Volpe as a
defense witness for Mr. Scaduto, allegedly because of her
knowledge of Mr. Ragusa’s whereabouts; (2) failure of either
attorney to call as a witness Mr. Salemi, who had pleaded
guilty in state court; (3) failure of both Mr. Evseroff and Mr.
Taub to move to supress an incriminating videotape showing
heroin transactions taking place in Mr. Aiello’s warehouse in
Buffalo; (4) failure of either attorney to make a speedy trial
motion; (7) failure to introduce into evidence alternative
versions of translations of certain wiretap transcripts,
although the defense attorneys had access to such alternative
versions; (8) inadequate cross-examination and summation
on matters involving Mr. Ragusa and Mr. Bartolotta; and
(9) failure of either attorney to make written post-conviction
motions.
Finally, petitioners claim that Mr. Evseroff failed to
inform them of prior investigations of him for possible
conflicts of interest in a number of other criminal matters.
They argue the investigations in those matters—among them
United States v. Tortorello (E.D.N.Y. 80-CR-574), United
States v. Cancilla, 725 F.2d 867 (2d Cir. 1984), and United
States v. Gambino (D. N.J. 84-CR-98)—establish that such
conflicts were a general practice in Mr. Evseroff’s office.
C-9
Ill. Standards for Assessing Conflicts of Interest
In its decision remanding the petitioners’ case for hearing,
the Court of Appeals reiterated the standard for assessing
conflicts of interest established in Cuvier v. Sullivan, 446 U.S.
335, 100 S.Ct. 1708 (1980). There the Supreme Court held
that “[i]n order to establish a violation of the Sixth Amend-
ment, a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.” (Footnote omitted.) This
standard has been interpreted to require that a defendant
show first, that some plausible defense tactic or strategy
might have been pursued but was not, and second, that this
defense was inherently in conflict with counsel’s other
loyalties. See, e.g., Oliver v. Wainwright, 782 F.2d 1521 (11th
Cir.), cert. denied, 107 S.Ct. 313 (1986): United States v.
Fahey, 769 F.2d 829 (Ist Cir. 1985). When failure to under-
take a possible line of defense constitutes a realistic tactical
choice rather than a reflection of loyalty to another client, the
failure does not establish the basis for a claim of ineffective
assistance of counsel. See, e.g., Smith v. Regan, 583 F.2d 72
(2d Cir 1978); Perez v. Harris, 459 F.Supp 1141 (S.D.N.Y.
1978), aff'd, 603 F.2d 214 (2d Cir. 1979). Thus, in the case at
bar, since the petitioners did not raise their conflict of interest
claims at trial, they must show both that the defense tactics
which were not pursued, including the calling of Salvatore
Bartolotta as a witness, would have been plausible in light of
surrounding circumstances, and that counsel’s failure to
employ them was a result either of the alleged unethical fee or
other arrangements or of loyalty to Mr. Evseroff’s other
client, Mr. Bartolotta.
C-10
IV. Findings of Fact
The trial judge, who had the opportunity to evaluate the
effect of counsel’s conduct based on first-hand knowledge,
concluded in his memorandum and order dated June 6, 1986
that no violation of defendants’ sixth amendment rights had
occurred as a result of a conflict of interest. All of the evidence
taken in connection with the hearing after remand supports
his conclusion. Although the conduct of the defense attorneys
at times created the appearance of impropriety, petitioners
have failed to establish the existence of an actual conflict of
interest in accordance with the Cuvier standard.
The mere possibility that a conflict may have affected a
defendant’s representation is insufficient to impugn a
criminal conviction. Cuvier, 446 U.S. at 350, 100 S.Ct. at
1719. The petitioners have shown that some potential con-
flicts existed, and have also set forth a number of plausible
defense tactics that might have been pursued and were not,
but they have failed to show that these alleged facts were or
could have been in any way connected. None of the defense
Strategies which could actually have been pursued would
have worked adversely to the interest of some clients but not
others, and thus none of these alleged lapses could logically
have resulted from counsel’s favoring one client over another.
The few defense tactics suggested by petitioners which might
have resulted in a conflict could not in any event realistically
have been used at trial. Beyond a reasonable doubt, no
conflict and no action or inaction of trial counsel complained
of by petitioners had any effect on the outcome of the case.
C-11
A. Issues Regarding Counsel Fees
and their Effect on Relationships
Among Co-counsel
Mr. Taub, who represented defendant Aiello, was not
under the control of Mr. Evseroff as the petitioners have
claimed. He made decisions on behalf of Mr. Aiello wholly
independent of any relationship with other attorneys, includ-
ing Mr. Evseroff, despite the fact that his fee was paid in cash
which had originally been delivered to Mr. Evseroff. Mr.
Evseroff controlled neither the selection of attorneys nor the
allocation of fees. There was no fee splitting, and Mr. Evseroff
did not withhold any forewarding fee or kickback for himself
before delivering Mr. Taub’s fee as defendants have alleged.
Cash turned over to Mr. Evseroff for distribution to the other
attorneys was turned over in exactly the form and amount
decided upon by the clients. Mr. Evseroff's fee was $75,000, of
which he received $50,000, an appropriate amount in light of
the complexity and length of the trial. Other attorneys
received somewhat lesser fees commensurate with their
experience. |
Undoubtedly Mr. Evseroff and Mr. Taub conferred during
the course of the representation regarding defense strategy
and fees. Such communication among co-counsel is normal
and to be expected in a complex, multi-defendant case such as
this one. The fee arrangement, although somewhat uncon-
ventional, is understandable in view of the fact that most of
the defendants were related. The rules of legal ethics and rep-
resentation should not be interpreted so as to divorce them
from the practical needs and desires of the clients they are
designed to protect.
C-12
Mr. Taub was operating independently of Mr. Evseroff.
Thus, any failure on the part of Mr. Taubtoemploy available
defenses could not have resulted from Mr. Evseroff’s alleged
conflict of interest.
B. Failure of Mr. Bartolotta and Other
Potential Witnesses to Testify
All defendants and all counsel were informed and aware of
the fact that Mr. Evseroff had represented Mr. Bartolotta in
related state court proceedings and of the resulting potential
conflict that might inhibit their defense. All defendants,
particularly Mr. Evseroff’s own client, insisted emphatically
that he continue to represent them despite any such conflict.
Mr. Bartolotta’s failure to testify was not attributable to a
conflict of interest on the part of counsel. Petitioners’
argument on this issue is supported only by the bald assertion
of Mr. Bartolotta that he would have testified if he were
called—without any indication of what he would have said—
coupled with the retrospective assertions of the petitioners
and their co-defendants that they wanted him to take the
stand. Such paltry evidence is inadequate to demonstrate that
calling Mr. Bartolotta would have been a plausible defense
tactic—is the first prong of a showing of actual conflict of
interest. Petitioners’ similar assertions regarding counsel’s
failure to call Ms. Volpe or Mr. Salemi, and the accusation
that their cross-examination and summation on matters in-
volving Mr. Ragusa and Mr. Bartolotta was intentionally
weak, are supported by even less evidence.
C-13
All of the evidence taken together indicates that the
decision to keep Mr. Bartolotta off the stand was the result of
plausible tactical considerations in which both Mr. Scaduto
and Mr. Aiello concurred. Messrs. Evseroff, Taub, Rabin,
and Sussman each stated emphatically that Mr. Bartolotta
had no credibility as a witness following the disclosure at trial
that he had conducted a major heroin deal in his car while in
the company of his two children. There is every indication
that all the defendants concurred in the decision not to call
him. Mr. Evseroff states in his deposition that Mr. Scaduto
was “dead set against it.” The testimony and other depositions
support this conclusion.
C. Other Inadequacies in Representation Alleged
by Petitioners
There is no reason to rule on whether the alleged failure of
defense counsel to pursue various other potential arguments
and motions resulted in a denial of petitioners’ rights, because
we find that no such omissiqn could logically have been
related to a conflict of interest. Mr. Evseroff’s decisions not to
move to suppress an incriminating videotape, “allow” the
defendants to testify on their own behalf, introduce his own
translations of tape transcripts, or make a speedy trial motion
could not conceivably have innured to the benefit of any of his
other clients. We note nevertheless that petitioners’ counsel
appear to have met minimum standards of competency. The
case was a difficult one, and nothing they did or failed to do
would have had any appreciable effect on the verdict. The
evidence against their clients was quite strong. The tactical
decisions in context were sound. Making fruitless motions
and arguments could have served no useful purpose.
C-14
D. Prior Investigations of Mr. Evseroff
With regard to the petitioners’ claim that Mr. Evseroff’s
conduct in prior cases establishes a pattern of representation
of conflicting interests, the court notes the disturbing nature
of this alleged patern. Nevertheless, the overwhelming weight
of evidence in the instant case indicating the lack of any actual
conflict clearly outweighs the evidence suggesting that the
alleged pattern of conflicts could have had any appreciable
effect on the petitioners’ trial.
There is not the slightest evidence that Mr. Evseroff pulled
punches in defense of his client to curry favor of the
prosecutor in order to avoid prosecution for his own delicts.
E. Summary of Answers to Questions Posed by
the Court of Appeals
(1) Who paid trial counsel? The defendants paid counsel,
and Mr. Evseroff served only as a conduit for the distribution
of their fees.
(2) How much did counsel receive? Mr. Evseroff received
$50,000. Other counsel received fees commensurate with their
level of experience.
(3) Were fees withheld or kicked back to Mr. Evseroff? No
fees were withheld, kicked back, or split.
(4) Were fees divided as a form of referral fee? Fees were
not divided, and no referral fees were paid.
(5) Did the petitioners want Mr. Bartolotta to testify?
After discussing the issue extensively with their counsel,
C-15
petitioners decided that they did not want Mr. Bartolotta to
testify.
(6) Did defense counsel want Mr. Bartolotta to testify? If
not, why not? Defense counsel did not want Mr. Bartolotta to
testify, because they believed that given the evidence which
could have been introduced to impeach him, his testifying
would have prejudiced their clients more than it would have
helped them.
F. Evidence Considered by the Court
In reaching these findings, this court has considered exten-
sive testimony presented over a period of three day, as well as
briefs submitted by the petitioners and the government, affi-
davits of the petitioners’ attorneys, depositions of the
defendants’ attorneys, and portions of the record in the case at
bar and in the prosecution of Mr. Bartolotta in state court.
We find that the affidavits, depositions, and testimony of Mr.
Evseroff and other defense counsel are credible and consistent
with the trial record, and that the affidavits of the petitioners
are not. |
V. Suggestions for the Future
Although the petitioners have failed to meet their burden of
demonstrating an actual conflict of interest which adversely
affected counsel’s performance in accordance the Curler
standard, counsel’s conduct and methods of operation cannot
be approved. Much of it resulted in an appearance of im-
propriety and should be avoided in the future. Faith of
defendants and the public in the legal system would be en-
hanced, an unnecessary litigation avoided, were counsel to
adhere to the following guidelines:
C-16
1. Payment of fees to independent counsel should be made
directly and not by lump-sum payment to be distributed by
one attorney to co-counsel. Fee-splitting and use of referral
fees without the explicit consent of the client is always
improper. Where an attorney is paid by the court for repre-
senting an indigent client, the court’s permission must be
obtained for any diversion of the fee.
2. An attorney who works in another attorney’s office,
whether as partner, associate, or co-tenant should be treated
as a partner for the purpose of evaluating a possible conflict.
3. Representation of another party in any arguably related
case in the same or another court, whether state of federal,
should be treated as if it were a representation of that party in
all related cases for purposes of determining whether there
exists a conflict of interest.
4. Counsel should make known to the client all possible
conflicts that might arise. Counsel should make known to the
court on the record in the presence of the client all possible
conflicts, real or apparent, that might arise. The court will
then inquire on the record to ensure that the clients’ sixth
amendment rights are protected, and a hearing will be held if
necessary. Defendant should be present at all relevant pro-
ceedings to ensure that she or he understands the nature of the
possible conflict and its consequences.
5. Counsel are reminded that the practice of receiving large
payments in cash may present civil and criminal issues that
are beyond the scope of the questions posed by the court of
appeals in this case. The court makes no findings with respect
to the implication that delivery of the fees to Mr. Evseroff in
the form of bags of cash constituted a method of money
C-17
laundering. This is, however, an issue the bar may wish to
address along with other issues raised in this memorandum in
order to avoid future problems.
Conclusion
The petition to set aside the judgements of conviction is
denied. 28 U.S.C. § 2255. A certificate of probable cause is
granted.
So ordered.
Dated: Brooklyn, New York
February 29, 1988
Chief Judge, U.S.D.C.
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
x
UNITED STATES OF AMERICA, CR 83 429
Courthouse
LORENZO SCADUTO and Brooklyn,
ANDRE AIELLO, New York
Defendant. February 8, 1988
X. 3:00 o’clock p.m.
TRANSCRIPT OF MOTION
BEFORE THE HONORABLE JACK B. WEINSTEIN
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiff: ANDREW J. MALONEY
United States Attorney
BY: GREGORY O'CONNELL, ESQ.
Assistant United States Attorney
225 Cadman Plaza East
Brooklyn, New York
For the Defendant! MICHAEL VINCENT RICCI, ESQ.
For Scaduto
WILLIAM E. LORE, ESQ.,
For Aiello
EEE
D-2
Court Reporter: Henry R. Shapiro
225 Cadman Plaza East
Brooklyn, New York
718-330-7687
Proceedings recorded by mechanical stenography, transcript
produced by computer.
HENRY R. SHAPIRO
OFFICIAL COURT REPORTER
D-3
THE COURT: We've been waiting for the defendants and
they haven’t been brought over. We can argue it without them
since it’s a argument on the law or we can put it off until
tomorrow.
MR. RICCI: Michael Ricci.
MR. LORE: William Lore.
MR. O’CONNELL: Gregory O’Connell.
MR. LORE: I have no objection to proceeding without my
client. Before we get into that if | may, Mr. O'Connell has
provided me with some more materials that were in the nature
of Court Exhibit One, additional statements, including a
letter from Mr. Evseroff’s secretary. | have no objection to
amend this. Mr. Ricci has a translation of the Italian—
THE COURT: I haven’t seen it.
MR. RICCI: I would move that into evidence. It has a seal
on it. We gave you the original.
THE COURT: Do I have all of these materials?
MR. RICCI: I don’t know about the Italian document. |
could go look for it now.
THE CCURT: You say these are supplements to one.
MR. RICCI: Yes.
THE COURT: Mark them as One A. What is the number
of the document which is now translated.
D-4
MR. RICCI: I don't have the number, your Honor. Sorry.
THE COURT: Mark it as Defendant’s Exhibit A. I think
all the others are court exhibits.
THE COURT: Do we have all the copies.
THE CLERK: We have the original right now.
THE COURT: Hold them.
THE COURT: Does anybody want to submit any other
exhibits.
MR. O'CONNELL: Just to put a couple of things on the
record. Included on the record is the criminal history of Paul
Labriola, one of the affiants.
THE COURT: Was that marked?
MR. O'CONNELL: It was marked. We want to bring to
your attention there were two federal convictions that were
not on the printout. One was in 1974 for forgery of U.S.
savings bonds.
The second was in 1981 again charges concerning stolen
U.S. savings bonds and forgery.
There is a Second Circuit order if your Honor wants to
look at it which refers to some of the substance of it which I
can offer.
THE COURT: Mark that as Government Exhibit I.
D-5
MR. O’CONNELL: The charges included 38 counts of
forgery.
THE COURT: Anything further.
MR. O’CONNELL: I don’t know if Mr. Ricci addressed
the question whether he wants to proceed without Mr.
Scaduto being present.
MR. RICCI: I would join with co-counsel in terms of it
being argument.
THE COURT: I have now a brief of the government and a
joint brief from the defendants; is that night.
MR. RICCI: Yes.
MR. LORE: Yes.
THE COURT: Whatever happened to Francesca
Bartolotta.
MR. O’CONNELL: She withdrew her application.
THE COURT: What was she sentenced to.
MR. O’CONNELL: Her original sentence I think was five
years. She’s in a half way house now.
MR. RICCI: She’s here. Five years.
THE COURT: But she’s not incarcerated.
D-6
MR. RICCI: She made halfway house December some-
thing.
MR. O’CONNELL: I recall seeing a letter from her
counsel—
THE COURT: I understand. That is why these two are
pressing. Do you want to add anything.
MR. LORE: | wish to get into the argument if the court
pleases. | had intended to summarize the major points from
the prospective briefs.
Our basic point, mine and my client’s, he was denied the
effective assistance of counsel. From the start the initial
affidavit from the client he did not want Arnold Taube as his
attorney and this attorney was thrust on him.
My point has been that Mr. Taube was subject to Mr.
Evseroff’s control. In the deposition | believe we showed
various means of the control. However wittingly or unwitting.
Number one, Mr. Evseroff and his employee, | think it was
well established that Mr. Rabin was his employee. He re-
ceived something like thirty-four thousand dollars a year in
benefits by being his associate, or Mr. Evseroff used the word
employee in his office. In percs and in weekly payments not
tied to any specific case.
THE COURT: What does that have to do with Taube?
Your client was represented by Taube.
MR. LORE: Yes, your Honor.
D-7
THE COURT: Taube was an independent attorney, wasn’t
he.
MR. LORE: He was independent in the sense he was not a
member of Mr. Evseroff’s office. Mr. Evseroff did testify that
Mr. Aiello had an attorney up in Buffalo and that he had
believed that Mr. Rabin was sent up to Buffalo or was re-
quested to be sent up to Buffalo. We did not get into evidence.
He did actually go to Buffalo, in order to, inform the attorney
up there that he was no longer on the case, that Mr. Taube had
been hired.
As a matter of fact, according to the testimony of the wit-
nesses themselves, Mr. Taube was hired and paid two or three
times before he ever met Mr. Aiello. His conversation were
with Mr. Evseroff, and two people from the Ragusa family.
THE COURT: That is not uncommon that somebody in
effect pays for a lawyer while they are being brought here.
MR. LORE: That may not be uncommon. There was no
indication—Mr. Taube had no indication that the clierit knew
about it. There was some reference that the people who hired
him said, we talked with Mrs. Aiello Aiello, and she says
Okay.
Mr. Taube never testified that he called the other attorney,
made any contact.
THE COURT: I don't find that at all convincing. They sat
next to each for months and your client never objected to
Taube. When he got here he never objected. Taube so far as |
can tell was an a very fine lawyer. At least he on paper had
very fine experience.
5
a
x
4
3
D-8
MR. LORE: I’m not sure about his experience. He testified
that he went into private practice in February of 83.
THE COURT: What did he do before he was in private
practice.
MR. LORE: I understand he was in the prosecutor’s office.
THE COURT: That is main training ground for defense in
this city.
MR. LORE: Your Honor, | think—
THE COURT: Nothing that he did, you have shown that
was at all adverse to the client. | really don’t find any
domination of him by Evseroff.
MR. LORE: Perhaps you don’t see it. | would like to focus
on one exhibit which Mr. Taube says was devastating to the
client, that is the video tape of Mr. Aiello’s warehouse in
Buffalo. W A BC made a motion to release the tape. It was
played twice during the government’s summation. The jury
requested to see it. All the attorneys have said it was devastat-
ing. No motion was made that the prejudicial effect out-
weighed the probative value.
THE COURT: What was Aiello’s standing.
MR. LORE: It was his warehouse.
THE COURT: I don’t find there was much of a basis for
suppression there anyway.
D-9
MR. LORE: The Court of Appeals seemed to have be-
lieved it was in violation of Title Three. It was a potential
violation.
THE COURT: Potentially, yes.
MR. LORE: That was never gone into. The reason why,
Jeff Rabin was doing all the motions. He never got to this one.
He said he never saw the orders. Taube said he doesn’t think
there was an order.
THE COURT: Is that a constitutional violation.
MR. O’CONNELL: It’s a matter of record there was a
court order for the video.
THE COURT: That is a different matter than Evseroff
seeking to dominate, because everybody would have gained
by an suppression. It’s an entirely different issue. It’s not an
issue on remand. The issue on remand is not an issue whether
your client was well represented. Certainly under constitu-
tional theory as laid down by the Supreme Court, representa-
tion wasn't so poor we can say his constitutional rights were
violated.
MR. LORE: | would submit it was that poor.
THE COURT: Was that raised on the appeal.
MR. LORE: On the direct appeal.
THE COURT: Yes.
MR. LORE: Or our appeal.
D-10
THE COURT: Anyone.
MR. LORE: I don’t recall it being a point. The video tape
was an issue.
THE COURT: No, was there an issue raised with respect to
his right to effective counsel?
MR. LORE: The whole issue of conflicts that stems—
THE COURT: Conflict is different. You are now saying
that he didn’t do a good job because he didn’t make these
points.
MR. LORE: I mean that asa result—your Honor asked me
the question did that—was there anything—I didn’t see any-
thing shoddy about the performance.
THE COURT: | must say I don't see any conflict here. I
simply don’t credit your client, and Taube and Evseroff are
admitted members of the bar. I read their materials and they
seem fully consistent with what all the other attorneys said.
We have a family situation here. It’s not uncommon for
families to pay this way. The evidence was overwhelming that
they were all involved in an illegal enterprise and the ring
leaders, either hung separately or stayed together. That is
what they did.
MR. LORE: Perhaps if we look at it this way. We’re talking
about the question of effective assistance of counsel—
THE COURT: We're talking about conflict. As far as
effective assistance I find that given all of these circumstances
there was. not such in effective assistance as to constitute a
D-11
violation of constitutional rights.
We're down to the issues before me as remanded by the
Second Circuit. I don’t find any conflict. Evseroff did not
dominate Taube.
MR. LORE: We're focusing on the Sixth Amendment and
the right to counsel. Imagine if you will, Mr. Aiello, has an
attorney in Buffalo. Mr. Aiello’s we have a better attorney.
The families are going to bank role the whole thing, Mr.
Ragusa, I don’t know where he is, his daughters are here. This
laywer will not make any motions. He'll let my employee Jeff
Rabin, we are not going to look at the orders, all we’re going
to do is object to its prejudicial value. Aiello is not going to
say, yes.
THE COURT: At the time he agreed to accept the attorney.
He did it without anybody breaking his arm. He did it openly
and freely. Taube was a decent attorney as far as I can tell.
You might have tried it differently. You might have been
more successful. Given the evidence as it developed I dont
think you would have. I don’t credit his testimony that he
didn’t want Taube.
MR. LORE: Several of the other—not to be argumenta-
tive. Several of the other attorneys who have nothing to lose in
this sense—of course Mr. Taube is going to say that Mr.
Aiello’s wanted him.
THE COURT: I credit what he says.
MR. LORE: We have other attorneys Mr. Aiello com-
plained to me. Rabin bin said it. Sussman said it or he’s
complaining to everyone else but not to his own lawyer. It
|
OE
D-12
evidences his own satisfaction. We’re looking at a denial of the
right to counsel.
THE COURT: That is not enough. Every defendant I see
practically when he loses after trial is dissatisfied with his
counsel. If his counsel gets an acquittal he’s the greatest
person in the world. You have tried enough cases to know
that. After the event everybody can second guess.
MR. LORE: Your Honor, the fact is even being ona mis-
demeanor panel, on 18 B in Queens, I know that you don’t
divy up clients with people in your office. You just don’t do
that.
THE COURT: I don’t believe that as to Taube there was
any divying up. There may be argument as to somebody else.
Taube was not directly connected with Evseroff at all. There is
nothing to be gained by Evseroff appointing Taube. Taube
was quiet independent. He’s from the Bronx.
MR. LORE: He was chosen according to Evseroff’s testi-
mony. Evseroff was the man who was giving effect to the
desires of the family—
THE COURT: Of course that is true.
MR. LORE: He was reappraised because they thought
Aiello would turn informant. Those were Mr. Evseroff’s own
words. Obviously the corollary of that or the assumption, Mr.
Taube is going to go along with the program, not the attorney.
THE COURT: I don't credit that. I can’t believe that Taube
sold his client out. There is no evidence of that.
D-13
MR. LORE: That’s my client’s position. It appears to be an
interpretation of the—
THE COURT: I will look at the records again and reread
what I think is necessary. | simply find it difficult to credit
your client as against all of these attorneys.
MR. LORE: Half of the attorneys said Mr. Aiello didn’t
want Taube.
MR. LORE: We had the motion for contempt that your
Honor ruled on. I was dismayed not having been in your
Honor’s court before, but prior to being in your Honor’s
court on this matter, I wasa little bit aghast in what I saw to be
a bunker mentality on the part of the government and the
defense witnesses. People you talked to on the phone don’t
have the guts to put something in writing. You have to sub-
poena everyone into the courtroom—
THE COURT: Who did you want to get that didn’t come
in?
MR. LORE: Your Honor we did get them in under the egis
of the Court. That is the only way we dragged these people in.
THE COURT: For whatever reason they were here. I think
we have had a full elucidation of the issues. What conclusion
should be drawn is arguable. I don’t believe you have been
denied any evidence that was available.
MR. LORE: The only thing that we haven’t gotten the
letters rogatory.
|
;
EE
ee”
Z
D-14
THE COURT: Where are those materials? Do you have
anything?
MR. O'CONNELL: No, your Honor. I gave all the infor-
mation that I have been able to come up with. All I have
gotten is a report from the Office of International Affairs—
THE COURT: Did you give it in writing.
MR. O’CONNELL: The only writings that were read to me
over the telephone were letters—letters transmitted in "84—
THE COURT: Where are those documents?
MR. O’CONNELL: In Washington.
THE COURT: Get copies. You have communication, in-
stantaneous communication with Washington. I want copies
of those documents in the file turned over to defendant. | want
your letter of transmittal saying in the letter, if this is the case,
that these are all the documents that could be obtained and
you have nothing else.
MR. O’CONNELL: The only way to get additional infor-
mation would be by contacting a magistrate in Italy—
THE COURT: Did you hear what I just told you?
MR. O'CONNELL: Yes.
THE COURT: Then do it. I haven’t asked you to go to
Italy. The defendants can go to Italy if they want to.
MR. LORE: If I may on that point. Mr. Summers, who
D-15
was then assistant United States attorney recalled clearly that
a decision was made to postpone that matter until after the
trial and did we did present some documents. | find it hard to
believe that the United States attorney attorneys has no
documents, that they are only in Washington, D.C.
THE COURT: That is what they tell me and I'll accept that.
Next.
MR. RICCI: I would like to join—
THE COURT: I can't decide the case until that information
is supplied, is that clear?
MR. O'CONNELL: Yes, your Honor.
MR. LORE: I join in counsels arguments and rely on the
brief that we’ve submitted in terms of laying out all of the facts
in this case. I would simply like to read something quickly and
this is from U.S. against Cataldo which is—I will get the cite
625, F. Supp, 1255 Southern District 1985. There is a part
here where the judge is quoting from Judge Bryant who had
previously asked a series of questions to the particular
defendant. | think it’s phrased very well and I don't think I can
improve.
“Are you aware of the possibility that Mr. Corio or any
attorney so situated may be unable to give you impartial
advise because he has another ongoing matter with the
government at the same time and there is a possible incentive
or risk that anybody so situated might be motavated to act in
some fashion which would improve his relationship with the
government prosecutors in his own case and possibly to your
D-16
detriment? Do you understand that risk may exist.
The defendant replied, “Yes I understand.
The judge, “Do you understand further that Mr. Corio or
any attorney so situated might be unwilling or unable to
advise you impartially as to whether or not you should effect a
_ disposition of this case or how this case should be handled
because of the fact that he might fear that any discussion you
had with the government might adversely effect his own
relationship in connection with this possible difficulties in the
Eastern District or elsewhere. Do you understand that?
The defendant responded, “I do.
Judge Bryant further asks whether the defendant under-
stood that Mr. Corio might be required to focus attention on
his defense to the detriment of the defendant.
Might be called to trial at any time leaving the defendant to
obtain a new attorney at the last minute.
To each of these questions the defendant responded affirm-
atively.
Judge Bryant then asked the defendant, “Now do you
understand—Now do you understand that you havea right to
make a change in counsel at any time providing that change
does not delay the trial and it is your obligation to yourself to
consider whether these matter impair your constitutional
right to have the effective independent representation of
counsel in connection with this case due to the fact that your
attorney is under indictment in Federal court in a different
district, do you understand that?
D-17
The defendant, “Yes I do.”
The case turned on other points, I believe, but at least the
jist of the argument, Mr. Evseroff’s version—
THE COURT: Who represented your client?
MR. RICCI: Mr. Evseroff.
THE COURT: He himself.
MR. RICCI: He himself.
THE COURT: His domination of others is not an issue in
your case. If he dominated others, presumably it was in favor
of your client.
MR. RICCI: Yes, he never told my client and even admits
that on the deposition, that he never told him about the
investigation which was prior to this January 13.
THE COURT: What investigation.
MR. RICCI: Like | say I join in everything said—
THE COURT: What investigation.
MR. RICCI: The investigation by the United States
Attorney’s Office.
THE COURT: Of who.
MR. RICCI: Of Mr. Evseroff.
D-18
THE COURT: I don't understand what that has to do with
your client. He wasn't being investigated in connection with
these events.
MR. RICCI: No, but he was under investigation. The
analogy with the Cataldo case we had a situation where Judge
Bryant—
THE COURT: Corio was indicted.
MR. RICCI: Correct. What Judge Bryant is saying to Mr.
Cataldo applies equally if Mr. Scaduto had known that Mr.
Evseroff was under investigation.
THE COURT: I don’t—
MR. RICCI: —and he was never told about that.
THE COURT: I dont believe that the United States
Attorney can in effect put a lawyer out of business by investi-
gating him.
MR. RICCI: I’m not saying that at all. Not at all. I’m not
saying that he’s automatically disqualified.
THE COURT: Did Evseroff know he was being investi-
gated by the grand jury.
MR. RICCI: If you read the papers on the—that we sub-
mitted under the Torterelli case there is the Brian Mass affi-
davit indicating that Mr. Evseroff was told prior—the Court
of Appeals decision—we have a date January 13. There is
then a letter by Mr. Evseroff, in the Torterelli case, referring
to the—Mr. Mass affidavit saying | didn’t know until then.
D-19
Then there is Judge Mishler who makes the finding that he
knew and wasn’t told until that date. As of the January 13
date we have—
THE COURT: It’s remote. Are you saying that he laid
down on Scaduto in order to gain favor with the United States
Attorney? He wouldn't be prosecuted in his own case?
MR. RICCI: What I’m trying to say he’s not automatically
disqualified. What he should have done or the United States
Attorney should have done, is say Mr. Scaduto, Mr. Evseroff
is under investigation, then we could have had a Judge Bryant
situation saying—
THE COURT: I have given the same warnings to defend-
ants as Judge Bryant did when Corio was representing
somebody. :
MR. RICCI: At least Cataldo knew.
THE COURT: And the evidence i is clear here that Scaduto
did not know.
MR. RICCI: Absolutely he says itand Mr. Evseroff 1 asked
that question.
THE COURT: Then you have the other point.
MR. RICCI: The other point.
THE COURT: Bartolotta was being represented.
MR. RICCI: And all at the same time.
D-20
THE COURT: It the others—Bartolotta was represented
in the state proceeding.
MR. RICCI: And Solemi was seen by Mr. Rabin during
that proceeding too.
I would just like to é€nd it with another short quote. I’m
quoting from page 192 of the Gambino transcript which we
put before the court. | like the phrasing of this. Mr. Carnesse
is on the stand and the prosecutor is asking him a series of
questions and it gets to the point with this conflict and the
prosecutor says.
QUESTION: As an officer of the court—he’s talking to
Mr.—dquestioning Mr. Carnesse—as an officer of the court,
you certainly didn’t go to Judge Lacy and say, “Judge | think
Mr. Evseroff has a conflict of interest here, did you?
|
ANSWER: No, sir I did not.
THE COURT: | might add that no one from the govern-
ment went to him either, did they?
THE WITNESS: I’m glad you said that before I did, Judge.
MR. ROTH: There is a difference. The government didn’t
know that Jacob Evseroff represented—the government in
this district MarryAnn Murphy and Ed Balinkus, who
handled the case, did not know that Mr. Evseroff represented
Giatano Mosara in the Southern District of New York or we
would have.
I think that is the idea—
D-21
THE COURT: I understand. It’s not a easy case. What
does the government have to say.
MR. O’CONNELL: Your Honor, we have laid out our
arguments in the brief. | would like to respond to a couple of
things.
One, Mr. Lore has made a very lose reference to the record
concerning other defense attorney’s comments about Aiello’s
complaints, about his representation, by Taube. | think all
that the record will show is that a couple of the defense
attorneys during the deposition mentioned that they thought
they recalled Aiello complaining that he did not see Taube
enough. Which is a common complaint. I don’t think there
was substance to the complaints at all.
In so far as this Concilla argument is concerned, | think
your Honor rightly points out that the facts in Concilla are
entirely distinguishable from this case. There is absolutely no
relationship between the subject matter of the Ragusa case _
and the investigation of Evseroff which our office had under
way in 1983.
THE COURT: What is the answer that you give that there
should have been a motion to suppress the TV tape in Aiello
in the warehouse in Buffalo.
MR. O’CONNELL: Your Honor, I think that would come
under ineffective assistance on the merits. As your Honor
pointed out and the standard for assessing the attorney’s per-
formance is one which is very foregiving, and in any event, I’m
not certain, and I’ve been unable to find in the record whether
an objection to the admission of that tape had been filed or
not. I think there was an objection. Counsel had testified that
ee ce ee
se D-22
no go to the admission of the tape.
THE COURT: Counsel for the defendant—
MR. LORE: Page 2378.
THE COURT: You'd better gOthrough the record and see
what there is on that. If the objection es under Rule 403
grounds that is entirely different from a oe
MR. RICCI: The two objections were won Mr. Tau
objected on the basis that the prejudice far outweighed—
THE COURT: That is Rule 403—
MR. RICCI: And Mr. Evseroff objected on no proper
foundation.
THE COURT: It’s a common motion. Every defense
lawyer would normally make such a motion.
MR. O'CONNELL: There was a federal court order in
place which permitted the video to be installed.
THE COURT: They always go behind the court order to
see whether there is a basis.
MR. O’CONNELL: I dont see any connection between the
failure—
THE COURT: Do we have in the record all the supporting
data for that court order in Buffalo?
MR. O’CONNELL: I'm sure it’s in the record. It’s a matter
D-23
of retrieving it.
THE COURT: Retrieve it and submit it.
MR. O'CONNELL: What I fail to see is any connection
between a conflict claim raised by the petitioners and the
suppression issue, if any, regarding that video tape in the
Buffalo warehouse.
THE COURT: I suppose arguably if Evseroff were using
Taube as a stooge, he might have thought if Aiello didn’t
suppress, may be Scaduto would have gotten off. I don't
know how it would be argued.
MR. O’CONNELL: The tape certainly was helpful to the
government's case. It showed Aiello and Scaduto within the
warehouse dismantling the pallets which contained the heroin
or formerly contained the heroin. I can’t imagine how it
would be viewed as helpful to either Scaduto or Aiello’s case.
Scaduto’s case in the conflict scenario to include that tape in
the government’s andnot to object to it. It’s just a
ludicrous ae Ao ws ase Game a
doesn’t make any sense.
I responded already—
THE COURT: That is the difficulty I have with it. It may
show incompetence, but it doesn’t show that incompetence
was due to conflict.
MR. O’CONNELL: I don't think any neglect or lack of
care by the defense attorneys rises to the level of irresponsi-
bility which would effectively deny the constitutionally
entitled right to counsel of these defendants at trial.
D-24
THE COURT: You will submit all that documentation. |
will take a look at it and see if there was any real basis for a
motion. If there was no substantial basis may be that is why
they didn’t make it.
MR. O'CONNELL: There was a lack of standing on the
part of Scaduto.
THE COURT: Yes, Scaduto doesn’t have standing.
MR. O’CONNELL: It was a matter of Aiello’s assess-
ment—
THE COURT: They would have had to sever.
MR. LORE: That is the point.
THE COURT: I understand the point. They would have
had to sever the case.
MR. LORE: It was Taube’s doing.
MR. O’CONNELL: I think your Honor has noted there
has been an insufficient showing, if any, that Evseroff
controlled the tactical strategy decisions of the other defense
attorneys involved in the trial. There were several critical
decisions made by defense attorneys that we have attorney
testimony about that were completely at odds with the
suggested view of Evseroff. That included the decision—
THE COURT: He didn’t dominate the trial. That is fairly
clear to me.
MR. O’CONNELL: | think that would go hand in hand
D-25
with a rejection of the argument that the failure to—of Taube
to file a pretrial motion to suppress the video tape was
connected to his domination and thus his conflict. I don't see
it. I don’t think that they have established it. The other issue
raised and specified for further inquiry by the Second Circuit
concerned the failure to call Salvatore Bartolotta as a witness.
Each of the defense attorneys was questioned on this
subject. We have laid out their responses in our statement of
facts and memorandum, your Honor. There is a consistency
to the view of each of these defense attorneys as to what their
tactical reasons were for not calling him as a witness. Pri-
marily it was the lack of appeal that that witness would
have—
THE COURT: Was there ever a motion to sever the
various defendant’s cases.
MR. O’CONNELL: I’m not certain of that.
THE COURT: Would vou look ints thattoo and give me
hat in a letter. That is a very strange circumstances.
MR. RICCI: The docket sheet doesn’t indicate any at all.
THE COURT: Then at least some of these people would
have wanted to call Bartolotta.
MR. LORE: There were oral motion mades during the
trial, but none that I recall to paper.
THE COURT: Better check the record and let me know
what was in the way of motions to sever.
D-26
MR. RICCI: With reference to that court order—
THE COURT: One at a time.
MR. O’CONNELL: One thing that is glaring in the record
that has been finalized and before the court. It’s something
that is glaringly absent. There is no indication from Salvatore
Bartolotta what exculpatory testimony he would provide.
THE COURT: Where is he now?
MR. O'CONNELL: He must be incarcerated in the state
system.
THE COURT: Do you want a proffer as to what he would
say?
MR. O'CONNELL: They haven't come forward.
A ge
Jie er eee
HE-€GURKT: Do you want to make a proffer.
MR. LORE: The shortest answer, no, your Honor.
THE COURT: That is enough. That’s enough you don’t
want to make a proffer.
MR. O’CONNELL: In response to that we do have the
testimony of Mr. Evseroff on the subject that he was aware of
no exculpatory testimony that could have been provided by
Bartolotta.
THE COURT: I suppose the answer to that is accurate.
MR. O'CONNELL: We have the—as I said, your Honor,
D-27
we have the testimony of Mr. Taube, that Aiello never
requested that Bartolotta testify. We have the testimony of
Mr. Evseroff and Mr. Rabin that Mr. Scaduto rather than
wanting to call him to testify held Mr. Bartolatta in very low
steam and had no interest in calling him as a witness.
Everything points to the conclusion I would suggest that
there was never any serious contemplation by the defense for
calling Bartolotta as a witness.
THE COURT: I think that is probably so.
THE COURT: I’m going to have to decide what the Court
of Appeals remanded as issues.
I can tell you, if this was ~ trial, and I don’t say this
Had this situation ones before with a very eminent defense
counsel who when I told him somebody else had to represent
the co-defendant, arranged for somebody in his office to
represent the co-defendant, without informing me that they
were related in the same office. | wasnt aware of it, and after
the conviction, even though the conviction was a very strong
one, | insisted on a new trial on the theory that should have
been brought to my attention so that I could inquire of the
defendants.
The practice here was very sloppy at best. I did not try the |
case. I just got very narrow questions posed by the Court of
Appeals.
MR. LORE: If I may be heard?
THE COURT: If you want toamend your 2255 application
D-28
in other respects you can do so while I’m waiting for these
matters to be tied up by the Government.
As it now stands I believe I’m restricted to what the Court
of Appeals remanded for.
MR. RICCI: If | may—
THE COURT: If you want to have a broader 2255 you will
have to move in the Court of Appeals for a general remand as
I «understand it. It has been remanded only for the issues that
they pose, isn’t that so.
MR. O'CONNELL: That is the way I view the decision.
MR. RICCI: I direct your attention to the very first para-
talking Sixth Amendment. Whether it’s a Sixth Amendment
violation—
THE COURT: I’m just a trial judge and I do what the
Court of Appeals tells me to do. Let me see the opinion.
MR. O'CONNELL: Your Honor, if there is—
THE COURT: May I see the opinion?
MR. RICCI: I have it someplace, yes.
MR. O'CONNELL: I have a copy.
MR. RICCI: It starts out quote—
THE COURT: Excuse me.
D-29
Remanded for further proceeding under conflict of interest
claims.
MR. RICCI: I think what we can put in there the example
you brought out to a person that works in his office, that was
never before the court and that is clearly conflict.
THE COURT: I’m not going to do anything that wasn’t
before the court. If you want me to go any further than the
narrow issues | believe the Court of Appeals has remanded to
this court, you are going to have to move to amend your 2255
application.
MR. RICCI: Before this Court.
THE COURT: Before this Court and then I’m—Aiello
deem that denied. You will have to go to the Court of Appeals
aid ask for a broader remand to consider the broader issues ——
under Rule 2255 including any Sixth Amendment, adequacy
of counsel rights, and so on. Otherwise | dont believe I have
the power.
MR. RICCI: It was always my understanding on reading
the case law under that 44 C with reference to association, et
cetera, that is clearly under the egis of the Sixth Amendment,
conflicts of issues.
THE COURT: I don’t believe it is.
You are raising a new issue with respect to adequacy of
tepresentation. Rather than spend a lot of time unnecessarily,
if you want to expand the 2255 application and raise all of
these other issues and have a complete decision on the 2255
you had better move for an amendment of the order of
D-30
remand.
MR. RICCI: Your Honor, if | may can I direct your atten-
tion to footnote one of page 1899. That is going under. You
notice they didn’t go with the requirement of 44 C because the
judge had no evidence of the association—
THE COURT: That doesn’t necessarily decide the issue of
whether that shouldn't have been made known. The judge can
make inquiry. Particularly in view of footnote one if I were in
your position | would move in the Court of Appeals for
remand on all issues and then seek to broaden the 2255.
MR. O'CONNELL: Is your Honor alluding to the rela-
tionship, or whatever it might have been, between Rabin and
Evseroff that troubles you?
~TWty-view it-would be to the detriment of—
ee MOR Reread
THE COURT: My position as a trial judge is, | want to
know everything about representation. If there is any asso-
ciation between the lawyers, if one lawyer is controlling the
other lawyer, possibly. If one lawyer is paying the other
lawyer. If they have joint clients, | want to know sol can raise
it in advance and not waste my time with a trial. | take a very
firm view of that matter. But whether my general views in a
case that I would try should applied in this case retroactively I
don't know.
I can tell you any lawyer who didn’t tell me would be
excoriated in my court and I told the lawyers previously
involved before me if they ever did that again they were going
to go to the disciplinary committee. | considered it an attempt
to mislead the court.
D-31
This is not my trial. Its been remanded for a narrow issue.
Judge Costantino recused myself. If you want me to do every-
thing in the case get a broader remand. | don’t know whether
I'll decide for the defendants. I’m not sure. I don’t credit their
testimony. I think they lied throughout. I believe generally the
attorneys told the truth, but whether that is dispositive I’m not
sure.
MR. O'CONNELL: I would like to note for the record the
relationship that existed between Rabin and Evseroff in that
office is one which was fully explored by counsel throughout
this proceeding, throughout these depositions.
THE COURT: It was not explored by the trial judge. It was
not told to the trial judge at the beginning of the case and the
trial judge did not ask the defendants about it. That’s what
disturbing.
MR. O’CONNELL: | understand.
THE COURT: Get what I told you to get. Defendants will
~~ decide what they want to do in the Court of Appeals.
aay de
MR. RICCI: Could we make that motion——_____
Pe ee en
THE COURT: I’m denying it.
MR. LORE: Could we make it—
THE COURT: I have limited power. If you want to expand
the 2255 you will have to go to the Court of Appeals.
MR. LORE: Would your Honor take it in the context of a
motion to review based upon newly discovered evidence.
tg
D-32
THE COURT: No.
I’m not going to expand the 2255. That is the one before the
Court of Appeals and the one they remanded. I’m not going
to waste my time doing something the Court of Appeals has
not authorized me to do.
Order a copy of the record and discuss what you want to
do.
Submit a copy.
MR. LORE: Can we have a control date on the informa-
tion from Washington, D.C.
THE COURT: Could you get it in two weeks.
MR. O'CONNELL: I don’t want to mislead anyone into
thinking that we'll have a final answer from these records that
the office—
THE COURT: I don’t want any final answer. I just want
the records.
an MR. O’CONNELL: Whatever records are available.
ee °
THE COURT: That is what I want.
bia cea
MR. O'CONNELL: I11 try to hve them available in a
couple of weeks. eae
™.
ins
THE COURT: You have three weeks. If you don't ie oe
from the defendants with respect to a motion to amend the
order on remand, it’s going to be decided solely on the 2255
“SS
D-33
that went up to the Court of Appeals and that they decided the
case on and it will be decided on the issues remanded by the
Court of Appeals.
MR. RICCI: Can I ask your Honor, when you say haven’t
heard from the defendants, are you saying you want acopy of
the motion made.
THE COURT: I would like to know what you are doing. |
would like to close this out. It’s about time.
Thank you very much.
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
-
No. 525—August Term, 1986
(Argued: December 11, 1986 Decided: March 18, 1987)
Docket No. 86-2236
.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
—_— v——_—
ANDREA AIELLO a/k/a ANTONIO AIELLO, FRANCESCA
BARTOLOTTA and LORENZO SCADUTO,
Defendants-Appellants.
>
Before:
OAKES, CARDAMONE and DAVIs*
Circuit Judges.
+
*Honorable Oscar H. Davis, U.S. Circuit Judge for the Federal Circuit,
Washington, D.C., sitting by designation.
1891
E-2
Andrea Aiello, Francesca Bartolotta and Lorenzo
Scaduto appeal from an order entered June 6, 1986 in the
United States District Court for the Eastern District of
New York (Costantino, J.) that treated their Fed. R.
Crim. P. 33 motion for a new trial as an application for
a writ of habeas corpus and denied the application. Appel-
lant Scaduto separately appeals from an order of February
13, 1986 that denied his Fed. R. Crim. P. 35(a) motion to
correct his sentence. Insofar as the order denied habeas
relief, it is reversed and remanded for further proceed-
ings. Insofar as it denied appellant Scaduto’s motion for
resentencing, it is affirmed.
Reversed in part and remanded.
Affirmed in part.
a
WILLIAM E. LORE, Forest Hills, New York, for
Defendant-Appellant Andrea Aiello.
MARTIN OZER, New York, New York, for
Defendant-Appellant Francesca Bartolotta.
MICHAEL RICCI, Whitestone, New York, for
Defendant-Appellant Lorenzo Scaduto.
JULIE COPELAND, Assistant United States
Attorney, Eastern District of New York
(Andrew J. Maloney, United States Attor-
ney, Eastern District of New York, David
V. Kirby, Emily Berger, Assistant United
States Attorneys, Eastern District of New
York, of counsel), for Plaintiff-Appellee
United States of America.
ae
E-3
CARDAMONE, Circuit Judge:
Loyalty of a lawyer to his client’s cause is the sine qua
non of the Sixth Amendment’s guarantee that an accused
is entitled to effective assistance of counsel. Because
defense counsel are best positioned to know when a con-
flict exists or will likely develop during the course of trial,
the initial responsibility for preventing the erosion of a
client’s rights rests on the lawyer’s shoulders. This appeal
raises questions concerning whether in this case that duty
was adequately discharged.
I. BACKGROUND
Andrea Aiello, Francesca Bartolotta and Lorenzo
Scaduto appeal from the disposition of their Fed. R.
Crim. P. 33 motion for a new trial, which the district
court treated as an application for a writ of habeas corpus,
28 U.S.C. § 2255, and denied. Appellants’ claims arising
from their convictions on heroin importation and distri-
bution charges have been previously considered and
affirmed on direct appeal in United States v. Aiello, 771
F.2d 621 (2d Cir. 1985). On the present appeal appellants
assert that their trial attorneys had conflicts of interest
that deprived them of effective assistance of counsel in
derogation of their Sixth Amendment rights. Although the
district court reviewed all the affidavits submitted on this
issue, it denied the application without a hearing. Because
we think that appellants are entitled to a fuller inquiry
into their claim, the order denying the writ is reversed and
the matter is remanded to the district court for further
proceedings. Appellant Scaduto also appeals the denial of
his Fed. R. Crim. P. 35(a) motion to correct his sentence.
Finding no merit to his claim, we affirm.
A. Facts
A brief summary of background facts is necessary. Fed-
eral and state agents arrested Lorenzo Scaduto, Andrea
E-4
Aiello, Salvatore Bartolotta, and Filippo Ragusa in Sep-
tember 1983. Ragusa is the father of appellant Francesca
Bartolotta, wife of Salvatore Bartolotta, and Maria
Scaduto, wife of appellant Lorenzo Scaduto. Francesca
Bartolotta was arrested and indicted several months later.
Shortly after the initial arrests, the two sisters—Francesca
and Maria—asked Mr. Evseroff to represent all of those
arrested on drug charges. He agreed to represent Fran-
cesca’s husband Salvatore and recommended a number of
lawyers to represent the other defendants. Among these
were Mr. Jeffrey A. Rabin, who later became Francesca
Bartolotta’s trial counsel and Mr. Arnold Taub, who rep-
resented appellant Andrea Aiello at trial. Attorney Ev-
seroff, in an affidavit, states that shortly after Salvatore
Bartolotta’s arrest and indictment by a New York State
Grand Jury he was asked to represent Bartolotta in the
state proceeding. Once Bartolotta was severed from the
original federal charge, Mrs. Scaduto and Mrs. Bartolotta
then asked Evseroff to represent Lorenzo Scaduto on the
federal charge. Attorney Evseroff further states that attor-
ney Rabin was retained to assist him in representing
Scaduto on the federal charges. Neither attorney indicates
in their affidavits who retained attorney Rabin. In addi-
tion to appearing for Scaduto, Mr. Rabin states that he
made appearances for Salvatore Bartolotta in the state
proceeding. Thus, at the end of 1983, Mr. Rabin was
assisting Mr. Evseroff in his representation of Salvatore
Bartolotta and Lorenzo Scaduto.
When appellants’ trial began in March 1984 Evseroff
continued to represent Salvatore Bartolotta and Scaduto,
Mr. Rabin represented Mrs. Bartolotta, and Mr. Taub
defended Aiello. Evseroff’s affidavit merely states that “it
was decided that Mr. Rabin ... would represent Fran-
cesca Bartolotta.” Mr. Rabin’s affidavit does not indicate
E-5
whether he was still consulting with her husband when he
undertook Mrs. Bartolotta’s defense. No dates are pro-
vided.
B. Alleged Areas of Conflict of Interest
There are two areas of disagreement between the affida-
vits submitted by appellants and the attorneys’ affidavits
furnished by the government—each area raises the possi-
bility of a conflict of interest. The first area of an alleged
conflict of interest is the failure to call Salvatore Barto-
lotta to testify. This conflict of interest contention centers
on attorney Jacob Evseroff who served as Scaduto’s trial
counsel. Mr. Evseroff also represented Francesca Bartolot-
ta’s husband, Salvatore, who was an unindicted co-
conspirator in his wife’s federal trial and a defendant in
state court for his part in the heroin scheme. Appellants
assert that Evseroff failed to call his client Salvatore Bar-
tolotta to testify in appellants’ federal trial because he put
Bartolotta’s interests above their interests. Trial counsel
representing the other appellants also failed to call Barto-
lotta as a witness because these lawyers were controlled,
appellants allege, by attorney Evseroff.
Appellants insist that they wanted Salvatore Bartolotta
to testify. Scaduto and Aiello state that they asked their
attorneys to call him, and Francesca Bartolotta indicates
that she discussed this possibility with Mr. Rabin. In their
affidavits attorneys Evseroff, Taub, and Rabin aver that
their respective clients did not wish them to call Barto-
lotta as a witness.
The affidavits submitted in support of the appellants’
applications suggest a reason for the failure to call Salva-
tore Bartolotta. Scaduto, Aiello, Maria Scaduto, and Rosa
Ragusa—another daughter of Filippo Ragusa and sister of
E-6
Maria Scaduto and Francesca Bartolotta—all claim that
Mr. Evseroff stated that he would not call Bartolotta
because he would get “50 years to life” for the charges he
was facing in state court if he testified in the federal case.
Francesca Bartolotta attributes that same statement to
attorney Rabin. Mr. Evseroff responds to that claim by
stating that he discussed the possibility of Bartolotta testi-
fying with Scaduto and Francesca Bartolotta and that they
vociferously opposed it. Mr. Taub states that he never
heard Mr. Evseroff state that Salvatore Bartolotta would
get more time if he testified. Attorney Rabin admits dis-
cussing with Francesca Bartolotta the possible conse-
quences of her husband’s testifying, but denies stating
that Salvatore Bartolotta would receive “50 years” if he
did in fact testify. Moreover, attorneys Taub and Rabin
cite tactical considerations for not having Bartolotta tes-
tify. Finally, Salvatore Bartolotta himself states in his affi-
davit that he was willing to testify, if called, but does not
indicate what his testimony would have been.
The affidavits differ most sharply in the second area
where there is a claimed conflict of interest. That alleged
conflict concerns counsel fees. While Maria Scaduto and
attorneys Taub and Evseroff agree that Maria Scaduto
was the ultimate source of the money paid to the trial
attorneys, they disagree as to the amount of fees paid and
how the fees were paid. Maria Scaduto claims that she
gave Mr. Evseroff $500,000 to pay for Evseroff’s represen-
tation of both Lorenzo Scaduto and Salvatore Bartolotta,
and for the services of the other attorneys. She further
claims that Mr. Evseroff told her that the money would be
distributed among the other attorneys, and informed her
of what attorneys Rabin’s and Taub’s fees would be as
part of that distribution. Her affidavit is silent as to who
would make the distribution.
E-7
Mr. Evseroff denies that the aggregate fee for all the
lawyers amounted to “anything approximating”
$500,000. He does acknowledge that Maria Scaduto
brought cash to his office for distribution and that the
money was distributed according to each lawyer’s fee
arrangement. But he does not indicate who effected the
distribution. Nor does Mr. Evseroff explain how he knew
that the money was distributed according to each lawyer’s
fee arrangement, when he was ignorant of what those
arrangements were. Contradicting Maria Scaduto, Mr.
Taub claims that she paid him directly on several occa-
sions.
The final point of disagreement involves the alleged
withholding by attorney Evseroff of legal fees for Mr.
Rabin, Mr. Taub, and other defense counsel. Maria
Scaduto and Francesca Bartolotta both state that they had
a September 1984 conversation with Mr. Rabin in which
he is supposed to have said that Mr. Evseroff had with-
held some of the money provided by Maria Scaduto. In
response, the government produced a letter from attorney
Rabin to an Assistant United States Attorney in which he
denied making those statements. Because both Mr. Taub’s
and Mr. Evseroff’s affidavits preceded the particular affi-
davits in which Scaduto and Bartolotta make this particu-
lar assertion, the attorneys’ affidavits do not directly
address it. Nonetheless, Mr. Taub’s and Mr. Evseroff’s
various statements concerning the payment of fees are
implicit denials of Scaduto’s and Bartolotta’s statements.
Faced with these conflicting sworn statements, the dis-
trict court denied appellants’ application without a hear-
ing. The trial court held that the appellants had either
failed to allege or establish an actual conflict of interest
sufficient to qualify as an actual conflict of interest
E-12
whether the appellants wanted Salvatore Bartolotta to tes-
tify, whether the defense counsel did or did not want him
and, if not, why not.
Two other factors persuade us that summary disposi-
tion of appellants’ application was inappropriate. Appel-
lants have not previously had an evidentiary hearing on
this claim, see Dalli, 491 F.2d at 761, and the circum-
stances providing the factual basis for appellants’ applica-
tion occurred outside of the courtroom. Thus, the files
and records of the case would be of little or no aid to the
trial court in passing on it. See Machibroda, 368 U.S. at
494-95.
For these reasons, we reverse the district court’s order
that denied their application for a writ and remand the
case for further inquiry into appellants’ claims. Of course,
such inquiry may take the form of an evidentiary hearing,
or the district court, in its discretion, may utilize any of
the habeas rules designed to supplement the record with-
out the necessity of conducting a full-blown evidentiary
hearing. See Rules Governing Habeas Corpus Cases, 28
U.S.C. app. fol. § 2255 (1982). See also Blackledge, 431
U.S. at 81-82 (discussing the advantages of Rules 6 and 7
of the Rules Governing Habeas Corpus for supplementing
the record while avoiding the necessity of a hearing).
III. SCADUTO’S RESENTENCING
Scaduto appeals from his resentence by the district
court following the disposition of the direct appeal.
Scaduto was convicted at trial of conspiracy to import
heroin (21 U.S.C. §§ 952, 960, 963), conspiracy to distrib-
ute heroin (§§ 841, 846), the substantive crimes of posses-
sion of heroin with intent to distribute (§ 841) and
importation of heroin (§§ 952, 960), and, managing a con-
E-13
tinuing criminal enterprise (§ 848). He was sentenced to a
35 year term with a $100,000 fine for the § 848 convic-
tion, a 14 year term and a $25,000 fine for each of the two
conspiracy convictions—these terms to run concurrently
with each other and consecutively to the § 848 sentence—
and a 15 year term and $25,000 fine for each of the two
convictions for the substantive crimes, these terms to run
concurrently to each other, but consecutively to those on
the other counts. See Aiello, 771 F.2d at 626-27.
On Scaduto’s direct appeal we followed the procedure
outlined in United States v. Osorio Estrada, 751 F.2d 128
(2d Cir. 1984), modified on reh’g on other grounds, 757
F.2d 27 (2d Cir.), cert. denied, 106 S. Ct. 97 (1985), for
handling convictions for lesser and greater offenses. Thus,
we vacated Scaduto’s sentences for the conspiracy convic-
tions and remanded the case to the district court for it to
combine those convictions with the continuing criminal
enterprise conviction, as well as for resentencing on the
latter conviction. See Aiello, 771 F.2d at 634. Upon
remand, the district court ultimately vacated the conspir-
acy convictions, thereby effectively combining them with
the § 848 conviction, and increased the sentence for the
§ 848 conviction from 35 to 45 years. The § 848 sentence
was concurrent with the sentences for the two substantive
counts. As a result of the district court’s resentencing, the
total sentence imposed on Scaduto was reduced.
The exact ground of Scaduto’s challenge to the district
court’s action is unclear. Presumably appellant objects to
the increase in the sentence on the § 848 conviction fol-
lowing the combination of it with the conspiracy convic-
tions. If this is the objection, it is groundless. We have
previously approved an increase of a § 848 sentence after
a conspiracy conviction has been combined with it. See
E-8
adversely affecting counsel’s performance. From this dis-
position an appeal was taken.
II. ALLEGED CONFLICT OF INTEREST CLAIMS
A. Standards For Assessing
The standard for assessing whether an attorney’s con-
flict of interest renders his assistance ineffective is set
forth in Cuyler v. Sullivan, 446 U.S. 335 (1980). “In order
to demonstrate a violation of his Sixth Amendment
rights, a defendant must establish that an actual conflict
of interest adversely affected his lawyer’s performance.”
Id. at 350. In examining this question, we consider first
whether the district court had a duty under either Fed. R.
Crim. P. 44(c) or the Constitution to inquire at the time
of trial into Mr. Evseroff’s representation of Scaduto and
Salvatore Bartolotta.
Appellants’ argument that the trial court erred in failing
to conduct a hearing into Mr. Evseroff’s dual representa-
tion as required by Rule 44(c) is misplaced. The language
of Rule 44(c) itself indicates that a hearing is required
only in cases where defendants have been “jointly
charged” or “joined for trial.” The Advisory Committee
Note accompanying the Rule confirms this: “Rule 44(c)
establishes a procedure for avoiding the occurrence of
events which might otherwise give rise to a plausible post-
conviction claim that because of joint representation the
defendants in a criminal case were deprived of their Sixth
Amendment right to the effective assistance of counsel.”
Fed. R. Crim. P. 44(c) Advisory Committee Note. More-
over, appellants do not point to—nor has research
uncovered—any case where a court has applied Rule
44(c) when one attorney represents two defendants—one
of whom is a potential witness in the trial of the other—
E-9
B. Dismissal Without A Hearing
Even without an affirmative duty to inquire at trial, the
relevant question on this appeal becomes: Should the dis-
trict court have denied the appellants’ post-trial applica-
tion without further inquiry? While it would go too far to
say that it was error for the district court to have failed to
conduct a full evidentiary hearing; nevertheless, it was not
an appropriate case for summary dismissal of the petition.
The language of § 2255 states that “[uJnless the motion
and the files and records conclusively show that the pris-
oner is entitled to no relief, the court shall... grant a
prompt hearing.” 28 U.S.C. § 2255 (1982). As a result, we
look with disfavor on summary rejection of a habeas peti-
tion when it is supported by a “sufficient affidavit.” Dalli
v. United States, 491 F.2d 758, 760 (2d Cir. 1974) (em-
phasis in original).
When considering a § 2255 habeas application the sup-
porting affidavits must be examined first. Opposing affi-
davits should also be considered in order to test the
sufficiency of the petitioner’s allegations, but not for find-
ing them false. See, e.g., Machibroda v. United States, 368
U.S. 487, 495 (1962); United States v. Franzese, 525 F.2d
27, 30-31 (2d Cir. 1975), cert. denied, 424 U.S. 921
(1976). Not every application that is supported by a set of
facially meritorious allegations will survive a motion to
deny the writ. To warrant plenary presentation of evi-
dence, the application must contain assertions of fact that
a petitioner is in a position to establish by competent evi-
dence. See Machibroda, 368 U.S. at 495-96; Dalli, 491
F.2d at 761. Whether there is a genuine issue of material
fact depends upon the sufficiency of those factual allega-
tions. Airy generalities, conclusory assertions and hearsay
statements will not suffice because none of these would be
E-10
in two different forums.’ Thus, we conclude that in this
instance the trial court had no duty under Rule 44(c) to
conduct an inquiry.
The Sixth Amendment also imposes a duty upon a trial
court to inquire when it “knows or reasonably should
know that a particular conflict exists.” Cuyler, 446 U.S. at
347. Appellants argue that there were three separate occa-
sions when Mr. Evseroff indicated that he was represent-
ing both Bartolotta and Scaduto. Yet, taken together these
instances were insufficient to alert the trial court to a pos-
sible conflict of interest. First, attorney Evseroff’s remarks
made it clear that Bartolotta and Scaduto were facing
separate proceedings. See Cuyler, 446 U.S. at 347 (“The
provision of separate trials for [the petitioner] and his
codefendants significantly reduced the potential for a
divergence in their interests.”); Mosier v. Murphy, 790
F.2d 62, 65 (10th Cir. 1986) (following Cuyler). Second,
the attorney’s comments indicated that Bartolotta’s and
Scaduto’s interests converged, rather than diverged, on
the particular issue that Evseroff was raising before the
court. Cuyler instructs that the consistency or compatibil-
ity of co-defendants’ defenses is a factor to be considered
in determining whether the trial court had notice of a
potential conflict. See Cuyler at 347. Finally, appellants
did not object at trial to the dual representation. See id. at
347. Thus, we conclude that the district court was not
obliged by Cuyler to conduct an inquiry at the trial.
1appellants also argue that attorneys Rabin and Evseroff were
“associated in the practice of law” within the meaning of Rule 44(c). Such
a relationship also triggers the requirement for an inquiry. This claim is
meritless. There is no evidence suggesting that the trial court should have
been aware of this “association” if, in fact, it existed.
E-11
admissible evidence at a hearing. See Franzese, 525 F.2d
at 31. Hence, like a motion for summary judgment in civil
cases, both the petitioner’s and government’s afiidavits—
taken together—are used to determine the existence of
genuine issues of material fact. See Blackledge v. Allison,
431 U.S. 63, 80-81 (1977); 3 C. Wright, Federal Practice
& Procedure, § 599 at 499 (2d ed. 1982). If the affidavits
disclose such material issues, then the application will sur-
vive a motion to dismiss and a contrary ruling that sum-
marily disposes of the petition is error. See Allison, 431
U.S. at 82-83.
The affidavits submitted here disclosed genuine issues
of material fact that should have been explored further.
As noted, they reveal sharp disputes concerning who paid
trial counsel, how much such counsel received, whether
fees were withheld, and whether the fees were divided as
a form of a referral fee. If these questions were resolved
in appellants’ favor,” it would then appear that attorney
Evseroff was in a position to control other defense coun-
sel. If that in fact was what occurred, it would be tanta-
mount to his representing all the appellants and
constitute, therefore, an impermissible conflict. The other
dispute concerns whether Mr. Evseroff had an actual con-
flict of interest in representing both Scaduto and Salva-
tore Bartolotta. Again, the affidavits sharply disagree on
2The affidavits submitted, including those submitted by counsel, if true,
raise disquieting questions about trial counsels’ sensitivity to issues of
professional resporsibility. In addition to the alleged basic conflict of
interest, there are questions involving referral fees and fee splitting and
withholding. Appellants also cite other unrelated conflicts of interest, such
as neglecting to discuss potential conflicts of interest with clients, contact-
ing a defendant without the knowledge or approval of that individual's
attorney, and failing to preserve the confidences of a client. The record
before us is far too incomplete to reach any conclusions on these allega-
tions, but we note them because they are troublesome ones that may not
properly be ignored.
E-14
United States v. Mourad, 729 F.2d 195, 203-04 (2d Cir.),
cert. denied, 469 U.S. 855 (1984). See also United States
v. Grayson, 795 F.2d 278, 287 (3d Cir. 1986), cert. denied,
107 S. Ct. 927 (1987) (district court may increase sen-
tence for § 848 conviction following vacation of conspir-
acy conviction).
CONCLUSION
Accordingly, the judgment denying appellants’ relief
under 28 U.S.C. § 2255 is reversed and remanded for fur-
ther proceedings on the conflict of interest claims. The
order denying Scaduto’s motion to be resentenced is
affirmed.
Reversed and remanded in part.
Affirmed in part.
APPENDIX F
FILED
in Clerk’s Office
U.S. District Court, — N.Y.
June 5, 1986
MEMORANDUM OF
DECISION AND
ORDER
83 CR 429
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
xX
UNITED STATES OF AMERICA,
Plaintiff,
—against—
ANDREA AIELLO, a/k/a “ANTONIO
AIELLO,” FRANCESCA BARTOLOTTA,
and LORENZO SCADUTO,
Defendants.
X
Defendants move this court pursuant to F.R. Crim. P. 33
_for a new trial upon the ground that newly discovered evi-
dence requires a new trial in the interest of justice.
This court, after having reviewed the submissions of
defendants’ concluded that the alleged conflict of interest in
violation of defendants’ Sixth Amendment rights was not
newly discovered evidence at all, but rather an application for
a writ of Habeas Corpus pursuant to 28 U.S.C. 2255.
F-6
exculpatory. The opposition also highlights the fact that
defendants were aware that Evseroff represented both
Scaduto and Salvatore Bartolotta.
There is neither a claim nor an intimation that THIS
COURT was aware of Evseroff’s multiple representation.
The government also submitted the affidavits of de-
fendants’ former counsel. These affidavits state in relevant
part:
Jacob Evseroff details the circumstances surrounding his
retainer by Francesca Bartolotta and Maria Scaduto.
Evseroff claims that he had numerous conferences with
Scaduto and Salvatore Bartolotta and that “it was made
abundantly clear by Scaduto, and by Salvatore and Fran-
cesca Bartolotta, that none of them were desirous of Salvatore
Bartolotta testifying as a witness in [this] trial, although |
suggested this to each of them as a viable possibility, though I
did not recommend it and all of them unanimously and
vociferously opted against his testimony.”
Evseroff further states that Salvatore Bartolotta “never
entertained the prospect” of entering a negotiated plea to his
pending state indictment, “and that he had planned to put the
State to its proof.”
Additionally, Evseroff contends that it was his advice that
Mrs. Bartolotta and Aiello each testify on their own behalf
but that this advice was ignored. Evseroff denies withholding
fees due to the other attorneys in the case and claims that the
fees were distributed in accordance with the agreement
between the parties.
Jeffrey Rabin, in his affidavit, denies Mrs. Bartolotta’s
F-7
contention that his legal advice to her was based upon a desire
to protect her husband. Rabin concedes a prior appearance
on behalf of Scaduto but notes that it was prior to Mrs.
Bartolotta’s being indicted. With respect to the contention
that Mr. Bartolotta should have been called as a witness on
his wife’s behalf, Rabin contends tht she was advised that it
would have been to her “detriment to have her husband called
to the stand because of the wealth of material that the prose-
cution had to cross-examine him on and attack his credibility
with. Mrs. Bartolotta concurred in this decision never
wanting her husband to learn all the facts of her case or
hear the conversations she had with a Francesca Affatigato,
the individual that she had an ongoing relationship with
during that time.”
Rabin also contends that the decision not to call Mrs.
Bartolotta “as a witness was done for her benefit and her
benefit alone without any concern for the plight of her
husband.”
. é . ’ . 7
Rabin’s affidavit discusses Mrs. Bartolotta’s adamant
refusal to ever testify at her trial.
Rabin’s affidavit also discusses Scaduto’s great dislike for
Mr. Bartolotta. “It was always Mr. Scaduto’s belief that Mr.
Bartolotta was a liability and that the danger in calling him as
a witness far outweighed the benefit that there would have
been in using him.”
Arnold Taub’s affirmation avers that it was his impression
that Aiello was satisfied with his representation in that Aiello
was acquitted of an § 848 count. Taub denies ever hearing
anyone tell Aiello that there was no case against him es-
pecially after “having seen the videotape of Aiello removing
F-2
I. THE MOTION
The alleged “newly discovered evidence” is defendant’s
conclusion that since the attorney for defendant Lorenzo
Scaduto (“Scaduto”), Jacob Evseroff, (“Evseroff”) also rep-
resented Salvatore Bartolotta, the Sixth Amendment rights of
the above-named defendants were violated.
Salvatore Bartolotta is the husband of defendant Fran-
cesca Bartolotta. Salvatore Bartolotta was not a defendant in
the instant case. He was, however, prosecuted for sub-
stantially the same offenses in a New York State court pro-
ceeding and was an unindicted co-conspirator in this case.
Salvatore Bartolotta was convicted upon a plea of guilty to
the State court charges pursuant to a plea-bargain agreement.
Francesca Bartolotta also contends that because her attor-
ney, Jeffrey Rabin, (“Rabin”) appeared at a pre-trial
conference on behalf of Salvatore Bartolotta, her Sixth
Amendment rights were compromised.
Andrea Aiello, (“Aiello”) contends that since Scaduto and
Francesca Bartolotta’s Sixth Amendment rights were vio-
lated, he too, must have been a victim of the alleged conflict of
interest.
This court directed the parties to submit briefs on the Sixth
Amendment issues. Neither the government’s nor the
defendants’ briefs cite the proper authority for the proposi-
tions espoused. The defendants, however, citing United States
v. Cancilla, 725 F.2d 867 (2d Cir. 1984) have alleged the
following:
|. That Mr. Evseroff admittedly represented not
F-3
only Mr. Scaduto but also Salvatore Barto-
lotta and Filippo Ragussa;
2. That Mr. Rabin admittedly represented not only
Mrs. Bartolotta but also Charlie Salemi for a
time and Sal Bartolotta on a hearing;
3. That Mr. Evseroff not only handpicked defense
counsel but also may have arranged for their
payment at his offices;
4. That Mr. Evseroff may have either misappro-
priated funds by taking illegal and unethical
referral. fees from other defense attorneys
(including Mr. Rabin and Mr. Taub) and/or
held back a portion of their legal fees to extort
their cooperation, however tacitly; and
5. That Mr. Evseroff, whether acting out of loyalty
to his clients, self-interest, or admiration for Mr.
Taub, may have, knowingly or not, forced Mr.
Aiello to accept Mr. Taub as his attorney.
6. The fact that Mr. Evseroff appears to have been
involved in both Cancilla and our case may be
more than a happy coincidence and should alert
the Court to ponder his predisposition and
credibility on conflict-of-interest questions.
In Cancilla as well, he failed to perceive or
admit to any conflict.
Moreover, the defendants have submitted affidavits as
follows:
Lorenzo Scaduto contends that he insisted that Evseroff
call Salvatore Bartolotta as a witness on his behalf and that
F-4
Evseroff refused. Scaduto claims that Salvatore Bartolotta
would have convinced the jury that the name “Lorenzo”
referred to in a “notebook” found in Bartolotta’s house was
not him.
Maria Scaduto contends that Salvatore Bartolotta would
have exonerated her husband. Mrs. Scaduto also contends
that Evseroff told her that he “controlled” the other attorneys
on the case.
Andrea Aiello contends that he was not given any choice in
the selection of counsel, but rather that Evseroff told him that
Arnold Taub (“Taub”) would be his attorney. Aiello claims
that his trial was a “mockery” and his lawyer was Evseroff’s
“puppet.” Aiello additionally claims that he was willing to
testify on his own behalf, but was not permitted to do so.
Aiello also contends that Salvatore Bartolotta’s testimony
would have exonerated him.
Rosa Ragusa contends that Salvatore Bartolotta ex pressed
his willingness to testify at the trial. She also claims to have
asked Evseroff if he was going to call Salvatore Bartolotta at
the trial and that Evseroff said that if Bartolotta testified he
“will get fifty years to life.”
Francesca Bartolotta contends that she was advised not to
call her husband as a witness because he would get “fifty
years.” Mrs. Bartolotta was also dissuaded from testifying on
her own behalf “because | would have had to implicate my
husband.”
Salvatore Bartolotta’s affidavit states that he was informed
ot his status as an unindicted co-conspirator in this case and
that evidence involving him was admitted at the tnal. He is
F-5
also aware that a notebook “allegedly taken from my house
was introduced into evidence” at the trial. He also states that
Rabin has, in the past, appeared on his behalf. Finally
Bartolotta avers:
That I was not requested, subpoenaed or asked by
Jacob Evseroff nor by any attorney to appear in this
Court and testify on behalf of Francesca Bartolotta,
Lorenzo Scaduto and Andrea Aiello. That had |
been asked by attorney to testify | would have vol-
untarily testified and I was available to do so.
Maria Scaduto and Francesca Bartolotta submitted supp-
lemental affidavits wherein they relate a conversation they
had with Rabin at which time Rabin advised them that
Evseroff “had not paid the other defense lawyers the money
that had been left with him for their legal fees.” !
The government, in opposition, distinguishes Cancilla
from the instant case but does not cite the relevant authority
to be applied.
The government, however, pursuant to United States v.
Franzese, 525 F.2d 27, 30 (2d Cir. 1975), cert. denied sub nom
Potere v. United States, 424 U.S. 921 (1976), submitted affi-
davits of defendants’ former cou
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