Petition for Writ of Certiorari — LoDuca v. United States

87-1827 Supreme Court, U.g,

FILED

MAY 5 1988

JOSEPH ESPANIO :

= CLERK _

In Che

Supreme Court of the United States

October Term, 1988

PETER LODUCA,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MURRAY APPLEMAN

A Member of the Bar

of the United States Supreme Court

Attorney for Petitioner

225 Broadway

39th Floor

New York, NY 10007

(212) 349-6966

Dick Bailey Printers. 203 Richmond Avenue @ Staten Island, New York 10302

Tel.: (212) 608-7666 — (718) 447-5358 — (516) 222-2470 — (914) 682-0848

QUESTIONS PRESENTED

1. May the Government, fully aware of its duty and

obligation to protect the Constitutional rights of all

citizens and fully cognizant that no basis existed in its files

and reports under its control, be instrumental in introduc-

ing supporting affidavits for pretextual allegations that an

individual is a ‘‘known narcotics trafficker’’ in order to at-

tempt to legitimitize a blatant violation of Fourth Amend-

ment’s rights against unreasonable searches and seizures,

without violating the Fifth Amendment to the Constitu-

tion i.e., Due Process and this Court’s principles stated in

Brady v. U.S., 373 U.S. 83 (1963) and U.S. v. Agurs, 427

U.S. 97 (1976)?

2. Did Petitioner obtain effective assistance of

Counsel, when the latter

(a) Incorrectly informed petitioner that his plea of guilty

could be withdrawn

(b) Notified Court at guilty plea that petitioner, with a Se-

cond Grade education from Italy and no additional educa-

tion in the United States, who could not read or write

English, had no defense to Code Section 7206(1) violation

i.e., Subscribing income tax return under penalty of per-

jury knowing same to be false

(c) Did not see or seek any documents that Government

relied on

(d) Made no motions, specifically to suppress information

obtained from Fourth Amendment violations, which

represented the origin for the investigation’s exploitation

of illegal police action and became the ‘“‘but for’’ source of

Government’s case.

or were LoDuca’s rights under the Sixth Amendment to

the Constitution to effective assistance of counsel violated

since the aforementioned reveals that the range of com-

petence demanded of attorneys in criminal cases was not

met?

i

LIST OF PARTIES

Petitioner, PETER LODUCA, was the defendant in

the United States District Court and appealed to the Se-

cond Circuit United States Court of Appeals.

ill

TABLE OF CONTENTS

Pave

SS CPUMUOIO 4 occicccidosedecacsdscscsessecnnscssasntesaues }

te), ces snsaheessansauavasceetsnee i

ER cudgaeiossaeaussssprneasadae’ i

NE Uo ve saeuces Pee atte ee eauissteteaeeadesatiaeae eer IV

The Opinion of the Court Below .................0cccee eee e ees ]

RE FOE OPER PEEL PEPET SUPT TE PITT EAT POET 2

The Principal Constitutional And Statutory Provi-

eer tas ole abe eataeneraadcase tes aeoune Zz

a nn snedecivusveseceecowsdsecnsess F

Reasons for Granting the Petition ................ Eke Genecen 6

POINT I—Whether the Fifth Amendment's Due Pro-

cess Clause was vioated ....... Fadi bayaaeyou baa dimipaiabneeTa 7

POINT I]—Whether Petitioner did not obtain effec-

tive assistance of counsel in violation of the Sixth

Amendment to the COnsutuuion ............. 6.0 e cee cece eee 14

6 I 17

Appendix A—Order of the United States Court of

Appeals for the Second Circult ................eseeeee eee la

1V

CITATIONS

Pages

Anti-Facist Committee v. McGrath, 341 U.S. 123,

Glas 1s Ak, Cty Oe Fe Mics EF os cn cierivensdaxakesnes eee

Bagley v. U.S., 473 U.S. at 682, 105 S.Ct. 3384 ........... 12

ge Ae ie ee Ee) | ee 14

Brady v. Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10

Sc EE ENED Au is coed chedossdhabindctsieseaeks Fe etaeks

. Briscoe v. LaHue, 460 U.S. 325 (1986) ................00008- 13

Daniels v. Williams, 106 S.Ct. 662 (1986) .................065 7

Delaware v. Prouse, 440 U.S. 648; 99 S.Ct. 1391; 59

Beets BN bb di cviivadenkcnastvanncunaciodincensaobuanacdts eee 9

Dunaway v. U.S., 442 U.S. 200; 99 S.Ct. 2248; 60

cs TE ied pactcnkdcdacadadesetoipnxceuaressdeviaanausasts 8,11

VARS ¥:. LACORS US. Bet CHEE aint eeridsncdsssiecel cs 14

Gissendanner v. Wainwright, 482 F.2d 1293, 1296-7

CSG Ta FTO bn tsnetndenicasccarsdicddnesiasepenseeeee 1]

Fiolt v. Castaneda, $32 F .26 123 (1967) «0... cccccscc00c0c000. 13

Ives v. South Buffalo Ry Co., 201 NY 271, 293, 295-6.....8

Malley v. Briggs, 475 U.S. 335 (1986) ................ eee ee: 13

FOS VEN, Fe FOR Baa BOE vearecdncsacuvelccatdvcasesses 8

Vv

Snyder v. Mass., 291 U.S. 97, 105; 54 S.Ct. 330-2; 78

EB, CFG ii ccsnscostsnccnarnscdanseaemas Soi tese ans iis 8

Strickland v. Washington, 466 U.S. 668 (1984) ........... 14

U.S. v. Agurs, 427 U.S. at 110; 96 S.Ct. at

DOGS caisicncnsriontuiaskusviconeactesseeareeeeenaes i,7,13,82,15

U.S. v. DiTomasso, 817 F.2d 201 (2d Cir. 1987) .......... 1]

Wong Sun v. U.S., 371 U.S. 417 ....ccceececseccsesseesecones 10

Amendment IV to the Constitution of the United

Cie. akuceasanvekobebeuwias iene 2,6

Amendment V to the Constitution of the United

ieee ukccckwat dase anit idionsks i eecsaaaaeeee 2,6,7,8

Amendment VI to the Constitution of the United

Re a pac davesteesancebeatana eae 2,6

U.S. Code Section Ta tl) skate tee 2s

3n The

®upreme Court of the United States

October Term, 1988

PETER LODUCA,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Peter LoDuca prays that a Writ of Certiorari issue to

review a final judgment and order of the United States

Court of Appeals for the Second Circuit decided March 9,

1988 (Appendix A) infra, which affirmed the judgment of

the United States District Court for the Eastern District of

New York (I. Leo Glasser, J.) denying a motion to

withdraw plea of guilty to a charge of income tax violation

pursuant to 26 U.S.C. §7206(1).

THE OPINION OF THE COURT BELOW

The opinion of the Court below, namely the United

States Court of Appeals for the Second Circuit, affirming

the decision and judgment, is set forth in Appendix A, in-

fra as aforesaid.

2

JURISDICTION

The order of the judgment of the United States Court

of Appeals for the Second Circuit, the Court below is

dated March 9, 1988. Jurisdiction of this Court is invoked,

made and conferred under 28 U.S. Code §1254(1).

THE PRINCIPAL CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Fourth Amendment to the Constitution

Fifth Amendment to the Constitution

Sixth Amerdment to the Constitution

Title 26 U.S. Code Section 7206(1)

STATEMENT OF fHE CASE

Government files revealed that on October 21, 1983,

solely due to the petitioner receiving and placing a brown

paper bag in the trunk of his car on:the service road of the

Whitestone Expressway at the intersection of Linden

Place, Drug Enforcement agents (DEA) followed and

stopped LoDuca after he had driven a short distance. The

bag was received from one Salvatore Finazzo, subsequent-

ly pretextually deemed a ‘‘known narcotics trafficker.’’ A

search of the trunk revealed that the brown bag contained

$100,000.00, which LoDuca upon being questioned

responded that it represented gambling winnings.

The bag of money and LoDuca were transported to

the 109th Precinct, where the money was counted, seized

and a receipt given to LoDuca. The latter was then return-

ed to his auto and the money vouchered at DEA Regional

Office, 555 West 57th Street, New York, New York. At a

subsequent date the money was returned to LoDuca.

3

Solely as a result of this confrontation, Internal

Revenue Service Agents since that time conducted an “‘in-

tensive investigation’’ which focused upon LoDuca’s

business and real estate holdings, which revealed various

alleged omissions of rental and interest income for the

years 1980 to 1982. But for this stop and arrest, without

‘‘reasonable suspicion’’ or ‘‘probable cause’’ that some il-

legal activity occurred, and its discovery of monies, the In-

ternal Revenue Service had no basis to initiate an in-

vestigation of LoDuca. Papers submitted all pointedly

reveal that this was the triggering device for the investiga-

tion.

Subsequently as a result of this investigation, solely

triggered by the aforementioned facts, two indictments,

originally violation of Title 26 U.S. Code §7206(1) for the

year 1980 and superseding charging violation of con-

spiracy and income tax evasion, Title 18 U.S. Code §371

and Title 26 U.S. Code §7206(1), respectively for the years

1980 to 1982 were handed down.

To the initial indictment, a plea of Not Guilty was

entered by the undersigned, who was at that time retained.

Subsequently, William I. Shore, Esq., represented the

defendant and plead him guilty to a one count violation of

Title 26 Section 7206(1).

Violation of Title 26 U.S. Code §7206(1) requires:

(a) Specific intent to make a material false statement on a

tax return and

(b) Subscribing tax return under penalties of perjury (1.e.,

knowingly)

At the plea transcript on July 1, 1987, William Shore,

Esq., attorney for defendant-petitioner stated he knew of

4

no reason why the defendant-petitioner should not plead

guilty. At that hearing, the transcript reveals at p. 11,

Judge Glasser stated:

With respect to this plea agreement, I see no reason why I

shouldn’t approve it but I will defer that until I have seen

the pre-sentence report and if for any reason I reject this

agreement, I will permit Mr. LoDuca to withdraw his plea

of guilty he has entered this morning, is that satisfactory

Mr. Shore.

William Shore submitted a written motion to

withdraw guilty plea of LoDuca stating on September 17,

1987:

Your Honor, the defendant has informed me that he

wishes to withdraw his plea of guilty, and I would like to so

move. Your Honor previously said you would accept the

plea with leave to withdraw it. I know it is kind of late but I

ask leave

Court: I don't think I ever said that. I never said I would

accept the plea with leave to withdraw it.

Shore: There was a statement that you had made

something with respect to leave to move to withdraw it.

Court: I said in the event I do not approve of the plea

agreement which was entered into.

Shore: I misunderstood.

On October 13, 1987 on a motion to withdraw plea of

guilty, Shore stated that the defendant was ‘‘functionally

illiterate’’ and that due to the fact that the Government

advised him that documentary evidence existed that the

defendant was literate, he advised the defendant that a

viable defense did not exist. For the first time, despite the

government’s claim that they spent six hours detailing the

evidence against LoDuca to Shore, the latter stated that he

recognized, based on the documents submitted in opposi-

tion to his motion to withdraw the guilty plea, he initially

recommended, that the document submitted i.e.,

Naturalization Petition, merely indicates minimal re-

quirements of literacy. Further, that although the govern-

ment did not show him any documents, Assistant U.S. At-

torney Pileggi related that the government had documen-

tary evidence of LoDuca’s literacy which he assumed was

a letter or something else written in English by the defen-

dant. The Government did not controvert these facts at

this hearing.

The government at a subsequent motion to withdraw

plea of guilty stated:

Mr. Shore came into my office and for hours went thru

documentation and obtained far more discovery than |

customarily provide in criminal cases.

directly controverting what Shore related previously as to

his reliance solely on Government’s representation, which

Originally met no objection.

It should be noted that at a Fatico hearing prior to

sentencing LoDuca to a three month term of incarcera-

tion, a fine of $5,000 to be followed by a two-year-nine-

month period of probation, the Court, after hearing the

Government’s witness pertaining to Finazzo’s pretextually

being ‘‘a known narcotics trafficker’’ shown to have no

credence or basis and the direct testimony of Finazzo de-

nying any knowledge of narcotics, obliterated any

reference pertaining to narcotics from the record.

Nevertheless, the record points out that prior thereto,

demonstrating a shocking disregard for the concept of due

process and simple fairness, the Government was in-

strumental in submitting an affidavit alleging that Finazzo

was a ‘‘known narcotic trafficker’’ although its records

and files reveal that no foundation or basis existed for this

allegation. ‘‘Vigilante Justice’’ is abhorrent to our concept

a a

6

of jurisprudence whether the end product be a body dangl-

ing from the end of a rope, or a person charged with a

crime as a result of lawless conduct on the part of an

overzealous prosecutor. The latter indeed is reprehensible

since both society and the accused are victimized by one

sworn to uphold the law.

A prosecutor cannot be permitted to turn away or re-

main passive when information showing that patently

misleading testimony was submitted to the Court, which is

obvious from the record and files in these proceedings.

REASONS FOR GRANTING THE PETITION

1. Although the government is not responsible for

and hence not able to prevent attorney errors that will

result in reversal of a conviction or sentence, if the at-

torney errors are due to governmental camouflage and

deceptive practices to conceal Constitutional deprivations

by law enforcement officials, must due process provision

of Fifth Amendment be applied in these situations?

2. The issues are important to safeguarding liberties

and protections afforded by the Fourth, Fifth and Sixth

Amendments to the Constitution.

3. The plea did not represent a voluntary and in-

telligent choice among alternative choices of actions open

to defendant.

4. Based on lack of knowledge of law and investiga-

tion of facts by attorney, plea was unintelligent nor was it

within standards set forth in McMann, 397 U.S. 759, 771

(1970).

5. To assure that the Court’s promulgation and

obligation via Brady material is strictly adhered to.

-

POINT I

WHETHER THE FIFTH AMENDMENT’S DUE

PROCESS CLAUSE WAS VIOLATED

The Government, fully aware of its duty and obliga-

tion to protect the Constitutional rights of all citizens and

fully cognizant that no basis existed in its files and reports

under its control, cannot be instrumental in introducing

supporting affidavits for pretextual allegations that an in-

dividual is a ‘‘known narcotics trafficker’’ in order to at-

tempt to legitimitize a blatant violation of Fourth Amend-

ment’s rights against unreasonable searches and seizures,

without violating the Fifth Amendment to the Constitu-

tion, i.e., Due Process and this Court’s principles stated in

Brady v. U.S., 373 US 83 (1963) and U.S. v. Agurs, 427

U.S. 97 (1976).

The due process clause of the Fifth Amendment to the

Constitution doés limit what evidence a Court may con-

sider, but it does require that a defendant be afforded the

opportunity to assure that accurate and reliable informa-

tion is presented and that judgment is imposed on the basis

of materially true statements and accurate information.

A prosecutor’s duty is to seek justice, not merely to

convict. He or she is a quasi-judicial officer, who

represents the people and is presumed to act impartially

solely in the interests of justice and whose primary duty is

to see that justice is done, and the rights of all—defen-

dants included—are safeguarded. There is a positive

obligation to see that no Constitutional violations occur.

Chief Justice Rehnquist stated in Daniels v. Williams,

106 S.Ct. 662 (1986) ‘‘the aim of the due process clause is

to curb abusive power by the State in the form of either

oppression or procedural unfairness.”’

8

It has been said that ‘‘due process, unlike some legal

rules, is not a technical conception with a fixed content

unrelated to time, place and circumstances.’’ Anti-Fascist

Committee v. Mc Grath, 341 U.S. 123, 162; 71 S.Ct.624,

643; 95 L.Ed.817 (Frankfurter, J., concurring). It em-

braces fundamental rights and immutable principles of

justice and use of the term is but another way of saying

that every person’s right to life, liberty and property is to

be accorded the shield of inherent and fundamental prin-

ciples of justice. Jves v. South Buffalo Railway Co., 201

N.Y.271, 293, 295-6. Due process of law guarantees

respect for personal immunities so rooted in the tradition

and conscience of our people as to be ranked as fun-

damental. Snyder v. Massachusetts, 291 U.S.97, 105; 54

S.Ct.330, 332; 78 L.Ed.674 (Cardozzo, J.). It imposes

upon Courts the duty to foster that fundamental fairness

essential to the very concept of justice. People v. Leyra,

302 N.Y.353, 364.

In the extant situation the sole triggering device for

the intensive tax investigation was the exploitation of the

illegal discovery of money in LoDuca’s automobile based

on the myth that it was received from ‘‘a known narcotic

trafficker’’. Although not involving a confession this

_ situation is virtually a replica of Dunaway, 442 U.S.200,

99 S.Ct. 2248, 60 L.Ed.2d 824. No intervening events

broke the connection between the illegal seizure and the in-

come tax investigation. To admit the results of the in-

vestigation, whose origin was the money located by illegal

search and seizure would permit law enforcement officers

to violate the Fourth Amendment with impunity.

The limitations of the due process clause of the Fifth

Amendment come into play only when the government ac-

tivity in question violates some protected right of the

defendant.

Fourth Amendment

There is no question that the stop and detention of

LoDuca were not constitutionally justified.

The stopping of an automobile and detaining its occu-

pant constitutes a seizure within the meaning of the Fourth

Amendment, even though purpose of stop is limited and

resulting detention quite brief. Delaware v. Prouse, 440

U.S. 648, 99 S.Ct. 1391; 59 L.Ed.2d 660.

No articuable suspicion of criminal activity existed in

the transfer of the brown paper bag, other than the pretex-

tual allegation without a scyntilla of evidence that Finazzo,

who gave a brown bag to LoDuca, was a ‘“‘known nar-

cotics trafficker’’, for the forcible stop of petitioner’s

vehicle on a Queens street or the coerced search of its

trunk. The prospect of police officers stopping a moving

vehicle without any suspicion of wrongdoing is an in-

timidating and coercive situation in and of itself.

A warrantless automobile search requires both pro-

bable cause to believe that the vehicle contains contraband

or other evidence subject to seizure and exigent cir-

cumstances. To justify a particular intrusion upon a

citizen’s constitutionally protected interests, ‘‘the police

officer must be able to point to specific and articuable

facts, which taken together with rational inferences from

these facts warrant intrusion.’’ Jerry, 392 U.S. at 2l.

It is clear when considering the fact that the record is

barren of any evidence to deem Finazzo a ‘‘known nar-

cotic trafficker’’ that solely due to one receiving a brown

paper bag and placing that in his automobile trunk, that

the drug enforcement agents acted unreasonably in for-

cibly stopping LoDuca’s vehicle. After being stopped by

10

the team of enforcement officers and in this coercive sur-

rounding allegedly being ‘‘requested’’ to open the trunk, it

is clear that petitioner’s liberty had been completely cur-

tailed before any information regarding the contents of

the brown bag became known. Subsequent events i.e.,

seizure of money and transportation to the 109th precinct,

buttress this fact.

Petitioner’s conduct i.e., receiving a brown paper bag

and placing same in trunk of car, did not unequivocally

reflect criminal purpose and by subsequent evidentiary

facts, the quantum of knowledge sufficient to induce an

ordinarily prudent and cautious man under the cir-

cumstances to believe that criminal activity is at hand was

non-existent. Under the totality of circumstances in this

case, no reasonable suspicion can be gleaned that the peti-

tioner was involved in criminal activity. The scenario

demonstrates innocent, lawful conduct, not a basis for a

reasonable suspicion of illegal conduct especially when the

false allegation as to a ‘‘known narcotics trafficker’’ is

removed.

Insufficient basis for seizing LoDuca, money or stop-

ping car existed. Therefore any property recovered as a

result of this unreasonable and unlawful seizure must be

suppressed as the fruit of that unconstitutional action by

law enforcement personnel. Wong Sun v. U.S., 371 US.

417. This solely being the triggering device for the inten-

sive investigation by the Internal Revenue Service, it must

be deemed that ‘‘but for’’ the illegal action, no investiga-

tion by Internal Revenue Service would have been in-

itiated. As was related during argument in the United

States Court of Appeals by Justice Pratt, ‘‘What interest

would the Internal Revenue Service have solely in a brown

paper bag?”’

1]

As was stated in Dunaway v. New York, 99 S.Ct. at

2259 (1979) ‘‘following Wong Sun, the Court eschewed

any per se or ‘but for’ rule, and identified the relevant in-

quiry as to ‘whether Brown’s statements were obtained by

exploitation of the illegality of the arrest.’’ 422 U.S. at

600, 95 S.Ct. at 2260. When there is a close casual connec-

tion between the illegal seizure and the confession, not on-

ly is exclusion of the evidence more likely to deter similar

police misconduct in the future but also use of the

evidence is more likely to compromise the integrity of the

Courts.

Attenuation under Gissendanner v. Wainwright, 482

F.2d 1293, 1296-7 (Sth Cir. 1973) is inapplicable since

therein it was a third party’s constutitional rights that were

violated and the defendant was deemed not to have stan-

ding and in U.S. v. DiTomasso, 817 F.2d 201 (2d Cir.,

1987), no basis existed to support a motion to suppress in

the record.

There can be no doubt that the actions herein require

that the evidence should have been quarantined to prevent

further spread of any poisonous taint i.e., exploitation of

the illegality.

Brady Material

The rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194; 10 L.Ed.2d 215 (1967) is as follows: ‘‘the suppres-

sion by the prosecution of evidence favorable to an accus-

ed upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of

the good or bad faith of the prosecution.’’ The prosecutor

is charged with knowledge of the significance of evidence in

his file even if he has actually overlooked it. U.S. v.

Agurs, 427 U.S. at 110, 96 S.Ct. at 2400. Further the rule

12

in Brady has been expanded to cover situations in which

no request has been made by the defendant for items of ex-

culpatory evidence. Rather in some cases certain evidence

may be of such probative value as to require the pro-

secutor to reveal it to the defendant absent any demand

for it.

It is conceded that the record indicates that Shore

made no motions or requests, except that the government

recommend probation. However, based on Agurs, supra,

the fact that no basis existed for deeming Finazzo, ‘‘a

known narcotics trafficker’? was material to whether a

plea would be taken there can be no doubt that this infor-

mation would have alerted any responsible attorney as to

the violations of petitioner’s Fourth Amendment rights

and would call for more than a possible ‘‘boilerplate’’ mo-

tion.

Although not requested, due to its constitutional

underpinnings, government counsel was under a duty to

give notification of the non-existence of the claim and the

lack of any basis therefor, rather than pursue a course to

attempt to mislead the Court and defense counsel. As was

stated in Bagley, 473 U.S. at 682, 105 S.Ct. at 3384

‘evidence is material only if there is a reasonable pro-

bability that had the evidence been disclosed to the

defense, the result of the proceedings would have been dif-

ferent’’ which is vividly portrayed based on the facts

herein.

Sanctions

Government counsel and agents evidentally with im-

punity can submit or make any conclusory remarks

without sanctions.

13

In Briscoe v. LaHue, 460 U.S. 325 (1986) this Court

held that police officers are absolutely immune from

liability under 42 U.S.C. 1983 for testifying falsely at trial.

The Ninth Circuit held that a police officer who gives per-

jurious testimony during adversarial pre-trial proceedings

is entitled to absolute immunity. Holt v. Castaneda, 832

F.2d 123 (1987). In Malley v. Briggs, 475 U.S. 335 (1986)

the Court held that a police officer who made false

statements to obtain an arrest warrant is entitled to only

qualified immunity.

To the credit of the government in this case, no

testimony was asserted as to any alleged grounds for

deeming Finazzo ‘‘a known narcotic trafficker’’.

However, the camouflage to mislead defense counsel who

asserted he did not see any of the records in this case suc-

ceeded despite Brady and Agurs, supra and other rights

granted by the Fourth and Fifth Amendments to the Con-

stitution.

The Court would be paying mere lip service to the

principle of due process if it sanctioned this prosecution in

face of the revelations in this record.

14

POINT I

PETITIONER DID NOT OBTAIN EFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF

THE SIXTH AMENDMENT TO THE CONSTITL-

TION

A defendant is entitled to the effective assistance of

counsel. Evitts v. Lacev, 469 U.S. 387 (1985). The United

States Supreme Court in Strickland v. Washington, 466

U.S. 668 (1984) established a two-part test for ineffective

assistance of trial counsel - that counsel's performance fell

below an objective standard of reasonabieness and that

there is a reasonable probability of a different result in the

proceedings but for counsel's errors.

Pre-trial discovery procedure evinces a determinai on

that the trial of a criminal charge should not be a spurting

event where each side remains ignorant of the facts in t -

hands of the adversary until events unfold at trial and

enables a defendant to make a more informed plea deci-

sion, minimizes tactical and often unfair advantage to one

side, and increases to some degree the opportunity for an

accurate determination of guilt and innocence.

The criteria for prosecutorial propriety is found in the

classical verbiage of Berger v. U.S., 298 U.S. 78, 88-89

(1938).

‘*The United States Attorney is the representative not

of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all; and

whose interest therefore, in a criminal prosecution is

not that it shall win a case, but that justice shall be

done. As such, he is in a peculiar and very definite

15

sense the servant of the law, the two-fold aim of

which is that guilt shall not escape or innocence suf-

fer. He may prosecute with earnestness and vigor - in-

deed, he should do so. But while he may strike hard

blows, he is not at liberty to strike foul ones. It is as

much his duty to refrain from improper methods

calculated to produce a wrongful conviction as it is to

use every legitimate means to bring about a just one.”’

It becomes apparent that the U.S. Attorney has an af-

firmative duty to make diligent good faith efforts to ascer-

tain the existence, if any, of constitutional deprivations. If

any is found to exist, to reveal same to the Court and

defense counsel.

Counsel for petitioner herein based on the record,

unequivocally demonstrates a complete lack of investiga-

tion Or preparation whatsoever on the basic defenses

available, constitutional deprivations, illiteracy, failure to

look at or recognize government's discovery, his sole ef-

forts being an attempt to obtain the government’s consent

to recommending probation with regard to a guilty plea.

Although assertedly aware that LoDuca’s primary

defense was illiteracy, i.e., his inability to read or write

English except for his name, no effort was ever made to at-

tempt to ascertain the basis for the government's claim of

documentary evidence that petitioner was literate. He

assumed that the government had a letter or something

else written in English by LoDuca. Only at the hearing on

October 13, 1987, based on the government’s documents

submitted in opposition to his motion to withdraw guilty

plea, did Shore become aware that it was based on a

naturalization petition, the latter he deemed merely in-

dicative of minimal requirements of literacy.

16

Counsel’s comprehension of the guilty plea was so

convoluted that he on September 17, 1987, again in a mo-

tion to withdraw plea of guilty, stated that the Court had

accepted the plea with leave to withdraw it until corrected

by the Court. This original interpretation was transmitted

to the defendant.

It should be noted that this record unequivocally

demonstrates that Shore took no time to review and

prepare both the law and the facts relevant to the defense

and evidently is unfamiliar with or able to employ at trial

basic principles of criminal law and procedure. In the ex-

tant situation, his sole purpose, plea bargaining, being in-

different as to the guilt or innocence of his client.

It must be concluded that based on the cumulative er-

rors particularized above, on basic points essential to any

investigation or representation, mandates the conclusion

that petitioner was denied his right to effective assistance

of counsel and was prejudiced by erroneous advice.

Original counsel, upon being clobbered recognized his er-

roneous advice. But for counsels unprofessional errors,

the result of this proceeding could not have withstood con-

Sstitutional challenges and/or the evidence.

17

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MURRAY APPLEMAN

A Member of the Bar

of the United States Supreme Court

Attorney for Petitioner

225 Broadway

3%h Floor

New York, NY 10007

(212) 349-6966

ee

la

APPENDIX A—ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Ap-

peals for the Second Circuit, held at the United States

Courthouse in the City of New York on the 9th day of

March, one thousand nine hundred and eighty-eight.

PRESENT:

HON. WILFREi? FEINBERG, Chief Judge

HON. GEORGE C. PRATT, Circuit Judge

HON. PETER C. DORSEY, District Judge, for the

District of Connecticut, sitting by designation.

ee eee eee eee eee

UNITED STATES OF AMERICA,

Appellee,

-agalnst-

PETER LO DUCA,

No. 87-1483

This case came on to be heard on a transcript of the

record and was argued.

ON CONSIDERATION WHEREOF, it is now

ordered that the judgment appealed from be and hereby is

AFFIRMED.

Appellant Peter Lo Duca appeals from a judgment of

the United States District Court for the Eastern District of

New York (I. Leo Glasser Judge), denying his motion to

withdraw his guilty plea to a charge of understating in-

come in violation of 26 U.S.C. §7206(1). Lo Duca claims

2a

he was denied effective assistance of counsel based on a

variety Of purported failures by trial counsel, including a

failure to move to suppress evidence and correctly to ad-

vise him with regard to the consequences of his plea.

None of Lo Duca’s arguments has merit. Any sup-

pression motion with regard to evidence seized at the time

of Lo Duca’s arrest would have been irrelevant at best,

since the government had no intention of introducing the

evidence at trial, a fact known to defense counsel prior to

acceptance of the plea agreement. Moreover, the failure to

move to suppress the evidence was not raised in the motion

below and therefore is not properly before us.

As to the claim that Lo Duca did not understand the

consequences of his plea because of his limited facility in

English and the failure of counsel to explain the ramifica-

tions, the record amply supports the conclusion that Lo

Duca—an extremely successful and sophisticated

businessman—did, in fact, understand English sufficiently

well to grasp the plea agreement, as well as the income

Statement on which he understated his income. The plea

allocution was conducted in conformity with rule 11, and

therein Lo Duca made clear that he understood what he

was doing and the potential consequences.

We have considered the remaining arguments raised

by Lo Duca and find them to be without merit.

s/ Wilfred Feinberg

Wilfred Feinberg, U.S.C.J.

s/ George C. Pratt

George C. Pratt, U.S.C.J.

S/ Peter C. Dorsey

Peter C. Dorsey, U.S.D.J.

3a

N.B. THIS SUMMARY ORDER WILL NOT BE

PUBLISHED IN THE FEDERAL REPORTER AND

SHOULD NOT BE CITED OR OTHERWISE RELIED

UPON IN UNRELATED CASES BEFORE THIS OR

ANY OTHER COURT.