Appendix — Fiorillo v. United States (No. 07-1065)

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APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT FILED NOVEMBER 13, 2007

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-17221

D.C. Nos. CV-04-00729-JLQ

CR-94-00427-JLQ

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERRY JOHN FIORILLO,

Defendant - Appellant.

Appeal from the United States District Court for the

Northern District of California

Justin L. Quackenbush, Senior Judge, Presiding

Argued and Submitted November 5, 2007

San Francisco, California

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Appendix A

MEMORANDUM’

Before: KLEINFELD, SILVERMAN, and W.

FLETCHER, Circuit Judges.

In 1996, a federal jury convicted Jerry John Fiorillo

of conspiracy to distribute cocaine, possession of cocaine

with intent to distribute, and fraudulent use of a

counterfeit access device. He filed a habeas petition

under 28 U.S.C. § 2255, arguing that he received

ineffective assistance of counsel during the criminal trial.

The district court denied his petition, and he now

appeals.

We review the district court’s denial of Fiorillo’s

habeas petition de novo. United States v. LaF romboise,

427 F.3d 680, 683 (9th Cir.2005); United States v. Baker,

256 F.3d 855, 859 (9th Cir.2001).

First, Fiorillo contends that his counsel’s own

involvement in criminal activities during the course of

the representation constituted a per se conflict of

interest. We conclude that Fiorillo has failed to

demonstrate any actual conflict between his counsel’s

criminal activities and the representation. See Baker, 256

F3d at 861-62; see also Garcia v. Bunnell, 33 F.3d 1198,

1198 n. 4 (9th Cir.1994); cf Mannhalt v. Reed, 847 I.2d

576, 583 (9th Cir.1988).

* This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. R. 36-3.

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Appendix A

Second, Fiorillo argues that his counsel’s prior

representation of a codefendant constituted “an actual

conflict of interest [that] adversely affected his lawyer’s

performance.” See Cuyler v. Sullivan, 446 U.S. 335, 348

(1980). We conclude that Fiorillo has failed to show that

“some effect on counsel’s handling of particular aspects

of the trial was likely.” Lockhart v. Terhune, 250 F.3d

1228, 1231 (9th Cir.2001) (internal quotation marks

omitted) (quoting United States v. Miskinis, 966 F.2d

1268, 1268 (9th Cir.1992)). Based on the record presented

on appeal, the conflict of interest in this case remains

“mere[ly} hypothetical.” See Alberni v. McDaniel, 458

F.3d 860, 870 (9th Cir.2006). Fiorillo has also failed to

make a showing sufficient to warrant an evidentiary

hearing. See United States v. Howard, 381 F.3d 873, 877

(9th Cir.2004); cf Miskinis, 966 F.2d at 1268-69.

Because we conclude that Fiorillo has failed to

demonstrate that any potential conflict of interest

ripened into an actual conflict of interest adversely

affecting his counsel’s performance, we need not

consider whether Fiorillo’s waiver was “voluntary,

knowing, and intelligent.” See Lewis v. Mayle, 391 F.3d

989, 996 (9th Cir.2004).

Fiorillo requests this court to expand the certificate

of appealability to consider several additional issues.

Applying the standard articulated in Nardi v. Stewart,

354 F.3d 1134, 1138 (9th Cir.2004), we decline to do so.

See also Mayle v. Felix, 545 U.S. 644, 659 (2005);

United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005);

cf. Carrington v. United States, F.3d __, Nos. 05-36143,

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Appendix A

05-36144, 2007 WL 2597326, at * 1, 4 (9th Cir. Sept. 11,

2007); Nardi, 354 F.3d at 1141; Walter v. United States,

969 F.2d 814, 817 (9th Cir.1992).

AFFIRMED

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APPENDIX B — ORDER GRANTING REQUEST

FOR CERTIFICATE OF APPEALABILITY IN

PART OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

CALIFORNIA FILED NOVEMBER 20, 2006

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NO. CR-94-427-JLQ

UNITED STATES OF AMERICA,

Plaintiff,

VS.

JERRY JOHN FIORILLO,

Defendant.

NO. 04-CV-729-JLQ_ bat

JERRY JOHN FIORILLO,

Movant,

V

id 4]

UNITED STATES OF AMERICA,

Respondent.

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Appendix B

ORDER GRANTING REQUEST FOR

CERTIFICATE OF APPEALABILITY IN PART

On October 2, 2006 this court denied Movant’s

Motion for Summary Judgment and his Petition for Writ

of Habeas Corpus. He has now requested a Certificate

of Appealability (COA). Flora Edwards represents the

Defendant. It Is Hereby Ordered that Defendant’s

Request for COA is Granted in Part for the following

reasons.

In order for a Certificate of Appealability to issue, a

constitutional violation must exist. Beardslee v. Brown,

393 F.3d 899 (9th Cir. 2004). A COA should issue if the

applicant has made a substantial showing of the denial

of a constitutional right. 28 U.S.C. § 2253(c)(2). The

Petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the

constitutional claims debatable or wrong. Tennard v.

Dretke, 124 S.Ct. 2562 (2004). Except for substituting

the word “constitutional” for “federal” the present § 2253

is a codification of the CPC standard announced in

Barefoot v. Estelle, 463 U.S. 880, 894 (1983). See Williams

v. Taylor, 529 U.S. 420, 434 (2000). Under Barefoot, a

substantial showing of the denial of a right includes

showing that reasonable jurists could debate (or, for that

matter, agree that) the petition should have been

resolved in a different manner or that the issues

presented were ‘adequate to serve encouragement to

proceed further.’ Barefoot, supra, 463 U.S. at 893

and n. 4.

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Appendix B

The Defendant claims that his trial attorney Tony

Serra, a highly experienced criminal defense attorney,

who he clearly professed he wanted to represent him

despite any potential past, current or future conflict of

interest, provided him ineffective assistance of counsel

at trial and that his resultant sentence is illegal.

The Defendant does not discuss the fact that Judge

Fern Smith, prior to this case being assigned to the

undersigned, held a hearing on any potential conflict of

interest on the part of Mr. Serra. The Defendant Fiorillo

unequivocally stated that he did not want to discuss any

potential conflict with any other attorney and that he

absolutely wanted Mr. Serra to represent him at trial,

despite any possible conflict. See United States v.

Conzales-Lopez, 126 S.Ct. 2557 (2006). Nor can this

Defendant dispute that Mr. Serra attempted but was

precluded by the court from interviewing Agent A after

the hearing before the Magistrate (now District) Judge

Hamilton about any other source of cocaine that was

allegedly furnished to Mr. Flowers.

Defendant further claims that because Mr. Serra has

now, ten years after the Defendant’s trial, been convicted

of failure to pay income taxes, he therefor provided

ineffective assistance of counsel. The Defendant fails to

mention the fact that Mr. Serra’s income tax problems

had nothing to do with the prosecution of the case against

him.

Perhaps reasonable jurist could debate or disagree

as to whether Mr. Serra provided effective assistance of

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Appendix B

counsel, if they had not witnessed Mr. Serra, along with

other defense counsel, vigilantly defend their clients by

claiming that the words spoken on the scores of taped

cell telephone calls played over 4 months of trial

concerning the sale, delivery, payment for and receipt

of major quantities of cocaine referred to something

other than cocaine. Therefore, the court grants

Defendant’s Request for a COA on the claims that

because Mr. Serra’s conflict of interest was allegedly not

adequately presented to the Defendant before Judge

Smith and that because Mr. Serra appears to be

something of a scofflaw concerning the federal income

tax laws, he provided Defendant with ineffective

assistance of counsel.

However, Mr. Fiorillo’s other claim of an illegal

resultant sentence is completely without any merit and

no reasonable jurist could debate this finding or disagree

with it. Nothing Mr. Fiorillo states can change the fact

that this claim was neither timely made within the

limitations period nor has this claim any merit because

he was sentenced before the Supreme Court decisions

in Blakely v. Washington, 542 U.S. 296 (2004) and United

States v. Booker, 543 U.S. 220 (2005), neither of which

apply retroactively to final decisions made prior to those

rulings. United States v. Cruz, 423 F.3d 1119 (9th Cir.

2005); Shardt v. Payne, 441 F.3d 1025 (9th Cir. 2005)

holding that Blakely and Booker are not retroactive and

do not apply to cases on collateral review.

Accordingly, Mr. Fiorillo’s Request for a Certificate

of Appealability as to his resultant sentence is Denied.

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Appendix B

IT ISSO ORDERED. The Clerk is directed to enter

this Order and forward a copy to counsel and to the Ninth

Circuit Court of Appeals.

DATED this 17th day of November, 2006.

s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

SENIOR UNITED STATES DISTRICT JUDGE

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APPENDIX C — MEMORANDUM OPINION AND

ORDER DENYING MOTION FOR SUMMARY

JUDGMENT AND DENYING PETITION FOR WRIT

OF HABEAS CORPUS OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA

FILED OCTOBER 2, 2006

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NO. CR-94-427-JLQ

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JERRY JOHN FIORILLO,

Defendant.

NO. 04-CV-729-JLQ

JERRY JOHN FIORILLO,

VS.

UNITED STATES OF AMERICA,

Respondent.

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Appendix C

MEMORANDUM OPINION AND ORDER

DENYING MOTION FOR SUMMARY JUDGMENT

AND DENYING PETITION FOR WRIT OF

HABEAS CORPUS

A telephonic hearing was held on the Defendant

Jerry John Fiorillo’s Motion for Summary Judgment and

Petition for Writ of Habeas Corpus on August 24, 2006.

Flora Edwards appeared pro hac vice on behalf of

Movant. Assistant United States Attorney J. Douglas

Wilson appeared on behalf of Respondent. Having

reviewed the record, heard argument of counsel, and

being fully advised in this matter, It Is Hereby Ordered

that Movant’s Motion for Summary Judgment and his

Petition for Writ of Habeas Corpus are Denied for the

following reasons.

1. Background

On August 31, 1994, the United States filed an

Indictment against Jerry John Fiorillo, Anthony

Flowers, Robert Hermanek, Sheldon Johnson, Robert

Rutherford, and others charging them with conspiracy

to distribute large quantities of cocaine, numerous counts

of distribution of cocaine, possession with intent to

distribute cocaine, and the use of cloned cellular phones

with the intent to defraud. The Government alleged that

Anthony Flowers was at the center of a large-scale

cocaine distribution organization in the Oakland and

east-bay areas; that Jerry Fiorillo and Robert Hermanek

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Appendix C

were F lower’s suppliers of up to 15 kilograms of cocaine

each week; and that Sheldon Johnson and Robert

Rutherford were among Flowers’ larger customers.

On August 2, 1996, after numerous pretrial hearings

and a mistrial declared during jury selection before

Judge Fern Smith, the case was reassigned to the

undersigned. The jury trial of Defendant Fiorillo and 5

other Defendants commenced on August 27, 1996 and

continued for a period of four months. The Government

introduced six kilograms of cocaine seized from

residences associated with Mr. Rutherford and 862

grams of cocaine seized from Flowers’ other customers.

No substantial quantities of cocaine were seized from

any of these Defendants, other than Rutherford.

Because the probative value of the physical evidence,

standing alone, was limited, the Government relied

heavily on a large number of wiretapped cellular phone

calls in which the Defendants allegedly discussed cocaine

transactions. Although the calls themselves never

mentioned “cocaine” or other drugs by name, the

Government offered, over Defendants’ objections, the

expert testimony of FBI special agent John Broderick

to interpret the coded language contained in the

conversations and words he had encountered in other

drug cases, as well as words he encountered for the first

time in this case such as “Gucci watches” and “cookies,”

each of which he interpreted as references to cocaine.

The defense stressed the claimed ambiguity of the

phone calls and the Government’s failure to seize large

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Appendix C

quantities of cocaine from the Defendants other than

Rutherford. They contended the phone calls could have

referred to lawful conduct or to substances other than

cocaine, such as marijuana or steroids.

At the close of evidence, the court directed a verdict

of acquittal in favor of Defendants Rutherford and

Johnson on the conspiracy charge finding that the

Government had failed to establish a sufficient link

between their possession of cocaine and the alleged

Flowers, Fiorillo, and Hermanek conspiracy. On

December 27, 1996, the jury returned verdicts finding

each Defendant guilty of possessing cocaine with intent

to distribute and finding Hermanek, Flowers, and

Fiorillo guilty of conspiracy. Fiorillo was also found guilty

on one count of conspiracy to distribute cocaine, six

counts of possession with intent to distribute cocaine and

one count of fraudulent use of a counterfeit access devise.

On February 16, 1999, the court imposed Mr. Fiorillo’s

sentences of 360 months in custody with the Bureau of

Prisons, followed by 60 months of supervised release.

The five convicted Defendants appealed their

convictions and sentences to the Ninth Circuit Court of

Appeals. The Ninth Circuit affirmed all convictions,

issued a published opinion at 289 F.3d 1076 (9th Cir.2001),

and an unpublished opinion at 47 Fed. Appx. 439 (9th

Cir.2002) addressing all the Defendants’ plethora of

claims on appeal. The Circuit Court found that the

evidence against these Defendants was strong, and

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Appendix C

therefore concluded that any claimed evidentiary and

vouching errors were harmless. The Ninth Circuit stated

in part:

The scores of taped conversations introduced

as evidence unmistakably referred to

transactions in contraband. The district court

concluded that “those tape recordings, what

those defendants were saying to each other, I

feel, made out a strong case against them of

drug conspiracy and possession with intent to

distribute cocaine.” Appellants contend that

the conversations could have referred to

substances other than cocaine, such as

marijuana or steroids. This argument might

be persuasive if the other evidence in the case

did not point convincingly to cocaine. For

instance, some conversations referred to a

substance that was “rocked up”. The

government elicited undisputed testimony

that the only illegal substance that is “rocked

up” is cocaine. References to “straight white”

and “cool white” in taped conversations

support the conclusion that the calls referred

te cocaine, which is white in color.

Hermanek, 289 F.3d at 1095.

The Circuit affirmed all the convictions and

sentences, including Fiorillo’s with the exception of

Defendant Flowers’ sentence, which was remanded for

re-sentencing by reason of a perceived Sentencing

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Appendix C

Guideline § 5G1.2(d) error in sentencing Flowers to 336

months rather than a maximum of 324 months. At 47 Fed.

Appx. 446, the Circuit Court addressed and rejected

Fiorillo’s Apprendi claims. The Defendants filed a

Petition for Writ of Certiorari with the Supreme Court,

which was denied on February 24, 2003, and Fiorillo’s

convictions and sentence became final on that date,

almost two years prior to the filing of the United States

v. Booker opinion in January 2005, 543 U.S. 220, 125 S.Ct.

738, 160 L.Ed.2d 621, addressed infra.

On February 20, 2004, Fiorillo filed his Petition

herein under 28 U.S.C. § 2255 arguing that his

convictions should be vacated because his counsel was

ineffective in failing to conduct forensic testing of the

audio tapes of telephone conversations used at trial and

that Government officials had fabricated the tape-

recorded evidence against him. Fiorillo further alleged

that his counsel was ineffective because he “labored

under an actual non-waivable conflict of interest” but

focused his claim on the alleged Government fabricated

tapes. On November 1, 2004, Fiorillo filed a motion to

amend his Petition to add a claim that his sentence is

illegal.

After much briefing and correspondence to and from

the court, as well as numerous telephonic hearings, on

June 7, 2005, this court ordered the Government to

provide the sealed original tape recordings in open court

so they could be copied and forensically tested by

Fiorillo’s expert. Magistrate Judge James Larson

supervised the unsealing of the tapes.

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Appendix C

On May 4, 2006, the court directed counsel for

Fiorillo to file a motion for an evidentiary hearing or

motion for summary judgment on the claimed fabricated

tapes. On June 12, 2006 Fiorillo filed his motion for

summary judgment abandoning completely his claim

that the tapes were fabricated stating that he “is not

prepared to proceed on his allegation that government

agents fabricated the tapes played at trie®.” Rather, he

then focused on his claim that attorney Tony Serra, who

represented him at trial, labored under an unwaivable

conflict of interest and also on his added claim that his

sentence is illegal under United States v. Apprendi, 530

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely

v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d

403 (2004), and United States v. Booker, 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005)

2. Conflict of Interest Claims

Fiorillo’s conflict of interest claim is basically

two-fold. He argues that because Mr. Serra represented

co-defendants Anthony Flowers and Robert Hermanek

in prior situations, and because he is a “partner” of Mr.

Bustamante, who represented Mr. Hermanek in this

trial, he had an unwaivable conflict of interest. In his

reply brief Fiorillo also argues that Serra had a conflict

because he has recently been convicted of failure to pay

income taxes, was under investigation therefore at the

time of trial, and was afraid to put on a good defense for

fear of his own legal troubles.

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Appendix C

A. Successive Representation of Flowers, Hermanek,

and Fiorillo

Mr. Serra had represented defendant Flowers in a

case brought in the Northern District of California and

dismissed in 1992. He had also represented Mr.

Hermanek in a federal case unrelated to this case,

brought and dismissed in the Northern District of

California prior to the 1994 Indictment in this case. On

July 12, 1996, a few weeks before this trial began, Judge

Smith held a hearing on any alleged conflict of interest,

where Mr. Serra denied that his prior representation of

Flowers and Hermanek impeded his ability to represent

Mr. Fiorillo in this case and that although he and Mr.

Bustamante worked out of the same office, they were

not partners. This position of Mr. Serra was not

challenged by any of the Defendants or counsel.

Judge Smith stated in open court that Serra had

previously represented Flowers and Hermanek “on a

collateral matter involving this case” and informed the

Defendants of their right to “counsel that doesn’t have

this kind of conflict”, describing the sources and nature

of the potential conflict, including the consequences of

Serra’s prior representation of Flowers and Hermanek

and the fact that Serra and Mr. Bustamante, who

represented Defendant Hermanek operated out of the

same office and both had their names on stationary.

At that hearing, Fiorillo unequivocally waived any

past, current, or future perceived conflict of interest and

insistently stated his desire to have attorney Serra

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Appendix C

represent him in this case These waivers were set forth

both orally and in writing, as discussed infra.

Fiorillo cites United States v. Agosto, 675 F.2d 964,

967 (8th Cir.1982) which involved a very different

situation than the one sub judice. In that case, the

indictment charged that a number of Defendants used a

check floating scheme to improperly obtain interest-free

loans for the benefit of two businesses. The district court

disqualified one of the attorneys based on the attorney’s

earlier representation of multiple defendants and grand

jury witnesses who would likely be trial witnesses. The

court noted that in a case of successive representation,

the goal of Fed. Rule of Criminal Procedure 44(c) is the

protection of the defendant’s right to his chosen retained

counsel and that in dealing with a potential conflict of

interest that goal must be kept in mind.

The Eighth Circuit stated:

In the successive representation situation,

privileged information obtained from the

former client might be relevant to cross-

examination, thus affecting advocacy in one of

two ways (a) the attorney may be tempted to

use that confidential information to impeach

the former client; or (b) counsel may fail to

conduct a rigorous cross-examination for fear

of misusing his confidential information.

Id.

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Appendix C

In the criminal context, disqualification on the

basis of the attorney’s receipt of privileged

information from a co-defendant formerly

represented by that attorney should only be

considered upon a clear showing that the

present and former client’s interests are

adverse.

Id.

The Agosto court further stated that if the district

court is satisfied that a clear showing has been made

that the interests of the defendants are adverse, the

district court should consider whether there exists a

means of eliminating the potential conflict less

burdensome than disqualification. In this case there was

no showing of adverse interests between Fiorillo,

Flowers, or Hermanek, none of whom testified before

the Grand Jury or at trial. There was no cross-

examination of any Defendant since none testified and

the Defendants positions were the very same-that the

telephone calls did not refer to cocaine, but rather to

some other substance such as marijuana or steroids.

Additionally, there was a clear waiver of any potential

conflict of interest and Fiorillo’s choice of counsel was

clear and unequivocal.

In order to show a violation of the Sixth Amendment,

a claimant must show that an actual conflict of interest

adversely affected his lawyer’s performance. Belmontes

v. Brown, 313 F:3d 1094, 1118 (9th Cir.1005) (citing Cuyler

v. Sullivan, 446 U.S. (1980). He must show (1) that

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Appendix C

counsel actively represented conflicting interests, and

(2) that the actual conflict adversely affected counsel’s

performance. Mannhalt v. Reed, 847 F.2d 576, 579 (9th

Cir.1988). Here there were no conflicting interests to

adversely affect Mr. Serra’s performance and no

prejudice was shown. Failure to make a showing of either

deficient performance or prejudice defeats an ineffective

assistance of counsel claim. Strickland v. Washington

466 U.S. 668, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

An adverse effect requires establishing that there

was “some effect on counsel’s handling of particular

aspects of the trial was likely.” (quoting United States v.

Miskinis, 966 F.2d 1263, 1268 (9th Cir.1992). It is more

difficult to demonstrate an actual conflict of interest

resulting from successive, rather than simultaneous

representation. Belmontes, supra, 996 F.2d at 118. Even

so, conflicts of interest based on successive

representation may arise if the current and former case

are substantially related, if the attorney reveals

privileged communications of the former client, or if the

attorney otherwise divides his loyalties.

Here, the former cases with Flowers and Hermanek

may have had some limited, but undisclosed relationship

to this case, but there is no evidence that such was the

case or that any privileged communication between

Mr. Serra and either Flowers or Hermanek was revealed

or withheld by Mr. Serra at trial. Nor was there any sign

of division of loyalty. This court, having presided over

the four month trial, can take judicial notice that

Mr. Serra did not back away from fully defending

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Appendix C

Mr. Fiorillo in any way. In pursuit of the claim of Fiorillo

that he was not involved in the illegal distribution of

cocaine, Mr. Serra wheeled out a very large cart of

cartons with empty steroid vials allegedly seized by

government agents from Fiorillo’s garage and in his

opening statement declared that his client “may be the

biggest steroid dealer in the world, but he is not a cocaine

dealer.” It was the position of Defendants Fiorillo,

Flowers and Hermanek that the intercepted telephone

calls did not refer to cocaine, but rather to something

else such as marijuana or steroids. The jury rejected

those claims.

Fiorillo argues that Serra could have called

Informant A, referenced in search warrant affidavits,

to testify that Flowers had other suppliers of cocaine,

other than Fiorillo, but that constrained by the

boundaries of privilege and his duty of loyalty to his

former client Flowers, he was precluded from making

any argument that would have exculpated Fiorillo and

inculpated Flowers. However, an in camera hearing of

Informant A was held and Mr. Serra’s office submitted

questions to be asked of the informant including:

1. ... you stated that “Flowers has a separate

supplier of cocaine from the Los Angeles area, supplying

him in kilogram quantities.”

a. How did you know that?

b. When did you know that?

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Appendix C

c. What were the circumstances when you heard

that?

2. You stated that “Anthony Flowers had bought

cocaine from Mexicans out of Los Angeles, six or seven

months ago, these Mexicans had been holding $700,000

of Flowers’ money from a cocaine purchase and had been

slow to deliver the cocaine, but eventually did.”

a. How did you know that?

b. When did you know that?

c. What were the circumstances when you heard

that?

3. Please tell me as many details you can remember

about the identity of Flowers’ source of cocaine in Los

Angeles.

a. What race or ethnicity?

b. What part of Los Angeles?

c. Do you know any names?

d. Have you ever seen any of the LA people? If so,

please give physical descriptions and any other ways to

identify them such as autos driven or street names.

e. Did Flowers go to LA or was the cocaine

delivered?

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Appendix C

f. Who else would know about Flowers getting

cocaine from Los Angeles?

g. How often did Flowers get cocaine from Los

Angeles:

h. During what time period was Flowers getting his

cocaine from Los Angeles? (in relation to the dates you

talked to the FBI)

i. Did you ever go to Los Angeles with or for

Flowers?

j. What more do you know about the $700,000

transaction?

5. ... You stated that “J.T. was the main supplier of

narcotics being sold in the vicinity of 100th Avenue and

‘C’ Street in Oakland”.

a. Was J.T. a supplier to Flowers?

b. If so, how do you know that?

c. If so, please provide details as to the identity of J

g

6. Do you know or have you heard of Jerry Fiorillo

of San Jose?

7. Did you ever hear that Flowers was getting

cocaine from someone in the San Jose area?

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Appendix C

a. If so, did you ever tell this to the FBI?

b. Why not?

c. Do you recognize anyone in these photos?

8. Please tell me anything else you saw or heard

about where Anthony Flowers got his cocaine?

Prior to trial and prior to the case being assigned to

the undersigned, Mr. Serra, on behalf of Fiorillo sought

disclosure of Informant A’s identity in order to obtain

information from which it could be inferred that sources,

other than Fiorillo, supplied drugs to Defendant

Flowers. This matter was referred to then Magistrate

Judge, now District Judge Phillis J. Hamilton to conduct

an ex parte and in camera examination of Informant A

to determine whether the informant’s identify should be

disclosed to Fiorillo and/or to his counsel. She held a

hearing outside the presence of counsel for either side,

but in the presence of Agent Broderick, and filed a

Report and Recommendation. The stated purpose of Mr.

Fiorillo’s questions was to ascertain the extent of

Informant A’s knowledge about Defendant Flowers’

suppliers. Essentially all of the questions proffered by

the Defendant were asked of the Informant, as well as

the essence of the questions proffered by the

Government. All the questions were based in large part

on the statements in the wiretap affidavit attributed to

Informant A reflecting some knowledge about suppliers

to Flowers.

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Appendix C

Magistrate Judge Hamilton subsequently filed a

Report and Recommendation in which she stated:

Informant A affirmed the accuracy of the

statements in the affidavit. However,

Informant A was not a percipient witness to

or a participant in any of the events described

therein. Informant A had no direct knowledge

and no information other than what is

contained in the affidavit. Additionally,

Informant A has no direct or indirect

knowledge of sources of supply other than

those reflected in the affidavit.

The Magistrate Judge further found based on the

questions proffered by the Government that it was clear

that Informant A’s safety would be at risk should his

identity be disclosed.

Finding that the danger to Informant A and the

Government’s need to maintain the flow of information

through Informant A outweighed the Defendant’s need

for Informant A’s testimony, given the limitations of

Informant A’s knowledge, the Magistrate Judge

recommended that informant A’s identity not be

disclosed and placed the tape of the hearing under seal.

In addition to her written Report and Recommendation,

the Magistrate Judge made further express findings on

the taped record, supporting the basis for her conclusion.

Mr. Serra, on Fiorillo’s behalf, filed an objection to

the Report and Recommendation on various grounds and

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Appendix C

sought a transcript of the in camera hearing. Judge

Smith considered the objections, and personally listened

to the tape of the in camera proceeding and, having

reconsidered the entire matter de novo, overruled

Defendant’s objections and denied the request for the

production of the tape. The Order of Judge Smith states:

This court finds, as a matter of law, that none

of the information revealed by the informant,

including the source of his information

qualifies even arguably as Brady material. The

Court also finds that the disclosure of the

informant’s identity is highly unlikely to lead

to any testimony or other evidence of material

benefit to the defense.

Judge Smith also concurred that Informant A reasonably

believed that his safety would be at risk should his

identity be disclosed. Judge Smith then concluded:

Based on its own findings and conclusions, as

well as the Report and Recommendation of the

Magistrate Judge with which it fully concurs,

the Court DENIES defendants’ request to

disclose the identity of Informant A or to

disclose a transcript of the in camera

proceeding.

As a result of this ruling, and the possible danger to

Informant A. he was not called to testify at trial.

Nevertheless, it is clear from the record that Mr. Serra

not only submitted questions to be asked of Informant

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Appendix C

A during the in camera hearing, but also attempted to

obtain the Informant’s identity. These efforts are clearly

contrary to any claim that Mr. Serra was backing away

from defending Fiorillo by failing to suggest that

Flowers got his cocaine from someone other than

Fiorillo. Fiorillo’s argument is that Serra may have

known that Flowers received cocaine from a source other

than these Defendants in Los Angeles and failed to bring

that out at trial. However, even if it was shown that

Flowers had obtained cocaine from some other source,

it would not preclude a finding that Fiorillo was also

providing Flowers with cocaine. The Informant A rulings

were not challenged on direct appeal.

At the July, 1996 hearing, before the case was

transferred to the undersigned, Judge Fern Smith

specifically asked each Defendant if he understood the

potential conflict issues and asked whether Mr. Fiorillo

wanted to discuss the issue with another attorney.

Mr. Fiorillo expressly stated that he understood, wanted

Mr. Serra to represent him, and that he did not want to

discuss the matter with anyone else.

Both Fiorillo and Flowers signed written waivers of

any potential conflict. Fiorillo acknowledged that he

knew that Serra had previously represented Flowers and

Hermanek in previous cases and that these prior

relationships give rise to “the possibility of a conflict”.

He stated that he did not believe there were or could be

past, present, or future conflicts of interest and that he

wished “Mr. Serra to continue representing me as my

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Appendix C

counsel of choice, and hereby freely and voluntarily waive

any potential and/or perceived conflict of interest.”

Mr. Serra has responded to interrogatories

authorized by this court in this § 2255 proceeding and

he denied that he failed or declined to consider

presenting a defense of Mr. Fiorillo because of any

conflict he had with respect to his prior representation

of defendants Flowers and Hermanek. He flatly declared

“I aver that I would never compromise the defense of

any client.” His reputation and performance as an able

and experienced defense attorney, as confirmed by this

court’s observations of the trial, bears this statement

out, despite Mr. Serra’s income tax convictions, discussed

infra.

Even if Fiorillo could show some prejudice from

Mr. Serra’s alleged conflict of interest, which he has not,

it is very clear that Fiorillo insisted that Mr. Serra

represent him. There has simply been no showing that

Mr. Serra’s representation of Fiorillo prejudiced

Fiorillo’s in any way. At the hearing where Mr. Fiorillo

waived any potential conflict of interest, he made it very

clear that Mr. Serra was his counsel of choice. The

Supreme Court has held that unlike a claim of ineffective

assistance of counsel, which requires a showing of

prejudice, the right to select counsel of one’s choice has

been regarded as the root meaning of the constitutional

right to counsel whether or not that counsel was effective.

Where the right to be assisted by counsel of

one’s choice is wrongly denied, ... it is

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Appendix C

unnecessary to conduct an ineffectiveness or

prejudice inquiry to establish a Sixth

Amendment violation. Deprivation of the right

is ‘complete’ when the defendant is

erroneously prevented from _ being

represented by the lawyer he wants,

regardless of the quality of the representation

he received. To argue otherwise is to confuse

the right tor counsel of choice-which is the

right to a particular lawyer regardless of

comparative effectiveness-with the right to

effective counsel-which imposes a baseline

requirement of competence on whatever

lawyer is chosen or appointed.

United States v. Gonzalez-Lopez, 126 S.Ct. 2557, 2006

WL 1725573 U.S. (2006).

B. Joint Representation

Fiorillo also claims that Mr. Serra had a conflict of

interest because his “partner” James Bustamante

represented co-defendant Robert Hermanek at trial.

During trial, this court noted both Serra and

Bustamante’s names on a piece of stationary and asked

if this issue had ever been addressed. The court was

informed that the matter had been addressed by Judge

Smith and Mr. Fiorillo did not contend to the contrary.

Like the claim that Mr. Serra had a conflict of

interest because of his prior representation of

Flowers and Hermanek, his sharing an office with

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Appendix C

Mr. Bustamante and the fact that both their names

appeared on stationary was known and addressed with

Fiorillo by Judge Smith at the July, 1996 hearing on the

alleged conflict of interest. Again, Fiorillo waived any

such conflict both orally and in writing and as stated

supra, made it very clear that Mr. Serra was his counsel

of choice.

Judge Smith did not find that Mr. Serra and Mr.

Bustamante were partners and neither does this court,

but even assuming they were, this is not per se violative

of the constitutional guarantee of effective assistance of

counsel.

In Lambert v. Blodgett, 393 F.3d 948 (9th Cir.2004)

two attorneys representing co-defendants were

associated in the same firm (public defenders) where (1)

Attorney Earl was a single boss, who could terminate

the contract with the other attorneys at any time and

not pay them; (2) the attorneys were paid out of Ear!’s

account, (3) there was a single investigator for the group

of attorneys; (4) Earl handled all client complaints made

against the firm; (5) one of the senior attorneys

supervised the other attorneys and recommended at one

time that Lambert’s attorney be terminated for poor

performance and when he was suspended from the

practice of law, other attorneys in the office received the

cases that would otherwise be assigned to him; (6) office

space was shared at one location with the 2 lawyers

having offices across the hall from each other and having

no other office anywhere; (7) the sign outside the building

said “Grant County Public Defenders”; (8) the office

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Appendix C

equipment was shared by the attorneys, including the

copier, the fax machine, and the computer; (9) the

secretarial services were shared; (10) the case files were

prepared by a shared secretary and retained by Earl.

Still the court found no violation of the guarantee of

effective counsel.

The court cited to Holloway v. Arkansas, 435 U.S.

475, 482, 98 S.Ct. 1178, 55 L.Ed.2d 426 (1978) and Berger

v. Kemp, 488 U.S 788 (1987). The Court in Holloway

assumed-without deciding that “two law partners are

considered as one attorney”. The Supreme Court

nonetheless concluded that “requiring or permitting a

single attorney to represent co-defendants. . . is not per

se violative of constitutional guarantees of effectiveness

of counsel.”

The Court in Berger rejected a rule that would

presume a conflict of interest in such situations, in favor

of a presumption “that the lawyer is fully conscious of

the overarching duty of complete loyalty to his or her

client,” and held that counsel was not burdened by an

actual conflict of interest where the attorney on appeal

prepared the briefs for both the petitioner and his

co-defendant, failed to argue certain mitigating evidence

in petitioner’s brief although he had relied on such

evidence at trial, and the two-co-defendants asserted

inherently inconsistent defenses. /d. at 783-89. Similarly,

in Holloway, the Court emphasized that, “requiring or

permitting a single attorney to represent co-defendants,

often referred to as joint representation, is not per se

violative of the constitutional guarantees of effective

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Appendix C

assistance of counsel, noting that “in some cases multiple

defendants can appropriately be represented by one

attorney; indeed, in some cases, certain advantages

might accrue from joint representation.” Jd.

In this case, there was no evidence suggesting that

Serra and Bustamante ever shared confidences

regarding the management of Fiorillo or Hermanek’s

cases and clearly Fiorillo and Hermanek did not have

inconsistent defenses. They both defended on the

grounds that they did not supply Flowers with cocaine

and that the telephone conversations could have referred

to marijuana or steroids, but not cocaine. Yet, they were

both convicted on strong evidence that they both were

involved in supplying Flowers with cocaine. Fiorillo does

not even assert facts such as did the Petitioner in Berge7,

that his attorney prepared the appellate briefs for both

Fiorillo and Hermanek, did not negotiate a plea

agreement for a life sentence as opposed to death as in

Berger, or take advantage of Petitioner’s lesser

culpability when compared to his co-Defendant’s, also

as in Berger.

Fiorillo states no facts to support his claim that he

did not receive effective assistance of counsel because

Serra and Bustamante were “partners” other than the

fact that they were allegedly “partners”. Therefore,

Fiorillo’s claim that he did not receive effective

assistance of counsel because of the Serra-Bustamante

“partnership” lacks merit. Even if Fiorillo could show

some prejudice from this alleged conflict, which he has

not, it would not outweigh his clear, insistent, and

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Appendix C

unequivocal choice of counsel afer having been clearly

advised by Judge Smith concerning possible conflicts.

C. Failure to Pay Income Taxes

Finally, Fiorillo claims in his reply brief that because

Mr. Serra has been convicted of failure to pay income

taxes, he had a conflict of interest that prevented him

from putting on a viable defense. This claim, too, is

without merit.

This court can take judicial notice that Mr. Serra has

a reputation of being a qualified and sought-after defense

attorney with an extensive background of representing

hundreds of criminal defendants in the Northern District

of California, including some very high-profile cases.

This court also observed the performance of Mr. Serra

during this four month trial. Fiorillo cites the case of

Solinas v. United States, 709 F.2d 160, 1688 (2nd

Cir.1983), where the Second Circuit held that a defendant

represented by someone under investigation for being

an unlicenced attorney could overturn his conviction for

bank robbery despite “overwhelming” evidence of guilt

because unknown to him, the person retained to

represent him was not licensed to practice law.

Of course a person not licensed as an attorney is not

qualified to represent a criminal defendant at trial, which

is very different from this case with a well known,

licensed, qualified, and experienced criminal defense

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Appendix C

attorney, who has been adjudged guilty of tax offenses.

Fiorillo argues that:

Clearly, what could be more of a conflict than

Serra’s concern over getting himself into

trouble for yet a third time with criminal law

enforcement authorities for his on-going

criminal conduct in failing to pay his taxes

through the course of the trial. What greater

danger created by a vigorous defense than that

the prosecution turn on the attorney for his

own wrongdoing.

There is not a single shred of evidence that during

this case, Mr. Serra failed to vigorously defend

Mr. Fiorillo or that he was experiencing any concern over

the fact that he might be facing trouble many years after

the conclusion of this 1996 trial for his failure to pay

income taxes. The records of Mr. Serra’s recent tax

offense submitted by counsel for Fiorillo also reflect that

the tax matter was prosecuted by Department of Justice

attorneys based in Washington, D.C. and did not involve

any attorneys from the office of the United States

Attorney for the Northern District of California, who

prosecuted the Fiorillo case.

Fiorillo suggests that an evidentiary hearing should

be held on his conflict of interest claim. However, the

extensive record speaks for itself and there is nothing

an evidentiary hearing could add on his claim of a conflict

of interest.

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Appendix C

3. Illegal Sentence Claim

A. Timeliness

A petitioner must file his Petition for Writ of Habeas

Corpus within one-year of the date on which his

conviction became final. Fiorillo’s conviction became final

on February 24, 2003, when the Supreme Court denied

his Petition for Writ of Certiorari. Fiorillo filed his

Petition for Writ of Habeas Corpus alleging altered tapes

and conflict of interest on February 20, 2004 within the

statute of limitations by four days. However, his Motion

to Amend his Petition to add his claim of illegal sentence

was filed on November 1, 2004 nine months after the

statute of limitations had run. He claims that this new

claim relates back to his original Petition. However,

Fed.R.Civ.P Rule 15(a) provides that new claims do not

relate back to the filing date of the Petition for statute

of limitation purposes unless “the claim or defense

asserted in the amendment arose out of the conduct,

transaction or occurrence set forth or attempted to be

set forth in the original pleading.

In Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 162

L.Ed.2d 582 (2005) the Supreme Court held that new

claims in a habeas petition relate back only when the

new claims “rise from the same core facts as the timely

filed claims, and not when the new claims depend upon

events separate in both time and type from the originally

raised claims.” Clearly, Fiorillo’s claim of illegal sentence

is an event separate in both time and type from his claims

of doctored tapes or of ineffective assistance of counsel

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Appendix C

at trial. The Supreme Court rejected the contention,

previously adopted by the Ninth Circuit that claims that

were not included in a timely filed habeas petition “could

be revived simply because they relate to the same trial,

conviction or sentence as a timely filed claim.” Jd.

Fiorillo argues that because the Government did not

timely raise the statute of limitations issue, they have

waived any such defense citing United States v. Chaker,

428 F.8d 1215 (9th Cir.2005), where following a state

conviction for a misdemeanor, a probationer brought pro

se a federal habeas corpus petition which was denied and

he appealed. More than one year later, he added a claim

raising a First Amendment challenge to the statute he

was convicted of violating. The State did not raise the

statute of limitations defense in federal district court and

did not discuss it anywhere in its brief before the Ninth

Circuit The issue was raised for the first time in the

Ninth Circuit by amicus curiae.

Even so, the state failed to raise a statute of

limitation defense to Chaker’s First

Amendment claim in federal district court,

thereby waiving it. See Nardi v. Stewart, 354

F'3d 1134, 1141 (9th Cir.2004) (holding that the

statute of limitations ... is an affirmative

defense that the state waives by filing a

responsive pleading that fails to affirmatively

set forth the defense. Moreover, the state does

not discuss the statute of limitations anywhere

in its brief before this court. Accordingly, we

decline to consider an argument raised only

37a

Appendix C

by CJLF on appeal. See Russian River

Watershed Prot. Comm. V. City of Santa Rosa,

142 F.3d 1136, 1141 n. 1 (9th Cir.1998)

(declining to address argument because ‘as

amicus curiae candidly acknowledged, it is

raised for the first time on appeal and not by

any party. Swan v. Peterson, 6 F.3d 1373, 1388

(9th Cir.1993). (Generally, we do not consider

on appeal an issue raised only by amicus).

Here, unlike there, the Government raised the

statute of limitations issue in its initial response to

Fiorillo’s Motion for Summary Judgment in this court.

Therefore, the statute of limitations defense is not

waived and the defense bars Fiorillo’s claim of an illegal

sentence.

B. Merits

Even if Fiorillo’s claim of illegal sentence was not

barred by the statute of limitations, it has no merit. His

claim is that on direct appeal, the Ninth Circuit vacated

Defendant Flowers’ sentence and that Flowers received

the benefit of Apprendi, 539 U.S. 466 (2000), Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d

408 (2004) and United State v. Booker, 543 U.S. 220, 125

S.Ct. 788, 160 L.Ed.2d 621 (2005) at re-sentencing and

Fiorillo did not, which he claims is unfair and that

Apprendi, Blakely, and Booker should be applied to his

sentence as well.

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Appendix C

The jury convicted Fiorillo of one count of conspiracy

to distribute cocaine, six counts of possession of cocaine

with intent to distribute and one count of fraudulent use

of a counterfeit access device. At the 1999 sentencing,

this court found under the clear and convincing standard

that Fiorillo was responsible for at least 58 kilograms of

cocaine. Based on that finding, his final offense level was

40 with a criminal history category of III, and therefore

a Sentencing Guideline range of 360 months to life. This

court imposed a sentence of 360 months (30 years) for

each of the drug counts Fiorillo was convicted of to be

served concurrently.

On appeal to the Ninth Circuit, Fiorillo, Flowers, and

Hermanek all challenged their sentences under

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,

147 L.Ed.2d 485 (2000).. The Ninth Circuit found that

Fiorillo’s 30-year sentence exceeded the 20-year

statutory maximum for a conviction of conspiracy to

distribute a measurable amount of cocaine under

21 U.S.C. § 846, or possession of a measurable amount

of cocaine under 21 U.S.C. § 841 since the amounts were

not found by the jury by proof beyond a reasonable

doubt. Therefore, there was an Apprendi error but it

did not violate Fiorillo’s substantial rights since this

court could, and would have “stacked” the sentences to

reach the 30 year terms.

On appeal of this matter, the Government made the

same two arguments it had made in United States v.

Buckland, 277 F.3d 1178, 1178 (9th Cir.2002) (en banc).

The first argument was that no reasonable jury could

39a

Appendix C

have found beyond a reasonable doubt that Fiorillo’s and

Flowers’ offenses did not involve at 500 grams of cocaine,

which would have imposed a statutory maximum of 40

years for a violation involving 500 grams or more of

cocaine. This argument prevailed in Buckland, but the

court distinguished the Fiorillo case because, unlike in

Buckland, Fiorillo and the other Defendants had

disputed that they were responsible for 500 grams or

more of cocaine. Therefore, the court found that the

Apprendi error in Fiorillo’s case was plain error but also

found that the error did not violate his substantial rights

because of the ability of the court to “stack” the

sentences to reach the appropriate 30 year term.

The Ninth Circuit in Fiorillo’s case accepted the

Government’s second argument that the Apprendi error

did not warrant reversal and re-sentencing because in

the absence of that error, this court would have been

forced to impose consecutive sentences under the then

mandatory § 5G1.2(d) of the Sentencing Guidelines,

which required a court to stack multiple counts to achieve

a sentence within the applicable guideline range of 30

years to life, resulting in the same sentence Fiorillo

actually received. The appellate court affirmed Fiorillo’s

30 year sentence. These sentencing rulings by the Ninth

Circuit on direct appeal are the law of the case and cannot

be overturned by this court.

As stated, supra, the Ninth Circuit found that this

court had not properly utilized Section 5G1.2(d) of the

United States Sentencing Guidelines as to the total

sentence imposed on Flowers and held that rather than

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Appendix C

the 360 month sentence imposed Flower’s sentence

should have been 324 months. 47 Fed. Appx. 447.

Therefore, the Circuit Court vacated Flowers’ sentence

and remanded for re-sentencing based on the reasoning

in United States v. Archdale, 229 F.3d 861 (9th Cir.2000),

which applied in Flowers’ case but not in Fiorillo’s case.

The Ninth Circuit later rejected the reasoning in

Archdale in United States v. Iniguez, 368 F.3d 1113 (9th

Cir.2004), prior to this court’s resentencing of Flowers,

however the Flowers panel did not recall its prior ruling

requiring resentencing and this court was bound to

resentence Flowers in accordance with the mandate of

the Ninth Circuit, even though the case relied on by the

Ninth Circuit had by then been overruled. While

Flowers’ re-sentencing was pending the Supreme Court

decided Booker and therefore, Flowers obtained the

benefit of increased discretion granted to the district

courts under Booker, even though his original sentence

had been vacated on then valid Ninth Circuit reasoning

later rejected by une Ninth Circuit. As a result, Flowers’

sentencing was not completed prior to the Booker

holding, while Fiorillo’s sentencing was final before the

Booker holding. Booker does not apply retroactively to

any conviction that was final before Booker was decided.

United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005).

Fiorillo argues that it is not fair that Flowers was

resentenced after Booker was decided, but the only case

law Fiorillo cited for this proposition is Walter v. United

States, 969 F.2d 814 (9th Cir.1992), which is

distinguishable from this case. In Walter, the court found

a “manifest injustice” in denying relief to one defendant

4la

Appendix C

on appeal with one panel, when co-defendants had

established that they were tried in violation of the

Speedy Trial Act in a separate appeal with a different

panel. The court held that Walter was entitled to relief

because of the “necessity of treating identically-situated

co-defendants identically.” /d. at 817.

Here, to the contrary, Flowers, and Fiorillo

challenged their sentences in the same direct appeal and

the panel found the Guideline error substantially

affected Flowers’ rights based on then valid Ninth

Circuit law, later rejected, which affected Flowers’

sentence, but the Guideline issue was not applicable to

Fiorillo’s sentence and the Ninth Circuit affirmed

Fiorillo’s sentence. Booker was decided by the time

Flowers was re-sentenced and he received a limited

benefit from that holding. Fiorillo’s sentence was final

prior to the Booker holding and therefore Booker did

not apply in his case.

For all of the foregoing reasons, Mr. Fiorillo’s Motion

for Summary Judgment and his Petition for Writ of

Habeas Corpus are Denied.

IT ISSO ORDERED. The Clerk is directed to enter

this Opinion and Order and forward copies to counsel.

DATED this 26" day of September, 2006

s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

SENIOR UNITED STATES DISTRICT JUDGE