Petition — DiCarlo v. United States

Supreme Court brief1978

Ask Donna

What actually matters in this document.

Text

In the L miciaer RODAK, JR. CLERK

Supreme Court of the United States. -

Ocroser Term, 1978.

No. @y-179%

JOSEPH J. C. DiCARLO anp

RONALD C. MacKENZIE,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Francis J. DiMento,

DiMento & SULLIVAN,

100 State Street,

Boston, Massachusetts 02109.

(617) 523-5253

Attorney for Petitioner

Joseph J.C. DiCarlo.

Ear_e C. Coo.ey,

Hae & Dorr,

60 State Street,

Boston, Massachusetts 02109.

(617) 742-9100

Davin J. Fine,

ROSENBERG, BAKER & FINE,

Of Counsel: 133 Mt. Auburn Street

RoseNnBerGc, BAKER & FINE, Cambridge, Massachusetts 02138.

133 Mt. Auburn Street, (617) 354-2937

Cambridge, Massachusetts 02138. Attorneys for Petitioner

(617) 354-2937 Ronald C. MacKenzie.

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents

Opinions Below

Jurisdiction

Questions Presented

Constitutional and Statutory

Provisions Involved

Statement of the Case

A. Violation of Brady and Agurs

B. Conflict of Interest

1. Role of Harrington and

Joyce in directing

DiCarlo to Hurley

2. Circumstances Surrounding

setting and payment of

Hurley's fee

3. Role of Harrington and

Joyce in directing

MacKenzie to Mulkern

4. Failure of Hurley and

Mulkern to elicit the

names Of Harrington and

Sargent as recipients of

Suspicious payments from

MBM, and to pursue the line

of inquirv use of the names

would have opened up

Reasons for Granting the Writ

I. Certiorari should be granted

to resolve the sharp conflict

between the First Circuit's

decision below and the Third

Circuit's decision in United

States v. McCrane on what

constitutes a “specific

request" for exculpatory

evidence with the meaning

of Agurs.

II. Certiorari should be granted

iii

2. Legal standards for

evidentiary hearing 33

C. Elements of Claim that the

Constitutional Right to the

Undivided Loyalty of Counsel

Has Been Violated 36

D. Application of Legal

Principles Here 40

E. The Erroneous Legal Analysis

Adopted by the Court Below:

The Bifurcation Between Dual

Representation Standards and

to enable this Court to continue

the work it began in Holloway v.

Arkansas of bringing order and

cohesion into the currently

confused state of the law on

the criminal defendant's con-

stitutional right to the undi-

vided loyalty of his counsel.

In particular, this case provides

an ideal vehicle for clarifying

when a defendant is entitled to

an evidentiary hearing on his

claim that a new trial is

required because his attorney

was involved in a conflict of

intcucrest. 27

A. Introduction 27

B. Evidentiary Hearing 31

1. Judicial notice of

facts relating to

the investigaticn

of the MBM matter 31

Joint Representation

Standards 47

F. The Court of Appeals’

Invalid Finding of Waiver 55

Conclusion 58

Appendix

Opinion of the United States

Court of Appeals for the

First Circuit la

Opinion of the United States

District Court for the

District of Massachusetts 17a

Affidavit of Assistant United

States Attorney Edward J. Lee 32a

Table of Authorities Presented

Cases

Austin v. Erickson,

477 F.2d 620 (8th Cir. 1973)

Blackledge v. Allison,

97 S.Ct. 1621 (1977) 34,

Brady v. Maryland,

373 U.S. 83 (1963) 8, 9, 21, 22,

Chapman v. California,

386 U.S. 18 (1967)

Cinema 5, Ltd. v. Cinema, Inc.,

528 F.2d 1384 (2d Cir. 1976)

Commonwealth v. Geraway, 364 Mass.

168, 301 N.E.2d 814 (1973)

Foxworth v. Wainwright, 516 F.2d

1072 (5th Cir. 1975) 37-38,

Glasser v. United States,

315 U.S. 60 (1942) 27, 38-39,

Holloway v. Arkansas,

46 U.S.L.W. 4289 3,

(U.S., April 3, 1978) 30, 38,

Laskey Bros, Inc. v. Warner Bros.,

Pictures, Inc., 224 F.2d 824

(2d Cir. 1955)

Lollar v. United States,

376 F.2d 243 (D.C.Cir. 1967)

Machibroda v. United States,

38 U.S. 487 (1962)

Miller v. United States, 564 F.2d

103 (lst Cir. 1977) 47, 48, 49

Porter v. United States, 298 F.2d

461 (5th Cir. 1962) 28, 35-36

United States v. Agurs, 427 U.S.

97 (1976) passim

United States v. DiCarlo, 565

F.2d "02 (1977), cert. denied,

46 U.S.L.W. 3586 (U.S. March

20, 1978) 8

United States v. Donahue, 560 F.2d

1039 (lst Cir. 1977) 39, 40, 48

United States v. Hurt,

543 F.2d 162 (1976) 39

United States v. James, 505 F.2d

828 (5th Cir. 1975), cert.

denied, 421 U.S. 1000 55

United States v. LaVallee, 282

F.Supp. 968 (E.D.N.Y. 1968) 57

United States v. McCrane, 547 F.2d

204 (3d Cir. 1976), reaffirming

United States v. McCrane, 527

F.2d 906 (3d Cir. 1975) 2, 14

2h, 22, 23, 24, 25

Von Moltke v. Gillies, 332 U.S.

708 (1948) 27, 28

Zurita v. United States,

410 F.2d 477 (7th Cir. 1969)

Constitutional and Statutory

Provisions

United States Constitution

Fifth Amendment

Sixth Amendment

18 U.S.C. §1951

§1952

28 U.S.C. §1254(1)

§2255 6,

Miscellaneous

"Anatomy of a Scandal 1964: U Mass

Boston is born, 1978: MBM probe

goes on," The Boston Herald

American, March 14, 1978

The Boston Globe, December 24,

1977, p. 1, col. 1-6

The Boston Herald American,

December 24, 1977, p. l,

col. 1-6

Comment, Conflict of Interest in

Multiple Representation of Cri-

minal Co-Defendants, 68 Journal

of Criminal Law & Criminology

226 (1977) 36-37,

Hyman, Joint Representation of Mul-

tiple Defendants in a Criminal

Trial: The Court's Headache, 5

Hofstra Law Review 315 (1977) 29,

&> N s~ OV oO

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

JOSEPH J. C. DiCARLO and

RONALD C. MacKENZIE,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit.

Joseph J. C. DiCarlo and Ronald C.

MacKenzie petition for a writ of certio-

rari to review the judgment of the United

States Court of Appeals for the First

Circuit entered in this case on April 20,

1978.

Opinions Below

The opinion of the court of appeals,

not yet reported, is reproduced in the

Appendix at pp. la-l6a. The opinion of

the district court, also not reported,

is reproduced in the Appendix at pp. l7a-

3la.

Jurisdiction

The judgment of the court of appeals

was entered on April 20, 1978. The time

for filing this petition was extended to

and including June 19, 1978. This Court's

jurisdiction is invoked under 28 U.S.C.

§1254(1).

Questions Presented

1. This case presents a timely

opportunity for this Court to define what

constitutes a "specific request for excul-

patory evidence" as that concept is used

in United States v. Agurs, 427 U.S. 97

(1976), and to resolve a sharp conflict

between the decision of the First Circuit

below and the decision of the Third Cir-

cuit in United States v. McCrane, 547

F.2d 204 (1976) with respect to the

following question:

Does a pretrial discovery request

for disclosure of all statements, promises

and rewards given to government witnesses,

constitute a specific request, as defined

in Agurs, for favorable letters written

by the government to the prospec -ive

business customers of a key prosecution

witness?

2. This case presents the opportu-

nity for this Court to continue the work

it began in Holloway v. Arkansas, 46 U.S.

L.W. 4289 (U.S., April 3, 1978) of bring-

ing order and cohesion into the currently

confused state of the law on the criminal

defendant's constitutional right to the

undivided loyalty of his counsel. In

particular, this case squarely poses the

following questions:

a.i. What must a criminal defen-

dant show to obtain an evidentiary hearing

on his claim that he is entitled to a new

trial because his trial attorney was

involved in a conflict of interest?

ii. Was it proper to deny an evi-

dentiary hearing here where petitioners

alleged with particularity (a) that their

trial attorneys had a conflict of interest

in protecting two prominent Massachusetts

public officials, (b) that this conflict

infected the attorneys’ decision not to

elicit the names of the officials before

the jury as recipients of questionable

payments from the same firm that was

alleged to be the victim of the extor-

tion with which petitioners were charged,

and (c) that the decision not to elicit

the names prejudiced petitioners’ defense?

b. Was it proper to deny sum-

marily petitioners’ claim for relief where

the court below conceded the interest of

the two officials in avoiding exposure but

sought to discount the conflict on the basis

of speculation that this interest was not

as great as petitioners alleged -- specula-

tion contradicted by the political scandal

initiated when disclosure of the payments

to the public officials ultimately became

public 11 months later at the oral argument

of petitioners' new trial motion?

c. Was it proper for the court

below to evaluate petitioners' conflict

of interest claim by a more stringent

test that it would have applied ia a case

of "joint representation,"where one attor-

ney represents two or more defendants in

the same case? In particular, was it pro-

per for the court to apply a standard

which required petitioners to prove that

their trial attorneys subjectively in-

tended to sacrifice their interests to

those of the two public officials, and to

reject petitioners’ claim without even

affording petitioners the opportunity to

meet that standard at an evidentiary

hearing, at which they could question

their trial attorneys?

dad. Was it proper for the court

below to rely on an implicit finding that

petitioners had waived their right to the

undivided loyalty of their counsel, where

that finding was based onthe court's spe-

culation and given that petitioners denied

waiver and claimed that, as a matter of

law, waiver could not be found unless the

government carried its burden of proving

a “knowing and intelligent waiver" at an

evidentiary hearing.

Constitutional and Statutory

Provisions Involved

The Fifth Amendment to the United

States Constitution provides in perti-

nent part:

"No person shall ... be

deprived of life, liberty, or

property, without due process

The Sixth Amendment to the United

States Constitution provides in perti-

nent part:

"In all criminal prosecutions,

the accused shall enjoy the right

- + « « to have the Assistance of

Counsel for his defence."

Section 2255 of Title 28 of the

United States Code, establishing the pro-

cedure for motions to vacate a sentence

imposed by a federal court, provides in

pertinent part:

". .« « Unless the motion and the

files and records of the case con-

Clusively show that the prisoner is

entitled to no relief, the court

shall cause notice thereof to be

served upon the United States Attor-

ney, grant a prompt hearing thereon,

determine the issues and make

findings of fact and conclusions of

law with respect thereto."

Statement of the Case

Petitioners were jointly tried and

convicted on an eight-count indictment

charging conspiracy and substantive vio-

lations of the Hobbs and Travel Acts, 18

U.S.C. §§1951 and 1952. These offenses

were alleged to have been committed

between February 1971 and July 1972,

during which period both petitioners were

members of the Massachusetts Senate. The

essence of the charges against petitioners

is that they planned and executed a scheme

to extort $40,000 from McKee-Berger-

Mansueto, Inc. ("MBM"), a New York based

construction management firm. In December

1969, MBM was awarded a multi-million

dollar contract to oversee construction

of a new campus for the University of

Massachusetts at Columbia Point in Boston.

In 1971, a legislative committee chaired

by petitioner DiCarlo investigated the

contract. At petitioners' trial, the pro-

secution sought to prove that petitioners

extorted money from MBM by exploiting its

fear that the committee's investigation

would result in an unfavorable report

which would jeopardize MBM's contract

and financial position generally.

Petitioners' convictions were af-

firmed on direct appeal, United States v.

DiCarlo, 565 F.2d 802 (1977), and this

Court denied their petition for certio-

rari, 46 U.S.L.W. 3586 (U.S., March 20,

1978).

While their direct appeal was pend-

ing, petitioners filed a motion for a new

trial in the district court on the

grounds, inter alia, that:

a. The government Suppressed

evidence in violation of its duties under

Brady v. Maryland, 373 U.S. 83 (1963) and

United States v. Agurs, 427 U.S. 97

(1976).

b. Their trial counsel had been

involved in a conflict of interest which

precluded them from representing their

clients with the undivided loyalty the

Constitution requires.

Petitioners requested an evidentiary

hearing on each branch of their new trial

motion and also filed a motion for dis-

covery. The district court, however,

rejected petitioners' motion for dis-

covery and their request for an eviden-

tiary hearing, and summarily denied their

new trial motion. See pp. 17a-30a.

Petitioners now seek a writ of certiorari

to review the decision of the court of

appeals affirming this summary rejection

of petitioners' claims.

A. Violation of Brady and Agurs

Prior to the commencement of trial on

January 24, 1977, the prosecutor, Assis-

tant United States Attorney Edward J. Lee,

wrote two letters to prospective customers

of MBM. Petitioners contend that these

letters were highly critical evidence of

promises, inducements or rewards given by

the government to the MBM witnesses, and

that the government's failure to produce

the letters in response to petitioner's

pretrial discovery requests violated peti-

tioners' right to a fair trial under

Brady v. Maryland, 373 U.S. 83 (1963) and

United States v. Agurs, 427 U.S. 97

(1976).

The first letter, dated September 2,

1976, was written in response to a letter

from a public agency in New Jersey stating

that it was considering awarding a con-

sulting engineer contract to MBM. Mr.

Lee's letter stated that the indictment

charged that MBM and its principals "were

the victims of an extortion scheme," that

MBM and its principals were not charged

in the indictment as defendants or co-

conspirators, and that they "have coope-

rated from the outset with federal autho-

rities in the conduct of the investiga-

tion which led to the indictment." The

letter concluded,

"Further, this office is not

aware of any reason why MBM

should be disqualified from

public work." a.t 235.

Mr. Lee's second letter, dated

December 10, 1976, was in response to a

tentatively selected for participation in

a public project, and requesting, among

other things, that the United States

Attorney in Boston provide the mayor's

office with any information

"that in any way relates to

improper activities by this

firm [MBM] in its dealings

with agencies within your

jurisdiction." A. 236.

Mr. Lee's second letter was almost iden-

tical to his first and, like the first,

concluded with the statement:

"Further, this office is not

aware of any reason why McKee-

Berger-Mansueto, Inc. should be

disqualified from public work."

A. 241.

In United States v. Agurs, 427 U.S.

97 (1976), this Court held that a prose-

cutor had a constitutional duty to dis-

close exculpatory evidence that is "ma-

terial" to the defense. The Court also

ruled, however, that the standard of

letter from the mayor's oftice in San

Francisco stating that MBM had been

materiality is different when the defense

requests specific evidence than when the

l defense makes no request, or only a gene-

"A." denotes references to the appen-

dix filed in the court of appeals. ral one, for exculpatory material. When

a specific request for exculpatory evi-

dence is made, suppression of the evi-

dence will require a new trial so long

as the suppressed evidence meets a mini-

mum standard of materiality:

"(IJ]f the subject matter of

such a [specific] request is

material, or indeed if a sub-

stantial basis for claiming

materiality exists, it is rea-

sonable to require the prosecu-

tor to respond either by fur-

nishing the information or by

submitting the problem to the

trial judge. When the prosecu-

tor receives a specific and

relevant request, the failure

to make any response is seldom,

if ever excusable." 427 U.s.

at 106 (emphasis added).

When, on the other hand, no request,

Or only a general request, for exculpa-

tory evidence is made, the suppressed

evidence must meet a more stringent stan-

dard of materiality. In such a situa-

tion, a new trial will be required only

if the trial judge, evaluating the sup-

pressed evidence in the context of the

entire trial record, determines that the

"omitted evidence creates a reasonable

doubt that did not otherwise exist." 427

U.S. at 112. “

: eb ela

In their pretrial Consolidated

Motion for Discovery, petitioners

sought discovery of

"23. All statements or promises or

rewards of any kind, or tending in

any way, directly or indirectly, to

induce or encourage the giving of

testimony, which statements have

been made to any persons whom the

Government intends to call as wit-

nesses at the trial of the indict-

ment herein.

"24. All evidence of any kind

favorable to the defendants material

either to guilt or punishment, in-

Cluding without limitation that

which may tend to be exculpatory,

to impeach or discredit incrimina-

tory evidence or to mitigate the

crime charged, or which may lead

to evidence of such character."

Appendix on Direct Appeal, p. 60.

Petitioners contend that item 23 consti-

tuted a specific request within the

meaning of Agurs for the letters written

by prosecutor Lee and for all communica-

tions between the government and the MBM

witnesses relating to the letters.

The court of appeals rejected this

Claim. Opinion, pp. 10a-l4a. As demon-

Strated below, this ruling is squarely in

conflict with the decision of the Third

Circuit in United States v. McCrane,

547 F.2d 204 (3d Cir. 1976).

B. Conflict of Interest

The relevant contentions contained

in petitioners' new trial motion, which

must be accepted as true for present

purposes because petitioners' motion

was denied summarily, may be summarized

as follows.

1. Role of Harrington and Joyce

in Directing DiCarlo to Hurley

In June 1975, over one year prior

to the return of the indictments in this

case, the president of the Massachusetts

Senate, Kevin B. Harrington, informed

petitioner DiCarlo that he was the sub-

ject of a federal criminal investigation.

A. 160. Harrington suggested that

DiCarlo obtain the services of an attor-

this information. Petitioners maintain

that this in itself is a potentially

Significant question which they should

have been able to explore in an evi-

dentiary hearing.

It is unclear how Harrington obtained

ney, and recommended Walter J. Hurley.

Id. Hurley was at all times relevant to

this case associated in the practice of

law with Thomas M. Joyce. A. 148, 160,

163, 174. Joyce was a well known

lobbyist and lawyer who had particularly

close ties with Harrington and former

Governor Francis W. Sargent. A. 148,

160, 168. Indeed, petitioners alleged

that Joyce was "the attorney, political

advisor and close friend and associate"

of Harrington and Sargent. A. 148.

Harrington had DiCarlo meet with

Joyce who in turn gave DiCarlo instruc-

tions for meeting with Hurley. A. 160.

At one point, Joyce told DiCarlo that

he knew someone in Washington in the

Justice Department who would be able to

keep him abreast of the progress of the

investigation, and thus enable him to

alert Hurley of any developments. A. 1612

3 Like Harrington's intelligence con-

cerning the fact that DiCarlo was the

subject of a criminal investigation,

Joyce's claim that he had a "source" in

the Justice Department is a circumstance

that petitioners should have been able

to probe in an evidentiary hearing.

2. Circumstances Surrounding Setting

and Payment of Hurley's Fee

When DiCarlo first met with Hurley,

there was no discussion of fees. A. 16l.

Subsequently, DiCarlo himself raised the

question of fee with Hurley on several

occasions, but was told each time by Hur-

ley that Joyce would talk to him. aA. 163.

On another occasion, DiCarlo raised the

subject with Harrington, who told DiCarlo

not to worry "because Joyce would take

care of Mr. Hurley's fee." Id. Finally,

after more insistence on DiCarlo's part,

Hurley set a fee of $10,000, $9,500 of

which DiCarlo paid in a series of four

checks. A. 163. Hurley endorsed each of

these checks to the order of Joyce, and

each was deposited in the account of

Joyce's law firm. Id.

3. Role of Harrington and Joyce in

Directing MacKenzie to Mulkern

Petitioner MacKenzie first found out

that he was the subject of a criminal

investigation from DiCarlo, who had ob-

tained this information from Hurley. A.

161, 176. DiCarlo told MacKenzie he

should retain attorney Robert V. Mulkern.

A. 176. When MacKenzie informed DiCarlo

that he wanted to retain his present

counsel, Earle C. Cocley, DiCarlo became

agitated and told MacKenzie it was very

important that he retain Mulkern and not

Cooley. A. 177. Hurley had told DiCarlo

to make sure that MacKenzie retained

Mulkern because it was extremely impor-

tant that MacKenzie be represented by a

lawyer who would be friendly to them and

with whom Hurley could work cooperatively.

A. 161.

Despite misgivings, MacKenzie acceded

to DiCarlo's urging and retained Mulkern.

A. 177. As the matter progressed, how-

ever, MacKenzie became concerned that

Mulkern was not giving his case the time

and attention it required. A.177. On

more than one occasion, MacKenzie ex-

pressed dissatisfication to DiCarlo about

Mulkern. Id. DiCarlo reassured Mac-

Kenzie that Hurley was leading the defense

and had the situation well in hand. A.

162, 177. Joyce told DiCarlo that it was

important that Mulkern continue as Mac-

Kenzie's attorney, that DiCarlo was only

on the perimeter of the investigation and

was being hurt by MacKenzie, and that

what was done for MacKenzie would be

helpful to DiCarlo. A. 162.

4. Failure of Hurley and Mulkern

to Elicit the Names of Harring-

ton and Sargent as Recipients

of Suspicious Payments from

MBM, and to Pursue the Line of

Inquiry Use of the Names Would

Have Opened Up

On the sixth day of trial, prosecu-

tor Lee furnished Hurley and Mulkern with

materials containing reports of FBI

interviews with MBM president McKee, who

was then on the stand, and MBM officer,

Jack Thomas, who had yet to testify.

These materials revealed, inter alia,

statements of MBM officials that MBM had

made payments to certain Massachusetts

politicians, including a $2,000 payment

to Senate President Harrington, and two

payments of $10,000 each to Albert Manzi,

at least one of which was to be a politi-

cal contribution for then Governor

Sargent. A. 26-31.

After this report was turned over to

Hurley and Mulkern, they discussed it at

a meeting during a recess with DiCarlo and

MacKenzie. A. 163-164, 178-178. DiCarlo

instructed Hurley without hesitation that

the information concerning the payments

to Harrington and Sargent should be used

in the defense. Id. DiCarlo said, "Use

it, if it's helpful. Bring it out. With-

hold nothing." Id. MacKenzie concurred.

Id. Nevertheless, despite these instruc-

tions, Hurley and Mulkern never elicited

the names of the recipients of the pay-

ments before the jury.

The failure to elicit the names of

Harrington and Sargent was prejudicial

to the petitioners because, among other

things, use of the names would have laid

the groundwork for a defense that MBM's

interests were already protected by its

payments to officials higher and more

powerful than either DiCarlo and Mac-

Kenzie and that, consequently, any pay-

ments to or for the petitioners could not

have been induced by fear or under color

of official right. Evidence of the pay-

ments to Harrington and Sargent would

have shown that MBM had "friends in high

places" who could have helped them resist

the type of pressure which the MBM wit-

nesses alleged that the petitioners had

communicated. Thus, the evidence would

have signficiantly assisted the peti-

tioners in arguing to the jury that any

payments to or for the petitioners were

no different than the numerous other

payments which MBM made to public

officials.*

. In grand jury testimony which he gave

in July 1975, MBM employee William F.

Harding stated that he had delivered

"hundreds" of sealed envelopes containing

"campaign contributions" to government

officials "all over the country."

Appendix on Direct Appeal, pp. 910-911.

Reasons for Granting the Writ

I. Certiorari should be granted to

resolve the sharp conflict between

the First Circuit's decision below

and the Third Circuit's decision in

United States v. McCrane on what

constitutes a "specific request"

for exculpatory evidence within

the meaning of Agurs.

As indicated above, this Court held

in Agurs that a prosecutor has a consti-

tutional duty to disclose exculpatory

evidence that is "material" to the de-

fense, and that the standard of materia-

lity is substantially different when the

defense makes a specific request for

exculpatory evidence than when it makes

no request, or only a general one. But

although the differing standards of .

materiality are defined by the Court with

some precision, the opinion in Agurs con-

tains no guidelines for determining when

a request should be deemed "specific" and

when "general." The only guidance the

opinion provides is in the frorm of a few,

sparse illustrations. Thus, the Court

gives as an example of a specific request

the request made in Brady itself, where

defense counsel sought all extrajudicial

statements made by Brady's accomplice,

Boblit. 427 U.S. at 104. And, the Court

gives as examples of general requests, a

request for "all Brady material" or

"anything exculpatory." 427 U.S. at 106.

Beyond these few examples, however, the

Court leaves the task of definition to

another day.

The present case is an ideal vehicle

for the Court to take up where it left

off in Agurs. The facts here are

remarkably similar to those in United

States v. McCrane, 547 F.2d 204 (3d Cir.

1976) ("McCrane II"), reaffirming United

States v. McCrane, 527 F.2d 906 (3d Cir.

1975) ("McCrane I"), after remand for

further consideration in light of United

States v. Agurs, 427 U.S. 97 (1976). In

McCrane, as here, the presecutor failed to

disclose letters he had written to pro-

spective customers of a key government

witness. And in McCrane II, as here, the

issue arose as to whether a discovery

request made by the defense constituted

a "specific request" for the letters with-

in the meaning of Agurs. In McCrane, the

request at issue sought

"(M]aterial which may be used to

impeach prosecution witnesses,

including but not limited to any

standards used by the Department

of Justice, the Treasury Depart-

ment, the Internal Revenue Ser-

vice or the United States Attor-

ney in declining prosecution of

Similar cases." 547 F.2d at 207.

The Third Circuit held that this request

was sufficiently focused to invoke the

"specific request" standard of materia-

lity under Agurs. The court stated, in

words that apply with even greater force

here:

"It requires no profound intel-

lectual analysis to perceive that

the defense was seeking material

that might provide a basis for a

Claim of prosecutorial favoritism

or preferential treatment of

government witnesses." 547 F.2d

at 207.

Moreover, it must be emphasized that

.M arguing McCrane II before the Third

Circuit, the government explicitly con-

ceded that McCrane's request

""would have been sufficiently

specific if it had requested dis-

closure of all promises made to

the witness and all actions under-

taken on the witness’ behalf or at

the witness’ request.'" 547 F.2d

at 208.

In other words, the government conceded

in McCrane that precisely the type of

request the petitioners made here was a

specific request, within the meaning of

Agurs, requiring disclosure of the type

of recommendation letters at issue here.

Nevertheless, despite this conces-

sion by the government in McCrane, > and

despite the fact that McCrane II was

decided two months before the commence-

ment of trial here, thus putting the

government on notice that the letters at

issue here constituted Brady material

which it was required to disclose, the

court of appeals below holds that the

government's failure to disclose the

° Indeed, far from appreciating the

Significance of the government's con-

cession in McCrane, the court below

actually seeks to use the concession as

a means for distinguishing McCrane by

suggesting that the Third Circuit would

not have ruled as it did had the conces-

sion not been made. Opinion, p. 13a.

The court below refuses to recognize the

possibility that the government made the

concession it did in McCrane because the

concession represented its view of the

law, and that the Third Circuit relied

on the concession because it concurred

in that view.

letters was not a violation of peti-

tioners' constitutional rights. In so

ruling, the court places itself squarely

in conflict with the ruling of the Third

Circuit in McCrane. Thus, the court

below states that it views the McCrane

request as "a classic example of a non-

specific request as defined in Agurs, and

decline[s] to accept McCrane's contrary

view" (Opinion, p. 13a).° This candid

acknowledgement of disagreement sets the

stage for a definitive resolution of the

matter by this Court.’

6 The court below also states that it

rejects McCrane's statement that "the mere

act of writing the letters was preferen-

tial treatment," unless "read in conjunc-

tion with the evidence, elswhere noted,

that they were written at the request of

the witness's counsel." Opinion, p. l3a.

u One further aspect of the opinion

below should be noted. In ruling that

petitioners’ discovery request was not a

specific request within the meaning of

Agurs, the court of appeals relies in part

on a one-page affidavit submitted by prve-

secutor Lee. At first glance this affi-

davit (reproduced at pages 32a-33a of the

appendix hereto) appears to contain a

categorical denial that prosecutor Lee

or anyone else associated with the

(cont. on page 26)

7 (cont. from page 25)

government to his knowledge, ever had any

discussion with any MBM witness con-

cerning the letters at issue here.

Indeed, the court of appeals appears to

have accepted the affidavit as containing

such a denial. Opinion, p. 14a. In

fact, a close reading of the affidavit

reveals that it actually says nothing at

all about the letters in question. The

affidavit speaks only of “letters of

recommendation" and specifically denies

that Lee ever wrote "such a letter of

recommendation." Since Lee obviously

wrote the letters in question here, it

is plain that the affidavit does not

consider the letters here as letters of

recommendation. Thus, the affidavit

leaves entirely open the question of

whether the letters at issue here were

ever discussed with any MBM witness. At

the very least, this defect in Lee's

affidavit entitles petitioners to an

evidentiary hearing on the issue of

whether such discussions ever took place.

II. Certoriari should be granted to

enable this Court to continue the

work it began in Holloway v.

Arkansas of bringing order and

cohesion into the currently con-

fused state of the law on the

criminal defendant's constitu-

tional right to the undivided

loyalty of his counsel. In par-

ticular, this case provides an

ideal vehicle for clarifying when

a defendant is entitled to an

evidentiary hearing on his claim

that a new trial is required

because his attorney was involved

in a conflict of interest.

A. Introduction

This case presents a timely oppor-

tunity for this Court to resolve impor-

tant issues concerning a criminal defen-

dant's constitutional right to the undi-

vided loyalty of his counsel.

This Court recognized the right to

undivided loyalty of counsel as a dis-

tinct component of the constitutional

right to effective representation over 35

years ago in Glasser v. United States,

315 U.S. 60 (1942). Since that time, the

perception of the importance of that right

has been greatly intensified. E.g.,

Von Moltke v. Gillies, 332 U.S. 708

(1948);° porter v. United States, 298 F.2d

461 (5th Cir. 1962) .°

But while courts agree in principle

about the importance of the right to the

undivided loyalty of counsel, there has

been a great deal of disagreement and con-

fusion about how that right should be en-

forced. In particular, courts have

differed widely on what a defendant who

claims that his right to undivided

loaylty has been violated must show in

order to obtain relief. What constitutes

"The right to counsel guaranteed by

the Constitution contemplates the

services of an attorney devoted

solely to the interests of his

Client ..« «

"Undivided allegiance and faithful,

devoted service to a client are

prized traditions of the American

lawyer. It is this kind of service

for which the Sixth Amendment makes

provision." 332 U.S. at 725-726.

9 In Porter, the Fifth Circuit declared

that a defendant is constitutionally

entitled to :

"a vigorous advocate having the single

aim of acquittal by all means fair and

honorable [and who is not] hobbled or

fettered or restrained by commitments

to others." 298 F.2d at 463.

a conflict of interest? What evidence

must the defendant adduce to establish a

conflict of interest? Is proof that a

conflict of interest existed sufficient

to entitle the defendant to relief, or

must the defendant also show that he was

"prejudiced" by the conflict? If an

independent showing of "prejudice" is

necessary, what constitutes prejudice for

this purpose, and what does the defendant

have to do to demonstrate it? There is

substantial disagreement about all of

these questions, as well as a great many

others. Indeed, a commentator writing in

1977 lamented:

"The courts, however, have been

unable to agree on any coherent and

uniform standard for determining

what constitutes a conflict of

interest ... . [NJot only is

there confusion, but these differing

views pervade each area of the law

"Yet for all this confusion and

disagreement, the Supreme Court has

refused to consider the problem in

any meaningful way. Each circuit

continues to struggle to formulate

its own rules and approaches. Each

year the confusion grows greater

among the circuits. The end result

is that the law with regard to the

sixth amendment right to the effec-

tive assistance of counsel has

developed without cohesion of

thought or unity of purpose."

Hyman, Joint Representation of Mul-

tiple Defendants in a Criminal

Trial: The Court's Headache, 5

Hofstra Law Review, 315, 318-320

(1977) (footnotes omitted).

In Holloway v. Arkansas, 46 U.S.L.W.

4289 (U.S., April 3, 1978), this Court

took the first step toward bringing order

and cohesion into this area of the law.

But even in the course of its opinion,

this Court referred to issues “on which

the courts have taken divergent ap-

proaches" which the decision in Holloway

would not resolve. 46 U.S.L.W. at 4291.

In particular, the Court stated that:

“appellate courts have differed on

how strong a showing of conflict

must be made, or how certain the

reviewing court must be that the

asserted conflict existed, before

it will conclude that the defen-

dants were deprived of their right

to the effective assistance of

counsel." Id.

The present case provides. an ideal

opportunity to resolve this issue,

expressly left open by Holloway, and to

continue the work of bringing "cohesion

of thought” and "unity of purpose" into the

currently confused state of the law on the

defendant's right to the undivided

loyalty of counsel.

B. Evidentiary Hearing

The present case provides a timely

opportunity for this Court to clarify the

standards for determining when a criminal

defendant is entitled ‘to an evidentiary

hearing on his claim that a new trial is

necessary because his attorney was

involved in a conflict of interest.

1. Judicial Notice of Facts

Relating to the Investi-

gation of the MBM Matter

To put petitioners' demand for an

evidentiary hearing in context, it is

necessary for the Court to take judicial

notice of certain facts. This is in keeping

with the decision of the court of appeals,

which found that it could take judicial

notice "of the present widespread concern

over the MBM matter." Opinion, p. 7a,

n. 4.

As indicated above, the federal pro-

secutor disclosed to petitioners’ trial

counsel the evidence of the MBM payments

to Harrington and Sargent on February l,

1977. That evidence did not become pub-

lic during the trial, or indeed for ll

months afterward. In fact, the evidence

only became public in late December 1977

when oral argument was heard in open

court on petitioners' motion for a new

10 The public disclosure of this

trial.

evidence touched off one of the largest

scandals in Massachusetts history -- a

scandal that has spawned numerous inves-

tigations into the awarding of the MBM

contract and into the awarding of state

construction contracts in general,/} The

principal investigation which has been

conducted thus far is that of the Massa-

chusetts legislature's Comaittee on Post

Audit and Oversight, which has taken

sworn testimony from numerous witnesses

including Harrington and Sargent. New

10 See The Boston Globe, December 24,

1977, p. 1, col. 1-6; The Boston Herald

American, December 24, 1977, p. 1, col.

1-6.

at See, e.g., "Anatomy of a Scandal

1964: U Mass Boston is born, 1978: MBM

probe goes on," The Boston Herald

American, March 14, 1978.

disclosures concerning the MBM matter

have appeared almost daily on the front

pages of Massachusetts newspapers ever

since late December 1977, and a number of

the investigations into the MBM matter

are still in progress and are expected to

remain in progress for months to come.

In stark contrast to the burst of

investigatory activity which it initiated,

petitioners’ motion for a new trial was

summarily denied without affording peti-

tioners the right to pursue their claims

in court through the discovery process

or through an evidentiary hearing. This

summary denial was in plain violation of

petitioners’ constitutional rights.

2. Legal Standards for

Evidentiary Hearing

Although, when petitioners initially

asserted their claim of conflict of

interest they were not yet in custody,

both the district court and the court of

appeals treated the claim as falling

under 28 U.S.C. §2255. That statute

provides that a defendant must be

granted an evidentiary hearing

"({uJnless the motion and the

files and records of the case

conclusively show that [he] is

entitled to no relief."

Accordingly, this Court has made it clear

that where the facts forming the basis of

a §2255 motion fall outside the record,

an evidentiary hearing is mandatory.

Machibroda v. United States, 386 U.S.

487 (1962).

Similarly, in Blackledge v. Allison,

97 S.Ct. 1621 (1977), this Court held that

a state prisoner's petition for habeas

corpus could not be summarily denied where

the allegations of his petition were not

“vague or conclusory," and where it could

not be said that the allegations, when

viewed against the record, were "palpably

incredible" or “patently frivolous or

false." 97 S.Ct. at 1630. The Court

ruled that just as a motion for summary

judgment in a civil case must be denied

where there is a genuine issue of material

fact, sO a motion to dismiss a habeas

petition summarily must be denied where

the petition's

"facially sufficient allegations

have sufficient basis in fact to

warrant plenary presentation of

evidence." 97 S.Ct. at 1632.

Applying these principles to peti-

tioners' conflict of interest claim,

there can be no question that the courts

below erred in denying petitioners an

evidentiary hearing especially in light

of the nature of petitioners' claims.

Courts view conflicts of interest with

particular concern because they infect

and distort the judgment of defense coun-

sel in ways that are often not reflected

in the trial record.

"Like the famous tip of the ice-

berg, the record may not reveal the

whole story; apparently minor

instances in the record which sug-

gest co-defendants’ conflicting

interest may well be the telltale

signs of deeper conflict." Lollar

v. United States, 376 F.2d 243,

246-247 (D.C.Cir. 1967).

Accordingly, courts have not hesitated to

reverse the denial of a conflict of inte-

rest claim where the defendant has been

deprived of the opportunity for an evi-

dentiary hearing. E.g., Porter v.

United States, 298 F.2d 461 (4th Cir.

1962); Zurita v. United States, 410 F.2d

477 (7th Cir. 1969).

Petitioners' right to an evidentiary

hearing becomes even clearer when the

rules regarding a criminal defendant's

right to the undivided loyalty of his

counsel are brought into proper focus.

C. Elements of Claim that the

Constitutional Right to the

Undividec Loyalty of Counsel

Has Been Violated.

In order for a defendant to establish

that he has been deprived of the undivided

loyalty of his counsel, it is sufficient

for him to demonstrate: first, that his

counsel was committed to an interest

potentially in conflict with the defen-

dant's interests; second, that his counsel

made a choice between possible alternative

courses of action -- such as pursuing (or

failing to pursue) a particular line of

cross-examination -- which could plau-

sibly be construed as favoring the con-

flicting interest at the expense of the

defendant's interest; and third, that the

course of action foregone by his counsel

was a plausible one. See Comment,

Conflict of Interest in Multiple Represen-

tation of Criminal Co-Defendants, 68

Journal of Criminal Law & Criminology,

226, 231-233 (1977).

The defendant is not required to

prove that his attorney did in fact sacri-

fice the defendant's interest on account

of his obligation to the conflicting inte-

rest. The unfairness of requiring proof

of subjective motivation is obvious, con-

sidering the difficulty a defendant would

have in getting his attorney to admit that

he consciously compromised his client's

interests. Consequently, a defendant need

show only that the conflict in which his

attorney was involved impinged on a choice

made by the attorney in such a way that

the choice was not, in the objective

sense, the free choice of a disinterested

attorney. /?

12 Indeed, courts have often not inquired

into, or have even disregarded, counsel's

own evaluation of the extent to which con-

flicting obligations impeded defense stra-

tegy. "(B]eyond determining whether the

foreclosed defense was plausible, we are

reluctant to speculate on what defenses

(cont. on page 38)

12 (cont. from page 37)

counsel may have chosen... . Fox-

worth v. Wainwright, 516 F.2d 1072,

1080 (5th Cir. 1975).

The governing principle was well sum-

marized in Comment, Conflict of Interests

in Multiple Representation of Criminal

Co-Defendants, 68 Journal of Criminal Law

& Criminology 226, 231 (1977):

"The question is not whether counsel

actually perceived the conflict, or

whether he would in fact have chosen

to conduct the defense differently

had there been no conflict. In fact,

an attorney's skill in dealing with

inconsistent interests by even handed

compromise may even obscure on the

record the basic unfairness to a de-

fendant of subordinating his legiti-

mate interests to other considera-

tions. Thus it should be clearly

recognized that although defense tac-

tics provide the evidence from which a

conflict can be inferred, trial stra-

tegy is evaluated only in the sense

that counsel must have been free to

choose an appropriate defense” (foot-

notes omitted) (emphasis in original).

But it must be emphasized that while

courts often disregard an attorney's

denial that his advocacy was impaired by

a conflict of interest, they often assign

substantial, if not dispositive weight,

to an attorney's admission that his advo-

cacy was or would be impaired by a con-

flict. Holloway v. Arkansas, 46 U.S.L.W.

4289 (U.S., April 3, 1978); Glasser ve

(cont. on page 39)

Moreover, the defendant is also not

required to demonstrate that had his coun-

sel chosen the foregone alternative, the

Outcome of the trial would have been

affected. As indicated above, it is suf-

ficient for the defendant to show that the

foregone alternative was a plausible one.

United States v. Donahue, 560 F.2d 1039,

1044-1045 (1st Cir. 1977); Foxworth v.

Wainwright, 516 F.2d 1072, 1080 (Sth Cir.

1975); footnote 12 supra. As with other

types of violations of the right to the

effective assistance of counsel, the

harmless error rule does not apply to

violations of the right to undivided

loyalty. Holloway v. Arkansas, 46 U.S.

L.W. 4289, 4293 (U.S., April 3, 1978);

Glasser v. United States, 315 U.S. 60,

76 (1942); Chapman v. California, 386

U.S. 18, 23 n. 8 (1967).

12 (cont. from page 38)

United States, 315 U.S. 60 (1942); United

States v. Hurt, 543 F.2d 162 (1976). This

1s important here because by denying de-

fendants an evidentiary hearing, the

courts below deprived the defendants of

an opportunity to question their trial

counsel about their own assessment of the

impact of the conflict of interest.

See page 40.

D. Appiication of Legal

Principles Here

Applying these principles here, it

is plain that petitioners are entitled to

relief. Given the working relationship

between Joyce, on the one hand, and Hurley

and Mulkern on the other, /4

given Joyce's

close relationship with Harringtor and

Sargent, and given the direct role which

Harrington and Joyce jointly played in

13 (from page 39)

In Donahue, the court granted the

defendant a new trial because his trial

sounsel had been involved in a conflict

of interest which may have affected the

decision to reject an alternative trial

Strategy. But in so ruling, the court

specifically acknowledged that the stra-

tegy actually chosen may have been supe-

rior to the rejected strategy.

a6 Where, as here, attorneys (such as

members of the same law firm) are in-

volved in a coordinated working relation-

ship where there is a free flow of infor-

mation, the interests of one will be im-

puted to his colleagues for the purpose

of ascertaining whether there is a con-

flict of interest. See United States v.

Donahue, 560 F.2d 1039, 1042 (list Cir.

; Commonwealth v. Geraway, 364 Mass,

168, 301 N.E.2d 814 (1973); Cinema 5,

Ltd. v. Cinema, Inc., 528 F.2d 1384 (2d

Cir. 1976); Laskey Bros., Inc. v. Warner

Bros. Pictures, Inc., 224 F.2d 824 (2d

Cir. 1955).

ensuring that the petitioners were re-

presented by Hurley and Mulkern, it is

clear that Hurley and Mulkern had commit-

ments to persons -- Harrington and Sar-

gent -- whose interests were at least in

potential conflict with the petitioners’

interests. Harrington and Sargent plainly

had a vital stake in not having their

names exposed in a public trial as the

recipients of payments from MBM -- pay-

ments facially illegal if for no other

reason than that they were in violation

of Massachusetts State law prohibiting

campaign contributions by corporations.

Indeed, the substantiality of the interest

Harrington and Sargent had in non-disclo-

sure was graphically demonstrated by the

storm of adverse publicity generated when

the evidence of the payments to Harrington

and Sargent first became public at the

oral argument of petitioners' new trial

motion in the district court.

Thus, since it is plain that there

was a potential conflict between the inte-

rests of Harrington and Sargent, on the

one hand, and DiCarlo and MacKenzie, on

the other, the only further question is

whether trial counsel made a choice be-

tween alternative courses of action which

was infected by that conflict. Peti-

tioners submit that there is no question

that trial counsel's decision not to

elicit the names of Harrington and Sar-

gent, and not to pursue the line of de-

fense which use of the names would have

made possible, was just such a choice.

The court of appeals’ attempt to

discount the significance of the con-

flict cannot succeed. The court states:

"Concededly, Harrington and Sargent

would have preferred not to be men-

tioned as recipients of possibly il-

legal payments,4 but, aside from

that publicity, they have not been

shown to have any other interest

inconsistent with those of the

defendants.

‘ In light of the present wide-

spread concern over the MBM matter,

of which we may take judicial no-

tice, viewed by hindsight it would

have been a considerable benefit to

Harrington to have avoided the sub-

ject of the $2,000 check, provided

that such silence would have ended

the matter. However, this informa-

tion was in the government's posses-

sion to begin with, and silence

could not have been assured, regard-

less of whether defense attorneys

pursued this line of inquiry."

Opinion, p. 7a.

The irony of this analysis is con-

siderable. To attempt to diminish the

evidence of conflict by saying that Har-

rington and Sargent had no conflicting

interest aside from that of avoiding ad-

verse publicity is like saying a soldier has

nothing to fear aside from getting killed.

The magnitude of the interest which Har-

rington and Sargent had in avoiding pub-

lic exposure is measured precisely by

the magnitude of the scandal initiated

when the evidence of the payments was

made public 1l months later. Nor is the

court persuasive when it maintains that

the conflicting interest which Harring-

ton and Sargent had was diminished by the

fact that the evidence of the payments was

already in the government's possession.

The evidence had presumably been in the

government's possession for months when

the prosecutor disclosed it to Hurley and

Mulkern, and for all they knew, the

government never had any intention of

making the evidence public. (And, in

fact, the government did not make the evi-

dence public during the 1l months after

this disclosure to counsel although it had

ample opportunity to do so.) Moreover,

the affidavits annexed to petitioners'

new trial motion plainly establish that

Hurley and Mulkern were fully aware of the

enormous political impact which disclosure

of the evidence would have. Indeed, peti-

tioner MacKenzie's affidavit reports that

Hurley stated that the evidence "could

blow the dome off the State House." A.

178. In sum, there can be no question

that Harrington and Sargent had a vital

interest in not being identified as the

recipients of MBM payments, and that Hur-

ley and Mulkern were fully aware of that

interest.

There can also be no question that

the decision not to elicit tne names of

Harrington and Sargent before the jury,

and not to pursue the line of defense

which use of the names would have made ’

possible, represented a choice between

alternative courses of action that was

infected by a conflict of interest. The

court of appeals argues that "there were

substantial risks involved in using these

names which prudent counsel might very

reasonably wish to avoid." Opinion, p. 6a.

But, as demonstrated above, the issue is

not whether disinterested counsel could

have come to the same ultimate conclusion

as Hurley and Mulkern. The issue is

rather whether the choice confronting Hur-

ley and Mulkern was a free choice which

they could make with only their clients'

interests in mind. The facts set forth

above clearly show that it was not such

a free choice.

The only remaining question is

whether the alternative foregone by Hur-

ley and Mulkern -- use of the names of

Harrington and Sargent -- could plausibly

have benefited petitioners. As indicated

above, petitioners maintain that use of

the names could have benefited them

because it would have laid the groundwork

for a "friends in high places” defense.

The court of appeals seeks to discredit

this defense by saying:

"The suggestion that $2,000 pur-

chased all-risk insurance, or that

Harrington, for that amount, if

requested, would have gone to DiCarlo

and said, ‘You lay off,' is not cre-

dible. Even less persuasive would

be the thought that Sargent, the

Republican governor, could have gone

to the’ Democratic chairman purpor-

tedly investigating the propriety of

a Republican-let contract, and said

that MBM had paid enough already."

Opinion, pp. 6a-7a.

Two points must be made in response.

First, this conclusory dismissal of the

“friends in high places" defense is

founded on nothing more than the court's

Own speculation. Petitioners submit that

the court's speculation is incorrect and

that the evidence of the payments to

Harrington and Sargent, when coupled with

the other evidence in the case, may very

well have persuaded the jury that MBM's

claim of extortion was at least subject

to a reasonable doubt. The test, more-

over, is not whether the defense would

have succeeded; it is rather whether the

defense was plausible. There can be no

question that the "friends in high places"

defense meets this test.

Second, the court of appeals' specu-

lation about the "friends in high places"

defense is totally unwarranted because |

there exists a ready means for obtaining

direct evidence. There is no justifica-

tion for speculating on what Harrington

or Sargent would or would not have done,

or what MBM officials would or would not

have done, when it is possible to explore

these questions directly in an evidentiary

hearing. The law requires that before

petitioners’ claim could possibly be

rejected on the ground that the "friends

in high places" defense was implausible,

petitioners would have to be given an

opportunity to develop that defense in an

evidentiary hearing.

In sum, under the three-part analysis

described above, it is plain that peti-

tioners are entitled to relief.

E. The Erroneous Legal Analysis

Adopted by the Court Below:

The Bifurcation Between Dual

Representation Standards and

Joint Representation Standards

Rather than applying the three-part

analysis described above, the court of

appeals applies a different legal analy-

sis. In Miller v, United States, 564

F.2d 103 (lst Cir. 1977), the court of

appeals distinguished between cases of

"joint" representation, where the "“attor-

ney's purported conflict of interest

arises from the simultaneous representa-

tion of two or more codefendants ina

single cause" and cases of "dual" repre-

sentation, where the purpoted conflict

arises from the attorney's concurrent

representation of someone who was or

might have been called as a witness.

564 F.2d at 106. The court stated:

"Only a relatively slight showing of

actual prejudice is required in joint

representation cases, where an attor-

ney is particularly susceptible to

disabling conflicts . .. But ina

‘dual’ representation case ...a

real conflict or specific instance

of prejudice must be shown to esta-

blish the deprivation of effective

assistance of counsel." Id.

In joint representation cases, the court

does apply essentially the three-part ana-

lysis described above. See, e.g., United

States v. Donahue, 560 F.2d 1039 (lst Cir.

1977). But in dual representation cases,

the court applies a more exacting analysis

which requires the defendant to establish

"a real conflict or specific instance of

prejudice." Miller v. United States, 564

F.2d at 106. Four points should be made.

First, petitioners maintain that the

court of appeals’ bifurcation of legal

standards -- one set of standards for

joint representation cases, another set

for dual representation cases -- is

totally improper. The court's only jus-

tification for such bifurcation is that

any attorney in joint representation

cases is "particularly susceptible to

disabling conflicts." Miller v. United

States, 564 F.2d at 106. But while the

generalization that an attorney in joint

representation cases is more likely to be

susceptible to disabling conflicts than

an attorney in dual representations cases,

may have some validity in a statistical

sense, it is difficult to see how that

generalization advances legal analysis in

a particular case. The only legitimate

way to determine wehther a defendant's

right to undivided loyalty has been vio-

lated is to examine the facts of each par-

ticular case.

Second, the court's standards for

dual representation cases are hoplessly

unclear. The court does not define,

either in Miller or its opinion here,

"real conflict" or "specific instance of

prejudice" and does not explain how these

concepts differ from the concept of the

"relatively slight showing of actual pre-

judice” that will require relief ina

joint representation case. From its

opinion here, it appears that the court

is saying that to obtain relief in a dual

representation case, it is necessary for

the defendant to show that his attorney

subjectively intended to sacrifice his

client's interests in favor of the con-

flicting interest. But as indicated

earlier, it is grossly unfair to require

a defendant to prove his attorney's sub-

jective motivation in any case, be it one

of joint or dual representation, in view

of the obvious difficulty a defendant

would have in getting his attorney to

admit that he consciously compromised his

client's interests. Thus, it is clear

that the three-part analysis described

earlier must be applied equally to all

conflict cases, regardless of whether

they are cases of joint or dual repre-

sentation, or, for that matter, any other

type of case where a claim of conflict is

made.

Third, even assuming that the court

below is correct in applying different

standards to joint and dual representa-

tion cases as a general matter, the court

was wrong in applying dual, rather than

joint, representation standards here.

Although Harrington and Sargent were not

technically the codefendants of peti-

tioners, their position was thoroughly

analogous to that of codefendants. Hur-

ley and Mulkern were called upon to pro-

tect two sets of persons (petitioners, on

the one hand; Harrington and Sargent, on

the other) who both faced serious liabi-

lity arising out of a related set of

transactions. The court argues that the

liability which Harrington and Sargent

faced was significantly different from

the petitioners' liability because dis-

closure of their names to the jury

But

"could not have increased their

potential criminal liability, nor

could any tactic by defendants’

counsel have dccreased that lia-

bility. Even if their names were

not used, neither Harrington or

Sargent, nor Joyce or Hurley could

insure that the information, which

the government already had, would

not be revealed." Opinion, pp.

8a-9a.

this takes an overly restrictive view

of what Harrington and Sargent had to lose

from exposure. For one thing, Harrington

and Sargent faced the possibility of pro-

secution by state, as well as federal,

authorities. For another, it is not

unknown for public opinion to exert impact

on the decision as to whether public offi-

Ccials will be prosecuted. For a third,

the interest which Harrington and Sargent

had in avoiding public exposure was cer-

tainly great enough by itself, putting

aside any question of criminal liability,

to provide a strong incentive to Hurley

and Mulkern to avoid that exposure to any

extent possible. If anything, the con-

flict confronting Hurley and Mulkern was

far more severe than the conflict usually

present in a joint representation case

precisely because the evidence against

Harrington and Sargent was not public.

Thus, joint representation standards

should have been applied a fortiori.?>

15 It should also be noted that one of

the court's reasons for not applying joint

representation standards is the incorrect

statement that

"defendants do not claim that there

ever was any attorney-client rela-

tionship between Joyce, Hurley or

Mulkern and Harrington or Sargent." .

Opinion, p. 8a.

In fact, petitioner's new trial motion

(cont. on page 53)

Fourth, even assuming -- contrary to

fact -- that the court of appeals was cor-

rect in ruling that dual representation

standards should be applied to the present

case, the court's decision must still be

reversed because petitioners were denied

an evidentiary hearing. As indicated

above, the court of appeals’ dual repre-

sentation standards appear to require that

in order to obtain relief, a defendant

must show that his attorney subjectively

intenaed to sacrifice his client's inte-

rests in favor of a conflicting interest.

This requirement is hard enough to meet

when the defendant has been granted an

15 (cont, from page 52)

alleges:

"Mr. Joyce was and is the attorney,

political advisor and close frien

and associate of Governor Francis

W. Sargent and Senate President

Kevin B. Harrington." A. 148

(emphasis added).

Moreover, if the precise relationship

between Joyce, Hurley and Mulkern, on the

one hand, and Harrington and Sargent, on

the other, is critical to whether peti-

tioners are entitled to relief, they

should be granted an evidentiary hearing

to explore that relationship.

evidentiary hearing. Where, as here, such

a hearing has been denied, it is virtually

impossible. The court of appeals states:

"Taking . . . the issue whether

trial counsel in fact gave weight

to the interests of Harrington and

Sargent, there is no direct testi-

mony, nor could any reasonably be

expected." Opinion, p. 4a.

Given that one of the prime reasons peti-

tioners requested an evidentiary hearing

was so that they could subpoena their

trial counsel as witnesses, this statement

is extraordinary. There is "no direct

testimony" on whether Hurley and Mulkern

in fact gave weight to the interests of

Harrington and Sargent only because peti-

tioners were precluded from obtaining

that testimony through denial of an

evidentiary hearing.

Nor can it be validly suggested that

petitioners have failed to adduce enough

evidence to justify an evidentiary hearing

on the actual motivation of their trial

counsel. The aggressive role which Har-

rington and Joyce took in seeing to it

that petitioner DiCarlo was represented

by Hurley, and that petitioner MacKenzie

was represented by Mulkern; the inside

information which Harrington had about the

investigation of DiCarlo; Joyce's claim

that he had a source in the Justice

Department; and the irregular manner in

which Hurley's fee was set -- all of

these circumstances are indicative enough

of a conscious attempt to manipulate

petitioners’ defense so as to require

full exploration of the issue at an

evidentiary hearing.

F. The Court of Appeals'

Invalid Finding of Waiver

In an effort to buttress its conclu-

sion that petitioners are not entitled to

relief, the court of appeals concludes its

discussion of their conflict claim as

follows:

"Particularly is there a heavy

burden of a defendant when the facts

were known to him from the beginning,

United States v. James, 5 Cir., 1975,

505 F.2d 898, cert. denied, 421 U.S.

1000, or, as in this case, long be-

fore the trial ended instead of

afterwards. Defendants selected

Hurley precisely because Joyce had

political connections. Such connec-

tions are not simplistic, but extend

in many directions. The least defen-

dants could expect was the possibi-

lity of some interface. The least

that, in turn, could be expected of

defendants would be to make their

own decisions when some such matters

surfaced. Defendants were in no

respect naive or unsophisticated.

Nothing was concealed from them,

including the fact that day after

. day the trial was proceeding with-

out their counsel disclosing ‘the

names to the jury. They do not

excite our sympathy when, having

lost their case, they malign their

counsel, and say they were put

apon." Opinion, p. 9a.

Although the court does not characterize

it as such, this plainly amounts to a

finding that the petitioners waived their

rights. Moreover, it is finding unaided

by an evidentiary hearing and based on

little more than the court's speculation.

Given that a waiver cannot be validly

found unless the government carries its

burden of showing that the defendant made

a "knowing and intelligent waiver" of his

right to undivided loyalty, it is plain

that the court's reliance on waiver was

grossly improper. This is especially true

because

"Every reasonable presumption

against the waiver of fundamental

rights is made in order to protect

Sixth Amendment rights." Austin

v. Erickson, 477 F.2d 620 (8th

Cir. 1973).

Indeed, what the court stated in United

States v. LaVallee, 282 F.Supp. 968, 971

(E.D.N.Y. 1968) applies with equal force

here:

"(Pletitioner did not learn of the

conflict until during the trial,

and may not be said to have assented

to it by his silence. It is uncer-

standable that a criminal defendant,

not necessarily familiar with all of

his constitutional rights...

might not interrupt his trial to

request that his attorney be

POLAOWOGG « © © oe”

Even where a defendant is well schooled

in the law a waiver of the right to the

undivided loyalty of counsel will not

lightly be inferred. Glasser v. United

States, 315 U.S. 60, 70 (1942) (failure

of Glasser to object to joint representa-

tion held not a waiver of his right to

undivided loyalty even though Glasser

was an experienced attorney).

_ > ctl

Conclusion

The petition for a writ of certio-

rari should be granted.

Dated: June 1978

Respectfully submitted,

FRANCIS J. DIMENTO

DIMENTO & SULLIVAN

100 State Street

Boston, Massachusetts

Attorneys for Petitioner

Joseph J.C. DiCarlo

EARLE C. COOLEY

HALE AND DORR

60 State Street

Boston, Massachusetts

DAVID J. FINE

ROSENBERG, BAKER & FINE

133 Mt. Auburn Street

Cambridge, Massachusetts

Attorneys for Petitioner

Ronald C. MacKenzie

Of Counsel:

ROSENBERG, BAKER & FINE

133 Mt. Auburn Street

Cambridge, Massachusetts

United States Court of Appeals

For the First Circuit

No. 78-1026

UNITED STATES OF AMERICA,

APPELLEE,

JOSEPH J. C. DrCARLO and

RONALD C. MacKENZIE,

DEFENDANTS, APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Water Jay Sxrnvyer, U.S. District Judge)

Before Corrix, Chief Judge,

Avpricn and CamMpBELL, Circuit Judges.

Francis J. DiMcnto and Earle C. Cooley, with whom DiMento

& Sullivan and Hale and Dorr were on brief, for appellants.

Edward J. Lee, First Assistant United States Attorney, with

whom Edward F. Harrington, United States Attorney, and Alan

D. Ruse, Assistant United States Attorney, were on brief, for

appellee.

April 20, 1978

Aupricn, Senior Circuit Judge. This is an appeal from

the denial of a new trial. Appellants, Joseph J. C. DiCarlo

and Ronald C. MacKenzie, hereinafter defendants, were

found guilty after a jury trial in the district court of con-

spiracy to violate, and of substantive violations of, the

Hobbs and Travel Acts, 18 U.S.C. §§ 1951 and 1952. The

offenses involved the extortion by defendants, then Massa-

chusetts state senators, of $40,000 from McKee-Berger-

Mansueto, Inc. (MBM), a New York based construction

2 : U. S. UV. DICARLO

management firm, in connection with a report by a legis-

lative committee chaired by DiCarlo concerning a state cou-

tract with MBM. While their principal appeal was pending,

defendants moved the district court for a new trial, alleg-

ing, (1) constitutionally defective representation by de-

fense counsel because of a conflict of interest, and because

of incompetence; (2) a due process violation by the U.S.

Attorney’s failure, in response to a discovery request, to

turn over certain letters allegedly having impeachment

value in regard to a key governmer’ witness; (3) jury

misconduct; and (4) newly discovered evidence, in the form

of recantation of the testimony of certain witnesses. In

connection therewith, defendants requested an evidentiary

hearing.

In an extensive opinion, the district court denied defend-

ants’ motion. Almost coincidentally, we rejected the prin-

cipal appeal. United States v. DiCarlo, 1 Cir., 1977, 565

F.2d 802. Being of the view that our decision was uncert-

worthy, First Cireuit Rule 17, we denied bail pending peti-

tion therefor. Certiorari was thereafter denied, 46 U.S.L.W.

3586 (U.S., Mar. 21, 1978). In addition, in an unpublished

memorandum, we refused to stay the district court’s refusal

of bail pending the present appeal.

At the outset is the threshold issue of the proper standard

of review for a case in this posture. The government,

focusing upon the fact that the relief sought is a new trial,

argues that the decision below may not be reversed absent

proof that the trial court committed an abuse of discretion

—the standard applied for motions for new trials under

F.R.Crim.P. 33. See United States v. Zannino, 1 Cir., 1972,

468 F.2d 1299, 1303, cert. denied, 410 U.S. 954. The district

court, however, although defendants were not then in cus-

tody, treated their first three claims as falling under

28 U.S.C. § 2255, and only the last as of the diseretionary

scope of Rule 33. We agree.

OPINION OF THE COURT. 3

In seeking collateral’y to attack their convictions under

section 2255, defendants bear the burden of establishing by

a preponderance of the evidence that they are entitled to

relief. Coon v. United States, 5 Cir., 1971, 441 F.2d 279,

cert. denied, 404 U.S. 860. This includes the burden of

showing that they are entitled, if they claim it, to an evi-

dentiary hearing. Rule 4(b) of the Rules Governing Sec-

tion 2255 Proceedings provides that the trial court may

examine the record, the moving papers and any exhibits

and affidavits submitted therewith and, on the basis of those

materials, may summarily dismiss the motion if it ‘* plainly

appears... that the movant is not entitled to relief.’’ Sec

Miller v. United States, 1 Cir., 1977, 564 F.2d 103, 106:

Moran v. Hogan, 1 Cir., 1974, 494 F.2d 1220. While genuine

issues of material fact may not be resolved without a

hearing, see Blackledge v. Allison, 1977, 431 U.S. 63, 80-81,

a hearing is not necessary ‘‘when a § 2255 motion (1) is

inadequate on its face, or (2) although facially adequate,

is conclusively refuted as to the alleged facts by the files

and records of the ease.’’ Moran v. Hogan, ante, 494 F.2d

at 1222. Moreover. if the claim is based upon facts with

which the trial court, through review of the record or

observation at trial, is familiar, the court may make find-

ings without an additional hearing, and, as is the case for

findings of the trial court generally, those findings will not

be overturned unless they are clearly erroneous. Bartelt v.

United States, 5 Cir., 1974, 505 F.2d 647; Zovluck v. United

States, 2 —‘r., 1971, 448 F.2d 339, cert. denied, 405 U.S. 1048.

Ineffective assistance of counsel.

Defendants’ attack upon trial counsel is in three layers.

One is, broadly, that they were incompetent. This is a

serious accusation to make against reputable and experi-

enced attorneys. The court found it in no way borne out.

4 U.S. V. DICARLO

We need not detail the court’s reasons, nor consider the

matter further, except to express surprise that, in light of

their additional burden to overcome the district court’s

findings, they continue to press a charge that was baseless

to begin with.

Secondly, it is claimed that in deciding not to elicit from

certain witnesses the names of Senate President Kevin B.

Harrington and former Governor Francis W. Sargent as

recipients of questionable MBM payments, trial counsel

were moved by concern for them rather than the interests

of the defendants.’ Finally, defendants say that if, in fact,

their counsel considered solely defendants’ best interests,

there was, nonetheless, a constitutionally impermissible

conflict of interest which required a new trial.

Taking first the issue whether trial counsel in fact gave

‘weight to the interests of Harrington and Sargent, there is

no direct testimony, nor could any reasonably be expected.

Defendants must establish their claim by inference from

the circumstances. The circumstances are these. About one

year prior to the return of the indictments in this case,

DiCarlo was informed by Harrington that DiCarlo was the

object of federal criminal investigation. Harrington sug-

gested that DiCarlo obtain the services of an attorney.

He recommended Walter J. Hurley, an experienced crimi-

nal defense lawyer, at all times relevant to this case associ-

ated in the practice of law with Thomas M. Joyce. Joyce

was a well known lobbyist, with many friends in Massachu-

setts political circles, including Harrington and then Gov-

ernor Sargent. DiCarlo met with Joyce, who stated that

he knew someone in the Justice Department who would

keep him abreast of the progress of the investigation, and

thus enable him to alert Hurley of any developments.

* We agree with the trial court that of all the alleged short-

comings of trial counsel, the only one with any plausible relation-

ship to the alleged conflict of interest is failure to use these names.

OPINION OF THE COURT.

DiCarlo retained Hurley. Thereafter, learning from flur-

lev that MacKenzie was also under investigation, DiCarlo

so informed MacKenzie. MacKenzie told DiCarlo that he

intended to retain his present counsel, Earle C. Cooley, and

DiCarlo reported this to Hurley. Hurley urged DiCarlo

to persuade MacKenzie to retain, instead, Robert V. Mul-

kern, a lawyer unconnected with him, or Joyce, but who

he believed would cooperate in a coordinated defense.

MacKenzie acceded, but, at various times thereafter, ex-

pressed dissatisfaction. DiCarlo, at Hurley’s prompting,

reassured MacKenzie that Mulkern was properly handling

the case. It is unclear from the record whether Hurley was

a partner of Joyce, or simply an associate, but, in any

event, Joyce said he would set the fee, and ultimately did so.?

DiCarlo’s checks to Hurley were endorsed for deposit to

the account of Joyce’s law firm.

On the sixth day of trial, the Assistant U.S. Attorney,

Edward J. Lee, furnished Hurley and Mulkern with ma-

terials containing reports of FBI interviews with MBM

president MeKee, who was then on the stand, and MBM

ofiicer, Jack Thomas, who had yet to testify. These ma-

terials revealed, infer alia, statements of MBM officials

that they had made payments to certain Massachusetts

politicians, including $2,000 to Harrington and two $10,000

payments to one Albert Manzi, at least one alleged to be a

political contribution to then Governor Sargent. On receipt

of this material, defense counsel asked their clients whether

the information should be used for the defense. DiCarlo’s

affidavit states that he told his counsel to use the informa-

tion, ‘‘if it’s helpful. Bring it out. Withhold nothing.”’

The trial transcript reveals that both defense counsel used

the general material extensively. During cross-examination

of the MBM witnesses, who were crucial to the govern-

2The record in no way supports some seeming suggestion in

defendants’ brief that Jovee said he would himself pay the fee.

6 U.S. V. DICARLO

ment’s case, the issue of MBM’s political contributions,

nationwide, was probed in great detail, but the names of

these recipients were not mentioned. Defendants now claim

their counsel improperly refrained out of consideration for

Harrington and Sargent.

We agree with the court’s finding that there were sub-

stantial risks involved in using these names which prudent

counsel might very reasonably wish to avoid. The jury

might have viewed the dragging of prominent figures into

the case a desperate, but not exculpatory, tactic, particu-

larly if they had responded and denied receipt. Conversely,

if it should appear that these contributions were in fact

made, and illegal—there is some suggestion that the second

alleged payment to Manzi was the result of raw political

blackmail—it is hard to see how this would have helped

persuade a jury that MBM had not been subject to, and

capitulated to, similar conduct by defendants.

In this posture defendants argue that if, in fact, MBM

had made these prior payments it would have had ‘friends

in high places’’ enabling it to resist importunities by de-

fendants. The suggestion that $2,000 purchased all-risk

insurance, or that Harrington, for that amount, if re-

quested, would have gone to DiCarlo and said, ‘‘You lay

off.’’ is not credible. Even less persuasive would be the

thought that Sargent, the Republican governor, could have

gone to the Democratic chairman purportedly investigating

3 Defendants also complain of their counsels’ failure to accept

the government’s offer to locate one William Masiello and secure

his presence at the trial, allegedly because he had been a former

client of Mulkern. Quite apart from the fact that Masiello’s

purported testimony was supplied only by a hearsay affidavit,

cf. 6 J. Moore, Federal Practice, § 56.11 [1.-2] at 200 (2d ed. 1976),

the court found that he would have been a dangerous witness

(‘‘foolhardy’’) for defendants to call. We agree with the court

that the failure to call Masiello in no way prejudiced the defend-

ants. See United States v. Donatelli, 1 Cir., 1973, 484 F.2d 505.

OPINION OF THE COURT. 7

the propriety of a Republican-let contract, and said that

MBM had paid enough already.

We accept the court’s view that defendants have offered

nothing to persuade it that defendants’ counsels’ decision

was not a wise one. Nor is this overcome by defendants’

claim that Hurley had a motive that conflicted with a

decision to bring Harrington’s and Sargent’s names into

the case—Joyce’s friendship with these individuals. Con-

cededly, Harrington and Sargent would have preferred

not to be mentioned as recipients of possibly illegal pay-

ments,* but, aside from that publicity, they have not been

shown to have any other interest inconsistent with those

of the defendants. In fact, Harrington, at least, could be

thought to have had a substantial interest in defendants’

acquittal. One need not read the newspapers to conceive

the pall cast upon the legislature as a whole by an extortion

conviction of two prominent senators.

It is true that Joyce, as a lobbyist, wanted to cultivate

friends with political power. Any concern for Sargent,

however, would have been diminished by the fact that he

was out of office by the time of trial. While he was friendly

with Harrington, so he was with DiCarlo, who had already

risen to a position of power. To put it crassly, we may

wonder how it would improve his stature as a lobbyist

if he were to sell out one senator, who was his client, for

an incidental benefit to another, who was not.

Defendants respond that the circumstances were such

that they needed to prove no more than a possible conflict

‘In light of the present widespread concern over the MBM

matter, of which we may take judicial notice, viewed by hindsight

it would have been a considerable benefit to Harrington to have

avoided the subject of the $2,000 check, provided that such silence

would have ended the matter. However, this information was in

the government’s possession to begin with, and silence could not

have been assured, regardless of whether defense attorneys pursued

this line of inquiry.

& . U. 8. V. DICARLO

of interest, not an actual conflict. Concededly, there are

such cases, but this was not one. In Miller v. United States,

1 Cir., 1977, 564 F.2d 103, we announced the standard by

which claims of ineffective assistance of counsel based upon

a conflict of interest are to be tested. There we distinguished

between cases involving the joint representation of co-

defendants by one attorney, or members of the same firm,

and cases of dual representation where an attorney pres-

ently has, or in the past has had, a legal relationship with

a hostile party or witness. In the case of joint representa-

tion of codefendants we held that only a relatively slight

showing of actual prejudice is required to establish ineffec-

tive assistance of counsel, because there an attorney ‘‘is

particularly susceptible to disabling conflicts.’’ Jd. at 106:

Holloway v. Arkansas, 46 U.S.L.W. 4289, 4293 (U.S., Apr. 3,

1978). However, where dual representation is involved,

the danger of conflicts is not so great. Accordingly, a real

conflict of interest or a specific instance of prejudice must

be shown. /d. at 106; see United States v. Jeffers. 7 Cir..

1975, 520 F.2d 1256, cert. denied, 423 U.S. 1066: United

States v. Donatelli, 1 Cir., 1973, 484 F.2d 505.

Defendants contend that their case presents similar dan-

gers of conflict and thus should be governed by Miller's

joint representation standard. However, the special seru-

tiny given to instances where codefendants are represented

by single counsel is not warranted here. First, obviously,

there was no actual joint representation; each defendant

had separate, unrelated counsel. Secondly, defendants do

not claim that there ever was any attorney-client relation-

ship between Joyce, Hurley or Mulkern and Harrington or

Sargent. Finally, it is unsound to analogize the position of

Harrington and Sargent to that of codefendants. Neither

had been charged nor brought to trial. Disclosing their

names to the jury as recipients of MBM’s payments could

not have increased their potential criminal liability, nor

OPINION OF THE COUNT. 9

could any tactic by defendants’ counsel have decreased that.

liability. Even if their names were not used, neither Har-

rington or Sargent, nor Joyce or Hurley could insure that

the information, which the government already had, would

not be revealed.

We, of course, do not suggest that an attorney may not

have a pecuniary interest creating what we would term

a per se disabling conflict. See, e.g., United States v. Hurt,

D.C.Cir., 1976, 543 F.2d 162. When, however, the pecuniary

interests are solely speculative—‘‘the mere possibility of

additional work for a former client,’’—‘‘the presumption

[is] that the lawyer will subordinate his pecuniary interests

and honor his primary professional responsibility to hi-

clients in the matter at hand.’’ United States v. Jeffers.

ante, at 1265; see, also, United States v. McCord, D.C.Cir.,

1974, 509 F.2d 334, 351-53, cert. denied, 421 U.S. 930.

Particularly is there a heavy burden on a defendant when

the facts were known to him from the beginning, United

States v. James, 5 Cir., 1975, 505 F.2d 898, cert. denied, 421

U.S. 1000, or, as in this ease, long before the trial ended

instead of afterwards. Defendants selected Hurley pre-

cisely because Joyce had political connections. Such con-

nections are not simplistic, but extend in many directions.

The least defendants could expect was the possibility of

some interface. The least that, in turn, could be expected

cf defendants would be to make their own decisions when

some such matters surfaced. Defendants were in no respect

naive or unsophisticated. Nothing was concealed from

them, including the fact that day after day the trial was

proceeding without their counsel disclosing the names to

the jury. They do not excite our sympathy when, having

lost their case, they malign their counsel, and say they

were put upon. Defendants have failed to allege or estab-

lish a real conflict of interest or any actual prejudice.

They are entitled to no relief. Miller v. United States, ante.

; 10a

10 U. 8. V. DICARLO

Brady violation.

Defendants next contend that the government’s failure

to disclose two letters written by Assistant U.S. Attorney

Lee to prospective customers of MBM violated their right

to a fair trial under Brady v. Maryland, 1963, 373 U.S. 83.

The letters were written prior to trial in response to in-

quiries by certain governmental agencies that were con-

sidering awarding contracts to MBM. After describing the

indictment, MBM’s role, and its cooperation with the gov-

ernment, the letters conclude that the U.S. Attorney was

‘“‘not aware of any reason why [MBM] should be disquali-

fied from public work.’’ In their discovery request, defend-

ants sought,

‘*23. All statements or promises or rewards of any

kind, or tending in any way, directly or indirectly, to

induce or encourage the giving of testimony, which

statements have been made to any persons whom the

Government intends to call as witnesses at the trial

of the indictment herein.

‘*24. All evidence of any kind favorable to the de-

fendants material either to guilt or punishment, in-

cluding without limitation that which may tend to be

exculpatory, to impeach or discredit incriminatory

evidence or to mitigate the crime charged, or which

may lead to evidence of such character.’’

Defendants maintain that the letters were recommendations

of MBM by the government that would have been of value

for impeaching MBM witnesses.

Since defendants posit their principal argument upon

United States v. McCrane, 3 Cir., 1976, 547 F.2d 204,

re-affirming, after remand, 427 U.S. 909, for further con-

sideration in light of United States v. Agurs, 1976, 427 U.S.

97, United States v. McCrane, 3 Cir., 1975, 527 F.2d 906,

lla

OPINION OF THE COURT’. ll

we start with an examination of that case. There the de-

fendants requested,

‘all material known to the government . . . which is

exculpatory in nature or favorable to the defendant,

or may lead to the discovery of exculpatory material

or material which may be used to impeach prosecution

witnesses ....”’

In response to a request by counsel for the principal prose-

cution witness, the U.S. Attorney wrote letters about the

witness to parties proposing to enter into contractual

relations with him, corresponding much, in general outline,

to the case at bar. In the earlier case of Brady v. Mary-

land, ante, the prosecuting attorney, in response to a re-

quest, had failed to disclose a statement of a third party

that could be regarded as exculpatory.

The Court held,

‘‘(S]uppression by the prosecution of evidence

favorable to an accused upon request violates due -

process where the evidence is material either to guilt

or to punishment, irrespective of the good faith or

bad faith of the prosecution.’’ 373 U.S. at 87.

The first McCrane court, after noting that impeaching

evidence fell within Brady, stated that a promise of prefer-

ential treatment given to a witness by the government is

admissible for impeachment purposes. It went on to say

that ‘‘jurors might have felt that the mere act of writing

the letters was preferential treatment.’’ 527 F.2d at 911-12.

It, accordingly, found a violation of Brady and ordered a

new trial.

Although in Brady the Court made no point of it, the

request called for all statements of a designated individual,

and hence was, in fact, a ‘‘specific’’ request. In the initial

McCrane opinion the court did not discuss the nature of

the request. In United States v. Agurs, 1976, 427 U.S. 98,

however, the Court distinguished between general and

l2a

12 } U. S. UV. DICARLO

specific requests. Refusal of a ‘‘specific and relevant’’

request ‘‘is seldom, if ever, excusable.’’ 427 U.S. at 106.

This kind of request calls for any material evidence, i.e.,

‘‘evidence [that] might have affected the outcome of the

trial.’’ Jd. at 104.5 On the other hand, the Court said that

a general request, e.g., ‘‘all Brady material,’’ or ‘‘anything

exculpatory,’’ involves a very different standard.

‘‘The proper standard of materiality must reflect

our overriding concern with the justice of the finding

of guilt. Such a finding is permissible only if sup-

ported by evidence establishing guilt beyond a reason-

able doubt. It necessarily follows that if the omitted

evidence creates a reasonable doubt that did not other-

wise exist, constitutional error has been committed.

This means that the omission must be evaluated in

the context of the entire record. If there is no reason-

able doubt about guilt whether or not the additional

evidence is considered, there is no justification for a

new trial. On the other hand, if the verdict is already

of questionable validity, additional evidence of rela-

tively minor importance might be sufficient to create

a reasonable doubt.’’ 7d. at 112-13. [Footnotes omit-

ted. |

Upon remand for reconsideration in the light of -Jaurs,

the McCrane court concluded that its prior decision was

correct under either alternative. If the defendant's request

were to be construed as merely general, the evidence met

* For the benefit of the bar we do not read this phrase as corre-

sponding with a later remark by the Court that ‘‘a jury’s appraisal

of a case ‘might’ be affected by an improper or trivial consideration

us well as by evidence giving rise to a legitimate doubt on the

issue of guilt.’ Jd. at 108-9. Rather, we would apply the usual rule

of demonstrably harmless error. Chapman v. California, 1967, 386

U.S. 18, 24. Nor, of course, must a request be answered just

because it is specific. The initial question is whether it is Brady

material.

l3a

OPINION OF THE COURT. 13

Agur’s standard of materiality. But also, and it is for this

that defendants seek to rely on it, the court regarded thie

request as specific, hence imposing the more liberal stand-

ard of materiality. In resolving this latter issue in favor of

defendant the court relied or. a statement in the govern-

ment’s brief which, although the government expres=ly

denied that the request was specific, the court construed a~

a concession that it was. We will not pursue the correctnes>

of the court’s construction; the government makes no such

statement here. However, unless the government had ~o

conceded, we consider the McCrane request a classic ex-

ample of a non-specific request as defined in Agurs. and

decline to accept MeCrane’s contrary view. See United

States v. Hearst, N.D.Cal., 1977, 435 F.Supp. 29, 30-31,

aff’d, 9 Cir., 563 F.2d 1331, 1352.

We also reject McCrane’s above-quoted statement that

‘‘the mere act of writing the letters was preferential treat-

ment,’’ unless read in conjunction with the evidence, elsc-

where noted, that they were written at the request of the

witness’s counsel. This, however, brings us to the case at

bar, where defendants claim that No. 23 was a specific

request.

In construing No. 23 as not calling for the U.S. Attor-

nev’s letters the district court said,

‘‘The subject letters were not ‘recommendations,’

were not communications to or requested by MBM

and were neutral in their impact.”’

For present purposes we will assume the incorrectness of

part of this statement; the letters were sufficiently recom-

mendatory that we would consider them to be ‘‘rewards"’

fendants’ brief that the concession by government counsel in this

unrelated case in another circuit estops the government here. This

would be extraordinary even if defendants could claim, which they

make no pretense of doing, that they knew and relied on it. a

necessary condition of estoppel.

; l4a

14 U. 8. VU. DICARLO

if, but only if, a statement had been made to a MBM witness

which put them in that light. There was no impeaching

significance in the letters themselves. They were not rele-

vant unless, as the final clause of the request specified,

they were intended to influence the witness. Clearly, they

could not influence the witness unless there had been a

statement to him, either a promise that they would be

written, or, at the least, subsequent communication en-

abling him to realize that he had been rewarded. Not only

is this clear, but the request itself, which appears carefully

drawn, recognizes there would have had to have been a

‘‘statement’’ to the witness. The specificity of the request,

in other words, related to any statement, not to the letters

themselves.’ There is nothing to overcome the U.S. Attor-

ney’s response that there was no such statement.

It may be conceded that the letters fell within the terms

of a general request, of which No. 24 was a good example,

secking anything that might lead on to something else.

Nere, however, because of its generality, the government

does not face the strict sanction which attends the refusal

of a specific request. The district court properly applied

the general test, and found that defendants failed? We

have considered the record, and find no reason to disagree.

Misconduct by jurors.

We may pass quickly over defendants’ complaint, sup-

ported by the statements of two alternate jurors, that the

jury was exposed to certain unspecified newspaper and

television accounts of the trial, and that the jurors dis-

* Alternatively, if the request sought more, it failed to meet the

basic requirement of a specific request, ‘‘notice of exactly what the

defense desired.’" Agurs, 427 U.S. at 106.

8**!The] letters would not in my view have created a reasonable

doubt as to the guilt of the defendants. in the light of strong and

persuasive evidence of guilt introduced at the trial. In the language

of the Supreme Court the omission to furnish these letters was not

material ‘in the context of the entire record.’ United States v.

Aqurs, supra, 112.’

15a ;

OPINION OF THE COURT. 15

cussed the case among themselves. The district court held

these assertions to be ‘‘insubstantial’’ and that the docu-

ments submitted revealed no ‘‘material derogation of the

defendants’ right to a fair trial,’’ and thus neither an

evidentiary hearing nor a new trial was warranted.

Defendants waived sequestration of the jury, thereby

assun‘ing the risk that the jurors would come in contact

with some publicity concerning the trial. No relief is war-

ranted without a showing that the publicity resulted in

prejudice. United States v. Perrotta, 1 Cir., 1977, 553 F.2d

247; United States v. D’ Andrea, 3 Cir., 1974, 495 F.2d 1170,

cert. denied, 419 U.S. 855. Court and counsel carefully

monitored the press coverage of the trial. On two occasion~

a potentially prejudicial article and television report were

brought to the court’s attention. Following the procedures

required by Perrotta, the court polled the jurors as to

whether they had seen them. In each case, all jurors re-

sponded that they had not.

Defendants now claim that similar inquiry should have

been made as to other unspecified publicity allegedly seen

or heard by the jurors. The court was correct in rejecting

this claim. Absent specification of particular pieces of pub-

licity, and a showing of their potentially prejudicial effect,

it had no duty to inquire further.

The court also found insubstantial defendants’ claim of

pre-deliberation discussion of the case by the jurors, and

consideration by the jurors of defendants’ failure to tes-

tify. We agree. Quite apart from the fact that the alternate

juror, who was the source of the statement that the jurors

considered the defendants’ failure to testify, was not pres-

ent during the jury’s deliberations following the court’s

charge, this claim flies in the face of the familiar principle

that a verdict may not be impeached by a juror’s testimony

that the jury was guilty of misconceptions of fact or law,

employed unsound reasoning, indulged in improper argu-

ment, etc. See, e.g., Young v. United States, 10 Cir., 1947,

omnes Ae nemes e e

l6a

16 ; U.S. VU. DICARLO

163 F.2d 187, cert. denied, 332 U.S. 770; 6A J. Moore, Fed-

eral Practice, 1 59.08[4] at 148-49 (2d ed. 1974). While

there are exceptions, the present case is far from such.

Newly discovered evidence.

Defendants submitted three unsworn statements, two by

witnesses at the trial, and one by the wife of one such

witness, to support their claim, pursuant to F.R.Crim.P. 33,

for a new trial on the ground of newly discovered evidence.

The purported evidence takes the form of the recantation

of two witnesses, Harding and Shields, concerning the July

6, 1972 meeting in New York City at which some of de-

fendants’ extortionate threats allegedly were made. The

witnesses did not retract their testimony as to the fact of

the meeting, but only suggested that they had been mis-

taken as to its date, which they now believe to have been

sometime during the spring of 1972.

So much was deficient with respect to these statements

that we merely list the areas. Passing the fact that the

court expressly disbelieved Shield’s new version,® and im-

pliedly did so as to Mr. and Mrs. Harding, whose state-

ments, it found, were at least in part dictated by DiCarlo’s

new counsel, no explanation is offered for six months’

delay, rather than eliciting this testimony at trial, or is

offered to meet the ‘‘considerable skepticism,’’? Lemire v.

McCarthy, 1 Cir., 1978, 570 F.2d 17, 21, which attends

recantation. The trial court’s findings will not be disturbed.

United States v. Johnson, 1946, 327 U.S. 106, 111-12.

We have considered the other arguments advanced by

defendants and find them to be without merit. The order

of the district court is affirmed.

* As to Shield’s testimony, the court noted,

‘Mr. Shield was an extremely articulate, assured and self-

possessed witness. His manner was somewhat hostile to the

United States Attorney. I cannot credit [defendants’ claim]

—— testimony was extracted from him against his

will.

17a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA,

Plaintiff,

Vv. CRIMINAL NOS. 76-339-1-S

76-339-2-S

JOSEPH J.C. DiCARLO and

RONALD C. MacKENZIE,

Defendants.

MEMORANDUM AND ORDER ON

MOTION FOR A NEW TRIAL

January 17, 1978

SKINNER, D.J.

The defendants have filed and argued

this motion for a new trial under Fed.R.

Crim.P. 33. Among other things, they seek

an evidentiary hearing on the questions

raised in the motion. In their brief they

suggest that the standard to be applied

for holding an evidentiary hearing is that

applicable to motions to vacate judgment

under 28 U.S.C. §2255. This is not a

motion under §2255, and such a motion

might not presently be in order, since the

defendants are not yet in custody. Newly

discovered evidence must be asserted under

Rule 33. The other grounds may not have

been timely raised under Rule 33, but

nevertheless might be the subject of a

subsequent motion under §2255. To avoid

rehearing these issues at some other time,

18a

and to put them in a posture *.o be

decided on the merits, I will treat the

issues, other than newly discovered evi-

dence, as if they were properly before me

On a motion under 28 U.S.C. §2255.

The standard to be applied with

respect to holding an evidentiary hearing

under Rule 33 is the sound discretion of

the court. The standard to be applied in

§2255 appears in Rule 4 of the Rules

Governing Section 2255 Proceedings:

If it plainly appears from the

face of the motion and any

annexed exhibits and the prior

proceedings in the case that the

movant is not entitled to relief

in the district court, the judge

shall make an order for its summary

dismissal and cause the movant to

be notified.

A. NEWLY DISCOVERED EVIDENCE

1. Letters from Assistant United States

Attorney to Potential Customers of MBM

The defendants are now in possession

of two letters! from the Assistant United

States Attorney written in answer to

requests from potential customers of

McKee~Berger-Mansueto, Inc. (MBM) for in-

formation as to the status of MBM. In |

each case the letter details’ the facts

of the case and ends up with the assertion

4 Exhibit A to motion and Exhibit 1 to

government's opposition.

19a

that the United States Attorney knows of

no reason why MBM should be "disqualified

from public work." Defendants insist

that they shouid have been given these

letters in response to pre-trial discovery

requests under the rule of Brady v. Mary-

land, 373 U.S. 83 (1963), in view of the

fact that the government's principal wit-

nesses were employees and former emplo-

yees of MBM. The requests were as

follows:

"23. All statements or promises or

rewards of any kind, or tending in

any way, directly or indirectly, to

induce or encourage the giving of

testimony, which statements have

been made to any persons whom the

Government intends to call as wit-

nesses at the trial of the indict-

ment herein.” [phmphasis supplied.]

"24. All evidence of any kind

favorable to the defendants material

either to guilt or punishment,

including without limitation that

which may tend to be exculpatory, to

impeach or discredit incriminatory

evidence or to mitigate the crime

charged, or which may lead to evi-

dence of such character."

The emphasized language of request 23

specifically excludes the letters in ques-

tion. Request 24 is so general as to

place no burden on the government to pro-

duce the letters in addition to that which

would be constitutionally required in the

absence of any request. United States v.

Agurs, 427 U.S. 97, 106-7 (1976).

Applying the standards of the case just

cited, I find and rule as follows:

LD A Ot ee me

20a

The subject letters were not "recom-

mendations," were not communications to

or requested by MBM and were neutral in

their impact. Even if they had been ad-

missible, which is doubtful, they would

not in my view have created a reasonable

doubt as to the guilt of the defendants,

in the light of strong and persuasive

evidence of guilt introduced at the

trial. In the language of the Supreme

Court the omission to furnish these

letters was not material "in the context

of the entire record." United States v

Agurs, supra, 112.

United States v. McCrane, 427 F.2

906 (3d Cir. 1975), vacated and val

427 U.S. 909 (1976), following remand,

547 F.2d 204 (3d Cir. 1976), relied upon

by defendants, even if it states the law

in this circuit, is distinguishable on

all of the above grounds.

Accordingly, the failure of the

government to furnish the letters to the

defendants before trial does not require

an evidentiary hearing and does not

warrant the allowance of the d .

piety efendants

2. Recanted Testimony of Hardin

and Shields - .

Defendants concede that recantation

of testimony is viewed with suspicion by.

courts. Mr. Harding's attention was

focused on the meeting with defendants

in New York during conversations with

FBI agents and the U.S. Attorney, during

his grand jury testimony and at the trial

of this case. Suddenly, six months after

the trial, upon being visited at their

2la

home by defendant DiCarlo'’s new attorney

Francis J. DiMento~ and by his cousin

William DiMento, a former legislative

assistant to DiCarlo, Mr. and Mrs. Harding

remember details of clothing that place

the meeting in cold weather, earlier than

the July 6 date relied upon by the govern-

ment. The circumstances and timing of

this resurrection of memory do little to

dispel the traditional suspicion referred

to above.

Mr. Shields' unsworn statement

asserts that his testmony was incorrectly

extracted from him as a result of sugges~-

tion by the United States Attorney and

"exhaustive questioning." In exercising

my discretion in the matter of granting a

new trial, I must rely to some extent on

my personal observation of the witness.

Mr. Shields was an extremely articulate,

assured and self-possessed witness. His

manner was somewhat hostile to the United

States Attorney. I cannot credit the

statement that untrue testimony was

extracted from him against his will. The

statements of Harding, Mrs. Harding and

Shields annexed to the motion do not war-

rant the allowance of a motion for a new

trial.

At argument, it appeared that these

statements and those of Mr. Shields were

in part dictated, at least as to form,

by Attorney DiMento himself.

22a

B. MISCONDUCT OF JURORS

The defendants allege that the trial

jurors disobeved instructions in that

they read newspaper accounts and watched

teievision reporcs of the trial, and

further that they discussed the case

amcng themselves. This assertion is sup-

ported by an affidavit of one alternate

juror and a report of a newspaper inter-

view with another alternate juror.

Neither jusoxc participated in the verdict.

When the decision was made not to

sequester the jury, a decision assented

to by the defendants, it was to be ex-

pected that the jury would be exposed in

some degree to publicity about the trial.

The question is whether such publicity

was prejudicial. United States v.

D'Andrea, 495 F.2d 1170 (3d Cir.), cert.

denied, 419 U.S. 855 (1974); see United

States v. Perrotta, 553 F.2d 247, 249

(Ist Cir. 1977).

Defendants assert that the court is

required to hold an evidentiary hearing

on their allegations. Thatmight be true

under some circumstances if any substan-

tial instances of prejudice were asserted.

In this case, however, the media coverage

was carefully monitored by counsel and

the court. It consisted, for the most

part, of straighforward reports of the

trial proceedings. Such editorial com-.

ment as occurred was generally favorable

to the defense. On two occasions, arti-

cles having to do with extraneous matters

appeared in weekly newspapers of rela-

tively limited circulation, and on one

occasion prejudicial comments were made

in a television newscast. In each case

23a

inquiry was made of the jurors, all of

whom responded that they had not read the

articles or heard the program.

The defendants' motion does not

refer to any other prejudicial item of

publicity, trial counsel mentioned none,

nor were present counsel able to furnish

me with an example at argument on this

motion. In the absence of some indica-

tion of the existence of evidence of

actual prejudice, the assertions of

counsel do not warrant the allowance of

the motion for a new trial.

Discussion of the case among the

jurors prior to being excused to deli-

berate was a violation of the court's

instruction, strictly construed. The

important thing, however, is that the

jury resist any systematic discussion

which would foreclose open-minded con-

Sideration of the whole case. Nothing in

the defendants’ supporting documents sug-

gests that the latter occurred, and in

fact the jury deliberated for seven hours

before reaching a verdict. The defen-

dants cite no authority for granting a

new trial under these circumstances.

One aiternative juror has said,

apparently in response to a reporter's

question, that it might have made a dif-

ference in the result of the case if the

defendants had taken the stand and denied

their guilt. "This statement falls far

short of suggesting that the jurors used

24a

the fact that the defendants elected not

to take the stand to overcome any rea-

sonable doubt of the defendants’ guilt.

The same juror is reported to have said,

in fact, that, "There was so much evi-

dence, but just by the facts that were

presented, it did seem to me that they

were guilty."°

Accordingly, I find and rule that

the defendants' assertions of jury mis-

conduct are insubstantial, that the sup-

porting documents do not indicate that

there was any material derogation of the

defendants' right to a fair trial, and

that nothing before me warrants the

holding of an evidentairy hearing or the

allowance of the defendants' motion for

a new trial.

C. INEFFECTIVE ASSISTANCE

OF COUNSEL

The defendants finally assert that

they were deprived of their Sixth Amend-

ment right to effective counsel. For

purposes of this motion I will assume the

following facts contained in the defen-

dants' affidavits:

About a year prior to the return of

the indictment in this case, DiCarlo was

informed by Kevin Harrington, the presi-

dent of the Massachusetts Senate, that

DiCarlo was the object of a federal in-

vestigation which might result in an

indictment. He

3exhibit AA to the defendants' motion.

OE et tn RS eee

25a

suggested that DiCarlo secure the ser-

vices of Attorney Walter Hurley, described

as an associate of Attorney Thomas Joyce.

Attorney Joyce is a lobbyist who is well-

known to Harrington, DiCarlo, MacKenzie,

and many other political figures in

Massachusetts, including former Governor

Prancis W. Sargent.

DiCarlo followed this advice and

retained Attorney Hurley. DiCarlo

learned from Hurley that MacKenzie was

involved in the investigation and so

informed MacKenzie. MacKenzie indicated

that he would engage Attorney Earl

Cooley, his present counsel, and DiCarlo

reported this to Hurley. Hurley strongly

urged DiCarlo to persuade MacKenzie to

engage Attorney Robert Mulkern, of

Worcester, because of the necessity of a

coordinated defense. DiCarlo was suc-

cessful, and MacKenzie retained Mulkern.

One of the reasons for retaining Hurley

and Mulkern was that they were in contact

with Joyce, who was supposed to have a

source of information in the Department

of Justice in Washington which would

enable him to report the progress of the

government's investigation.

At various times MacKenzie expressed

some dissatisfaction, but DiCarlo, at —

Hurley's insistence, persuaded MacKenzie

that Mulkern was properly preparing the

case. The amount of the fee paid Hurley

was established by Joyce and endorsed for

deposit to the account of Joyce's law

firm.

26a

I will further take judicial notice

of the fact that Hurley and Mulkern are

attorneys of good reputation; that Hurley

in particular is a specialist in the de-

fense of criminal cases in both state and

federal courts, and has had particular

experience in cases charging public offi-

Cials with corrupt acts, including Hobbs

Act cases; and that Hurley and Mulkern

have previously worked as co-counsel in

the defense of criminal cases, notably

the so-called small loans cases in the

state courts. These matters were called

to the attention of present defense

counsel, who agreed as +o the accuracy

of the above.

Defendants argue that trial coun-

sels' connection with Joyce caused them

to subordinate the interest of the defen-

dants to those of Joyce's associates,

Harrington and Sargent, by failing to

use certain evidence and undertake cer-

tain lines of cross-examination. Of the

various alleged failings of counsel, only

one can conceivably have any relatior-

ship to the allged relationship of the

lawyers to Joyce, and through im to

Harrington and Sargent.

No possible reason had been sug-

gested for supposing that the convic-

tion of the defendants would be of any

possible advantage to Harrington and

Sargent. DiCarlo was a close associate .

of Harrington. The conviction of both

defendants was likely to diminish the

reputation of the Senate and of Harring-

ton as its presiding officer. Sargent

had been out of office since 1974.

Accordingly, with respect to all of the

alleged failures of counsel except the

eee eo, ee ee

27a

decision not themselves to use the name

of Harrington and Sargent, the standard

of judgment is not that applicable to

"joint" or "dual" representation, but

that applicable to allegations of inef-

fective representation of counsel gene-

rally. That standard is whether inept-

ness of counsel rendered the defense a

sham, a farce, or a mockery. Moran v.

Hogan, 494 F.2d 1220 (lst Cir. 1974).

With respect to the alleged failure

to use supposed alibi evidence and cross-

examine on supposed promises to MBM, I

find that there was a sound tactical

basis for each decision. In making that

finding I have reviewed the significant

sections of the twenty-three volume

transcript of the trial, and considered

the defendants’ allegations in terms of

the utility of the evidence, consistent

strategy, and exposure to rebuttal by

the government. A detailed recapitula-

tion of my review would require a summary

of the entire trial. I am satisfied that

the conduct of counsel did not render

the defense such a farce and mockery as

would require a new trial. Moran v.

Hogan, supra.

On the sixth day of trial, the

Assistant United States Attorney fur-

nished the defendants with material

required under 18 U.S.C. §3500 with

respect to the witness McKee, who was

on the stand, and witness Jack Thomas,

who had not yet testified. This ;

material revealed, among other things,

statements of MBM officials that they

had made a payment of $2,000 to Senate

President Harrington and two further

payments to one Albert Manzi,

28a

purpotedly for the campaign fund of

Governor Sargent, in response to a

threat that if no payment were made Manzi

would see to it that MBM received no con-

tracts from the state Bureau of Building

Construction. Defense counsel made a

motion for a mistrial on the ground that

this material was exculpatory and should

have been furnished in advance of trial

in accordance with Brady v. Maryland, 373

U.S. 83 (1963).

I denied this motion on the ground

that the material was not exculpatory.

I also made it clear to all counsel that

there were no restrictions on the use of

the material in cross-examination of the

government's witnesses. Defense counsel

stated that they considered the question

of MBM's activities important but that

the names weren't important. The Assis-

tant United States Attorney made it clear

that if the matter were pursued, it was

likely that the names of the alleged

payees would be brought out "in order to

make the record clear from the govern-

ment's point of view." (T. 6-20 through

6-48) .4

Thereafter defense counsel pressed

the question cf MBM's political contri-

butions at every stage of cross-examina-

tion of MBM's witnesses, at greath length

and in great detail. At any point, the

names of Harrington and Manzi could have |

come out through the witnesses or on

redirect examination.

4 the word "galloped" on 6-26, l. 23,

should be "galloping."

—————

29a

DiCarlo's affidavit says that he

told his attorney to use this material

"if it's helpful. Bring it out. With-

hold nothing." The transcript clearly

shows the extensive use of the material

by both defense counsel. Present counsel

say that it was also incumbent on counsel

to bring out the names of Harrington,

Sargent, Kelly and White as recipients of

payments. The defendants’ directions

were not so explicit. I find that

reasonable attorneys could differ with

present counsel as to the unmixed

blessings which would accure to the

defendants if they themselves attempted

to involve other well-known political

figures in the case. The record reveals

no failure to exercise proper profes-

sional judgment.

Defendants also say that trial coun-

sel should have made greater attempts to

find the ubiquitous Masiello and put him

on the stand. In my view, given that

Masiello was trying to avoid testimony,

and would be reluctant and possibly hos-

tile, given his relationship to the

defendants and to Kelley, and given his

presence at various critical meetings,

prudent counsel might well consider that

to expose him to cross-examination by

the United States Attorney would be fool-

hardy. The defendants’ allegations

describe "dual representation,” not

"Joint representation” and specific

instances of prejudice must be shown.

Miller v. United States, No. 77-1193

Tist Cir., October 27, 1977). It plainly

appears from the record that no specific

instance of prejudice occurred and no

evidentiary hearing is necessary.

30a

Defendants in their brief point out

that failure of effective assistance of

counsel may not always appear on the

"cold printed record." This may be true

when the matter is presented to an appel-

late court. On a motion for a new trial,

however, the trial judge has the benefit

of his own observations. Such observa-

tions are far from infallible, but may

be relied upon to some extent when con-

firmed by the record. It was may obser-

vation that the defense was conducted by

counsel with ingenuity and vigor. Every

reasonable motion was presented and ob-

jection taken. Interrogation and argu-

ment was forceful, thorough and skilled.

Upon a complete review of the

record, I am satisfied that the defen-

dants were well represented by able and

loyal counsel.

D. IN GENERAL

In considering a motion for a new

trial, the court should consider not only

the specific allegations separately, but

together, to determine if in the aggre-

gate they demonstrate that the defendants

were deprived of a fair trial.

Upon examination of the entire

record, I am satisfied that the defen-

dants received a full and fair trial,

and were convicted on the basis of sub-

stantial credible evidence which fully

warranted a finding of guilt beyond a

reasonable doubt. |

Accordingly, the motion for a new

trial is DENIED. The motion for bail

and for a stay of execution is DENIED.

3la

The government's motion for immediate

surrender of the defendants is ALLOWED,

the defendants to be surrendere forth-

with.

WALTER JAY SKINNER

United States District Judge

32a

AFFIDAVIT

Suffolk, ss. Boston, Massachusetts

December 12, 1977

I, Edward J. Lee, being duly sworn,

herby depose and Say as follows:

1) I am an Assistant United States

Attorney, and under the direction of the

United States Attorney, James N. Gabriel,

was responsible for preparation and pro-

secution of the case of United States v.

Joseph J.D. DiCarlo and Ronald C. Mac-

Kenzie, Criminal No. -~359-S;

2) At no time during the investiga-

tion or trial of the above-captioned case

did I state, represent, or pormise to

Gerald McKee or any other representative

of MBM, that I, or anyone associated with

the Government, would write any letter of

recommendation in connection with any

business enterprise in which MBM was

engaged, or wished to engage, as any in-

ducement or reward for testimony or co-

Operation by MBM with the Government.

Nor did I, or anyone associated with the

Government to my knowledge, ever write or

offer to write such a letter of recom-

mendation;

3) I further state that the sole

representations made on behalf of the

Government to MBM and its officers and

employees were those set forth in

Exhibit U to Defendants’ Motion for a

New Trial.

/s/ Edward J. Lee

EDWARD J. LEE

First Assistant

U.S. Attorney

Ett eed ie vurbelin Pee ne

33a

he above-

Then personally appeared t

named Edward J- Lee and made oath ay

the foregoing statements are true to the

best of his knowledge and belief.

Before me.

/s/ Ruth A. Pike

NOTARY PUBLIC

My Commission

Expires: 7-18-80

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.