# Petition for Writ of Certiorari — Aiello v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0687%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 489 U.S. 1018 ## Text © | YTvep 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 ¢# : ‘ i i i ; ¥ ; 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. 4 ig = * 8 RT EF Hs See alee Rub ABCR LT TROY | SE ah nhl I ear Ra Gee an BUSS ee Sie, WAAR ap ara et Ua 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. é r te i 4 3 5 A S| 3 af : # a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0687%3A1. Public record. Not legal advice.