Opposition Brief — Turchi v. United States

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SEP 25 1987

lOSEPH E SPANIOL, JR.

CUBR iK

In the Supreme Court of the United States —

OCTOBER TERM, 1987

No. 86-2018

RONALD TURCHI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Cuyler v. Sullivan, 446 U.S. 335 (1980) .. 0... ...00.0... 5

Holloway v. Arkansas, 435 U.S. 475 (1978) ............ 5,6

Strickland v. Washington, 466 U.S. 668 (1984) ......... 5

United States v. Blum, 753 F.2d 999 (11th Cir. 1985)... .. 6

United States v. Gambino, 788 F.2d 938 (3d Cir. 1986),

cert. denied, No. 85-2061 (Oct. 6, 1986) ............. 5

United States v. Morrone, 502 F. Supp. 983 (E.D. Pa.

Nea on es eli Pe ae a eee 2

United States v. Ramsey, 661 F.2d 1013 (4th Cir. 1981), ’

cert. denied, 455 U.S. 1005 (1982) .................. 6

United States v. Sutton, 794 F.2d 1415 (9th Cir. 1986) ... 5

Statutes:

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(1)

Jn the Supreme Court of the Cited States

OCTOBER TERM, 1987

No. 86-2018

RONALD TURCHI, PETITIONER

Vy.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that he was denied the effective

assistance Of counsel because of a de facto joint represen-

tation that created a conflict of interest and adversely atf-

fected his attorney’s performance.

1. After a 1979 jury trial in the United States District

Court for the Eastern District of Pennsylvania, petitioner

was convicted of racketeering and racketeering con-

spiracy, in violation of 18 U.S.C. 1962(c) and (d), and

several counts of mail fraud, in violation of 18 U.S.C.

1341. He was sentenced to consecutive terms of 20 years’

imprisonment on the racketeering counts, and consecutive

terms of five years’ imprisonment on the mail fraud

counts, to be served concurrently with his 40-year term of

imprisonment On the racketeering counts. The court of ap-

peals attirmed without opinion, 672 F.2d 905 (1981), and

this Court denied certiorari, 455 U.S. 941 (1982).

On March 27, 1985, petitioner moved under 28 U.S.C.

2255 to vacate his sentence on the ground of ineffective

assistance of counsel. The district court denied the petition

(1)

(Pet. App. 19-40), and the court of appeals affirmed (sup-

plemental filing).

2. The evidence at trial is summarized in United States

v. Morrone, 502 F. Supp. 983, 986-989 (E.D. Pa. 1980). It

showed that petitioner was associated with an arson-for-

hire ring headed by co-defendant Michael Morrone that

burned three commercial buildings in Philadelphia, Penn-

sylvania. In one instance, petitioner started the fire

together with co-conspirator Richard Coppola, who

pleaded guilty and appeared as the government’s chief

witness. The owner of the warehouse that was burned on

that occasion, co-conspirator Moderwell Kester, sub-

mitted insurance claims for the property loss and received

approximately $20,000 as a result of the claims. '

Petitioner and Morrone, who were tried with Kester,

challenged Coppola’s credibility. Petitioner testified at

trial. He denied knowing Kester or participating in the

racketeering enterprise. He also denied any involvement in

two of the three proved fires. Petitioner admitted that he

was Initially involved in the third fire, but he claimed that

at the last minute he backed out and Coppola set the fire

alone.

3. In his Section 2255 motion, petitioner alleged that

he was deprived of the effective assistance of counsel

because his attorney labored under a conflict of interest.

Petitioner claimed that his trial attorney, James T. Ver-

nile, was tied professionally to Robert Simone, who

represented co-defendant Michael Morrone at trial, and

that Simone made the critical decisions regarding Mor-

rone’s and petitioner’s defenses at trial. Pet. 4-6. Petitioner

specifically alleged that this de facto joint representation

' Those submissions, which were made by matl, formed the basis

tor the mail traud counts.

deprived him of counsel’s assistance in exploring “possible

plea options” before trial (C.A. App. 7-8).?

The magistrate conducted an evidentiary hearing on the

motion. Following the hearing, the magistrate recom-

mended that the motion be granted. Pet. App. 42-87. On

the government’s request for review of the magistrate’s

recommendation, the district court rejected the recom-

mendation and denied the petition (/d. at 19-40).

Addressing the claimed conflicts of interest, the district

court found that Vernile’s association with Simone did not

establish joint representation and did not show that Ver-

nile was an associate — formally or informally —in Simone’s

legal practice during petitioner’s trial (Pet. App. 22-27).

The court disagreed with petitioner’s claim that the com-

mon defense strategy pursued by Vernile and Simone

reflected joint representation and resulted in a contlict ot

interest (id. at 27-30). First, the court noted that petitioner

did not allege that Vernile declined to meet with him

privately to discuss the case without Morrone (id. at 31-32).

Second, the court concluded that the reason Vernile did not

discuss a guilty plea with the government was that peti-

tioner maintained that he was innocent of the charges.

Third, the court tound that the decision to pursue a com-

mon defense was a reasonable one made with petitioner’s

best interests in mind (id. at 27-28, 33). Fourth, the court

found that petitioner did not show that he probably would

> Petitioner also claimed that Vernile provided inetfective assistance

by failing to call as trial witnesses the owners of the Archway Tas

one of the burned properties. Those individuals had been represented

by Vernile during an investigation by the Philadelphia Fire Marshal

and had given statements in which they asserted that they did not

know the cause of the tire or who was involved. Petitioner contended

Lhal Those persons ce uld have been called to corroborate his detense

that he was not involved in the Archway Tavern tire, and he argued

that the tatlure to call them resulted trom Vernile’s conthict of inter

6

ment had a strong case which included the testimony of a

former member of the arson gang who would incriminate

the Petitioner,” the record shows that Vernile reasonably

believed the government’s case to turn on an impeachable

witness whose credibility might well be rejected by the jury

(Pet. App. 33).

Petitioner’s argument is bottomed upon speculation that

the circumstances surrounding the “association” between

Vernile and Simone require the inference of a conflict of

interest arising from something akin to joint representa-

tion, despite the contrary findings of the district court. In

sO arguing, petitioner disregards the fundamental princi-

ple that a common defense strategy does not prove a con-

flict of interest. Holloway v. Arkansas, 435 U.S. at

482-483; United States v. Ramsey, 661 F.2d 1013,

1019-1020 (4th Cir. 1981), cert. denied, 455 U.S. 1005

(1982). He also disregards the district court’s conclusion

that at the time of trial petitioner knew of the relationship

between Simone and Vernile and that he was informed of

his right to separate counsel and the possible prejudice

that could result from any joint representation. See

Holloway v. Arkansas, 435 U.S. at 483 n.5 (defendant can

waive right to conflict-free representation); United States

v. Blum, 753 F.2d 999, 1006 (11th Cir. 1985).

It is therefore respectfully submitted that the petition

tor a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

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