Petition — Martorano v. United States
Supreme Court brief1980
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Supreme Court, U. S.
FILED
NO: 80-192 AUG 81980
MICHAEL RODAK, JR., CLixxK
IN THE SUPREME COURT OF
THE UNITED STATES
1980 OCTOBER TERM
JAMES MARTORANO
V.
THE UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE’ FIRST CIRCUIT
PETITION FOR CERTIORARI
RICHARD M. EGBERT, ESQUIRE
MARCUS & EGBERT
143 NEWBURY STREET
BOSTON, MASSACHUSETTS
02116
(617) 261-5383
ROBERT S. SINSHEIMER, ESQUIRE
OF COUNSEL
QUESTIONS PRESENTED
1) Does the Sixth Amendment right to effective
assistance of counsel require reversal where
a Federal District Court fails to perform a
ntedentatiinn duty to inquire into a defendant's
cognizance of the dangers of joint representa-
tion by counsel?
2) Assuming the Constitution does not
automatically require reversal where a Federal
District Court fails to perform a pre-existing
duty to inquire, into a defendant's cognizance
ofthe dangers of joint representation,
shouldn't reversal be required if the record
does not reflect a knowing and intelligent
waiver of a Sixth Amendment right to separate
individual representation by counsel?
| 3) Is the in banc review procedure available
to a Circuit that has only three active
judges and, if so, may such review be exercised
simply by substituting one judge's interpre-
tation of the facts for another?
TABLE OF CONTENTS
DE Mr MENEMMER EAM ssc cccccsccrcccceesocceree i
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DPEEEseccceeceoees eo eo 2 ¢ *eneeneee#ee oe<ba
EE OE re reas © S|
CITATIONS OF OPINIONS BELOW..... re ee ee ee 1
STATEMENT OF JURISDICTION... .ccccccccccscvees 2
CONSTITUTIONAL AND STATUTORY PROVISIONS...... 2
STATEMENT OF THE CASE.....-eseee. sets eesegess 3
ARGUMENT..... rrr re ee ee ee ee ee 11
I. ONCE A FEDERAL TRIAL COURT HAS
A_DUTY TO INQUIRE OF THE EXTENT
OF A DEFENDANTS AWARENESS OF THE
DANGERS OF JOINT REPRESENTATION
BY COUNSEL, FAILURE TO PERFORM
SUCH A DUTY CONSTITUTIONALLY
REQUIRES REVERSAL... .cccccccccvecccvececs 11
A) In Federal Court, the duty
to inquire of the defendant's
knowledge of the dangers of
joint representation should !
be constitutionally mandated........ 14
II. ASSUMING THAT FAILURE TO INQUIRE
IS NOT PER SE, REVERSABLE ERROR,
THIS COURT SHOULD STILL HEAR
PETITIONER'S CASE TO PROVIDE
A SET OF CLEAR STANDARDS FOR
THE LOWER COURTS TO DETERMINE
WHEN FAILURE TO INQUIRE WARRANTS
MBVENSAL. ccc cc cess. hewseres SPerrrrrrry 20
\
A) It is preferable for this
Court to require the govern-
ment to establish that the
defendant knowingly and
intelligently waived his
right to separate representation... .20
B) If the Court does not hold
separate representation to
be a constitutional right,
the court should still rule
that failure to inquire
shifts to the government
the burden of proving that
the joint representation
involved no prejudice
because no alternative
¢ defense stragety existed............
III. THE COURT SHOULD HEAR PETITIONER'S
CASE TO CLARIFY RULES REGARDING
THE USE OF IN BANC REHEARINGS IN
THE FEDERAL APPEALS COURT.......+.4465 ;
CONCLUSION... cc cvccccreccccceccccescesvesvcevee
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
TABLE OF AUTHORITIES
CASES
—_——E—_—!
Adams v. U.S. ex rel. McCann,
Rae. ee RET a0 bo ehh ee be 18, 21
Brewer v. Williams, 430 U.S.
387 Cee Ba aa ee ae bs oeeee A oe#eeneeeeeeeneeee ene
Campbell v. United States, 352
a Be ay! Ae Uf eee wee
Chapman v. California, 386 U.S.
18 bg (AF ere eA ee oeeewxeeneeee 19
Colon v. Fogg, 603 F.2d 403
(arte GE. 2UTOl se céewes cevabwstctéees a8, - 38
34, 25,
27
Cuyler v. Sullivan, 48 L.W.
2 i eS. GRAD Re ae eae ere ere: ) ae > P
i4,. 39,
16, 25
Faretta v. California, 422
oS Mee Gp. PEP Re Peer ere 20,: Ss
Gideon v. Wainwright, 372
Pb. Be) . : eee eer ere 16
Glasser v. United States,
BA Use OO LAURE) ccc icccereevecces is,
Holloway v. Arkansas, 435
7 Fae). Bee 4 >} Pe re ee 13,
Johnson v. Louisiana, 406
US. SSG (LG7S) -vccvcescoses ee cccece 16,
12)
13)
14)
15)
16)
17)
18)
19)
20),
21),
22),
23),
Johnson v. Zerbst, 304 U.S.
258 (1938
YF cb whee dh o6600004060066 0 0ENG
National League of Cities v.
Usery, 426 U.S. 833 TU es dra ce aie
Palko v. Connecticut, 302
21
.16
Wome 319 i oop oe
Smith v. Regan, 383 F.2d
Ri Se =e eee ves enon a.
U.S. v. Donahue, 560 F.2d
1039 (ist. Cir. og gee ee eee ee!
U.S. v. Foster, 469 U.S.
ces SEK BPR ci ccle bed nae Men eewes i2,
U.S. v. Lawrin, 568 F.2d
Se Cer Gar.) SOUT) cc cwcctcicer bee eee 19,
2s,
U.S. v. Mavrik, 601 F.2d
Be, CO ae, eee eT eee is,
U.S. v. Martorano, 457 F.
ees Gee fie Cees BOVE) ccc cocentuees
U.S. v. Martorano, 557
F.2d 1 (lst. Cir.) Reh.Den.
No. 76-1372 (lst. Cir.
a meg a Pe ee ee
U.S. v. Martorano, 610
Wee 36 (lst. Cir. BORO 6 6 ha ecu ue
U.S. v. Martorano, No.78-1445
(lst. Cir. in banc May 12, 1980)...23,
ii
28
32,
35
if
25
24,
27
28
24)
25)
26)
27 )
1)
2)
U.S. ex. rel. Hart and Davenport
478 F.2d 203
Western Oacific
Railroad Co.
v. Western Pacific Railroad
8. git e ° } Er
Corp., 345 U.S.
Younger v. Harris, 401 U.S.
de gt rrr rrr Tree ecccccccoce 16
Zahn v. International
Paper Co., 469 F.2d 1033
[As CON s SOTEP sic ccccecscovesveds 33, 36
STATUTES
18 U.S.C. 9891-96... ccc cccercccvcves a, @
Be BBG GEA) i os sos Trrerereraeeeri es f 37
ZB U.S.C. BESSCS) oc cnvvwrcovcvscctoess oe eS
ZB U.S.C. 81254. eve cccccccccesevevscccccs 2
Fae. err ara ae er ee 2
RULES
eae eee ee ee ee eee a 20, Wee
37
a ee Oe eae eS rer ee 2 eee 2 ee 17
iii
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT
Petitioner James Martorano prays that
a Writ of Certiotari issue to review the judg-
ment of the United States Court of Appeals
for the First Circuit entered in the case of
United States v. Martorano, decided on May 12,
1980,
CITATIONS TO OPINIONS BELOW
The first opinion of the Court of Appeals
in banc is as yet unprinted and is attached
to this petition, (Appendix "A"), No. 78-1445
(lst Cir. May 12, 1980). On June 9, 1980,
the court denied petitioner's Motion for a
Re-hearing In Banc, (Appendix "B"). An
earlier opinion of the three judge Court of
Appeals is printed at 610 F.2d 36 (1980).
The DIstrict Court Judgment denying petitioner's
Motion for a New Trial may be found at 457 F.
Supp. 803 (D.C. Mass. 1978).
Citation for the decision upholding the
original judgment of conviction is U.S. v.
Martorano, 557 F.2d 1 (lst Cir.) Reh. Den. No.
76-1372 (lst Cir. May 23, 1977) unpub. See
also 561 F.2d 406 (lst Cir. 1977) Cert. Den.
435 U.S. 422 (1978).
JURISDICTION
The indictment against petitioner was
brought under 18 U.S.C. 8891-896. That act
is a commerce clause formulation and thus the
Federal Courts have jurisdiction under both
28 U.S.C. $1337 and 26 U.S.C. $1331. This
court has jurisdiction pursuant to 28 U.S.C.
51254, to review the judgment of the First
Circuit Court of Appeals entéred on mes i2,.
1980. Petitioner's Motion to rehear was
denied on June 9, 1980.
CONSTITUTIONAL AND STATUTORY PROVISIONS
1. U.S. Constitutional Amendment 6:
See Appendix "C".
2. 286 U.S.C. 646{b):
See Appendix "C".
3. 18 U.S.C. 8891-896:
See Appendix "C".,
STATEMENT
Petitioner James Martorano, along with
one Edward Brian Halloran, was indicted and
charged with two conspiracies to violate, and
two substantive violations of the Consumer
Credit Protection Act. 18 U.S.C. 8891-896.
Both ik sieve tried together. At trial,
Halloran was represented by Attorney Martin
Weinberg and’ petitioner was represented by
Attorney Joseph Oteri; partners in a law firm
bearing their names; Oteri and Weinberg.
Although Halloran was acquitted of all charges,
petitioner was convicted and sentenced to a
lengthy jail term. Using the same counsel,
petitioner exhausted his direct appeal,
questioning rulings of evidence by the trial
court.
Then with the aid of-new counsel, petitioner
moved for a new trial 6n the grounds that the
joint representation of he and Halloran by
attorneys of the same firm violated his Sixth
Amendment right to the effective assistance of
counsel. The principle legal claim was that
Judge Caffrey, who presided over the first trial,
failed to properly inquire about petitioner's
awareness of the dangers of joint representa-
tion as required by U.S. v. Foster, 469 F.2d 1
_(lst Cir. 1972). Because Judge Caffrey's
own conduct was called into question, petitioner
tendered a Motion to Recuse pursuant to 28 U.S.C.
$455 (a). Said Motion was denied.
Subsequently, Judge Caffrey held a hearing
on petitioner's Motion for a New Trial. At
the hearing, testimony established the following:
The magistrate who arraigned Halloran
was aware of the possible Sixth Amendment
violation, and requested that Halloran
file a statement indicating recognition
of the problem and acceptance of the
Situation. Two days later, petitioner
was asked to come to the offices of Oteri and
Weinberg. There, Attorney Weinberg, counsel
for Halloran asked petitioner to sign
two letters. The first letter was
addressed to Magistrate Davis. The second
letter was addressed to petitioner Martorano
himself, and purported to be from Attorney
Oteri. Mr. Oteri, petitioners counsel,
was not present in the offices at this
time. In fact, both letters were authored
by Attorney Weinberg, who when questioned
about them by petitioner, stated "it is
merely to satisfy the Magistrate that there
is no conflict of interest". Petitioner
Martorano then signed the letter addressed
to him without fully reading it. The
letter was subsequently filed with the
Magistrate.
Mr. Oteri testified that he had never
discussed the contents of the letter with
the petitioner nor was petitioner informed
of any of the risks of joint representation.
Mr. Weinberg advised Martorano that no
conflict of interest existed, and never
reviewed the contents of the letters he
had presented, to Martorano nor otherwise
advised the petitioner of any dangers
of joint representation. At no time
did either the Magistrate or the trial
court conduct any inquiry of Martorano
or explain to him the specific dangers
of joint representation. :
Martorano testified at the new trial
hearing that he had no intention of
taking the stand at trial; rather he
expected rebuttal of the government's
case through the testimony of Louis
Pallotta, brother of Peter Pallotta, the
governi.ents chief witness. Peter
testified that petitioner made an
extortionate loan to him. However,
Louis who was present at the alleged
loan transaction, would have testified
that any loans made by petitioner were
made to him (Louis) on behalf of his
, s
brother and were interest free between
friends. Louis Pallotta had been
available during trial as a defense
witness, but, counsel informed
Martorano, after the government rested,
of an alleged prior inconsistent state-
ment by Louis. Martorano further
testified that both attorneys advised
him that Louis Pallotta s.uld present
evidence of Halloran's character that
would be detrimental to Halloran. Louis
was not called as a witness.
Prior to the decision over whether
or not to call Louis Pallotta as a
witness, certain tape recordings, tending
to incriminate petitioner had been admitted
into evidence. However, counsel
succeeded in suppressing similar recordings
which may have tended to incriminate
Halloran. Thus, at the time the decision
not to call Louis Pallotta was made,
petitioner and Halloran stood in very
different positions before the jury.
Almost no evidence incriminating
Halloran had been admitted, and it was
to his benefit to have the trial draw
quickly to a close. But, petitioner
was in a position where exculpatory
evidence was needed, the absence of which
led to his conviction. However, counsel
both testified that they had adopted a
trial strategy designed to ensure Halloran's
acquittal, in which event, they had believed,
Martorano would also be acquitted.
Mr. Oteri and Mr. Weinberg therefore
insisted that Martorano testify, although
Martorano vehemently disagreed with that
decision. When Martorano testified,
Mr. Oteri mentioned on direct examination
petitioner's two prior convictions, with
which convictions Martorano was directly
confronted on cross-examination by the
government. Martorano's testimony was
exculpatory of Halloran.
Petitioner, who stated that he had
been advised that Halloran would be
testifying to exonerate him, was
informed at some point after his testimony
that counsel did not then wish to call
Halloran to the stand. Had Halloran
testified, his testimony, according to
Mr. Weinberg, would have been exculpatory
of Martorano.
On September 20, 1978, the trial court
issued an order and opinion denying petitioner's
Motion for a New Trial. U.S. v. Martorano, 457
F.Supp. 803, 810 (D. Mass. 1978).
Petitioner then appealed to the First
Circuit Court of Appeals. Judge Pettine of the
Rhode Island District Court, sat by special
designation. In an opinion drafted by Judge
Bownes, with Judge Pettine concurring, the
court held that the petitioner's constitutional
rights were violated by the trial courts failure
to inquire into the defendant's understanding
of the dangers of joint representation. The
court also held that because the potential
for conflict of interest existed over the
decision whether or not to call Louis Pallotta
plainly constituted an alternative strategy
for defense counsel, a new trial was required
and ordered. Judge Coffin dissented.
The government then moved for a rehearing
and suggested a rehearing in banc. Because |
Judge Pettine had been sitting by special
designation, he was replaced by Judge Campbell.
With Judge Campbell and Judge Coffin now in the
majority, the court completely reversed itself
and upheld the District Court's denial of
petitioner's Motion for a New Trial over Judge
Bownes' vigorous dissent.
Martorano now petitions this court for
a Writ of Certiorari so that the court may
redress the grievous Sixth Amendment violations
which occurred below, and so that the court
may clarify the rules, regarding rehearings
in banc.
a0
ARGUMENT
I. ONCE A FEDERAL TRIAL COURT HAS A DUTY TO
INQUIRE OF THE EXTENT OF A DEFENDANTS
AWARENESS OF THE DANGERS OF JOINT REPRESEN-
TATION BY COUNSEL, FAILURE TO PERFORM SUCH
A_DUTY CONSTITUTIONALLY REQUIRES REVERSAL.
In Cuyler v. Sullivan, 48 L.W. 4517 (1978)
this court held that where a trial court has a
pre-existing duty of inquiry into a defendant's
awareness of the dangers of joint representation,
failure to conduct such an inquiry creates a
presumption that a conflict of interest exists,
and reversal is required. The Cuyler court
nonetheless upheld the conviction of an alleged
criminal in Pennsylvania State Court despite the
trial judge's failure to warn the defendant of
the dangers of joint representation by counsel.
But the basis for the courts decision was that
"nothing in the circumstances of that case
indicated that the trial court had a duty to
inquire whether there was a conflict of
interest". Cuyler, supra,at 4521. The
clear implication is that if circumstances
were otherwise and indeed, the trial judge
had been under a duty to inquire, the result
would have also been otherwise. Petitioner
Martorano requests this Court to further
clarify its position and firmly hold that a
trial court's abrogation of a pre-existing
duty to inquire into the dangers of joint
representation is constitutional error
requiring reversal. ,
In the case at bar, the trial court had
an absolute duty to inquire pursuant to the
decision of the First Circuit in U.S. v.
Foster:
"it shall be the duty of the trial court,
as early in the litigation as practicable
to comment on some of the risks confronted
where defendants are jointly represented
to insure that the defendants are aware
of such risks with their attorney's and
whether they have discussed the risks
with their etvdeneys’ and whether or not
they understand that they may retain
separate counsel or if qualified may have
such counsel appointed by the court
and paid for by the government" 469
U.S.1,5 (lst Cir. 1972).
Unlike the case in Cuyler, supra, this
duty existed at the time of Martorano's trial.
No one disputes the fact that an inquiry was
not made and thus, the trial court's
constitutional duty was unfulfilled.
Had the duty arisen by virtue of the
- defendant's or counsel's objections, there is
no doubt that reversal would be required.
Holloway v. Arkansas, 435 U.S. 475 (1979).
But, where the constitutional duty is one of
inquiry, there should be no difference between
the objection of counsel, and a prior opinion
of the Circuit Court of Appeals. In both cases,
the issue is whether the trial court had notice
of potential conflicts of interest. In both
cases, notice is apparent.
In the Holloway situation, where a defend-
ant himself objects to the joint representation,
a court has expressly been placed on notice of
~
the potential. for conflicts of interest.
at Se
Where the notice arises from a prior
court opinion, it is of a more constructive
nature. Still, the legal effect is indistin-
quishable. But, even, if a distinction could
be drawn, we ask the court nonetheless to hear
petitioner Martorano's claim in order to
clarify its view of when the duty to inquire
is of constitutional dimension and when it is
not. The Cuyler decision alone is not
decisive for Cuyler merely holds that no reversal
is required where no duty at all exists.
Petitioner Martorano now asks the court to
take his case, and to hold that where a
Situation unlike Cuyler exists and a duty to
inquire is clearly present, the Sixth
Amendment will not allow it to be lightly
shunted aside.
A. In Federal Court, the duty to inquire
of the defendant's knowledge of the dangers of
joint representation should be constitutionally
mandated.
The court in Cuyler held that the
i Rabe
constitution does not require state trial
court judges to engage in an on the record
colloquy to determine the propriety of
multiple representation. However, the court
in a footnote hinted that the constitution
may require a stricter rule for the Federal
DIstrict Courts. Cuyler v. Sullivan, supra,
at 4520, N.10. Today, petitioner Martcrano
asks the court to review a case which will
allow it to render an opinion elevating a
confusing footnote to a well explained rule
of law, thereby curing a split between the
circuits. Compare U.S. v. Mavrik, 601 F.2d
921, 929 (7th Cir. 1979) with Colon v. Fogg,
603 F.2d 403, 407 (2nd Cir. 1979). We ask
the court to rule that the federal trial
courts are under a constitutional duty to inquire
as toa defendant's understanding of the perils
of joint representation. If the court does
render such ‘ ruling, reversal would be
required because the court in Cuyler reaffirmed
the principle of Glasser v. United States,
«ie
315 U.S. 60 (1942) setting forth the rule that
unconstitutional multiple representation is
never harmless error. Cuyler v. Sullivan, 48
L.W. 4517.
A ruling that federal judges are
constitutionally required to inquire into the
dangers of joint representation would not be
inconsistent with Cuyler's holding that state
court judges are not required to engage in
such inquiry. The Cuyler rule makes sense,
given the importance of federalism in our
judicial system. See, e.g. National League of
Cities v. Usury, 426 U.S. 833 (1976). Younger
v. Harris, 401 U.S. 97 (1971). That the Bill
of Rights, including the Sixth Amendment,
requires more safeguards of the federal courts
than of the state courts is, since Palko v.
Connecticut, 302 U.S. 319 (1937), uncontro-
vertable. See also Gideon v. Wainright, 372 U.S.
338, 352, (1963), Clark, J. concurring. Johnson
v. Louisiana, 406 U.S. 356, 369-375 (1972) Powell
J. concurring. "There is no sound basis for
étiin
interpreting the Fourteenth Amendment to
require blind adherence by the states to all
details of the Federal Sixth Amendment
Standards". Johnson v. Louisiana, supra, at
375. Thus, a case holding that a certain
procedural rule is not applicable to the
states, does not bar a holding constitution-
alizing the rule in the federal courts.
Indeed, the Cuyler opinion itself notes
that an on the record inquiry is generally
"desirable" and consistent with the courts
own promulgation of proposed Fed.R.Crim.P.44
(c). Cuyler, supra, at 4520 N.10. The tone
of the courts discussion in footnote 10 of
Cuyler suggests that the court has already
determined that an on the record inquiry is
constitutionally mandated in Federal Courts.
A hearing of petitioner's claim wotild allow
the court to clarify that position.
We ask the court to view petitioner's
participation in a trial represented jointly
with a co-defendant as a question of waiver of
to
his right to separate representation.
Holloway v. Arkansas, supra, established the
principle that the Sixth Amendment provides
not just a right to counsel but to separate
counsel unbridled by potential conflicts of
“interest. By also holding that "joint represen-
tation is not a per se violation of the
constitutional guarantee of effective assistance
of counsel", Holloway left room for defendants
to waive their right to separate representation.
But lest the joint representation be
unconstitutional, the waiver, as all waivers
of the Sixth Amendment rights must be made
"Knowingly and intelligently". Johnson
v. Zerbst, 304 U.S. 458 (1938). Defendant
may waive his right to counsel if he "knows
what he is doing and the choice is made with
his eyes open". Adams v. U.S. ex. rel. McCann,
317 U.S. 269, (1942). And, it is clear that
such a waiver must be made on the record.
Faretta v. California, 422 U.S. 806, 835 (1975).
AS a practical matter, the record can
only establish the validity of a waiver,
if the trial court initiates an inquiry into
x
the defendants understanding of the issues
involved. Colon v. Fagg, Supra,. The Appeals
Court in the instant case agrees. The "immediate
purpose" of the inquiry is to "prevent the
uncertainly that arises when defendants make
post-conviction claims of ingorance or misadvice".
U.S. v. Martorano, No. 78-1445, 3, N.3 (lst Cir.
May 12, 1980). Because the Constitution demands
virtual certainty in the ascertainment of a
waiver, the rule requiring on the record inquiry
itself acquires constitutional dimension.
See Cuyler v. Sullivan, Supra, N.10; Colon v.
Fagg, Supra, at 407, U.S. v. Lawriw, 568 F.2d
98 (8th Cir. 1977). It is more than just an
exercise of supervisory power by the First
Circuit. And, because violation of a Sixth
Amendment right is "never harmless error",
Chapman v. California, 386 U.S. 18 (1967), the
court's failure to inquire in the instant case
warrants this court granting petitioner
Martorano a new tiral.
II. ASSUMING THAT FAILURE TO INQUIRE IS NOT
, REVERSABLE ER
SHOULD STILL HEAR PETITIONER'S CASE
TO PROVIDE A SET OF CLEAR STANDARDS FOR
THE LOWER COURTS. TO DETERMINE WHEN
FAILURE TO INQUIRE WARRANTS REVERSAL.
Petitioner remains resolute in his contention
that the constitutional error by Judge Caffrey
at trial in failing to warn petitioner of the
dangers of joint representation requires a
reversal and a new trial. But even if a reversal
is not automatically required, this court
should still hear petitioner's case, in order
to constitutionalize the standards for
determining just when reversal is warranted.
In parts A) and B) of this section, we
offer to the court two different standards
that may possibly be established; the "waiver"
standard or the "shifting burden". Although
"waiver" is preferable, no matter which is
used, petitioner should be granted a reversal
on the facts of the instant case.
A. It is preferable for this court to
require the government to establish that the
defendant knowingly and intelligently waived
his right to separate representation.
-20-
We ask the court today to rule that where
a defendant agrees to go to trial represented
by counsel jointly with a co-defendant, the
record must clearly establish that he waived
his right to separate representation unbridled
by conflicts of interest. See Holloway v.
Arkansas, supra. Here petitioner asks no more
than that the waiver of petitioner's right to
separate representation be held consistent with
all Sixth Amendment waivers. Generally, a
waiver of the Sixth Amendment right to counsel
must be made, on the record. Faretta v.
California,supra, "Courts must indulge in every
reasonable presumption against waiver".
Brewer v. Williams, 430 U.S. 387, 404 (1977).
Petitioner recognizes that Faretta falls
short of requiring the record colloquy by the
court he believes is constitutionally
necessary. But, the record must still
firmly establish that a waiver was made
"knowingly and intelligently" and with ones
"eyes open". Johnson v. Zerbst, supra;
Adams v. U.S. ex. rel. McCann, supra.
Te
Because no record inquiry into petitioner's
understanding of the dangers of joint represen-
tation was made by the trial court, the only
evidence tending to establish that petitioner
waived his right to separate representation is
the letter he signed in the offices of Oteri
and Weinberg. Yet, the evidence at his Motion
for a New Trial indicated that petitioner
signed only because he was informed by counsel
that the matter was a technicality. Clearly,
as the First Circuit Court of Appeals noted in
its panel opinion, the letter "does not
constitute strong evidence that he under-
stood the dangers involved". U.S. v.
Martorano, 610 F.2d at 44
Petitioner had already placed his faith
and trust, in the same counsel who now told
him that joint representation was not a
problem. A mere recitation to the contrary
by counsel cannot cause petitioner to have
"knowingly and intelligently" waived his
valuable constitutional rights.
-22-
When the First Circuit in banc reversed
the panel opinion, it never once mentioned
the word "waiver". It did hold however that
"letters prepared and signed outside the courts
purview are not a substitute for the in court
colloquy mandated by Foster... A mandate
whose ultimate aim is proper warning".
U.S. v. Martorano, No. 78-1445 (lst Cir. in
banc, May 12, 1980). The phrase "proper
warning" apparently is shorthand for the
courts acknowledgement that if a defendant is
to proceed with joint representation he must
do so "knowingly and intelligently". But, by
failure to acknowledge the applicability of
"waiver" principles, the court thereby avoided
confrontation with the Faretta, Adams, and
Johnson line of cases that mandate reversal.
The first Circuit's failure to view
petitioner's joint representation @S a waiver
of his rights to separate representation
perhaps results from this Court never having
carefully enunciated separate representation
as a constitutional right. But, Holloway v.
niin
Arkansas, supra, establishes without a doubt
that the right to separate representation is
indeed constitutional in magnitude, at least
where a potential conflict exists. As soon
as a defendant objects to joint representation,
he is entitled to separate counsel, or reversal
is "automatic". Holloway, supra, 435 U.S. at
488. This language has convinced several of
the circuits that separate representation
is indeed a constitutional right which must
be waived if joint representation is to be
deemed constitutional. See, e.g. Colon v.
Fagg, 603 F.2d 403, 407 (2nd Cir. 1979) (defen-
dant must make informed waiver of his right to
independant representation). U.S. v. Lawriw,
568 F.2d 98, 105 (8th Cir. 1977)(right to sep-
arate independant counsel).
Thus, we ask this court to take the cue
from Colon, supra, and Lawriw, supra, and
expressly label separate representation as a
constitutional right. Once the status of the
right is made clear, it will be equally clear
that due process requires reversal because
petitioner never "knowingly and intelligently"
tte
waived the right. U.S. v. Martorano, 610
F.2d 36 (lst Cir. 1980) rev'ed No. 78-1445
(lst Cir. in banc May 12, 1980).
B). If the court does not hold separate
representation to be a constitutional right,
the court should still rule that failure to
inguire shifts to the government the burden of
proving that the joint representation involved
no prejudice because no alternative defense
strategy existed.
Many courts have held that trial
court's failure to inform the defendant of the
dangers of joint representation saddles the
government with the burden of proving a lack
of conflict. U.S. v. Foster, 469 F.2d l
(lst Cir. 1972); Colon v. Fogg, 603 F.2d 403
(2nd Cir. 1979); U.S. v. Lawriw, 568 F.2d 98
(8th Cir. 1977). See also Cuyler v. Sullivan,
supra,at 4522, Brennen, J. concurring. And,
the "shifting burden" standard is the one
purportedly used by the Appeals Court in the
present case. U.S. v. Martorano, No.78-1445
«2S-
P.4 (lst Cir. May 12, 1980). However, an
examination of the procedural posture of this
case will indicate just how futile use of the
"shifting burden" standard is in this context.
When petitioner's Motion for a New Trial was
first heard, on appeal, a three judge court
held that the trsai court's failure to inquire
of defendant's understanding of the dangers of
joint representation shifted to the government
the burden of Proving that no prejudice in fact
occurred. Because the government could not
prove the absence of an alternative defense
strategy which independant counsel might have
chosen, a new trial was warranted. U.S. v.
Martorano,610 F.2d 36 (lst Cir. 1979). Upon
rehearing, a similar three judge panel felt
that the government had met its burden.
U.S. v. Martorano, No. 78-1445 (lst Cir. in banc
May 12, 1980). Such a reversal could occur
only because the "shifting burden" standard
cannot clearly be applied in this context.
~26~
Indeed, the standard is often confused with the
aforementioned preferable waiver standard.
See, e.g. Colon v. Fogg, supra; U.S. v. Lawriw,
supra. However, if the waiver standard were
clearly enunciated by this Court, lower courts
would have a long line of waiver cases from
which to draw guidance.
Instead, examination of the hadeieins of
the various circuits indicates an enormous
degree of confusion. In U.S. v. Lawriw, supra,
the court held that "only a minimal showing of
conflict should be required to involve
constitutional protection" 568 F.2d at 602.
In Colon v. Fagg, supra, the court purportedly
shifted the burden to the government, but then
analyzed the case in terms of the petitioner's
proof. 603 F.2d at 407 (1979). The court
implied that the petitioner must show that
"joint counsel was placed in the dilemma of
having either to pursue or abandon a defense or
tactic that would help one defendant but hurt
the other". Colon v. Fogg, supra, at 407
quoting Smith v. Regan, 583 F.2d 72, 77 (2nd
Cir. 1978). In Campbell v. United States,
352 F.2d 359 (D.C. Cir. 1965) the court held
that reversal is required if "the defendant is
clearly prejudiced". In United States ex.rel.
Hart and Davenport, the court held that
"the possibility of conflict, however remote",
warranted reversal. 478 F.2d 203, 210 (1973).
Finally we reiterate that there are still some
circuits that unconstitutionally place no
duty to inquire on the trial judge at all,
and therefore have not even addressed the
question of which standard of review to
apply if the duty is not exercised. See, e.g.
U.S. v. Mavrik, 601 F.2d 921, 929 (7th Cir.
1979).
Thus, certiotari should be granted even
if this court believes that the "shifting
burden" standard purportedly used below, is
the correct one. For even if the standard is
indeed proper, the lower courts have been
grossly inconsistent in its application. We
suggest that the proper application for the
shifting burden standard must be that the
government must prove that no alternative
defense stragety existed. See U.S. v. Donahue,
S60 F.2d 1039 (lst Cir. 1977).
Applying the above to the facts of
petitioners case, it becomes apparent that
even if the "shifting burden" standard is
properly used, reversal is necessary. See
U.S. v. Martorano, 610 F.2d 36 (lst Cir. 1979).
At the hearing on the Motion for a New
Trial, petitioner introduced evidence
establishing that Louis Pallotta, iecther of
the state's "star" witness would have
testified on petitioner's behalf. Louis
Pallotta would have stated that any loans
made by petitioner were made interest free to
him (Louis) on behalf of his brother Peter,
because he (Louis) and petitioner were close
friends. Such evidence clearly tends to
exculpate petitioner. Yet Louis was not called,
primarily because counsel feared that Louis'
testimony might prove damaging to Halloran.
Nonetheless, the Court of Appeals held
that the government met its burden of proving
that petitioner was not prejudiced by joint
representation despite his attorney's failure
to call Louis Pallotta. In justifying its
holding, the court noted that Louis Pallotta
had allegedly made prior inconsistent statements
damaging to petitioner. Yet, as the Court of
Appeals noted in its first opinion, "it is
possible that Louis lied to the ’.B.t. On
impulse to protect his brother (who had
already agreed to 'co-operate' with the F.B.I.
in building a case against appellant) but
then later decided to tell the truth even
though he would be contradicting his brother
by doing so". U.S. v. Martorano, 610 F.2d
36, 44 (lst Cir. 1980). In any event, the
substance of Louis Parretee's allegedly damaging
statements was never placed in evidence at the
hearing on the Motion for a New Trial. Thus,
the Appeals Court panel was correct when it
noted that it had "no reason to doubt that
calling him (Louis) would have been an
acceptable risk". 610 F.2d at 44. Whether
=-30-
or not allegedly contradictory statements
could truly harm Martorano, or damage Louis'
own credibility is, even as the Appeals Court
in banc acknowledges, total and absolute specu-
lation. Note the following language.
"The problem with Louis as a potential
witness was that he had previously given
a contradictory statement to the F.B.I.
(which depending on its contents might
have gone some distance to destroy
Martoranos as well as Louis' own
credibility" U.S. v. Martorano, No. 78-1445
P. 6 (lst Cir. in banc May 12, 1980)
(emphasis added)
Although the court labelled the alleged
statement contradictory, in fact, the court
has absolutely no knowledge of its contents.
Thus, the Appeals Court opinion violates
the reasoning of its own rule set out just two
years prior in U.S. v. Donahue;
“where an alternative strategy whatever
its ultimate merit, plainly existed, and
where such strategy involved, as between
the joint defendants, some potential
who
for conflict we cannot say for sure that
the potential conflict did not influence
the choices made by those representing
both defendants." 560 F.2d 1039, 1045
(lst Cir. 1977)
Petitioner submits that, absent establish-
ment of a per se reversal requirement, this
court should adopt the above formulation in
Donahue,as its own. And, applying such formu-
lation to the facts of the case, the court
should reverse the First Circuit Court of
Appeals, and order anew trial. To do other-
wise would result in upholding an opinion
which violates this court's express
prohibition against engaging in "nice
calculations as to the amount of prejudice"
where joint representation is questionable.
Glasser v. U.S., 315 60, 77 (1942).
III. THE COURT SHOULD HEAR PETITIONER'S CASE
TO CLARIFY RULES REGARDING THE USE OF
IN BANC REHEARINGS IN THE FEDERAL APPEALS
COURT.
It is obvious from a reading of the Circuit
Court opinion, that the judges of the First
Circuit Court of Appeals do not agree upon the
meaning of F.R.A.P. 35(a). See United States
v. Martorano, No. 78-1445 P.17 (lst Cir.
May 12, 1980, Bownes, J. dissenting). Neither
do the judges of the Second Circuit. See
Zahn v. International Paper Co., 469 F.2d
1033, 1040 (2nd Cir. 1972). Furthermore, the
majorities in the two circuits view the rule
oppositely, causing not only internal splits,
but a split between the circuits themselves.
See United Stated v. Martorano, supra, at
P.14. Because the Rules of Appellate Procedure
were promulgated by this court to ensure
efficiency and uniformity among the Circuits,
it is incumbant upon this Court to hear
petitioner's case, thereby curing the uncer-
tainty and division now prevalent over the
interpretation of Appellate Rule 35.
Upon hearing the case, this court should
rule that the in banc rehearing procedure may
not be used, simply to substitute the wisdom
of one individual for another. See United
States v. Marotrano, supra, No. 78-1445, Bownes,
J. dissenting. The facts of this case
oS3e
establish that such a misuse of the in banc
rehearing procedure manifests gross injustice.
On December 6, 1979, petitioner was
awarded a new trial, by a three judge panel of
the First Circuit Court of Appeals. Judge
Pettine of the Rhode Island District Court sat
on the panel by designation. In an opinion
by Judge Bownes, the court found petitioners
claim of denial of the Sixth Amendment right to
effective assistance of counsel to be
meritorious. Although not adopting the per
se reversal rule that we initially urge
upon this court today, the panel held that the
original trial courts failure to inform
petitioner of the dangers of joint
representation placed the burden upon the
government to prove that no conflict of
interest existed. The panel held that the
government could not meet its burden, where an
alternative strategy such as the calling of
Louis Pallotta as a witness was available to
petitioner's counsel. U.S. v. Martorano,
610 F.2d 36 (lst Cir. 1979). The opinion
was thus consistent with the First Circuits
own holding in U.S. v. Donahue, supra.
Five months later, that decision was
overturned by the same court purporting
to be sitting in banc. But, the only difference
in the composition of the court was that Judge
Campbell replaced Judge Pettine. No change
in the law was made, nor was any new sub-
stantial question raised. "All that the in banc
hearing produced was a different result".
United States v.Martorano, No. 78-1445 P.17
(lst Cir. May 12, 1980, Bownes, J. dissenting).
The court, used the exact same "shifting
burden" standard used by the panel court.
Compare U.S. v. Martorano, No. 78-1445 P.4
‘ (lst Cir. in banc May 12, 1980) with U.S. v.
Martorano, 610 F.2d 36, 41-43 (lst Cir. 1980).
As Judge Bownes correctly noted this is in
stark contravention of F.R.A.P. 35 (a) which
allows for in banc hearings only where
"consideration of the full court is
necessary to secure or maintain uniformity".
Furthermore, had this case been filed in
the Second Circuit, the Second Circuit Court
of Appeals interpretation of F.R.A.P. 35(a)
would have prevented the government from
securing a rehearing in the first place.
See Zahn v. International Paper Co., supra,
There, the court held that four members of a
court having eight active members do not
establish the requisite majority to grant a
rehearing in banc. Here, where only two
members of a four member court voted to rehear
the case, a rehearing should have been denied.
Such a denial would be consistent with the
view promulgated by this Court in Western
Pacific Railroad Co. v. Western Pacific
Railroad Corp., 345 U.S. 247, 261, that an
in banc rehearing should be held only when a
majority of the full membership of the bench
so votes. And, if rehearing had been denied
the panel opinion would have remained in force,
and petitioner Martorano would have had the
new trial that is constitutionally required
to correct the Sixth Amendment violations
which have prejudiced him and denied him
»S6-
due process of law.
Beyond the procedural technicality of what
constitutes a majority, lies the more
substantive question of whether or not one
three judge panel may constitutionally
overturn another.
"Cases and controversied shall be heard
and determined by a court of not more
than three judges, UNLESS a hearing or
rehearing before the court in banc is ordered
by a majority of the circuit judges of the
Circuit who are in regular active service"
28 U.S.C. 46(b)(emphasis added).
A fair interpretation of the statute
indicates that an in banc rehearing is available
only if the second hearing would be heard by
more than three judges. Once one three judge
panel has heard the case, its judgment is
res judicata unless a larger panel is convened
to "secure or maintain uniformity; in the
circuit F.R.A.P. 35(a).
"It is essential that a Circuit Court
and the litigants who appear before it, under-
stand the practice, whatever it may be whereby
the court convenes itself in banc." Western
Pacific Railroad Corp., supra, at 261. Prior
to the decision of the Appeals COurt in the
case at bar, no one understood the in banc
enablement was capable of allowing a court to
substitute one interpretation of the facts for
another, especially where absolutely no change
of legal standards is developed or even contem-
plated and the only difference in the opinions
is how one judge views the application of the
facts to the law. See U.S. v. Martorano,
No. 78-1445 P. 17 (lst Cir. in banc May 12,
1980, Bownes, J. dissenting). Because such
a procedure is obviously unjust, and because
the Federal Appellate Courts are clearly
split and confused in their understanding
ef the use of in banc rehearings, petitioner's
Writ of Certiorari should be granted.
~Giu
CONCLUSION
For all of the above reasons, petitioner,
James Martorano respectfully requests this Court
to grant a Writ of Certiotari to the First
Circuit Court of Appeals.
AWS
MARCUS & EGBERT.
ATTORNEYS AT LAW
143 NEWBURY ST.
BOSTON, MA. 02116
(617) 261-6383
= 39-
APP"NDIX "A"
United States Court of Appeals
For the First Circuit
No. 78-1445
UNITED STATES OF AMERICA,
APPELLEE,
v
JAMES MARTORANO,
DEFENDANT, APPELLANT.
ON PETITION FOR REHEARING EN BANC
Before Corrin, Chief Judge,
CaMPBELL and Bowness, Circuit Judges.
Richard J. Vita for appeilant.
Wade Livingston, Attorney, United States Department of Jus-
tice, with whom Edward F. Harrington, United States Attorney,
and Joseph S. Davies, Attorney, United States Department of
Justice, were on brief, for appellee.
May 12, 1980
CAMPBELL, Circuit Judge. James Martorano appeals from
the judgment of the district court, 457 F. Supp. 803 (D.
Mass. 1978), denying his motion for new trial on the ground
of ineffective assistance of counsel due to joint repre-
sentation.’ His appeal was originally decided by a panel
1Martorano moved for a new trial on the ground of ‘‘newly
discovered evidence’’ more than seven days after the verdict,
see Fed. R. Crim. P. 33, contending he had not previously learned
of the prejudice joint representation allegedly caused him. The
district court ruled that ineffective assistance of counsel could not
constitute newly discovered evidence for purposes of Rule 33, and
treated Martorano’s motion instead as one to vacate his sentence
under 28 U.S.C. § 2255. As the question whether this case comes
to us on direct or collateral appeal would not affect the outcome,
see text at page 4 infra, we express no opinion on the district
court’s ruling.
2 U.S. UV. MARTORANO
of this court, which reversed and remanded for a new trial
after holding the government had not demonstrated that
Martorano was not prejudiced by the failure of the trial
court to conduct the inquiry required in United States v.
Foster, 469 F.2d 1, 5 (1st Cir. 1972). Appellee then moved
for rehearing en banc, and that motion having been allowed
by vote of a majority of this court, the panel’s judgment
was vacated and an en banc hearing held, resulting in the
present opinion. See 28 U.S.C. § 46(c); Fed. R. App. P.
35(a); Part IV infra.
The facts are more fully set forth in the panel opinion,
to which we shall refer, United States v. Martorano, 610
F.2d 36 (1st Cir. 1979). See also United States v. Marto-
rano, 557 F.2d 1 (1st Cir.), reh. denied, No. 76-1372 (1st
Cir. May 23, 1977) (unpub.) and 561 F.2d 406 (1st Cir.
1977), cert. denied, 435 U.S. 922 (1978) (affirming appel-
lant’s conviction on direct appeal). In the present opinion,
we repeat the facts only as necessary to our analysis of
the issues.
I.
Our decision in United States v. Foster, 469 F.2d 1 (1st
Cir. 1972), requires the district courts of this circuit to
warn on the record every defendant who indicates that he
contemplates being jointly represented at trial of the risks
inherent in such representation, so that the court can be
assured that his waiver of the right to separate counsel is
knowing and voluntary. 469 F.2d at 5. In the present case,
appellant Martorano received no direct warning by the
court, although in response to instructions from the magis-
trate, his attorneys provided certain advice orally and in
writing, and secured Martorano’s signature to a letter to
the court, which they had prepared, stating that he was
aware of the risks of joint representation but nonetheless
wished to retain the same law firm which represented his
OPINION OF THE COURT. 3
co-defendant Brian Halloran.? We agree with the panel
opinion that this letter, and any advice preceding it, did
not relieve the government from the consequences of the
district court’s failure to comply materially (or indeed at
all) with the Foster rule. We made no provision in Foster
for an alternative to direct inquiry in open court, and are
not inclined to establish one now. Letters prepared and
signed outside the court’s purview are not a substitute for
the in-court colloquy mandated by Foster.
II.
We thus turn to the principal issue in this case and the
one upon which our decision to grant rehearing en banc
2 Evidence developed at the new trial hearing established that
this letter, along with another purporting to be from Joseph S.
Oteri to his client Martorano warning in general terms of the risks
of joint representation, was prepared by Martin Weinberg, attorney
of record for Brian Halloran and Oteri’s law partner. See 610 F.2d
at 40-41.
3 The ultimate aim of the Foster rule—a proper warning—could,
in theory, be attained by full and careful disclosure in an attor-
ney’s office or elsewhere, but the rule’s more immediate purpose
—to prevent the uncertainty that arises when defendants make
post-conviction claims of ignorance or misadvice—would still be
frustrated. Thus while in United States v. Donahue, 560 F.2d
1039, 1044 (1st Cir. 1977), we said that the giving of out-of-court
advice was relevant to the ultimate question of whether a defendant
was prejudiced by the district court’s noncompliance with Foster,
only a compelling showing of the most complete and effective
out-of-court advice would ever suffice, by itself, to disprove
prejudice in a case such as this. The showing made here fell short
of that standard. Prejudice, therefore, must be ascertained here
largely in terms of whether there was an actual conflict of interest
which was likely to have subverted Martorano’s defense. Still,
in our overall assessment of the prejudice caused by the court’s
failure to give a Foster warning, we think it reasonable to take
into account that Martorano, a college-educated man, was not
totally lacking in some advance warning of the pitfalls of joint
representation, nor was he pressured into accepting joint rep-
resentation. Cf. Donahue, 560 F.2d at 1041-42 (attorneys hired
at the insistence of older co-defendant for whose benefit defense
strategy allegedly tailored).
4 U.S. V. MARTORANO
was based.* In Foster we said that the failure of the trial
court to make adequate inquiry would shift to the govern-
ment the burden of proving the unlikelihood of any preju-
dice arising from joint representation. While we described
the government’s burden in somewhat different ways ac-
cording to whether the issue arose on direct appeal or
on collateral attack, 469 F.2d at 5, we did not mean to
announce as between the two situations any significant
difference in the ultimate burden of persuasion. Rather we
merely recognized that in the case of a direct appeal an
appellate court’s focus would be perforce on the trial
record alone. Where, as here, an evidentiary hearing has
been held, whether in connection with a motion for new
trial, a motion to vacate sentence, or the like, such a hearing
may be a ‘‘useful supplement’’ to the trial record, see
United States v. Donahue, 560 F.2d 1039, 1044 (1st Cir.
1977), providing further insight into the actuality of any
conflict between the interests of various defendants and
illuminating the degree to which the choice of trial strategy
may have been influenced by conflicting concerns. Still the
ultimate question is the same in either context, namely,
whether the government has carried its burden of showing
it is more likely than not that no prejudice stemmed from
the joint representation. We have not adopted a rule of
per se reversal, compare Holloway v. Arkansas, 435 U.S.
475, 489 (1978) (automatic reversal where defendant was
compelled, over his objection, to accept joint representa-
tion), nor is our standard as stringent as the ‘‘harmless
beyond a reasonable doubt’’ rule followed where errors of
constitutional magnitude are present, compare Chapman v.
California, 386 U.S. 18, 24 (1967). Here we are not dealing
with a court’s unconstitutional refusal to allow separate
oo ee
* Appellant has raised a number of challenges to our authority
to grant an en banc rehearing in this case. These points will be
discussed in Part IV of this opinion.
OPINION OF THE COURT. 5
representation, see Holloway v. Arkansas, 435 U.S. 475
(1978), but only with its failure to provide a defendant
with an auxiliary procedure required by this circuit under
our supervisory powers, which is aimed at making abso-
lutely certain the defendant understands all the pitfalls of
joint representation. While we assuredly do not encourage
violations of our supervisory rule, see United States v.
Waldman, 579 F.2d 649, 653 (1st Cir. 1978), there are
undoubtedly situations in which such violations cause little
or no material prejudice to defendants; we must take care
not to provide a windfall to a defendant, who has been found
guilty of a serious crime, simply because of some attenuated
hypothesis ef prejudice woven by counsel after conviction.
Joint representation, after all, may sometimes be quite
beneficial to a defendant and may at other times be of little
consequence to the adequacy of a defendant’s representa-
tion. See Holloway v. Arkansas, 435 U.S. 475, 482-83;
Glasser vy. United States, 315 U.S. 60, 92 (1942) (Frank-
furter. J., dissenting). To overturn a defendant’s convic-
tion for violation of a supervisory rule where it is more
likely than not that conflicting interests did not hamper
counsel’s pursuit of a potentially effective defense would
be both wasteful and pointless.
In finding prejudice, the panel opinion focused on the
following language in United States v. Donahue, 560 F.2d
1039, 1045 (1st Cir. 1977):
‘Where, as here, an alternative strategy—whatever its
ultimate merit—plainly existed, and where such a
strategy involved, as between the joint defendants,
some potential for conflict of interest, we cannot say
for sure that the potential conflict did not influ-
ence the choices made by those representing both
defendants. ”’
In applying that language to the very different facts of
the present case, the panel derived two key elements neces-
sary to establish prejudice: (1) the existence of an alter-
6 U.S. V. MARTORANO
native defense strategy, and (2) the potential for conflict
of interest between the defendants. The panel then found
that at least one alternative strategy plainly existed, namely
having Louis ‘‘ Bugsy’’ Pallotta, brother of the chief prose-
cution witness Peter Pallotta, testify on appellant’s behalf.
The panel also found a potential for conflict in that the
decision not to use Louis Pallotta as a witness may have
been influenced by the possibility that Louis would damage
appellant’s co-defendant Brian Halloran by giving testi-
mony as to Halloran’s reputation and character.
As for the first element, the panel may well be correct
that: calling Louis Pallotta to testify should be regarded
as an existing alternative defense strategy even though the
district court, for rather substantial reasons, found that
Louis had overwhelming disabilities as a defense witness.
It was represented that Louis Pallotta, the brother of the
chief prosecution witness, would have testified that Peter
Pallotta’s account of the loan transaction was a fabri-
cation. Peter Pallotta himself had testified that Louis was
present when the allegedly extortionate loan was negoti-
ated; Louis, it is asserted, would have corroborated Marto-
rano’s version of this event, confirming that the loan was
made to Louis rather than to Peter and that it was paid
back by Louis prior to the time of the alleged extortionate
collection efforts. Louis’ hoped-for testimony would thus,
on its face, have been very favorable to Martorano. The
problem with Louis as a potential witness was that he
had previously given a contradictory statement to the FBI
(which, depending on its contents, might have gone some
distance to destroy Martorano’s as well as Louis’ own credi-
bility). Louis also had a history of very serious mental
problems. Under these circumstances, the district court
felt Louis would have been worse than useless—and so,
according to themselves, did the defense attorneys. On the
other hand, after-the-fact reconstruction of what an attor-
OPINION OF THE COURT. |
ney might have done had he been completely free from
any sense of divided loyalties is a difficult feat. It makes
sense, therefore, to assume, at least for purposes of argu-
ment, that calling Louis to the stand was a conceivable
alternative strategy, and then to proceed to the key issue
—which is whether there was in fact any such conflict of
interest between the two defendants as might have led
separate attorneys to make a different choice in Marto-
rano’s case than in Halloran’s case with regard to the
question of calling Louis Pallotta to the stand.
The foregoing is, of course, the key question in any case
where Foster warnings have been omitted. The mere
existence of alternative strategies is not by itself demon-
strative of prejudice so long as there was no inherent
conflict between the considerations that weighed upon re-
jection or acceptance of the strategies in both defendants’
cases.
Appellant contends that his attorneys balked at putting
Louis Pallotta on the stand at least in part because Pallotta
might have given testimony on cross-examination which
would have blackened Halloran’s reputation. Since the
evidence against Halloran was relatively weak, it is argued,
the attorneys were concerned to prevent any corroboration
of Peter Pallotta’s testimony identifying Halloran as a
‘‘loan shark’’ and ‘‘enforcer’’ and implicating him in the
‘‘holdup’’ of Pallotta’s nightclub. This concern for Hallo-
5 We shall take for granted that Louis Pallotta would, in fact,
have given reputation testimony adverse to Halloran, although the
point is not entirely clear. Attorney Joseph Oteri testified that he
was unaware of any such possibility. Attorney Martin Weinberg
stated that he was aware of the ‘‘danger’’ this might take place,
but could not recall having discussed this risk with Martorano.
Martorano testified that Weinberg told him Louis Pallotta should
not testify because of the possibility he would hurt Halloran on
cross-examination. We will assume, for present purposes, that
Louis would have given such testimony and that it would have
been admissible pursuant to 18 U.S.C. §§ 892(c), 894(c). See
United States v. Bowdach, 501 F.2d 220, 225-26 & n.7 (5th Cir.
1974), cert. denied, 420 U.S. $48 (1975).
8 U.S. V. MARTORANO
ran, so the argument goes, made it impossible for counsel
to give proper consideration to the value of calling Louis
on behalf of Martorano, for whom Louis would be a valu-
able corroborative witness.
A central flaw in this argument is that to the extent
Louis’ testimony would have helped Martorano, it would
also, in virtually equal measure, have helped Halloran
—so that whatever considerations induced the attorneys
not to call Louis cut across both clients’ cases. This is so
even though, as the dissent observes, Louis would not have
testified ‘‘directly’’ about Halloran. See page 16 infra.
If the jury had credited Louis’ (and thus Martorano’s)
version of events, it would necessarily have rejected Peter
Pallotta’s contrary testimony and would have found that
there had never been a $2,000 loan to Peter—indeed, that
Peter had fabricated the entire episode. Not only would
such a belief by the jury have led to acquittal for both
defendants on those counts of the indictment directly con-
cerned with the $2,000 loan (counts one to three), it would
have so totally discredited Peter Pallotta as to undercut
his remaining testimony regarding Halloran’s alleged col-
lection—at Martorano’s direction—of interest payments
at gunpoint (count four). In short, Louis Pallotta, if at
all helpful to Martorano as a witness, would necessarily
have helped Halloran, and to a degree far exceeding any
detriment to Halloran from Louis’ reputation testimony.
By the same token, if Louis, having once taken the stand,
was discredited as a witness, the consequences would have
fallen at least as heavily on Martorano as on Halloran.
Louis’ expected testimony dealt primarily with transactions
in which Martorano was a direct participant and about
which Martorano himself testified. If Louis was shown to
have made a prior contradictory statement to the FBI,
or if on cross-examination he changed his testimony, or if
he made a conspicuously poor impression, Martorano’s own
credibility as a witness would be in jeopardy.
OPINION OF THE COURT. 9
Similarly, the danger that Louis would admit on cross-
examination that he knew the reputation of Brian Halloran
to be that of an ‘‘enforcer’’ for loan sharking activities
did not represent a conflicting interest as between the two
defendants. Martorano had no more interest in bringing
out such testimony than Halloran did, for the evidence
clearly showed that Halloran and Martorano were close
associates, and that, if Peter Pallotta were to be believed,
Halloran was a ‘‘collector’’ for Martorano. From the un-
contradicted evidence at trial, it was apparent that Halloran
and Martorano had often been seen together at Martorano’s
restaurant; that Halloran on occasion took telephone calls
for Martorano; that Halloran and Martorano visited Peter
Pallotta’s nightclub together on October 30, 1974, the night
before the alleged ‘‘holdup”’ of the club by Halloran and
an unidentified associate; and that Martorano was suffi-
ciently familiar with Halloran and Peter Pallotta to know
that there was ill will between the two stemming from an
incident that occurred in federal prison. Were the jury
in doubt as to whether Martorano had made an extortionate
loan to Peter Pallotta—as opposed to a friendly, no-interest
loan to Louis—testimony from Louis himself, a defense
witness, that a man to whom Martorano was this closely
tied was a reputed ‘‘enforcer’’ of extortionate loans could
have tipped the scales.
An attorney representing only the interests of James
Martorano would plainly have considered it disadvan-
tageous to his client to have such testimony admitted unless
he was persuaded that somehow, notwithstanding all the
problems, those parts of Louis’ testimony corroborating
Martorano would come through to the jury as credible—in
which event, as stated, Louis would be a useful witness
for both defendants, not just for Martorano.* We conclude
®It is true that if counsel regarded Halloran’s defense as 70%
effective and Martorano’s as only, say, 20%, a decision might
possibly be made by independent counsel for Martorano to call in
10 U.8. VU. MARTORANO
that any difference between the possible impact of Louis’
testimony on Martorano and on Halloran is too small and
speculative to create a meaningful conflict. In large meas-
ure, the factors to be weighed in deciding whether to call
Louis 2s a witness were the same in both cases. They
boiled down to the pros and cons of Louis’ credibility—if
he was credible, both would benefit; if not, he was better
left uncalled. This is not a case where certain clear benefits
might have been available to one defendant by creating a
risk of detriment to the other. Compare United States v.
Donahue, 560 F.2d 1039 (ist Cir. 1977). Here, whatever
benefits Louis Pallotta’s testimony could confer were likely
to accrue to both defendants; whatever risks Pallotta’s
testimony might create likewise endangered each defendant.
We see no reason to infer that separate counsel would have
calculated differently the pluses and minuses of Louis’
testimony. Coupled with evidence indicating appellant was
aware that his choice of joint representation might raise a
risk of some conflict, and the absence of any evidence of
overreaching by others, see note 3 supra, we think this
showing sufficient to discharge the government’s burden
of disproving that prejudice resulted from the court’s fail-
ure to follow Foster procedures. As stated at the outset,
the government is not required to show the error harmless
beyond a reasonable doubt, only that it is more likely than
not that no material prejudice occurred as the result of
noncompliance with a prophylactic procedure this circuit
now requires. This standard has been met.
even a potentially disastrous witness on the theory that a long
shot was better than a clear loss. But if Martorano was in that
desperate posture, the district court’s findings as to Louis’ defects
as a witness give us little basis for believing that calling him would
have resulted in a different outcome. If on the other hand, as
seems more likely, defense counsel viewed Martorano’s situation
as not without hope, their decision as to whether or not to call
Louis would have been guided by essentially the same consider-
ations as in Halloran’s case—namely, evaluation of whether or not
Louis would likely be a believable witness.
OPINION OF THE COURT. 11
ye
Appellant’s other assertions of prejudice need not detain
us long. We agree with the panel’s conclusion that the
decision to have Martorano testify on his own behalf
was compelled by the strength of the government’s tape-
recorded evidence against him. In any event, Martorano’s
testimony, if anything, hurt Halloran more than it hurt
him, since Martorano testified on direct examination both
that Halloran had been in prison (corroborating Peter
Pallotta on that point) and that Peter Pallotta feared
physical violence from Halloran. Introduction of Marto-
rano’s criminal record for impeachment purposes merely
confirmed Peter Pallotta’s testimony on direct suggesting
Pallotta feared violence might accompany any nonrepay-
ment of a debt owed to Martorano because Martorano had
been convicted as an accessory after the fact to murder.
In other respects, Martorano’s testimony was exculpatory
as to both himself and Halloran. Calling Brian Halloran
as a witness plainly was not a viable alternative defense
strategy for Martorano. Even had Martorano been repre-
sented by separate counsel, he could not have compelled
Halloran to forego his fifth amendment right not to testify
if Halloran’s interests dictated that he remain silent.
Martorano could not have been prejudiced by either of
these tactical decisions.
ITI.
In light of its resolution of the case, the original panel
did not consider appellant’s further argument that the
district court erred in denying appellant’s motion to recuse.
We are inclined to believe that this issue is now effectively
moot, since we have not relied to any significant extent
on the findings of the district court, and since it would
plainly be pointless to remand this case for a new hearing
before a different judge. However, lest it be thought that
we are ignoring any possible appearance of impropriety
in the handling of this matter, we offer the following
comments.
12 U.S. VU. MARTORANO
Appellant moved to have the district court judge recuse
himself pursuant to 28 U.S.C. § 455(a) both because the
judge had presided at trial and might be compromised in
passing on his own asserted errors, and because certain
remarks made by the judge at another trial assertedly
indicated he had a personal bias against appellant. As we
stated in United States v. Cowden, 545 F.2d 257, 265 (1st
Cir. 1976), cert. denied, 4830 U.S. 909 (1977), the standard
by which such a motion is judged is,
‘‘whether the charge of lack of impartiality is grounded
on facts that would create a reasonable doubt concern-
ing the judge’s impartiality, not in the mind of the
judge himself or even necessarily in the mind of the
litigant filing the motion under 28 U.S.C. § 455, but
rather in the mind of the reasonable man.”’
Applying this standard, we think the mere fact that a judge
entertains a motion for new trial in a case over which he
presided initially does not reasonably call into question
his impartiality. Indeed, we have indicated it may often |
be advantageous to have the original judge continue on a
ease because of his familiarity with earlier proceedings.
See O’Shea v. United States, 491 F.2d 774, 779 (1st Cir.
1974); cf. Halliday v. United States, 380 F.2d 270, 272
(ist Cir. 1967) (contrasting hearing on motion for new
trial with second trial on facts previously found by court).
Having thoroughly reviewed the record, we see no indi-
cation here that the district judge was influenced by
personal animus or bias either at the original trial or in
considering appellant’s collateral attack thereon. Although
the court in reviewing the Foster issue was inclined to find
that appellant had waived his right to separate counsel
despite the absence of an on-the-record warning, the court
went on to consider carefully whether, assuming a violation
of Foster, the government had adequately disproved preju-
dice. As for the remarks the district court made at another
OPINION OF THE COURT. 13
trial intimating that unnamed individuals might cause harm
to Peter Pallotta if his usual whereabouts were revealed in
open court, we think the court sufficiently disavowed any
connection between these remarks and appellant Martorano,
at the opening of Martorano’s trial, so that no reasonable
person could believe they indicated bias against appellant.
We thus discern no error in the district court’s denial of
the motion to recuse.
IV.
In conclusion, we turn briefly to appellant’s challenge
to our authority to hear this appeal en bane. The power
of this court to entertain cases en bane is governed by
28 U.S.C. § 46(c) and by Rule 35 of the Federal Rules
of Appellate Procedure. Section 46(c) provides:
‘*Cases and controversies shall be heard and determined
by a court or panel of not more than three judges,
unless a hearing or rehearing before the court in banc
is ordered by a majority of the circuit judges of the
circuit who are in regular active service. A court in
bane shall consist of all circuit judges in regular active
service.’’
Rule 35(a) provides, in pertinent part:
‘*A majority of the circuit judges who are in regular
active service may order that an appeal or other pro-
ceeding be heard or reheard by the court of appeals
in banc.’’
Appellant argues that because the First Circuit is prex-
ently authorized to have four circuit judges, the required
majority to order an en banc hearing is three, even though
the newly created seat remains unfilled.7 We disagree.
7 Presently there is one vacancy on the circuit. The original three
judge panel deciding this case included two regular judges of this
circuit plus a third outside judge. Obviously there would have
been no occasion for an en banc hearing had the original panel
consisted of the three regular judges, nor, as a practical matter,
would an en bane have been likely had the two regular judges
on the original panel been in agreement.
14 U.8. V. MARTORANO
The statute plainly provides that the required majority
must exist among the judges ‘‘in regular active service.’’
A judge who is yet to be appointed is not a judge in
regular active service. Cf. United States v. American-
Foreign Steamship Co., 363 U.S. 685, 688 (1960). As we
stated in our order of January 10, 1980, a majority of
the three regular circuit judges of this court have voted
to grant rehearing en banc, and this, in our opinion, is all
that the statute requires. Compare Zahn v. International
Paper Co., 469 F.2d 1033, 1040 (2d Cir. 1972), aff’d, 414
U.S. 291 (1973) (four members of court having eight active
members are not empowered to grant rehearing en banc).
Appellant next argues that, assuming the court is com-
prised at present of only three active judges, we are
barred from granting an en bane rehearing because one
three-judge panel is not authorized to overrule another.
Reliance is placed largely on a provision in a proposed
1941 amendment to the Judicial Code—never enacted—that
would have authorized en banc hearings ‘‘in a circuit where
there are more than three circuit judges.’’ See Western
Pacific Railroad Case, 345 U.S. 247, 251 (1953). That this
proposal was never passed by the Senate, and that instead
the very different language of present section 46(c) was
enacted, should in itself suffice to rebut appellant’s argu-
ment. Moreover, the policies behind the en bane procedure,
particularly the desirability of providing ‘‘that the active
circuit judges shall determine the major doctrinal trends
of the future for their court,’’ American-Foreign Steam-
ship, 363 U.S. at 690, apply as much to this circuit as to
any other. When, as often occurs, panels contain one or
more judges who are not regular members of the court,
the same danger exists here as elsewhere that uniformity
and stability of precedent will suffer. We have been directed
to no authority indicating that the First Circuit was in-
tended to be excluded from the provisions of section 46(c)
OPINION OF THE COURT, 15
and Rule 35, and we see no reason to refrain from employ-
ing the device of en bane rehearing where it is appropriate.
Appellant’s other contentions relate primarily to the
internal procedures by which the court regulates the grant
of en banc hearings. The Supreme Court has stated that
such questions are ‘‘largely to be left to intramural de-
termination by each of the Courts of Appeals,’’ American-
Foreign Steamship, 363 U.S. at 688. Rule 35 and First
Circuit Rule 15 provide sufficient notice to litigants of the
process we follow to satisfy the mandate of the Western
Pacific Railroad Case that such procedures be ‘‘clearly
explained.’’ 345 U.S. at 267. See Comment, In Bane Pro-
cedures in the United States Courts of Appeals, 43 Ford-
ham L. Rev. 401, 403 (1974). Appellant’s procedural con-
tentions are thus without merit.
We note finally that appellant, pointing to the require-
ment of Fed. R. App. P. 35(a) that an en banc hearing
‘‘ordinarily’’ be granted only where the issue is of ‘‘excep-
tional importance’’ or where there is disuniformity in the
decisions of the circuit, has questioned whether this case
is an appropriate one for en bane consideration. As the
word ‘‘ordinarily’’ suggests, the question of when to hold,
or when not to hold, an en banc hearing is within the
discretion of this court. Even so, our decision to rehear
en banc was demonstrably in conformity with the standards
of Rule 35. As already indicated, the rehearing serves to
maintain uniformity of circuit policy. The panel opinion,
in our view, construed Donahue to impose a burden of
proving lack of prejudice on the government so severe as
to approach imposition of a rule of per se prejudice in joint
representation cases where Foster warnings have not been
given. Our opinion today serves to clarify the standard
by which the issue of prejudice in Foster-type cases should
be evaluated, a question we regard as of considerable
16 U.S. VU. MARTORANO
importance, in the context of a case like this, and of
evident controversy.®
Accordingly, for the reasons stated herein, and, insofar
as we have specifically adopted them, the reasons stated in
the panel opinion, the decision of the district court 1s
affirmed.
Bowness, Circuit Judge (dissenting). I concur in parts I
and III of the opinion, but respectfully dissent as to parts
II and IV.
My brethren draw different conclusions than I from the
same facts. I do not agree ‘‘that to the extent Louis Pal-
lotta’s testimony would have helped Martorano, it would
also in virtually equal measure have helped Halloran.’’
Majority Opinion at 8. My view of the record is that
Louis Pallotta could not have given any testomony that
would have directly benefited Halloran because he had no
personal knowledge concerning Halloran’s alleged involve-
ment in the extortion scheme. It seems clear to me that
one of the reasons Louis Pallotta was not called, as Attor-
ney Weinberg admitted at the hearing, was because it was
feared that on cross-examination he would make damaging
statements as to Halloran’s reputation and character. In
my opinion, the standard annunciated by my brother Camp-
bell in United States v. Donahue, 560 F.2d 1039, 1045 (1st
Cir. 1977), was met. An alternative strategy plainly existed
which involved ‘‘some potential for conflict of interest.’’
8 Finally, we note that appellant moved to strike the govern-
ment’s supplemental brief on rehearing en bane as not authorized
by the Federal Rules or by specific permission of the court. In the
alternative, appellant requested permission to file a brief of his
own. Such permission having been granted, and appellant having
filed his brief, we see no possible harm to appellant. His motion
to strike is denied.
DISSENTING OPINION—BOWNES, J. 17
Id. Unlike my brethren, I ‘‘cannot say for sure that the
potential conflict did not influence the choices made by
those representing both defendants.’’ 7d.
While I agree with my brethren that a majority of the
three regular circuit judges determines whether there shall
be an in banc hearing, I do not agree that the requirements
of FRAP 35(a) were met in this case. There is no disagree-
ment between us as to the controlling cases. The only
difference is whether the Donahue standard applies. This
is purely a judgment call. All that the in bane hearing
has produced is a different result. It has not secured or
maintained uniformity of decisions in this area, something
that is obviously impossible under our case-by-case ap-
proach to the problem of dual representation. And while
the question is obviously of exceptional importance to
Martorano, it does not rise to anywhere near that level as
far as circuit precedent is concerned. No new gloss has
been put on Foster or Donahue. The case is just another
illustration that reasonable men of essentially the same
background, training and experience can differ in their
assessment of the facts.
Adm. Office, U.S. Courts — Blanchard Press, Inc., Boston, Mass.
APPENDIX "A" 610 F.2d 36
UNITED STATES of America, Appellee,
v.
James MARTORANO,
Defendant-Anpeliant.
No. 78-1445,
United States Court of Appeals,
First Circuit.
Argued March 15, 1979.
Decided Dec. 6, 1979.
Rehearing En Bane Granted and Opinion
Vacated Jan. 10, 1980.
. After defendant was convicted of ex-
tertion, his motion for new trial was demiec
by the United States District Court for the
District cf Mrseachusetts, Andrew A. Caf-
frey, Chief Judge, 467 F.Gupp. $08, and he
appeajed. The Court of Appeals, Bowness,
Cweuit Judge, held that: (1) ia view of
testimony of the particular defendat as
weil as testimony of hia attorneys thet be
eever did discuss contents of letters with
his attorneys, which concerned his right to
separate counrel and waiver thereof, the
district court correctly proceeded to con-
sider the issue of prejudice, and sorrectly
placed burden of proof thereon on the
Government; (2) where particular defend-
ant thought it would be very effective to
have the Government's chief witness cun-
tradicted by the latter’s own brother and
thus the particular defendant continually
urged defense counsel to call such witness’
brother but he was not called because de-
UNITED STATES v. MARTORANC
37
Cite as €10 F.2d 36 (1979)
udice from joint representation; and (3) the
fact that the alternate strategy to which
defense counsel could have resorted had not
defendants been jointly represented was
not without risk did not preclude a finding
that it was reasonable strategy to pursue
and that the particular defendant was prej-
udiced by being jointly represented.
Reversed and remanded.
Coffin, Chief Judge, dissented and filed
opinion.
1. Criminal Law °=641.5
Sixth Amendment right to separate
counsel is waivable in recognition of fact
that occasionally joint representation can be
appropriate or even advantageous to multi-
ple defendants, but courts bear special re-
sponsibility in evaluating criminal defend-
ant’s purported waiver of Sixth Amend-
ment right to separate counsel. U.S.C.A.
Const. Amend. 6.
2. Criminal Law 0641.5
District court has duty to comment as
early in litigation as practical on some of
risks indigenous to joint representation and
to inquire diligently of jointly represented
defendants whether they have discussed
these risks with counsel and whether they
are aware of rights to separate counsel and,
if indigent, to court-appointed counsel.
U.S.C.A.Const. Amend. 6.
3. Courts <= 85(3)
Expansion of supervisory rule of Court
of Appeals, under which district court has
duty of inquiry to require fuller warning
than previously, including more detailed ex-
planation of risks involved in joint repre-
sentations, does not apply retroactively.
U.S.C.A.Const. Amend. 6; Fed.Rules Cr.
Proc. Rule 44(c), 18 U.S.C.A.
4. Criminal Law 641.5
Rarely, if ever, will Court of Appeals
consider adequate a waiver of right to sepa-
rate representation when trial! court has not
met its duty of inquiry as outlined in judi-
cial opinions. U.S.C.A.Const. Amend. 6;
Fed.Rules Cr.Proc. Rule 44(c), 18 U.S.C.A.
5. Criminal Law 641.5
Purpose of rule, promulgated by judi-
cial opinion, describing district court’s duty
of inquiry to determine whether waiver of
right to separate representation is volun-
tary and knowing is to insure that there is
on-the-record exchange between trial court
and defendant from which it can be readily
inferred that waiver was voluntary and
knowing, and in absence of such exchange,
evidence of valid waiver will probably never
be so unambiguous that prowaiver finding
would be affirmed, in view of every reason-
able presuinption against finding of waiver.
U.S.C.A.Const. Amend. 6; Fed.Rules Cr.
Proc. Rule 44(c), 18 U.S.C.A.
6. Criminal Law 641.5
In view of testimony of particular de-
fendant as well as testimony of his attor-
neys that he never did discuss contents of
liters with his attorneys, which concerned
his right to separate counsel and waiver
thereof, district court correctly proceeded to
consider issue of prejudice, and correctly
placed burden of proof thereof on the
Government. U.S.C.A.Const. Amend. 6;
Fed.Rules Cr.Proc. Rule 44(c), 18 U.S.C.A.
7. Criminal Law = 1035(7)
Issue whether prejudice should be
found as matter of course where jointly
represented defendant was not shown to
have voluntarily and knowingly waived his
right to separate counsel could not be raised
for first time on appeal! where it did not
appear that failure to consider issue would
result in manifest injustice. U.S.C.A.Const.
Amend. 6; Fed.Rules Cr.Proc. Rule 44(c),
18 U.S.C.A. |
8. Criminal Law 641.5, 997.15(5)
Burden on government with respect to
issue of whether a defendant was preju-
diced by joint representation in absence of
showing of record that right was voluntari-
ly and knowingly waived is to demonstrate
from record that prejudice to defendant
was improbable, if issue is raised by way of
direct appeal from conviction, though if is-
sue arises in context of motion to vacate or
correct sentence, government will bear bur-
den of establishing unlikelihood of prejudice
38
by preponderance of evidence. U.S.C.A.
Const. Amend. 6; Fed.Rules Cr.Proc. Rule
44(c), 18 U.S.C.A.; 28 USCA. § 2255.
9. Criminal Law #6415
Where particular defendant thought it
would be very effective to have Govern-
ment’s chief witness contradicted by latter's
own brother and thus particular defendant
continually urged defense counsel to call
such witness’ brother but he was not called
because defense counsel feared the prosecu-
tion would on cross-examination of such
witness’ brother elicit testimony damaging
to codefendant in joint trial, calling brother
of such chief government witness was alter-
nate strategy which, whatever iis ultimate
merit, plainly existed, and same involved, as
between the joint defendants, some poten-
tial for conflict of interest, and thus it
would be found that there was prejudice
from joint representation. U.S.C.A.Const.
Amend. 6; Fed.Rules Cr.Proc. Rule 44(c),
18 U.S.C.A.
10. Criminal Law 641.5
That alternate strategy to which de-
fense counsel could have resorted had not
defendants been jointly represented was
not without risk did not preclude finding
that it was reasonable strategy to pursue
and that particular defendant was preju-
diced by being jointly represented. U.S.C.
A.Const. Amend. 6; Fed.Rules Cr.Proc.
Rule 44(c), 18 U.S.C.A.
Richard J. Vita, Boston, Mass., for de-
fendant-appellant.
Wade Livingston, Atty., Dept. of Justice,
Washington, D. C., with whom Edward F.
Harrington, U. S. Atty., Boston, Mass., and
Joseph S. Davies, Atty., Dept. of Justice,
Washington, D. C., were on brief, for appel-
lee.
Before COFFIN, Chief Judge, BOWNES,
Circuit Judge, PETTINE, District Judge.*
610 FEDERAL REPORTER, 2d SERIES
BOWNES, Circuit Judge.
In this appeal from the denial of his
motion fur a new trial, appellant seeks re-
versal of his extortion conviction on
grounds of ineffective assistance of counsel
due to joint representation.
Appellant and Brian Halloran were tried
together on four counts of extortion in June
1976. The jury acquitted Halloran, but
found appellant guilty on al! counts. We
affirmed appellant’s conviction and denied
his petition for rehearing. U'nited States v.
Martorano, 557 F.2d 1 (1st Cir.), rehearing
denied, # 76-1372 (1st Cir. May 23, 1977)
(unpub.) and 561 F.2d 406 (1st Cir. 1977),
cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55
L.Ed.2d 515 (1978).
In February 1978, appellant moved for a
new trial on grounds of newly discovered
evidence. Because final judgment had been
entered more than one year before the mo-
tion was filed, a motion for new trial on any
other grounds would have been untimely.
See Fed.R.Crim.P. 33. Appellant's “newly
discovered evidence” was that he had been
prejudiced at trial because he and Halloran
had been jointly represented by members of
“the same law firm. This “evidence” was
said to be “newly discovered” because an-
pellant did not learn of the prejudice until
he obtained new (his present) counsel,
which was after his appeal and petition for
rehearing had been decided.
The district court held an evidentiary
hearing on appellant's motion for a new
trial, at which appellant and all counsel
invol: ed in his trial testified. In its opinion
and order on the motion, the court ruled, as
a threshold matter, that it was treating the
motion as one to vacate a sentence under 28
U.S.C. § 2255, on the ground that the iasue
of ineffective assistance due to joint repre-
sentation does not constitute “newly discov-
ered evidence” within the meaning of Rule
33. As to the merits of the motion, the
court found that, prior to his trial, appellant
had knowingly waived his sixth amendment
right to separate counsel. Because, how-
ever, the trial judge had not complied with
United States v. Foster, 469 F.2d 1, 4-5 (1st
* Of the District of Rhode Island, sitting by designation.
UNITED STATES v. MARTORANO
39
Cite as 610 F.2d 36 (1979)
Cir. 1972), by personally addressing appel-
lant concerning his waiver, the district
court, in ruling on the motion for a new
trial, believed it was necessary to reach the
issue whether appellant had been preju-
diced by his joint representation and to
place the burden of proof on this issue on
the government. After reviewing the evi-
dence bearing on the issue of prejudice, the
district court ruled that appellant had not
been harmed by the fact he had shared trial
counsel with Halloran. Accordingly, the
court denied appellant’s motion for a new
trial. United States v. Martorano, 457
F.Supp. 803, 810 (D.Mass.1978). This timely
appeal followed.
WAIVER
Appellee argues that since the district
court’s finding of a knowing and voluntary
waiver is supported by the record, we
should affirm the denial of the new-trial
motion on that ground and not reach the
issue of prejudice. Appellant contends that
the district court’s finding of waiver is erro-
neous and that, in any event, the issue of
prejudice must be reached because the trial
judge failed to comply with its duty of
inquiry under Foster. We agree with the
latter portion of appellant’s argument.
{1-3] The right to separate counsel,
guaranteed by the sixth amendment, is
waivable in recognition of the fact that
occasionally joint representation can be ap-
propriate or even advantageous to multiple
defendants. United States v. Waldman,
579 F.2d 649, 651 (1st Cir. 1978). An under-
standing, or even an awareness, of the risks
inherent in joint representation, however, is
not a part of the basic knowledge of the
average layperson. For this reason, and
because waiver of any constitutional right
is a serious matter, courts bear a special
1. Since Foster, we have expanded the district
court's duty of inquiry to require a fuller warn-
ing which includes a more detailed explanation
of the nsks involved in joint representation.
United States v. Donahue, 560 F.2d 1039,
1043 4 (ist Cir. 1977). This expansion of our
supervisory rule does not, however, apply ret-
roactively, Waldman, 579 F.2d at 652, so it is
inapplicable to the present case in which trial
occurred in 1976.
responsibility in evaluating a criminal de-
fendant’s purported waiver of his sixth
amendment right to separate counsel, Id.
In view of this responsibility, in Foster we
devised a rule under our supervisory powers
for district courts to adhere to in evaluating
such waivers. The district court’s “duty of
inquiry” under Foster requires a trial court
to comment, “as early in the litigation as
practicable,” on some of the risks indige-
nous to joint representation and to “inquire
diligently” of jointly-represented defend-
ants whether they have discussed these
risks with counsel and whether they are
aware of their rights to separate (and, if
indigent, court-appointed) counsel.! 469
F.2d at 5.
It is undisputed that the trial court failed
to address appellant about the waiver which
appellant filed with the court. The trial
court first learned that appellant and Hallo-
ran were being represented by two mem-
bers (Oteri and Weinberg) of the same firm
at Halloran’s arraignment, which was held
several days after appellant’s. Upon learn-
ing of the joint representation, the magis-
trate, in recognition of his duty under Fos-
ter, questioned Halloran about possible con-
flicts of interest. He then instructed attor-
ney Weinberg, who had accompanied Hallo-
ran, to inform Halloran and appellant about
their right to separate counsel and, if either
defendant wished to waive that right, to
have him send a letter of waiver to the
court. Appellant was not present at Hallo-
ran’s arraignment and at no other time
during the course of the tria! did the magis-
trate or the trial judge speak to him about
his joint representation.
The district court found, however, upon
the basis of the evidence presented at the
hearing on the motion for a new trial, that
appellant did in fact voluntarily and know-
As of August !, 1979, Rule 44(c), Fed.R.
Crim.?., requires district courts to advise joint-
ly-represented defendants about their right to
separate representation. The Rule, however,
does not require as detailed an inquiry as our
supervisory rule which, of course, is controlling
in this circuit.
40
ingly waive his right to separate counsel
before he was tried. The evidence upon
which the court’s finding was based is the
following. Shortly after Halloran’s ar-
raignment, appellant was called to the of-
fice of Oteri and W2inberg. There, Wein-
berg gave him two letters which Weinberg
had drafted, one purporting to be from
Oteri to Martorano (advising Martorano of
the magistrate’s instructions to counsei) and
the other from Martorano to the magistrate
(stating that appellant was aware of his
right to separate counsel and of the risks of
joint representation, but that he still wished
to retain his present counsel). Appellant
was given a few minutes to read these
letters, he then signed them, and later
Weinberg had the letter to the magistrate
filed with the court.
Conflicting evidence was presented at the
hearing concerning whether Weinberg ever
explained the meaning of the letters to
appellant. The district court found that
Weinberg did discuss the contents of the
letters with appellant and ruled, on the
basis of the letters and this discussion, that
appellant’s letter to the magistrate consti-
tuted a knowing and voluntary waiver of
appellant's right to conflict-free counsel.
Appellee argues that this finding is sup-
ported by the record, so there is no need for
us to reach the issue of prejudice even
though the trial court failed to comply with
Foster.
2. The letters were as follows:
Dear Jim:
Pursuant to general instructions issued by
the Magisirate Willie Davis on September 29,
1975, | advise yoy as follows pursuant to the
rules articulated by the United States Court
of Appeals for the First Circuit in a case
styled United States v. Foster, 469 F.2d 1.
As you know, I represent both yourseif and
Brian hHialloran in the above-captioned mat-
ter. The Foster case held that there were
dangers to criminal defendants like your-
selves inherent in any joint representation.
The Court asked me to advise you of the
risks involved in joint representation so that
you would be aware of these risks and,
would if you wished, retain separate counsel.
l enclose for your consideration the follow-
ing letter which | have authored on your
behalf which, if it conforms to your desires,
610 FEDERAL REPORTER, 2d SERIES
[4,5] The short answer to appellee’s ar-
gument is that rarely, if ever, will we con-
sider a waiver adequate when the tiial
court has not met its duty of inquiry under
Foster (and where applicable, Donahue, see
note 1 infra), United States v. Lawriw, 568
F.2d 98, 105 (8th Cir. 1977), cert. denied 435
U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978)
(dictum); cf. Waldman, supra, 579 F.2d at
651-53 & n.6, and this case does not consti-
tute such a rarity. The purpose of the
Foster rule is to ensure that there is an
on-the-record exchange between the trial
court and defendant from which it can
readily be inferred that the waiver was
voluntary and knowing. In the absence of
such an exchange, it is doubtful that the
evidence of a valid waiver would ever be so
unambiguous that, “indulgfing]} [in] every
reasonable presumption” against a finding
of waiver, Glasser v. United States, 315
U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942),
we could still affirm a district court’s pro-
waiver finding.
[6] Here, the evidence that appellant's
waiver was voluntary and knowing was cer-
tainly not unambiguous. The letters which
Martorano signed stated that he had been
informed of the risks of sharing trial coun-
sel and of his right to separate counsel.
These letters, however, do not constitute
strong evidence that he understood the dan-
gers involved because they only stated that
appellant was “aware” of the “risks” and
did not describe any risks. Appellant testi-
may be signed by you and forwarded back to
me for the purposes of sending to the Court
to satisty its burden under the Foster case of
ascertaining whether or not you are con-
scious and aware of the fact that you may
retain separate counsel and may be preju-
diced by joint representation.
Sincerely,
Joseph S. Oteri
Dear Magistrate Davis:
Pursuant to your instructions of September
29, 1975, I state to you that | am aware of the
dangers which exist to criminal defendants
and which are inherent in joint r-presenta-
tion. I have discussed these risks with my
attorney, Joseph S. Oteri, and | understand
that | may retain separate counsel or if |
qualify as an indigent | may have such coun-
UNITED STATES v. MARTORANO
41
Cite as 610 F.2d 36 (1979)
fied, as did attorneys Oteri and Weinberg,
that he never did discuss the contents of the
letters with his attorneys. Counsel believed
that there were no conflicts of interest be-
tween Halloran and appellant. Thus, they
viewed the preparation of the 'etters as a
mere technicality to ensure, in view of the
magistrate’s instructions, their continued
representation of appellant and Halloran.
Appellant testified that, given this attitude
of counsel towards the letters, he felt no
need to satisfy himself as to their meaning
before signing them. Due to this conflict-
ing evidence concerning the validity of ap-
pellant’s waiver, the district court was cor-
rect in proceeding to consider the issue of
prejudice and in placing the burden of proof
on appellee.’
PREJUDICE
{7} Citing to Holloway v. Arkansas, 435
U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426
(1978), appellant argues that, when a joint-.
ly-represented defendant has not voluntari-
ly and knowingly waived his right to sepa-
rate coansel, we should find prejudice as a
matter of course. This issue was not raised
below. Therefore, only if a failure to con-
sider the issue would result in manifest
injustice, do we need to reach it. See, e. g.,
United States v. Emery, 541 F.2d 387, 889
n.3 (ist Cir. 1976).
sel appointed for me by the Court. | am
mindful of the msks and dangers of join
representation and | desire for Mr’ Oteri to
continue to represent me despite these risks
and despite my knowledge that his office also
represents a co-defendant in the above cap-
tioned matter.
Sincerely,
James Martorano
3. Defense counsels’ failure to explain the risks
of joint representation fell below the standards
established for members of the Massachusetts
bar by the Code of Professional Responsibility.
Donahue, supra, 560 F.2d at 1043 n.2 ("in those
few situations where joint representation mav
be justified, ‘a lawver
should explain fully to each client the umplca-
tions of the common representation and should
accept or continue employment only if the
client consents.’ (emphasis added). Further-
more, these same attorneys were trial detense
We declined to adopt the per se rule
appellant desires in Foster, 469 F.2d at 5,
and do not read Holloway as requiring us to
reconsider that decision. It is true that
this is the second post-Foster trial of which
we are aware in which the trial court failed
to adhere to our supervisory rule concerning
waiver, thereby requiring us to analyze a
lengthy trial record and engage in “the
impossible task of speculating about what
might have happened” had appellant had
his own lawyer.’ Lollar v. United States,
126 U.S.App.D.C. 200, 205, 376 F.2d 242, 248
(D.C.Cir.1967) (C. J. Bazelon, dissenting).
Both trials occurred, however, in 1976 be-
fore our opinion in Donahue in which we
stressed how important we viewed compli-
ance with the rule on waiver to be. Thus, it
is not apparent at this time that a per se
rule is necessary to encourage such compli-
ance. Compare United States v. Scott, 583
F.2d 362, 364 (7th Cir. 1978) (en bane as to
adoption of per se rule). In sum, we see no
reason to reconsider in this appeal whether
a per se rule should be adopted.
{8} In Foster we ruled that where a
satisfactory inquiry into waiver does not
appear on the trial record, the government
bears the burden of persuasion on the issue
of prejudice. The government must “dem-
counsel in Donahue, another case which re-
quired a new trial because of prejudice ansing
from joint representation We might have re-
ferred these matters to a disciplinary commit-
tee except that both appellant's and Donahue's
trials Occurred at about the same time and
before our decision in Donahue issued. At the
post-Donahue hearing on appellant's motion
for a new trial, both defense counsel testified
that in hght of Donahue they no longer rep-
resent more then one defendant at a irial.
4. In Holioway the Court held that, when a trial
court farls to give due consideration tu a court-
appointed detense counsel's contention that the
detendants he 1s jointly-representing have con-
flrctung interests, reversal of the defendants’
convictions is automatically required. 435 U5
at 485, 98 S.Ct. 1173.
5. The first trial was Donahue.
42
onstrate from the record that prejudice to
the defendant was improbable” if the issue
is raised by way of a direct appeal from a
conviction. “if the issue arisea in the con-
text of a (28 U.S.C.] § 2255 motion, the
government will bear the burden of estab-
lishing the «inlikelihood of prejudice by a
oreponderar. : of the evidence.” 469 F.2d
at 5.
Appelice contends that the district court
properly treated appellant’s motion for a
new trial as a § 2255 motion. Thus, appel-
lee argues, it need only prove “the unlikeli-
hood of prejudice by a preponderance of the
evidence.” Appellant argues that the dis-
trict court erred in treating its motion as a
motion to vacate sentence under § 2255.
Therefore, the government must prove that
prejudice was “improbable.”
The issue whether ineffective assistance
can ever properly be raised in a motion for
new trial on grounds of newly discovered
evidence is an open question in this circuit,
United States v. Carlson, 561 F.2d 105, 109
(1st Cir.), cert. denied 434 U.S. 973, 98 S.Ct.
529, 54 L.Ed.2d 464 (1977); United States v.
McCambridge, 551 F.2d 865, 873 (1st Cir.
1977) which will not be resolved here, for
whichever standard we apply our decision
on the issue of prejudice remains the same.
Appellant points to three of defense
counsel’s tactical decisions as indicating
that his interests, in terms of which defense
strategy to pursue, conflicted with Hallo-
ran’s and that defense counsel consistently
chose the tactics which benefitted Halloran.
Defense counsels’ reasons for so proceeding
were, according to appeilant, their theory of
defense that, if Halloran was acquitted, ap-
pellant’s acquittal would eutomaticaily fol-
low and their preference for Halloran due
to their longer association with him.
The three decisions which allegedly bene-
fitted Halloran at appellant's expense were
defense counsel's insistence that appellant
testify, their decision that Halloran not tes-
tify, and their refusal to call Louis Pallotta.
Counsels’ decision not to call Pallotta con-
stitutes sufficient evidence of prejudice to
require a new trial. Hence, we need not
610 FEDERAL REPORTER, 2d SERIES
consider whether counsels’ other tactics also
resulted in prejudice to appellant.
{9} Appellant contends that, if Louis
Pallotta had testified, he would have cor-
roborated appellant’s version of the loan
transaction and rebutted the version of the
government's chief witness, Louis’ brother,
Peter Pallotta. Appellant thought it would
he very effective to have Peter contradicted
by his own brother. For these reasons,
appellant continually urged defense counsel
to cail Louis. Louis was not called, how-
ever, because defense counsel, according to
appellant, feared that the prosecution
would on cross-examination of Louis elicit
testimony damaging to Halloran. Appellee
argues that even a defense counsel loyal
only to appellant would not have called
Louis ‘because his credibility was so open to
attack.
In determining whether the decision not
to call Louis indicates that appellant was
prejudiced by his joint representation we
consider whether, in terms of appeHant’s
defense, calling Louis was “an alternate
strategy [which}—whatever its ultimate
merit—plainly existed” and whether it “in-
volved, as between the joint defendants,
some potential for conflict of interest
.." Donahue, 560 F.2d at 1045.
On the basis of our review of the trial
record we find that calling Louis was “an
alternate strategy [which}—whatever its ul-
timate merit—plainly existed.” In other .
words, an attorney representing only appel-
lant might reasonably have pursued this
strategy. After the government ree‘ed its
case-in-chief, any competent defense coun-
se! would have realized that [or appellant to
have any chance of being acquitted, he had
to put on some kind of defense. The victim
of the alleged extortion scheme, Peter Pal-
lotta, has testified in detail about how ap-
pellant had lent him $2000 at extortionate
rates, how, after Peter defaulted, appellant
had threatened him with harm, and how
appellant had sent Halloran to rob Peter's
nightclub to recover overdue interest pay-
ments. It is true that Peter's credibility
was vigorously attacked on cross-examina-
UNITED STATES v. MARTORANO
43
Cite as 610 F.2d 36 (1978)
tion® but the government's case against
appellant did not rest on Peter's testimony
alone. The government also admitted a
taped telephone conversation between ap-
pellant and Peter in which appellant’s state-
ments practically constituted admissions of
guilt.” Therefore, as appellant's trial coun-
sel recognized, they could not rest without
putting in some kind of defense.
Calling Louis Pallotta, however, was not
defense counsels’ only choice in terms of
putting on a defense for appellant. Coun-
sel had reason to believe that appellant
would make a good witness. One-half of
his criminal record was already in evidence
and the other half was relatively minor, so
the fact that appellant's record would prob-
ably be revealed to the jury if he testified
was not a major drawback to calling appel-
lant. Counsel believed that appellant was
charming, articulate, intelligent, and had
the appearance of a business man. They
knew that appellant was a family man, had
been steadily employed for the last few
years,-and had recently earned a B.S. de-
gree by going to Boston College nights.
Furthermore, appellant was the only person
who could attempt to explain away his
statements on the tape because the record-
ed conversation admitted in evidence had
been solely between Peter and himself.
Therefore, defense counsel would have been
foolish not to call, and in fact did call,
4
6. On direct examination Peter informed the
jury about his lengthy criminal record. On
cross, testimony was elicited from Peter from
which it could be inferred that he had fabricat-
ed his allegations against Halloran and appel-
lant in order to obtain government protection.
According to Peter's testimony, he was in de-
fault on loans from other alleged loan sharks,
an arrest warrant for him was outstanding ir
Massachusetts for failure to pay child support,
and he had committed numerous parole viola-
tions which, if discovered by the proper author-
ities, would result in a minimum jail term of
seven years. Other portions of Peter's testimo-
ny on cross indicated that he thought all of
these pr: blems would be “cured” if he assisted
the government in preparing a case against
Halloran and appellant.
7. The telephone conversation initiated by Peter
and recorded with his permission was as fol-
lows:
appellant for purposes of presenting a de-
fense on his own behalf.
Since calling appellant to testify was a
reasonable strategy to pursue, defense
counsel were not faced with a situation
where calling Louis was realistically their
only choice in terms of presenting a defense
for appellant. Still, we cannot say on the
basis of the record before us that it would
have been unreasonable for an attorney
representing only appellant to have called
Louis as well. Louis was the only other
person present besides Peter and appellant
when the loan was negotiated. If he had
been called, he would have corroborated
appellant's version of these negotiations
and rebutted Peter's. Appellant had testi-
fied that the loan had been made to his
good friend, Louis, not to Peter, whom he
met for the first time that day, that Peter
accompanied Louis because Louis thought
appellant might be able to give Peter some
advice on an unrelated matter, and that the
loan to Louis was interest-free and without
definite terms as to repayment. Louis, ac-
cording to appellant, repaid the loan within
a few weeks, before the date on which
appellant allegedly had Halloran rob Peter's
club. If Louis had testified, he would have
corroborated this version of the loan trans-
action, rather than Peter's. Although the
government's case against appellant was
strong, this corroboration of appellant's tes-
Peter: Jimmy [appellant], | ain't got any
money. I'm trying to put something togeth-
er.
Appellant: Oh, why don't you stop by and
see me.
Peter: I'm afraid to go down there, you
know that.
Appellant: You don’t have to be afraid to
come down to see me.
Peter: I'm afraid I'll wind up gettin’
slapped in the face.
Appellant: Nothin's gonna happen.
Peter: Huh?
Appellant:
phone.
Peter: Oh, all right.
you sorrewhere elise?
Appellant: You can come any time. What
do you think I'm gonna do something ‘round
my own place? Be kind of stupid wouldn't
it? Ah, first chance you get drop by and see
me, all right?
Peter: Okay
Don't talk like that on the
All right, can TI meet
All right, Jim.
44
timony might have made the difference in
the jury's decision as to whether appellant
was guilty “beyond a reasonable doubt.”
{10) It is true, as appellee argues, that
calling Louis was a risk because the prose-
cution was aware that Louis had a history
of mental health problems and had made a
prior inconsistent statement to the F.B.I.
Thus, defense counsel were properly con-
cerned that Louis’ credibility might have
been destroyed during cross examination,
which could then have led to a weakening
of appellant’s credibility in the eyes of the
jury. Still, there is no evidence in the rec-
ord indicating that Louis could not have
overcome his credibility problems. For all
we know his mental health problems might
have had no bearing on his ability to tell
the truth or to give a relixble account of the
loan transaction. Moreover, there is no evi-
dence indicating that Louis could not have
persuaded the jurors that his prior state-
ment to the F.B.I. was false and that they
should believe his testimony at trial. It is
possible that Louis lied to the F.B.I. on
impulse to protect his brother (who had
already agreed to “couperrste” with the
F.B.1. in building a case against appellant),
but then later decided to tell the truth even
though he would be contradicting his broth-
er by doing so. The question of credibility
is always an iffy one. The only way appel-
lant’s testimony about the terms of the loan
could have been corroborated was through
Louis. We have no reason to doubt that
calling him would have been an acceptable
risk. In sum, on the basis of the record
before us, we cannot say with any assur-
ance that an attorney representing only ap-
pellant would not reasonably have called
Louis to strengthen ‘the defense. Thus,
calling Louis was “an alternate strategy
{which}—whatever its ultimate merit—
plainly existed” in terms of making a case
for appellant.
We next consider whether, as between
Halloran and appellant, there was a poten-
tial for conflict in calling Louis. In other
words, since calling Louis was not an unrea-
sonable strategy in terms of appellant's de-
fense, we consider whether it might have
been an unwise tactic in terms of Halloran’s
defense.
610 FEDERAL REPORTER, 2d SERIES
It is undisputed that Louis could not have
given any testimony that would have di-
rectly benefitted Halloran becavse Louis
had no personal knowledge concerning Hal-
loran's alleged involvement in the extortion
scheme. Moreover, there is evidence that
calling Louis might have harmed Halloran.
At the hearing on appellant’s motion for a
new trial appellant testified that defense
counsel told him they were not going to call
Louis because they feared that on cross
examination of Louis the prosecution would
elicit damaging evidence with regard to
Halloran's reputation and character. At-
torney Weinberg admitted that this was
one reason why Louis was not called. A
review of the trial record corroborates the
testimony at this hearing that calling Louis
might have harmed Halloran.
During the government's case-in-chief at
appellant's trial, Peter Pallotta had testified
that he was afraid of Halloran because he
knew Halloran was “a loan shark, collector,
and enforcer and a madman” and “if you
didn't pay [him] you would get a
beating or maybe worse.” However, be-
cause Peter had been subjected to vigorous
cross examination, see note 6 supra, his
téstimony alone did not constitute over-
whelming evidence against Halloran. Fur-
thermore, the government had not been
successful in admitting any other evidence
(e. g., 2 taped conversation) against Hallo-
ran. Therefore, it is probable that a major
concern of any attorney representing Hallo-
ran would have been to prevent any damag-
ing evidence from coming in against Hallo-
ran during the presentation of the defense.
In view of Louis’ expected testi:nony on
cross, corroborating Peter's testimony about
Halloran’s reputation and character, a de-
fense attorney representing Halloran would
not only not have called Louis, but would
have been concerned to hear that he would
be called by a codefendant. Thus, calling
Louis would have involved, “as between the
joint defendants, [a] potential for conflict of
interest.” Donahue, 560 F.2d at 1045. Giv-
en this fact uni the fact that calling Louis
was “an alternate strategy [which}—what-
ever its ultimate merit—plainly existed” for
appellant, id., appellee has not established
that prejudice to appellant arising from his
UNITED STATES v. MARTORANO
45
Cite as 610 F.2d 36 (1878)
joint representation was improbable.
Moreover, there is enough evidence of a
conflict here so we also cannot say that
appellee has proven thc unlikelihood of
prejudice by a preponderance of the evi-
dence. Hence, we reverse appellant's con-
viction and remand for a new trial.
Having found that appellant is entitled to
a new trial we need not reach the issue
whether the district court erred in refusing
to recuse itself from considering appellant's
motion.
Reversed and remanded.
COFFIN, Chief Judge (dissenting).
While I am uncomfortable with the
court’s holding that appellant, a college
graduate and sophisticated businessman,
did not waive his right to conflict-free coun-
sel, I can see the value of generally requir-
ing an on-the-record exchange between
court and defendant. I can therefore ac-
cept the court’s holding on waiver. ;
My problem materializes when I consider
the question of prejudice. The court’s opin-
ion seizes on the decision not to call Louis
Pailotta as sufficient evidence of prejudice
to require a new trial. It notes appellant's
arguments that Pallotta would have corrob-
orated appellant’s version of the loan trans-
action, rebutting his brother Peter, which
would have been helpful; and that defense
counsel refused to call Pallotta because
cross-examination would elicit testimony
damaging to Halloran.
The standard adopted by the court’s opin-
ion is, to quote from United States v. Dona-
hue, 560 F.2d 1039, 1045 (1st Cir. 1977),
whether the action (i. e., calling Louis Pal-
lotta as a witness) was “an alternate strate-
gy (which}—whatever its ultimate merit—
plainly existed.” The court’s opinion obvi-
ously assumed this standard was met.
The trial court, however, made these
findings—that Louis Pallotta would be a
liability to both appellant and Halloran;
that Pallotta had made a prior statement to
the FBI flatly contradicting any exculpato-
ry testimony he might have given for the
defense; that he had a lengthy psychiatric
history including diagnosis as a paranoid
schizophrenic; that Halloran ran less risk of
embarrassment from Pallotta’s testifying,
because of prior inconsistencies, than did
appellant; that after a trial run at testify-
ing Martorano's lawyer thought Pallotta to
be a “terrible witness”. The court conclud-
ed that “there is no reason in the world to
speculate that separate counsel would have
analyzed the potential impact of Louis Pal-
lotta’s testimony any differently” than did
appellant’s counsel.
These observations I*think it important to
note, are not evaluations of strategy, where
our hindsight judgments might well be as
valid as those of the trial court. They are
the clearest indicia of the vulnerability of
Pallotta’s credibiiity. I see absolutely no
basis for disagreement with the trial judge
and cannot see how the court can say: “We
have no reason to doubt that calling him
[Pallotta] would have been an acceptable
risk.”
In short, I would hold that the govern-
ment has more than adequately sustained
its burden of demonstrating that “prejudice
to the defendant was improbable”. United
States v. Foster, 469 F.2d 1, 5 (1st Cir.
1972). It seems to me that the court, in
holding that calling Louis Pallotta was a
strategy that “plainly existed”, may well be
taking too literally the caveat in Donahue,
“whatever its ultimate merit”, and there-
fore is confusing the ability to articulate a
strategy with a realistic chance to pursue
one. Such a reading, of course, would en-
tirely eviscerate the standard of probability
of prejudice established in Foster. I fear
that the court’s approach in this case comes
too close to adopting a per se rule of preju-
dice in all cases where conflict is not
waived.
ORDER OF COURT
A majority of the judges in regular active
service on this Court having voted for a
rehearing en banc,
The opinion of the Court filed . on
December 6, 1979, is withdrawn and the
judgment entered on said date is vacated;
The petition for release on bail is denied;
and
This case is assigned for rehearing en
banc on Friday, I’ebruary 1, 1980.
APPENDIX "B"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
NO. 78-1445
UNITED STATES OF AMERICA,
APPELLEE,
V.
JAMES MARTORANO
DEFENDANT, APPELLANT
Before Coffin, Chief Judge,
Campbell and Bownes, Circuit Judges,
MEMORANDUM AND ORDER
Entered June 9, 1980
The petition for rehearing is denied.
Cuyler v. Sullivan, 48 U.S.L.W. 4517 (May
12, 1980), is not helpful to appellant. The
Court there held that "the possibility of
conflict is insufficient to impugn a criminal
conviction," and that, where a defendant makes
no objection to joint representation at trial,
"In order to demonstrate a violation of his
Sixth Amendment rights, a defendant must
establish that an actual conflict of interest
adversely affected his lawyer's performance."
48 U.S.L.W. at 4521. During the hearing
held by the district court, appellant had
ample opportunity to seek to demonstrate the
alleged adverse effects of his being represented
jointly, and the district court made compre-
hensive findings in which it determined that
no such prejudice had ensued. Those findings
are not clearly erroneous. Moreover, this
court's independent analysis of the record,
based on a standard in some respects more
favorable to the defendant than that eninciated
by the Supreme Court in Cuyler, reached the
conclusion, by a majority of the Court,
that there were no adverse effects as a
result of joint representation. We find no
merit to appellant's remaining contentions
in the petition for rehearing.
Petition denied.
By the Court:
wat
Clerk
APPENDIX "'C"
UNITED STATES CONSTITUTION AMENDMENT 6:
Rights of the accused.
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the
witness against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his
defense.
28 U.S.C. $46:
Assignment of judges; divisions; hearings;
quorum.
(a) Circuit judges shall sit on the court
and its divisions in such order and at such
times as the court directs.
(b) In each circuit the court may authorize
the hearing and determination of cases and
controversies by separate divisions, each
consisting of three judges. Such divisions
shall sit at the times and places and hear
the cases and controversies assigned as the
court directs.
repayment could result in the use of violence or other criminal means to
cause harm to the person, reputation, or property of any person.
(7) An extortionate means is any means which involves the use, or an
express or implicit threat of use, of violence or other criminal means to
cause harm to the person, reputation, or property of any person.
(8) The term “State” includes the District of Columbia, the Common-
wealth of Puerto Rico, and territories and possessions of the United
States.
(9) State law, including conflict of laws rules, governing the enforceabil-
ity through civil judicial processes of repayment of any extension of
credit or the performance of any promise given in consideration thereof
shall be judicially noticed. This paragraph does not impair any authority
which any court would otherwise have to take judicial notice of any
matter of State law.
§ 892. Making extortionate extensions of credit
(a) Whoever makes any extortionate extension of credit, or conspires to do
so, shall be fined not more than $10,000 or imprisoned not more than 20
years, or both.
(b) In any prosecution under this section, if it is shown that all of the
following factors were present in connection with the extension of credit in
question, there is prima facie evidence that th: extension of credit was
extortionate, but this subsection is nonexclusive and in no way limits the
effect or applicability of subsection (a):
(1) The repayment of the extension of credit, or the performance of any
promise given in consideration thereof, would be unenforceable, through
civil judicial processes against the debtor
(A) in the jurisdiction within which the debtor, if a natural person,
resided or
(B) in every jurisdiction within which the debtor, if other than a
natural person, was incorporated or qualified to do business
at the time the extension of credit was made.
(2) The extension of credit was made at a rate of interest in excess of an
annual rate of 45 per centum calculated according to the actuarial
method of allocating payments made on a debt between principal and
interest, pursuant to which a payment is applied first to the accumulated
| interest and the balance is applied to the unpaid principal.
(3) At the time the extension of credit was made, the debtor reasonably
believed that either
(A) one or more extensions of credit by the creditor had been
collected or attempted to be collected by extortionate means, or the
nonrepayment thereof had been punished by extortionate means; or
(c) Cases and controversies shall be heard
and determined by a court or division of
not more than three judges, unless a hearing
or rehearing before the court in banc is ordered
by a mjaority of the circuit judges of the
circuit who are in regular active service.
A court in banc shall consist of all circuit
judges in regular active service. A circuit
judge of the circuit who has retired from
regular service shall also be competent to
sit as a judge of the court in banc in the
rehearing of a case or controversy if he
sat in the court or division at the original
hearing thereof.
7
(dO A majority of the number of judges
authorized to constitute a court or division
thereof, as provided in paragraph (c), shall
constitute a quorum.
18 U.S.C. $891-896
§ 891. Definitions and rules of construction
For the purposes of this chapter [18 USCS §§ 891 et seq.]:
(1) To extend credit means to make or renew any loan, or to enter inv
any agreement, taci. or express, whereby the repayment or satisfaction
of any debt or claim, whether acknowledged or disputed, valid or
invalid, and however arising, may or will be deferred.
(2) The term “creditor”, with reference to any given extension of credit,
refers to any person making that extension of credit, or to any person
claiming by, under, or through any person making that extension of
credit.
(3) The term “debtor”, with reference to any given extension of credit,
refers to any person to whom that extension of credit is made, or to any
person who guarantees the repayment of that extension of credit, or in
any manner undertakes to indemnify the creditor against loss resulting
from the failure of any person to whom that extension of credit is made
to repay the same.
(4) The repayment of any extension of credit includes the repayment,
satisfaction, or discharge in whole or in part of any debt or claim,
acknowledged or disputed, valid or invalid, resulting from or in connec-
tion with that extension of credit.
(5) To collect an extension of credit means to induce in any way any
person to make repayment thereof.
(6) An extortionate extension of credit is any extension of credit with
respect to which it is the understanding of the creditor and the debtor at
the time it is made that delay in making repayment or failure to make
(B) the creditor had a reputation for the use of extortionate means to
collect extensions of credit or to punish the nonrepayment thereof.
(4) Upon the making of the extension of credit, the total of the
extensions of credit by the creditor to the debtor then outstanding,
including any unpaid interest or similar charges, exceeded $100.
(c) In any prosecution under this section, if evidence has been introduced
tending to show the existence of any of the circumstances described in
subsection (b)(1) or (b)(2), and direct evidence of the actual belief of the
debtor as to the creditor’s collection practices is not available, then for the
purpose of showing the understanding of the debtor and the creditor at the
time the extension of credit was made, the court may in its discretion allow
evidence to be introduced tending to show the reputation as to collection
practices of the creditor in any community of which the debtor was a
member at the time of the extension.
§ 893. Financing extortionate extensions of credit
Whoever willfully advances money or property, whether as a gift, as a
loan, as an investment, pursuant to a partnership or profit-sharing agree-
ment, or otherwise, to any person, with reasonable grounds to believe that
it is the intention of that person to use the money or property so advanced
directly or indirectly for the purpose of making extortionate extensions of
credit, shall be fined not more than $10,000 or an amount not exceeding
twice the value of the money or property so advanced, whichever is
greater, or shall be imprisoned not more than 20 years, or both.
§ 894, Collection of extensions of credit by extortionate means
(a) Whoever knowingly participates in any way, or conspires to do so, in
the use of any extortionate means
(1) to collect or attempt to collect any extension of credit, or
(2) to punish any person for the nonrepayment thereof,
shall be fined not more than $10,000 or imprisoned not more than 20
years, or both.
(b) In any prosecution under this section, for the purpose of showing an
implicit threat as a means of collection, evidence may be introduced
tending to show that one or more extensions of credit by the creditor were,
to the knowledge of the person against whom the implicit threat was
alleged to have been made, collected or attempted to be collected by
extortionate means or that the nonrepayment thereof was punished by
extortionate means.
(c) In any prosecution under this section, if evidence has been introduced
pears to and e oe at the time the extension of credit in
question was made, of the circumstances described in section 892(b)(1) [18
USCS § 892(b)(1)] or the circumstances described in section S921 is
USCS § 892(b)(2)], and direct evidence of the actual belief of the debtor as
to the creditor’s collection practices is not available, then for the purpose
of showing that words or other means of communication, shown to have
been employed as a means of collection, in fact carried an express or
implicit threat, the court may in its discretion allow evidence to be
introduced tending to show the reputation of the defendant in any
community of which the person against whom the alleged threat was made
was a member at the time of the collection or attempt at collection.
§ 895. [Repealed]
§ 896. Effect on State laws
is chapter [18 USCS §§ 891 et seq.] does not preempt any field of law
an ougeet kL. which ANd legislation would be permissible in the absence
of this chapter [18 USCS §§ 891 et seq.]. No law of any State which would
be valid in the absence of this chapter [18 USCS §§ 891 et seq] may be
held invalid or inapplicable by virtue of the existence of this chapter [18
USCS §§ 891 et seq.], and no officer, agency, or instrumentality of any
State may be deprived by virtue of this chapter [18 USCS §§ 891 et seq.) of
any jurisdiction over any offense over which it would have jurisdiction in
the absence of this chapter [18 USCS §§ 891 et seq. ].
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.