# Petition for Writ of Certiorari — Ouimette v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 884

## Text

(1) Supreme Court, U.S. \
FILED

02 118 yu 192008
oO.
DEtCE OF THE CLepK

N

IN THE

Supreme Court of the United States

GERARD T. OUIMETTE,

Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RUSSELL R. WEDDELL
Counsel of Record
4 Court Street, Suite 105

Taunton, Massachusetts 0278C
(508) 822-8400

Counsel for Petitioner

Date: July 19, 2002

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

I+ ] oe

QUESTIONS PRESENTED FOR REVIEW

I. Whether the court erred in sentencing
the petitioner to life imprisonment, a term well in ex-
cess of the twenty year statutory maximum for the of-
fense of conviction, under an entirely separate statute
not charged in the indictment, based on the judge’s
findings of aggravating facts, without any jury and not
beyond a reasonable doubt, in violation of the Fifth
and Sixth Amendments as set forth in Apprendi v.
New Jersey.

Il. Whether the recidivism exception of
Almendarez-Torres v. United States should be
overruled.

Ill. Whether the recidivism exception of Al-
mendarez-Torres v. United States is applicable where
petitioner did not “admit” to the prior convictions used
to enhance his sentence, nor were they obtained “pur-
suant to proceedings with substantial procedural
safeguards of their own”, and where the prior convic-
tions were obtained in violation of petitioner’s consti-
tutional nghts.

IV. Whether the “three strikes” portion of 18
U.S.C. §3559(c) is unconstitutional om its face and as
applied in the instant case because it shifts the bur-
den of proof to the petitioner to prove by clear and
convincing evidence that the convictions used to en-
hance his sentence were nonqualifying felonies under
the statute.

ii

TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW .............. 06 i
TABLE OF AUTHORITIES .......cccccscrsccssccccccccosscsscnesces Vv
OPTS TIIIG avescsssescevesssennssouscsensercesensveaseseunessses 1
SURE, TIEN sccccissstiseciesnenccapenseschwentuvianivasansassaness 1
CONSTITUTIONAL PROVISIONS INVOLVED ............. 1
STATEMENT OF THE CASE ........cccccccscsscccccsccscesseeses 1
REASONS FOR GRANTING THE WRIT ............:::000ee 3

I. THE COURT ERRED IN SENTENC-
ING THE PETITIONER TO LIFE IM-
PRISONMENT, A TERM WELL IN
EXCESS OF THE TWENTY YEAR
STATUTORY MAXIMUM FOR THE
OFFENSE OF CONVICTION, UNDER
AN ENTIRELY SEPARATE STATUTE
NOT CHARGED IN THE _ INDICT-
MENT BASED ON THE JUDGE'S
FINDINGS OF AGGRAVATING
FACTS, WITHOUT ANY JURY AND
NOT BEYOND A REASONABLE
DOUBT, IN VIOLATION OF THE
FIFTH AND SIXTH AMENDMENTS
AS SET FORTH IN APPRENDI v. NEW
MET ssaiensstietsadsveninatinsernemseytibgyecins 4,5

Il. THE RECIDIVISM EXCEPTION OF
ALMENDAREZ-TORRES v. UNITED
STATES HAS NO RATIONAL BASIS
AND SHOULD BE OVERRULED. ............ 11

eee

Ill. THE RECIDIVISM EXCEPTION OF
ALMENDAREZ-TORRES v. UNITED
STATES IS NOT APPLICABLE
WHERE PETITIONER DID NOT
“ADMIT” TO THE PRIOR CONVIC-
TIONS USED TO ENHANCE HIS
SENTENCE, NOR WERE THEY OB-
TAINED “PURSUANT TO PROCEED-
INGS WITH SUBSTANTIAL PROCE-
DURAL SAFEGUARDS OF THEIR
OWN”, AND WHERE THE PRIOR
CONVICTIONS WERE OBTAINED IN
VIOLATION OF PETITIONER'S CON-
cos ylps ee. cy er ree 13

A. The Petitioner’s 1958 Plea Was
Not Knowingly, Intelligently, And
ET WII i dadeccdsunieancssccccesese 16

1. Uncontroverted evidence es-
tablishing that the 1958 plea
was not knowing and volun-

SNES: Matiedseocdausnieuvinticcussbideicdsacines 16

2. No presumption of regularity
applies to petitioner’s 1958
SE esches inp tdkkntdbdinasesknidekiiacineseess 17

3. It was a violation of due
process to shift the burden of
proof to the petitioner to
prove the invalidity of the
1958 plea by a preponder-
ance of the evidence. ................. 19

4. The court erred in finding
that petitioner was _ repre-
sented by counsel, or re-
ceived effective assistance of

iv

counsel, at his 1958 plea in
accordance with the Sixth
PST: ST Re 21

a. The petitioner was not
represented by counsel. ...... 21

b. The petitioner did not re-
ceive effective assistance

of counsel as required by
the Sixth Amendment. ........ 22

B. The Petitioner’s 1976 Plea Was
Improperly Used To Enhance Pe-
titioner’s Sentence Because It
Was Not Voluntarily And Intelli-
gently Made With An Under-
standing Of The Nature Of The
Charges, And Because No Fac-
tual Basis Existed For The Plea. ...... 24

1. Factual background. ................. 24

2. The 1976 plea was not made
voluntarily and intelligently
with an understanding of the
nature of the charge. ................. 27

3. No factual basis existed for
GR UE. cbt ttisthaiesicncmetaindenesetens 27

IV. 18 U.S.C. §3559(c) IS UNCONSTITU-
TIONAL ON ITS FACE AND AS AP-
PLIED IN THE INSTANT CASE BE-
CAUSE IT SHIFTS THE BURDEN OF
PROOF TO THE PETITIONER TO
PROVE BY CLEAR AND CONVINC-
ING EVIDENCE THAT THE CONVIC-
TIONS USED TO ENHANCE HIS

Vv

SENTENCE WERE NONQUALIFYING
FELONIES UNDER THE STATUTE. ....... 28

CIPREMETN | vistsnntsensintsnbbicehacacuenaediaaaiae 30
FP TUE: svccibinesiunasunswisnissbidanents follows Conclusion
TABLE OF AUTHORITIES

CASES:

Almendarez-Torres v. United States,

CF a Gee CRW secécrencusissabitecteuauaaes passim
Apprendi v. New Jersey, 530 U.S. 466

GRPEPUNE cosuiincnssstsstcsecsdecuneebsehepaenaanaeiun passim
Bishop v. Langlois, 106 R.I. 56, 256 A.2d 20

[ROWED

28

In neither the prosecutor’s recitation, nor defense
counsel’s version of the events, is reference made to
sufficient evidence demonstrating that the petitioner
was part of a conspiracy or that he participated in the
assault. United States v. Wetterlin, supra, at 351-352;
United States v. Tucker, 425 F.2d 624 (4% Cir.
1970)(generalized admissions or statements by defen-
dant’s counsel do not meet Rule 11’s requirement that
the court be satisfied that there is a factual basis for
the plea). The court’s creation of facts to satisfy Rule
11’s factual basis requirement was improper because
it was not supported by the evidence as demonstrated
by the prosecutor’s description of the evidence that he
was prepared to produce. United States v. Wetterlin,
supra, at 353 n.10, citing McCarthy v. United States,
supra, at 465. More importantly, the court’s hypo-
thetical scenario was rejected by the petitioner. As no
factual basis existed for the petitioner’s 1976 plea, it
was invalid and improperly used to enhance peti-
tioner’s sentence.

IV. THE FEDERAL THREE STRIKES STATUTE, 18
U.S.C. §3559(c), IS UNCONSTITUTIONAL ON
ITS FACE AND AS APPLIED IN THE INSTANT
CASE BECAUSE IT SHIFTS THE BURDEN OF
PROOF TO THE DEFENDANT TO PROVE BY
CLEAR AND CONVINCING EVIDENCE THAT
THE CONVICTIONS USED TO ENHANCE HIS
SENTENCE WERE NONQUALIFYING FELONIES
UNDER THE STATUTE.

The sentencing judge found that the offense of con-
viction in this case was a qualifying felony under the
federal three strikes statute, 18 U.S.C. §3559(c), and
that petitioner had been convicted on separate prior
occasions of two or more qualifying felonies. In this
regard, the judge did not require the government to
prove the aggravating facts necessary to establish that
the offense of conviction and the prior offenses consti-
tuted “serious violent felonies” within the meaning of

29

the statute, or even that the petitioner had committed
the prior offenses. No evidentiary burden was placed
on the government at all.

The three strikes statute contains a disqualification
provision with respect to certain otherwise qualifying
convictions that states as follows:

(3) Nonqualifying felonies.

(A) Robbery in certain cases. Robbery, an at-
tempt, conspiracy, or solicitation to commit
robbery; or an offense described in paragraph
(2)(F)(ii) shall not serve as a basis for sentenc-
ing under this subsection if the defendant es-
tablishes by clear and convincing evidence
that —

(i) no firearm or other dangerous weapon
was used in the offense and no threat of use
of a firearm or other dangerous weapon was
involved in the offense; and ,
(ii) the offense did not result in death or se-
rious bodily injury (as defined in section
1365) to any person.
18 U.S.C. §3559(c)(3)(A). The judge acknowledged
that under the statute, the 1958 robbery would not be
considered a qualifying felony if the petitioner estab-
lished by clear and convincing evidence that there was
no use or threat of use of a firearm or other dangerous
weapon (A. 25a).15 Relying simply on the presentence
report, however, the judge found the 1958 robbery
and the 1976 assault to be qualifying felonies.

Petitioner submits that the burden of proof portion
of §3559(c)(3)(A) violates due process by shifting the
burden to petitioner to prove that his 1958 and 1976
pleas were nonqualifying felonies under the statute.
As set forth hereinabove, the aggravating facts found
by the judge were elements of a separate, aggravated
offense. Due process requires that the government

1S The petitioner’s 1976 assault plea also would not have con-
stituted a strike under the statute if the petitioner proved by clear
and convincing evidence that it was a nonqualifying felony.

30

bear the burden of proving all elements of the crime
beyond a reasonable doubt. In re Winship, 397 U.S.
358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1975).
To have required the petitioner to negate by clear and
convincing evidence elements of the separate aggra-
vated offense for which he was sentenced to life im-
prisonment, while the government bore no burden of
proof at all, was a violation petitioner’s right to due
process. The error is pronounced when considered
with the fact that both the sentencing judge and the
First Circuit ruled that petitioner could not collaterally
challenge his state court convictions at his federal
sentencing proceeding. [See, footnote 4, supra.] Ac-
cordingly, petitioner requests that this Court rule that
it was constitutionally impermissible to place the bur-
den on the petitioner to negate by “clear and convinc-
ing evidence” the elements of the separate, aggravated
offense for which he stands sentenced to life impris-
onment.

Furthermore, petitioner submits that it was funda-
mentally unfair to sentence him to life imprisonment
based on two convictions, one from 1958 and the
other from 1976, that were obtained in violation of pe-
titioner’s constitutional rights as hereinbefore set
forth. Neither of those convictions should have been
allowed to be used to enhance petitioner’s. sentence.
See, Cooper v. Oklahoma, 517 U.S. 348 (1996).

CONCLUSION

Based on the aforementioned arguments and au-
thorities, petitioner respectfully requests that this
Court review this case by writ of certiorari.

31

Respectfully submitted,

Russell R. Weddell

Counsel of Record
4 Court Street, Suite 105
Taunton, Massachusetts 02780
(S08) 822-8400

Counsel for Petitioner

APPENDIX TABLE OF CONTENTS

APPENDIX A

Judgment of the United States Court of Appeals
for the First Circuit, dated February 21,

ST SLaaRMRLRCENRARiehRaeseeesanscrsoesacsscesenesccses

Memorandum and Order of the United States
District Court for the District of Rhode

Island, dated June 21, 2001 .......................

APPENDIX C

Transcript of Testimony, dated February l,
itt cinbesnaiseseevesdgaSesccstsce sess

APPENDIX D

Transcript of Testimony, dated March 16, 1999

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APPENDIX E

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APPENDIX F

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APPENDIX A

United States Court of Appeals
For the First Circuit

No. 01-2066
GERARD T. OUIMETTE,
Petitioner, Appellant,
v.
UNITED STATES,

Respondent, Appellee.

Before

Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.

JUDGMENT
Entered: February 21, 2002

Petitioner’s application for a certificate of
appealability is denied essentially for the reasons
stated in the district court’s Order of June 21, 2001,
and the appeal is terminated. We add only the
following observations.

1. Even assuming that retroactivity is not a
bar in this instance, we squarely rejected petitioner’s:

2a

Apprendi-related arguments in United States v.
Gomez-Estrada, 273 F.3d 400 (1st Cir. 2001).

y & Even assuming, contrary to its plain
language, that 18 U.S.C. § 3559(c}(4) incorporates all
of the procedural safeguards of the Controlled
Substances Act, 21 U.S.C. § 851, petitioner’s 1958
and 1976 convictions fall outside the five-year
limitations period of § 851l(e). His statutory argument
therefore fails.

3. Because petitioner has three prior
convictions, at least two of which were counseled, he
would have had the requisite “three strikes” at
sentencing even had he made a collateral challenge to
the maximum extent allowed by Custis v. United
States, 511 U.S. 485 (1994).

4. Even assuming that the district court
should have considered petitioner’s two supplemental
claims, petitioner fails to make a substantial showing
of the denial of a constitutional right. The DeLuca,
Jr., tape does not negate the evidence that one day
after the Satin Doll incident, well within the time
period charged in the indictment, “Ouimette
instructed Gellerman to collect the $5,000 fine from
Duxbury.” United States v. DeLuca, 137 F.3d 24, 30
(Ist Cir. 1998), cert. denied, 525 U.S. 917 (1998). The
convictions relating to the Duxbury extortion would
stand whether or not petitioner initiated the $5,000
demand. As for the Dumont tape, Ms. Dumont did
not identify any testimony -- let alone perjured
testimony -- concerning the petitioner that she may
have given under coercion. in fact, she allegedly
testified that she “didn’t know nothin’ when [she] got
up on the stand.”’ This is consistent with her trial
testimony that she did not positively identify the
petitioner in the basement of the Satin Doll.
Moreover, “[t]he Satin Doll incident, lasting about ten .
minutes, was witnessed in part by three Satin Doll

3a

dancers,” DeLuca, 137 F.3d at 30 (emphasis added),
one of them Ms. Dumont.

5. Even on direct examination, “i]t is not
error to inform a jury of the contents of a plea
agreement.” United States vy. Dockray, 943 F.2d 152.
156 (Ist Cir. 1991) (citing United States v. Munson,
819 F.2d 337, 344-45 (Ist Cir. 1987). The
prosecutor, however, referred to the district court as
the “final arbiter” of the witness’s truthfulness. We
nonetheless find no prejudice to the petitioner
because the defense’s cross examination clarified the
special circumstances under which the court may
have occasion to assess the witness’s credibility.

6. Given the weight of the evidence against
the petitioner, including his videotaped demand for
$50,000 and his recorded threat that, if Paul Calenda
failed to make a payment by Monday, “maybe [by]
Tuesday he’s going to get a shot,” DeLuca, 137 F.3d at
29, we are not persuaded that prejudice resulted from
counsel’s alleged failure to allow petitioner to testify to
his reasons for being “outrage[d]” at Calenda during
certain of his recorded conversations.

By the Court:
Richard Cushing Donovan, Clerk

By: JANICE M. O’NEIL
Chief Deputy Clerk.

CertifiedCopies: JudgeErnestoTorres
David DiMarzio, Clerk

CC: Gerard T. Ouimette
Russell R. Weddell
James H. Leavey, Esq.
Donald C. Lockhart, Esq.

4a

APPENDIX B

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

GERARD OUIMETTE
v. CA No. 99-489-T
UNITED STATES OF AMERICA

MEMORANDUM AND ORDER

Ernest C. Torres, Chief Judge.

Gerard Ouimette has filed a motion to vacate,
set aside or correct sentence under 28 U.S.C. § 2255.
For the reasons that follow, the motion is denied.

Background

A jury found Ouimette guilty of one ceunt of
conspiracy to collect extensions of credit by
extortionate means, a violation of 18 U.S.C. § 894, and
two counts of aiding and abetting the collection of
extensions of credit by extortionate means, violations
of 18 U.S.C. §§ 2 and 894. On each of the three
counts, Ouimette was sentenced to concurrent terms
of life imprisonment without parole pursuant to the
“three strikes” provision of 18 U.S.C. § 3559(c)(1)(A).
Following denial of his direct appeal and his petition
for certiorari, United States v. DeLuca, 137 F.3d 24
(1st Cir.), cert. denied, 525 U.S. 917 (1998), Ouimette
filed the instant § 2255 motion.

Although Ouimette’s motion was not received by
the Court until more than one year after the Supreme
Court denied certiorari, the government, apparently
does not dispute that the motion was deposited in the:

— ——————
es a ae

5a

prison mail system within the one-year limitation
period specified by § 2255 and; therefore, was timely
filed. See Morales-Rivera v. United States, 184 F.3d
109 (1*t Cir. 1999) (motions pursuant to 28 U.S.C. §
2254 and 2255 considered filed when deposited in
prison’s mail system).

In his motion, Ouimette makes numerous
claims as to why his sentence should be vacated.
Many of those claims do not rise to the level of
constitutional violations or other violations that would
be cognizable under § 2255. The claims may be
grouped into six categories:

Insufficiency of the indictment
Prosecutorial misconduct
Witness issues

Erroneous jury instructions
Sentencing errors

Ineffective assistance of counsel.

FR Serr}

The first five claims will be referred to collectively as
the claims of “trial errors.”

Several weeks after his motion was filed and
after the one-year limitation period set forth in § 2255
had expired, Ouimette sought to “supplement” his §
2255 motion by adding claims (the “supplemental
claims”) that James “Slugger” Gellerman, a
government witness, testified falsely at trial; and that
Bobby Jo Dumont, another government witness, was
coerced by the government into giving false testimony
before the grand jury.

6a
Discussion

a The “Supplemental Claims”

Since Ouimette’s supplemental claims, in effect,
sought to amend his § 2255 motion, they are governed
by Rule 15 of the Federal Rules of Civil Procedure.
United States v. Barrett, 178 F.3d 34, 46 (1* Cir.
1999), cert. denied, 528 U.S. 1176 (2000). Accord,
United States v. Thomas, 221 F.3d 430 (34 Cir. 2000).
Thus, whether those claims are time barred turns on
whether they “relate back” to the date on which
Ouimette’s § 2255 motion was filed.

The “relation back” of amendments to pleading
is governed by R. 15(c) which provides:

(c) Relation Back of Amendments. An
amendment of a pleading relates back to the
date of the original pleading when

(1) relation back is permitted by the
law ‘that provides the statute of limitations
applicable to the action, or

(2) the claim or defense asserted in
the amended pleading arose out of the conduct,
transaction, or occurrence set forth or
attempted to be set forth in the original
pleading

xk**

Since subsection (c) (1) does not apply to §
2255 motions, Davenport v. United States, 217 F.3d
1341, 1344 n.7 (11% Cir. 2000), cert. denied, __—~-U.S.
121 S.Ct. 1232 (2001) , the issue, in this case, is
whether Ouimette’s supplemental claims arise out of
the “conduct, transaction or occurrence” set forth in

7a

his original motion. An amendment to a § 2255
motion does not relate back” if it “add[s] new claims or
. . . insert[s) a new theory into the case.” Thomas, 221
F.3d at 431. In order to “relate back,” an “untimely
claim must have more in common with the timely filed
claim than the mere fact that they arose out of the
same trial and sentencing proceedings.” Davenport,
217 F.3d at 1344. Accord, United States v. Pittman,
209 F.3d 314 (4% Cir. 2000); United States v. Duffus,
174 F.3d 333 (3" Cir. ), cert. denied, 528 U.S. 866
(1999); United States v. Craycraft, 167 F.3d 451 (8%
Cir. 1999). Otherwise, amendments “would be
tantamount to judicial rescission of [§ 2255’s} statute
of limitations period.” United States v. Esipinoza-
Saenz, 233 F.3d 501, 505 (10% Cir. 2000) (citing
Pittman, 209 F.3d at 318).

Neither of Ouimette’s two supplemental claims
arise out of the same “conduct, transaction or
occurrence” as the claims made in his initial § 2255
motion. Both supplemental claims do more than
simply clarify or amplify the claims contained in the
initial § 2255 motion. They present new claims that
are distinct from and unrelated to the original claims.
Thus, the supplemental claims are barred by the one-
year statute of limitations imposed by § 2255.

II. The Original Claims

Since the claims of “trial error” were not raised
on appeal, Ouimette is procedurally barred from
making those claims, now, unless he establishes
either “cause” excusing that failure and “prejudice”
resulting from it; or, alternatively, that he is “actually
innocent.” E.g., Brache v. United States, 165 F.3d 99,
109 (1st Cir. 1999) (quoting Murray v. Carrier, 477
U.S. 478, 485, 496 (1986)). ;

8a

The ineffective assistance claims are not
procedurally barred because, ordinarily, such claims
cannot be raised on appeal. Knight v. United States,
37 F. 3d 769, 774 (1% Cir. 1994). In order to prevail on
an ineffective assistance claim, a defendant must
establish: (1) that the attorney’s representation fell
below an objective standard of reasonableness; and (2)
that the defendant was prejudiced by counsel’s
deficient performance. Strickland v. Washington, 466
U.S. 668, 688, 694 (1984).

A. Adequacy of Representation

In this case, the two classes of claims overlap
because Ouimette’s ‘cause” for not raising his “trial
error” claims on appeal appears to rest on the
suggestion such failure was attributable to counsels’
deficient performance.

A petitioner bears the burden of identifying the
specific acts or omissions that constitute counsels’
allegedly deficient performance. See Lema v. United
States, 987 F.2d 48, 51-52 (1* Cir. 1993). See also
Barrett v. United States, 965 F.2d 1184, 1186 (1* Cir.
1992). It is not enough to present bald assertions or
unsupported conclusions. See David v. United States,
134 F. 3d 470, 477 (1* Cir. 1998).

The adequacy of counsel’s performance is
evaluated “in light of the circumstances as- they
existed at the time of trial.” Strickland, 466 U.S. at
689. The standard applied is a highly deferential one.
“[The] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might
be considered sound trial strategy’.” Id. (quoting
Michael _v. Louisiana, 350 U.S. 91 (1955)). The

9a

attorney’s judgment need not be right so long as it is
reasonable. United States v. McGill, 11 F.3d 223, 227
(1st Cir. 1993).

B. The Alleged “Trial Errors”

Obviously, counsel cannot be branded deficient
for failure to pursue claims that lack merit. See
United States v. Cronic, 466 U.S. 648, 656 n.19
(1984) (right to effective assistance of counsel does not
require the “useless charade” of presenting a meritless
defense.) Therefore, in determining whether
Ouimette’s failure to raise his “trial error” claims on
appeal is excused by counsels’ allegedly substandard
performance, the threshold question is whether there
is any merit to those claims. In each case, the answer
is no. Therefore, Ouimette has not satisfied even the
first prong of the Strickland test.

(1) Sufficiency of the Indictment

~ Ouimette claims that the indictment was
deficient in two respects. First, he argues that Count
I, which charged conspiracy to collect extensions of
credit by extortionate means, did not provide sufficient
notice of the crime charged and that Counts III and V,
each of which charged collection or attempted
collection of extensions of credit by extortionate
means, failed to adequately recite the facts underlying
those charges. Second, Ouimette argues that Counts
III and V failed to apprise him that he, also, was
charged with aiding and abetting the offenses
~ described in those counts.

An indictment satisfies an accused’s right to be
informed of the nature of the accusation against him if
it recites sufficient fact and describes the offense
charged with enough particularity that the accused is
able to prepare a defense. United States v. Serino,:

10a

835 F.2d 924, 929 (1 Cir. 1987) (quoting Hamling.v.
United States, 418 U.S. 87, 117 (1974)).

In this case, the indictment easily passes that
test. Ouimette’s claim of inadequate notice,
apparently, is based on the redacted version of the
indictment that was provided to the jury for its use
during deliberations and not on the actual indictment.
In order to avoid any unfair prejudice to the
defendants, the redacted indictment omitted
approximately 1 % pages of overt acts that were
alleged in the actual indictment. Those allegations
were more than enough to inform Ouimette of the
charges against him and the basis for them. The
same is true with respect to the aiding and abetting
charges contained in Counts III and V. Those counts
expressly allege violations of 18 U.S.C. § 2 which
defines the offense of aiding and abetting. That
explicit reference was enough to apprise Ouimette that
he had been charged with aiding and abetting.
Indeed, “aiding and abetting is an alternative charge
in every count, whether explicit or implicit.” United
States v. Oreto, 37 F. 3d 739, 751 (1*t Cir. 1994).

Since there is no merit to Ouimette’s claims
that the indictment was flawed, counsels’ failure to
raise those claims at trial or on appeal was not
objectively unreasonable. See United States v. Cronic,

supra.

(2) Prosecutorial Misconduct

Ouimette cites what he claims were several
instances of prosecutorial misconduct during his trial.
These claims require little discussion because they
rest, almost entirely, on inaccurate or unsupported
assertions.

lla

For example, Ouimette claims that the
prosecutor improperly vouched for the credibility of
James Gellerman, a key government witness, by giving
the impression to the jury that the Court and
government were guaranteeing the truthfulness of
Gellerman’s testimony. That claim is based on the
presentation of evidence regarding a plea agreement
under which the government promised to recommend
a more lenient sentence in exchange for truthful
testimony by Gellerman. The mere fact that the plea
agreement was admitted into evidence and that
testimony was elicited establishing Gellerman’s
understanding of the requirement that he testify
truthfully did not amount to impermissible vouching.
“It is not error to inform a jury of the contents of a
plea agreement, nor is it improper for the government
to call attention to a witness’ motivation for testifying.”
United States v. Dockray, 943 F.2d 152, 156 (1st Cir.
1991) (citing United States v. Sutherland, 929 F.2d
765, 775-76 (1% Cir. 1991)); United States v. Munson,
819 F.2d 337, 344-45 (1st Cir. 1987); and, United
States v. Martin, 815 F.2d 818, 821-23 (1st Cir. 1987)).

Ouimette also claims that the government failed
to disclose a cooperation agreement that it had with
Paul Calenda, one of the extortion victims, that would
have required Calenda to testify at trial. The
government denies that any such agreement existed
and Ouimette has failed to proffer any evidence that
such an agreement existed.

Finally, Ouimette claims that the government
failed to correct what it knew to be false testimony by
Paula Coppola, another government witness,
regarding several matters unrelated to the charges
against Ouimette. Once again, Ouimette has not
established, or even presented any evidence, that
Coppola’s testimony was false or that the government
knew it. Indeed, at trial, Ouimette had ample.

12a

opportunity to challenge Coppola’s testimony and, in
his memorandum, Ouimette acknowledges that his
trial counsel did a very effective job of attacking
Coppola’s credibility.

(3) Prejudicial Comments

Next, Ouimette claims that he was denied his
due process right to a fair trial because he was
unfairly prejudiced by comments made by Coppola
and by the government’s failure to call Robert Buehne
as a witness after the prosecutor had referred to
Buehne in his opening statement.

Coppola’s comments consisted of references to a
brief liaison she had with Ouimette “after he got out of
jail”; an unsuccessful attempt to telephone him the
following June “after he went back to jail” and a
statement that a late night visit by Ouimette shortly
after her husband’s death caused her to fear for her
safety.

The comments were nothing more than passing
references made by Coppola in an effort to fix the time
at which certain events occurred. Once _ those
comments were made, counsel was confronted with a
difficult tactical decision. Since it is unlikely that
those comments would have warranted a mistrial,
counsel had two choices. He could move to strike the
statements and ask- for a cautionary instruction
thereby running the risk of calling undue attention to
the comments.! Alternatively, he could “let sleeping
dogs lie” and focus the jury’s attention on the issues
on the case. Under the circumstances, it cannot be
said that counsel’s decision was an unreasonable one.

1 During the charge conference, the Court inquired as to
whether the defense sought an instruction on the subject. Defense
counsel stated that he did not. Tr. (10/24/95) at 28-29.

l3a

In any event, given the weight of the other evidence
against Ouimette, it is difficult to see how Ouimette
was prejudiced by counsel’s decision.

It is even more difficult to see how Ouimette’s
counsel could be faulted for the government’s failure
to call Buehne as a witness. As already noted,
Ouimette bears the burden of identifying the specific
acts or omissions that constitute counsel’s allegedly
deficient performance. See Lema, supra. However,
Ouimette has failed to explain what, if anything, he
contends that counsel could have or should have done
to force the government to call Buehne as its witness.

Nor has Ouimette demonstrated that he was
prejudiced by the government’s failure to call Buehne.
There is no indication that Buehne’s testimony would
have been favorable to Ouimette and the limited
references made in the government’s opening
statement to Buehne’s involvement in the events
underlying the charges against Ouimette were amply
supported by the testimony of other witnesses.

If Ouimette’s claim is that counsel should have
pursued the matter by requesting a “missing witness”
instruction, the answer is that counsel did so.
However, this Court denied that request and the First
Circuit affirmed on the ground that Buehne’s
testimony would have been merely cumulative.
DeLuca, 137 F.3d at 38.

(4) Jury Instructions

Ouimette claims that the Court erred in
instructing the jury that conviction on the extortion
counts required proof that Ouimette had acted
“knowingly and willfully” when the indictment alleged
only that he acted “knowingly.”

l4a

It is difficult to understand how Ouimette
claims to have been prejudiced by the alleged error. If
anything, instructing the jury that the government
had to prove something more than what was required
would have been advantageous to Ouimette. In any
event, Ouimette appears to have confused the Court’s
charge on extortion with the charge on aiding and
abetting.

Ouimette also claims that the Court erred in
not providing the jury with a definition of “extortionate
extension of credit” contained in 18 U.S.C. § 891(6).
However, Ouimette was charged with a violation of §
894 and the term “extortionate extension of credit” is
used to describe violations of § 892(a).

Since there is no merit to either of these claims,
Ouimette’s counsel cannot be deemed ineffective for
failing to raise or pursue them. See Cronic, 466 U.S.
at 656 n.19; Vieux v. Pepe, 184 F.3d 59, 64 (1% Cir.
1999), cert. denied, 528 U.S. 1163 (2000).

(5) Sentencing Errors

Next, Ouimette claims that the Court erred in
sentencing him to life in prison without the possibility
of parole pursuant to 18 U.S.C. § 3559(c) because he
did not have prior convictions for “two or more serious
violent felonies.” 18 U.S.C. § 3559(c)(1)(A)(1). Ouimette
does not dispute that he had three prior convictions
for robbery, conspiracy to commit murder and assault
with an dangerous weapon. However, Ouimette argues
that none of those offenses are “violent felonies;” and,
even if they are, § 3559(c) is unconstitutional. Both
arguments were made by Ouimette’s counsel at the
time of sentencing and rejected by this Court.

Ouimette also argues, for the first time, that
two of the convictions resulted from guilty pleas that.

15a

the government failed to prove were voluntary and
intelligent and that his counsel was ineffective for not
challenging them on those grounds. That argument,
too, fails because the Supreme Court has made it
clear that the state court conviction cannot be
collaterally attacked in a_ federal sentencing
proceeding except on the ground that it was
uncounseled. See Custis v. United States, 511 US.
485, 487 (1994). In fact, the Supreme Court has
barred such challenges even in § 2255 proceedings.
See Daniels v. United States, __s«>U.S. __, 121 S.Ct.
1578 (2001).

C. The Ineffective Assistance Claim.

Ouimette’s “ineffective assistance” claim is
based on cou. -'s failure to present or pursue the
alleged “trial errors”. Since the Court already has
determined that counsel’s performance with respect to
those matters was not objectively unreasonable, this
claim, too, fails.

Conclusion

For all of the foregoing reasons, Ouimette’s
motion to vacate, set aside or correct his sentence is
denied.

IT IS SO ORDERED:

/s/ Ernest C. Torres

Ernest C. Torres
Chief Judge

Date: June 21, 2001

16a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

kek k kkk kkk kkk kkk ke eee! CRIMINAL ACTION

USA * NO. 95-029T
Government *
* THURSDAY,
VS. * FEBRUARY 1, 1996
GERARD OUIMETTE °
*

Defendant
kKKEKKKKKKKRKRKRKKKRKRKRKK KK Providence, RI
>

HEARD BEFORE THE HONORABLE ERNEST C.
TORRES DISTRICT JUDGE
(SENTENCING)

A-P-P-E-A-R-A-N-C-E:

For the Government: James H. Leavey, Esquire
and
Kenneth P. Madden, Esquire

For the Defendant: Richard M. Egbert, Esquire
and
Louis F. Robbio, Esquire

Court Reporter: Judith L. Montie
215 Federal Building
Providence, RI,02903

17a

[2] THURSDAY, FEBRUARY 1, 1996
SENTENCING

THE COURT: Good morning.

ALL: Good morning, Your Honor.

THE CLERK: The matter before the Court is
criminal action 95-29, United States of America
versus Gerard T. Ouimette.

THE COURT: Before we begin, I certainly would
expect this proceeding will be concluded this morning
but just in case it’s my understanding, Mr. Egbert,
you no longer have a problem this afternoon? | know
you had a commitment this afternoon.

MR. EGBERT: That’s correct.

THE COURT: All right. This matter is here for
sentencing. Mr. Ouimette having previously been
found guilty by a Jury of one count of conspiracy to
collect extensions of credit by extortionate means and
two counts of collection of extensions of credit by
extortionate means.

Mr. Ouimette and Mr. Egbert, have you both
had an opportunity to read the presentence report and
to discuss it with each other?

MR. EGBERT: Yes, Your Honor.

THE COURT: Mr. Ouimette, is that [3] correct?

DEFENDANT OUIMETTE: Yes.

THE COURT: Now, based on my review of the
presentence report it does not appear that there are
any factual issues in dispute. I know counsel have
raised a number of objections based on application of
those facts to the guidelines. For example, whether
Mr. Calenda received a body injury, whether Mr.
Duxbury received a body injury, whether there was
restraint used, what Mr. Ouimette’s role in the offense
was and whether they should be an upward departure
based on under representation of criminal history but
there did not appear to be any factual issues, is that
correct?

18a

MR. EGBERT: The factual issues were
contested at trial, Your Honor. You heard them at
trial.

THE COURT: Yes.

MR. EGBERT: A recontest of those issues at
this time is not an issue it seem to me. They are in
contest in the sense that Mr. Ouimette at all times
had relied on his not guilty plea and has not admitted
or agreed to any of those facts nor does he admit to
them at this [4] juncture.

THE COURT: I was referring not so much to the
prosecution version but as to the rest of the
presentence report?

MR. EGBERT: That is correct.

THE COURT: It seems to me, counsel, and if
you disagree you can explain to me why, that the first
issue that ought to be addressed here is whether
Section 3559, the so-called three strikes statute,
mandates a life sentence in this case. If it does, then
it would appear there is no reason to consider the
guideline issues because the guidelines themselves
and the case law as you know provide that a
mandatory minimum sentence takes precedence over
any penalty provided in the guidelines. Obviously, if
the three strikes statute does not mandate a life
sentence, then we would neéd to go through the
guidelines calculations. Does anybody disagree with
that?

MR. LEAVEY: The Government does not
disagree with that.

MR. EGBERT: I think I disagree in this sense.
And it’s that this Court is not the final arbiter of
whether or not 3559 applies and [5] the law is scant
as we know on 3559. There being to my knowledge
only one case that’s come out of the Circuit Court of
Appeals in both defining the statute and its history.
So were this Court to find, for example, that 3559
applies and another Court, the Court of Appeals or the
Supreme Court disagrees with this Court, then we.

19a

would have to undergo at that time a resentencing for
which the Defendant quite frankly I think is entitled to
have now. I think to leave it open would create both
double jeopardy issues, double sentencing issues,
continuous prosecution issues and the like. So I
think this Court and I would ask this Court to resolve
the sentencing issues that are extant in this case
today so that there be a full and complete record of
that for a single sentencing proceeding for which the
Defendant is entitled under statute and rule. And if
then, again, if all of that upon review is upheld and
3559 is upheld, if the Court so finds, that of course
would be the precedent sentence. If we did the other,
sentencing issues which would make up guideline
questions and the like would be resolved.

THE COURT: The problem with that, [6] Mr.
Egbert, that if the Court should find that 3559
applies, then the Court would be required, not only
applies but if it requires a life sentence, then that
would be the sentence the Court would impose and
there would be no guidelines sentence and even if that
determination was wrong and the Court made the
guidelines calculations, there would be guidelines
sentence. It would have to be remanded for
sentencing anyway.

MR. EGBERT: The guidelines calculations
would be made however and ruled on by the Court.

THE COURT: Only I suppose what the range
_ would be.

MR. EGBERT: Well, we may be talking the same
words in different language. The issue of base offense
level, role issues and issues of aggravation or
mitigation within the guidelines and all of objections
that we have made to the presentence report would be
resolved by the Court at a sentencing proceeding
today and although you would issue a sentence, it
seems to me, you would make your rulings on the
sentencing issues and all that would be left would be,
were [7] it to be remanded for example, and the Court.

>| Ge

20a

of Appeals would agree with this Court’s sentencing
ruling, all that would then cccur is a sentence within
the guideline range as finally established but all of
those guidelines issues and all of those sentencing
issues would have been acted upon and the Defendant
would have had the right to appeal them if at all with
his direct appeal in this case and not to rely on a
subsequent overruling or interpretation of 3559 by an
appellate Court causing a full resentencing but more
than the resentencing a determination of guideline
issues and the presentence report. I don’t know
whether they would be minimum mandatory or not in
the case that the Court is permitted to avoid or
abandon its obligations to determine the sentencing
guidelines in the case.

And just for the record on behalf of Mr.
Ouimette it is our position that you do so today and
that any failure to do so would be prejudicial to him
and cause him harm in the future.

THE COURT: Mr. Leavey, do you have anything
to say on this? .

MR. LEAVEY: Your Honor, I would [8] have no
objection to what Mr. Egbert proposes but I do think it
is a waste of the Court’s time. if the Court were to find
that life imprisonment applies, it goes to the First
Circuit. If the First Circuit disagrees, it has got to
come back here anyway. At that point the Court
could make a determination then as to the base
offense ievel, the appropriate sentence and the
Defendant would still have his right to appeal those
sentencing issues. I know of no right that he would
have to have issues decided that don’t have to be
_ decided at this point.

THE COURT: It seems to me, Mr. Egbert, you
haven't persuaded me that my original inclination
wasn’t correct. I don’t know what would be
accomplished by going through the guidelines
calculations at this point. As you say, the Court
would make determinations as to the applicable.

2la

guideline range at most. That is the most the Court
could do now. If it finds that 3559 mandates a life
sentence, then Mr. Ouimette would have to be
sentenced under that section and he has a right to
appeal his sentence. I don’t know how he would
appeal any interlocutory determinations the Court
might have [9] made as to some of the guidelines
calculations and even if that were the case, the case
would have to come back for sentencing anyway under
the guidelines. So I will start anyway with the 3559
issues and see where that takes us.

In that connection, I do want to acknowledge
that I have received memos from counsel, both
counsel in this case. I'll ask the Clerk to make those
memos a part of the file at the conclusion of this
proceeding. The memos were very helpful. I thank
counsel for them.

Now, as far as the 3559 issues are concerned, it
seems to me that the Defendant’s objections fall into
three categories. The first category is essentially
whether Section 3559 applies in this case. That is to
say whether the offenses of conviction in this case are
serious violent felonies and whether the Defendant
has been previously convicted of, at least, two other
serious violent felonies. Three have been alleged in
the information - conspiracy to murder, assault with a
dangerous weapon and robbery. That first category it
seems to me encompasses arguments five and six in
the Defendant’s memorandum. :

[10] The second category of objections go to the
constitutionality of section 3559. And that would
include objections one, three, four, seven and eight in
the Defendant’s memorandum.

And the last category would include, would
roughly I think be summarized as whether Section
3559, assuming that it applies and that it’s
constitutional, whether it requires a life sentence.
And that would deal with objections two and nine in
the Defendant’s memorandum.

22a

So I think the logical starting point is with the
first category. Does Section 3559 apply here? Are the
offense in question serious violent felonies within the
meaning of that statute. As I say, I have read your
memoranda. You don’t need to repeat anything that’s
in the memoranda but if counsel would like to amplify
on anything that you have said, I certainly would like
to hear what you have to say. Mr. Egbert.

MR. EGBERT: Your Honor, | frankly, again,
think our memorandum covers the issues. I have
spoken with Mr. Robbio and Mr. [11] Ouimette, not to
any advantage to repeat that what’s already been
stated in writing to the Court. Our positions are
described there. I don’t believe we have anything to
add to them either factually or otherwise.

THE COURT: All right.

Mr. Leavey, what does the Government have to
say on that?

MR. LEAVEY: Your Honor, the Government
agrees with Mr. Egbert as to the procedure. We feel
we have responded in the memorandum submitted to
the Court and we have nothing to add.

THE COURT: All right. The statute Section
3559(c)(2) and (c)(3) are the relevant provisions here.
(c)(2)(F)(i) or (c)(2)(F) defines serious violent felony.
Subsection I enumerates a number of crimes that fall
within that category and for present purposes the
crimes enumerated include murder as described in
Section 111 of the US Code or conspiracy to murder.
Robbery as described in Section 2111, 2113, and
2118, and extortion. Subsection 2 of (F) provides that
any other offense that is punishable by more than ten
years [12] and either has as an element the use or
attempted use or threatened use of physical force
against the person of another or by its nature involves
a substantial risk that physical force against a person
of another may be used in the course of committing
the offense would also qualify as serious violent
felonies.

23a

I guess I have to begin with the offenses of
conviction. Because the statute says that the
mandatory life sentence applies if a person is
convicted of a serious violent felony and has been
convicted on separate prior occasions of two or more
serious violent felonies. So both the offense of
conviction and at least two other offenses of which the
Defendant was previously convicted must be serious
violent felonies.

As to the offense of conviction or offenses of
conviction, conspiracy to collect extensions of credit
by extortionate means and collection of extensions of
credit by extortionate means, if we look first of all to
determine whether they are enumerated offenses
under (F) sub one, there are certainly some questions
raised. As I have indicated, the [13] offenses under
subsection (F) are described both by generic name and
reference to the Federal statute defining them and
they are also offenses that are described only by
generic name. The collection of an extension of credit
by extortionate means is not included in the first
category, nor is it included in the second category
unless it is encompassed by the generic term
extortion.

Now, in construing that statute what extortion
means as used in the statute, whether it encompasses
the offenses of conviction in this case, the Court has
to give the term its commonly accepted meaning and
furthermore in this case the statute expressly provides
that a serious violent felony refers to the enumerated
offenses by whatever designation. So the question is
whether notwithstanding its title or designation,
violations of Section 894 come within the ambit of the
“generic term extortion. It seems to me the answer to
that question has to be yes. First of all, the offenses,
at least, the substantive offenses in this case require
proof that extortionate means were used to obtain
something from another [14] person. And in essence
that makes it equivalent to what is commonly known

24a

as the crime of extortion; in other words, it’s a form of
extortion and it seems to me that it comes within the
generic term extortion that’s specifically enumerated
in subsection I. But even if it doesn’t, there is no
question, I don’t believe, that it does qualify as a
serious violent felony under subsection Il. _ It is
punishable by more than ten years in prison. The
statutory penalty is twenty years. And furthermore it
has as an element the use, attempted use or
threatened use of physical force against the person of
another. In other words, conviction of the substantive
extortion counts required proof that extortionate
means were used and extortionate means are defined
for purpose of that statute as the use or threatened
use of violence to harm another person.

It also meets the alternative requirement of
subsection II as a crime that by its nature involves a
substantial risk that physical force against the person
of another may be used in the course of committing
the offense. Certainly, the collection of an extension of
[15] credit by extortionate means by its nature
involves such a risk simply because, as I have said, it
is defined to include the use or the threatened use of
violence or harm to another person. In fact in this
case as the evidence indicated, it actual did involve
the actual use of physical force against the person of
another, both Mr. Calenda and Mr. Duxbury. So on
either count, it seems to me that the offenses of
conviction are serious violent felonies within the
meaning of the statute.

The next question would be whether the
Defendant was previously convicted of two or more
other serious violent felonies. As I have stated, the
three felonies that the Government relies on are
conspiracy to murder, robbery, and assault with a
dangerous weapon. Those were all offenses of which
Mr. Ouimette was convicted in the State Court.

As far as the conspiracy to murder is
concerned, murder and conspiracy to murder are.

25a

enumerated offenses. They are, specifically,
enumerated under subsection (F) sub I. That is exactly
what Mr. Ouimette was convicted of. Now, the
conviction was in the [16] State Court but the statute,
specifically, includes state offenses by whatever
designation. There is no question that he was
convicted in the State Court of a conspiracy to murder
and under Rhode Island Law, that offense is
punishable by life imprisonment. The definition under
Rhode Island Law is essentially the same as the
definition under the comparable Federal statute,
Section 1111. So certainly that offense qualifies as a
serious violent felony.

As to the robbery, again, robbery is one of the
specifically enumerated offenses under subsection (F)
sub I and, again, that is exactly what the Defendant
was convicted of in the State Court as indicated in
paragraph forty of the presentence report. The
elements under State law are virtually identical to
those under the Federal statutes referred to which
define various kinds of robbery for Federal purposes.
There is an escape provision that robbery may not be
considered if the Defendant establishes by clear and
convincing evidence that there was no use or threat of
use of a firearm or other dangerous weapon but it is
plain from the record here that a firearm was involved
and there [17] has been no rebuttal of that. So I find
that the robbery offense, which I should also note is
punishable under State law by not less than ten years,
would also qualify as a serious violent felony as a
specifically enumerated offense.

In addition, like the conspiracy to murder it
seems to me that the robbery would also qualify under
the alternative definition under subsection II as an
offense that has as an element the use or threatened
use of physical force against the person of another.
One of the elements of robbery is that there must be -

26a

some threat that enables the person to take whatever
it is that is being taken and also because of that,
robbery by its nature involves a substantial risk that
physical force may be used in the course of
committing the offense. So robbery certainly seems to
me qualifies as a predicate offense.

It may be redundant, but the third offense
relied on by the Government assault with a dangerous
weapon certainly is not an enumerated offense. And
therefore it is not a serious violent felony unless it
meets the alternative definition under subsection II.
[18] Once, again, it seems to me that this offense
qualifies under that section. It has as an element the
use or attempted use or threatened use of physical
force against the person of another and that is the
essence of assault with a dangerous weapon. It also
qualifies under the alternative definition under
subsection II as being an offense by its nature involves
a substantial risk that physical force may be used
against the person of another in the course of
committing the offense. Furthermore under Rhode
Island Law assault with a dangerous weapon is
punishable by a term of not greater than twenty years.
So it also meets the requirement that it is an offense
punishable by the ten years or more.

So as far as the statutory arguments are
concerned, I find that the statute does on its face, at
least, apply in this situation. We then turn to the
question of the constitutionality of the statute.

Mr. Egbert, do you have anything to add to
what you have stated in your memorandum?

MR. EGBERT: No. ,

[19] (PAUSE)

MR. EGBERT: one moment.

(PAUSE)

27a

MR. EGBERT: Once again, Your Honor, with
the concurrence of both counsel and the Defendant,
we have a written brief which outlines our objection to
the constitutionality of the statute and-rely on it.

THE COURT: All right.

Mr. Leavey, do you have anything to add?

MR. LEAVEY: No, Your Honor. The Govern-
ment has nothing in addition to that put into the
memo.

THE COURT: I will try my best to briefly
summarize the constitutional arguments made by the
Defendant as I understand them. The first is that the
three strikes statute violates the Eighth Amendment;
that is to say that it amounts to cruel and unusual
punishment because the punishment is dispropor-
tionate to the punishment that would otherwise be
imposed under the “guidelines for the offense of
extortion and I am using that as a shorthand term, for
the offenses of which the Defendant has_ been
convicted in this case. —.

[20] The response to that I think is pretty well
set forth in the Government’s memorandum and what
little case law there is on the subject. Generally
speaking, Congress has the prerogative of prescribing
the level of Punishment to be imposed for crimes.
That’s the function of a legislative body/to make a—
determination as to what penalty ought to be exacted
for committing particular crimes. There may be very
limited circumstances under which the penalty
prescribed by the statute may be held to violate the
Eighth Amendment and the only cases that really tend
to support that seem to be in the area of capital
punishment cases. Capital punishment is considered
to be so distinguishable from incarceration of
whatever duration that there have been isolated
instances. I think one case that know of where the
Court has said that there may be an Eighth
Amendment problem in applying the statutorily
prescribed penalty but this not one of those cases.

28a

Certainly life in prison is a very severe sentence for
extortion but as the Government has cited in its
memorandum, there are a number of cases that have
held that life sentences for even lesser offenses [21] do
not run afoul of the Eighth Amendment. So I don't
believe that this case rises to the level of an Eighth
Amendment violation.

The next constitutional argument is that a life
sentence here would violate the Fifth Amendment.
That it constitutes double jeopardy because it would
punish the Defendant again for prior convictions; in
other words, it’s more than-a mere enhancement and
it’s, in effect, additional punishment for the previous
convictions. The answer to that, again, has been
provided by both the Supreme Court and by the
Eighth Circuit in the Farmer case and it is that the
Defendant is not being punished under the three
strikes law for previous offenses. He would be
punished for the offenses of conviction in this case.
The previous offenses are simply taken into account in
fixing the penalty in this case and the Courts
including the Supreme Court have consistently
rejected the contention that statutes providing
enhanced penalties for recidivists expose Defendants
to double jeopardy. So! reject that argument as well.

‘The next argument is an ex post facto
argument. It is that application of [22] 3559 would
violate Article one Section nine of the ex post facto
clause because it retrospectively changes. the
consequences of the punishments imposed for past
acts. As I have already indicated, the law does not
impose a punishment for past acts or prior offenses. it
enhances the penalty for the offense of conviction in
this case. There is no ex post facto problem if it is
analyzed in those terms because this offense was
committed after the three strikes statute was enacted.
The statute was adopted on September 13, 1994. The
offenses in this case post date the enactment of that
statute. I think there certainly would be a problem if.

29a

the three strikes statute had been adopted after the
date of the offense in this case but it was not.

So therefore the Defendant was certainly on
notice of the possibility of an enhanced penalty and
had an opportunity to avoid the enhance penalty by
refraining from committing another serious violent
felony because the three strikes statute was enacted
before these offenses were committed.

The next argument is that [23] application of
_ the three strikes statute would deny the Defendant
due process and under the Sixth and the Fourteenth
Amendments or to put it another way that he would
have deprived of effective assistance of counsel with
respect to the prior offenses because he was not
advised that the consequences of pleading guilty to
those offense could expose him to a life sentence
under the three strikes statute. In effect, it seems to
me that what that argument is Saying is that the right
to effective assistance includes the right to be advised
with respect to the possible impact that conviction
might have on a sentence for a future crime that the
Defendant might choose to commit if the legislature
should later enact a statute providing for enhanced
penalties for those future crimes and it seems to me
that stretches the notion of effective assistance of
counsel way beyond its limits. I don’t think that there
is any effective assistance of counsel issue implicated
under these circumstances.

The last constitutional argument that the
Defendant has raised is that the statute under which
Mr. Ouimette was convicted in this case, Section 894
is itself [24] unconstitutional because the offense it
describes does not have a substantial affect on
interstate commerce and therefore, there is no Federal
jurisdiction in this case. There is no authority cited
for that proposition other than the | guess it was the
Lopez case that dealt with the firearms around the
schools. I think this is clearly distinguishable from
the Lopez case because the legislative history of the

30a

statute indicates that Congress found there to be a
significant affect on interstate commerce that these
so-called loan sharking activities had a significant
impact on interstate commerce and that provides the
necessary jurisdictional basis for the statute. So I
reject that argument as well.

Now, there are two other arguments. I may
have a little more difficulty fairly summarizing them
but one is, as I understand it, is argument number
two that a life sentence under the statute is
discretionary, not mandatory and that seems to be
based on the contention that the word shall as used in
the statute really means may. That seems to me to be
a very tortured reading of the plain language of [25]
the statute. It seems to me the word shall clearly
makes it mandatory if the statute is applicable.

The other argument is that the three strikes
statute is inconsistent with the guidelines and the
spirit of the guidelines and I think the short answer to
that is that the statute supersedes the guidelines.
There is ample case law and the guidelines themselves
recognize the fact that in the case of a conflict between
a mandatory minimum prescribed by the statute and
the sentence that would otherwise be imposed under
the guidelines, the mandatory minimum governs and
certainly one can argue and I think probably in many
cases with some merits, that these mandatory
minimums may not be wise. In some cases one could
argue they may not be fair but Congress certainly has
the power to prescribe them and when Congress does
so, they supersede the terms of the guidelines. So |
reject that argument as well.

Is there anything further before we proceed to
the allocution stage?

MR. LEAVEY: I don’t believe so.

THE COURT: Mr. Egbert?

[26] MR. EGBERT: Not that I know of, Judge.

THE COURT: Mr. Ouimette, at this time, you
have the right to address the Court and say anything:

3la

that you think ought to be taken in account in
imposing sentence. Is there anything that you would
like to say?
. DEFENDANT OUIMETTE: Well, Your Honor, I
am sure that whatever I say isn’t going to change the
outcome of account at this point but I just would like
to say one thing. As long as in this country there is
no other way to judge the truth except by what we
hear from the stand and Mr. Leavey and his office
continues to abuse their discretion which they have
the discretion to give lie detector tests to whoever joins
the witness protection program, that there are going to
be abuses and as long as there are abuses, people like
me are going to get hurt. That’s all I've got to say.
Excuse me, one thing more. If he agrees to give
Duxbury, Calenda, Buehne, Paula Coppola, and
Gellerman a lie detector test, any one of them passes,
I'll drop my appeal. One, just one.

[27] THE COURT: Mr. Egbert, do you have
anything to say on behalf of Mr. Ouimette?

MR. EGBERT: Your Honor, I have only things to
Say in the event the Court doesn’t determine that this
is a statutorily required mandatory sentence. Now,
that you've apparently made your rulings in that
regard, I am not prone to waste any air and to argue
on Mr. Ouimette’s behalf if the Court has determined
the sentence, as you have, that must be imposed in
this case is the mandatory life sentence.

I could go on at great length as many of
colleagues have and did before Congress as to the
efficacy of the statute which blindly permits these
kinds of impositions of sentence and permits the
United States Government through its prosecutors’

- Office to be determinator of who, when and where gets
those sentences and to use a statute such as this to
use as a club or bludgeon to extract testimony much
of which I am afraid will end up being lies from
witnesses or Defendants who are faced with life if they
choose to file it or not. :

note Ee
nr

32a

So those are all arguments and messages which
I am hopeful as this process [28] goes will lead
Congress to make some sense out this kind of
sentencing scheme but if you ruled, as you have, that
your sentence is required by Congress then our only
place to go is the Court of Appeals and the Supreme
Court. To say something on his behalf to you after
such a ruling is in fact wasting air which I am not
likely to do.

THE COURT: All right.

Mr. Leavey, do you have anything to say?

MR. LEAVEY: No, Your Honor. I believe that
the Court has indicated it has no discretion. We feel
even if the Court did have discretion life imprisonment
would be an appropriate sentence in this case.

(PAUSE)

THE COURT: All right. Mr. Ouimette, would
you stand up please while the court imposes sentence.

As you recognize, Mr. Ouimette, there is no
suspense left here. The Court has ruled that the
statute applies and the statute requires a life sentence
and therefore I hereby commit you to the custody of
the Bureau of Prisons on the counts of conviction,
one, three [29] and four for a period of life without
parole. Those sentences to be served concurrently
with one another.

I am not going to impose any fine on any of
those counts because it appears from the presentence
report that you don’t have any assets with which to
pay a fine. I am required to impose a special
assessment on each count in the amount of fifty
dollars.

You may be seated, Mr. Ouimette, and again as
I am sure you know, you have the right to appeal your
conviction and the Court’s sentence. If you cannot
afford the cost of an appeal, you may petition the
Court to apply for permission to appeal without:

33a

payment of costs. If you do wish to appeal, as I am
sure you know, Mr. Egbert has probable told you, you
must file your appeal within ten days or you might be
considered to have forfeited your right to appeal. So
those are things you can discuss with Mr. Egbert
following the conclusion of this proceeding.

Do you have anything further, .Mr. Leavey?

MR. LEAVEY: I don’t believe so.

[30] THE COURT: Mr. Egbert, do you have
anything further?

Court will be adjourned.

34a

APPENDIX D

STATE OF RHODE ISLAND AND PROVIDENCE
PLANTATIONS

PROVIDENCE, Sc. SUPERIOR COURT
STATE OF RHODE ISLAND
VS. 75-1436
GERARD T. OUIMETTE
HEARD BEFORE
THE HONORABLE JUSTICE PFEIFFER
MARCH 16, 1999
APPEARANCES:
STEPHEN REGINE, ESO.
SPECIAL ASSISTANT ATTORNEY GENERAL
FOR THE STATE
JOHN F. CICILLINE, ESQ.
FOR THE DEFENDANT

INDEX
PAGE
GERARD T. OUIMETTE

Direct examination by Mr. Cicilline 3

Cross-examination by Mr. Fowler 14

Redirect-examination by Mr. Cicilline 47

35a

EXHIBITS
I.D FULL
1 31 33
2 47
3 95
4and5 96

... we could, please.

[2] MR. CICILLINE: If I could identify for the record
that PM 98-4646 involves a 1958 plea on indictment
29046. Application for post-conviction relief was filed
in that case September 14, 1998. I’m sorry. In 75-
1436 there was a motion to vacate filed on February
18, 1991. In November of 1998 the defendant moved
to amend the motion to vacate to a petition for post-
conviction relief. So there are two post-conviction
reliefs on the seventy-five application. There is a
transcript of September 15, 1976. It is the defendant’s
position the transcript supplements the record for the
purpose of that post-conviction relief application. On
the 1958 case testimony is necessary.

THE COURT: Okay. Then turning to the PM 98-
4646 case why don’t we proceed with that. Can we
have the transcript marked as it relates to the other
case once we have concluded this testimony?

MR. CICILLINE: The transcript is appended to
the application.

THE COURT: The State has no objection to the
authenticity of the being considered with respect to
that second application as recited by Mr. Cicilline?

MR. FOWLER: I haven't seen it, Your Honor,
but I assume it’s the same transcript that I have.

MR. CICILLINE: It’s the hearing before Judge
Needham.

[3] MR. FOWLER: The hearing before Justice
Needham on September 15, 1976, I have no objection
to that. ,

36a

THE COURT: Okay. Thank you. Mr. Cicilline,

you wish to have testimony presented by the
defendant.

MR. CICILLINE: Yes, Your Honor.

GERARD T. OUIMETTE, after having been
duly sworn testified as follows:
DIRECT EXAMINATION BY MR. CICILLINE:

> O FOF OF OF OFOFHOPOPO

> OF O

Mr. Ouimette, where were you born?

Providence, Rhode Island.

And in what year?

1940.

And who did you live with during your young life?
Please.

Who was your family during your young life?
Providence.

What was your family? What constituted your
family?

My mother, father, sisters and brothers.

And did your father live with you throughout your
life? When did your father die?

1948. I believe I was eight years old.

Okay. And do you recall what your father’s
employment was? [4]

He drove somebody.

Truck driver?

No, I think cars. He drove for some politician and
then he drove cabs.

During 1940 on, 1958, October of 1958, what was
your education?

I didn’t like school so it couldn’t have been much.
Seventh, eighth grade, whatever. I didn’t get along
in school well.

So you had no education beyond the seventh or
eighth grade?

Not really.

Okay. Between 1940 and October of 1958 were
you employed?

Yeah. I worked at Loutitt laundry for a while. That
was between ’57 and ’58.

OFOF OF ©

FO FOPFO>O> OFOF OF OFO>

> O

37a

Between 1940 and October of 1958 had you been
to the juvenile court? _

Yeah, a few times.

And had you ever been charged with a crime of
robbery?

No.

No?

Never.

Prior to October of 1958 did you take any classes
in the juvenile justice system, formal educational
class?

Prior to 1958?

Yes. [5]

No.

Had you-ever been to the Superior Court before
October of 1958?

No.

Sometime in 1958 you were arrested, is that
right?

Right.

Do you remember the date?

Not really.

It was prior to October 22nd when you were
arraigned in Superior Court, is that right?

Right, yeah.

Were you brought to the police station?

Right.

And who was there when you got there?

You mean the police?

No. In terms of other arrestees?

Well, I saw two bags on the table and when I got
into the cell block Bobby Kandos was there.

Was there anyone else arrested at that time?

Not in my case. But there were two other guys
that are recognized, Bobby Capuano and Bobby
Charpeneau.

Were they known to be associates of Kandos?
Yeah. [6]

38a

Now, the next day you were charged with this
offense, is that right?

Right.

Did you have a lawyer at the time you were
charged in District Court?

No.

On October 2274 you appeared in Superior Court,
October 22, 1958, is that right?

Right.

And who was your co-defendant in that case?
Bobby Kandos.

How old were you on the date that you were
charged with this offense?

I had to be eighteen.

And do you know how old Kandos was?

He was a little older than me.

When you appeared in the Superior Court on that
arraignment date did you have a lawyer?

No.

Had you made any efforts to hire a lawyer before
that?

No.

Do you recall whether or not a plea of any kind
was entered on that day? This is your first
appearance in Superior Court?

No, I think--oh, no. the judge says I’m going to
enter [7] a plea of not guilty.

Okay. And where did you go from there?

I went to the can.

All right. Did you see Robert Kandos while you
were in prison?

Yes. ;
Did you have any discussions with him about the
case?

Yeah.

What were those discussions?

Well, I said to him Bobby, what’s going on over

here? What am I doing in this case. What am I

doing in trouble with you? And he started to avoid -

OF OF OFOYF ODFYOYF OF AYP O

rOr OF OFO P

39a

me. He said, well, listen I can't explain nothing
now but down the road I will take care of things.
Don’t worry about it. I’m going to get a lawyer and
I’m going go get you out of trouble so, Okay. He
lives on one side. I live on the other side of the
; block. And in 1958 you didn’t get out much so I
didn’t really get much of a chance to talk to him.

Q All right. While you were in prison after October
22, 1958, did you ever see a lawyer while you were
there?
No.
| Were you given a copy of the indictment?
No.
Were you shown any discovery of any kind? [8]
No.
Did you in fact know the specifics of what you had
been charged with?
No.
Did the name Betty Kirzner mean anything to
you?
No.

Did you know what the legal definition of robbery
was at that time, the elements that constitute it?
No.

On December 12t of 1958 you were returned to
the courthouse?

Right.

Is that right?

Yeah.

Had you seen a lawyer up to that point?

No.

It was in this very courthouse?

Yeah.

And you were down in the cell block?

It might have been in this courtroom.

Were you down in the cell block?

Yes.

While you were down in the cell block did a lawyer
come down and talk to you? :

OFOFOFOPOFPOY> OF OD OF OFOFO>D>

)

SFOPrPOPrPOPrP OPOF ODF OY OF ADP

OF OF O

40a

No. [9]

Were you shown a copy of an indictment on that
day?

No.

Did you have a discussion about the facts of your
case with anyone on that day?

No.

Did anyone discuss with you what the crime of
robbery was before you came into the courtroom?
No.

Did there come a time you were brought up into
the courtroom, is that right?

Yeah.

And do you recall who the judge was?

Joslin. *
When you walked into the courtroom at that
moment had you hired a lawyer?

No.

All right. Was there a lawyer there?

Yes.

What happened while you were in the courtroom?
Now this is on the 12% of December?

Yes.

The clerk said Your Honor this is nolo contendere
and first of all your name Gerard Ouimette. This is
nolo contendere. The judge said nolo contendere.
Okay. We will put it off until the twelfth of next
month and I [10] went back downstairs.

Did you know what the words nolo contendere
meant on December 12, 1958?

No.

Did you have any lawyer to explain to you what
those terms meant?

No.

While you were in court on that day, December
12, 1958, did your lawyer or the judge or the
prosecutor say what the elements were for the
crime of robbery?

No.

O > OF OF OF OF O> O >

OF OF OF O>

4la

Did anyone including the court, your lawyer or the
prosecutor discuss possible defenses to the crime
of robbery?

No.

Were any facts involving the actual crime of
robbery with which you were charged discussed
on that day?

No, not one.

Did anyone tell you what the penalty for robbery
was?

No.

Were you ever asked on that date ‘to Waive any
rights?

No. [11]

Did anyone tell you that a plea of nolo contendere
was equivalent to a plea of guilty?

No.

Did anyone tell you that by pleading nolo you were
giving up your right to a trial?

No

Did anyone tell you by pleading nolo you were
giving up your right-to be represented by a lawyer
at a trial?

No.

Did anyone tell you that if you had a trial you
could present witnesses in your own defense and
testify if you wished?

No. Z

Did anyone tell you by pleading nolo you were
waiving all of that?

No.

Did anyone tell you you had a right to appeal a
conviction after trial?

No.

Now after you finished that proceeding in the
court that day where were you brought?

Back to the can.

When you went back to the -- you say the can,
you mean the prison?

rOror OY

>rOFOrOr OFOPF O

O >

42a

Yeah.

When you went back to the prison that day did
you see a lawyer?

No. [12]

Did you ever see that lawyer again?

No, I never saw him, no.

Do you remember who the lawyer was?

I don’t even know who he looks like if he walked in
the courtroom today. If he walked in the
courtroom today I wouldn’t know what the guy
looks like.

This was certainly someone that was not retained
by you?

No, I didn’t have any money.

And did the court appoint a lawyer for you?

Not that they told me.

Now when you returned to the prison you didn’t
see a lawyer yet?

No.

How about Kandos, did you see him then?

Yeah.

And did you have some discussions with him?
Yeah.

And what were they about?

He just said that--I said, Bobby, what am I doing
over here? What’s going on with this case? What
am I doing here? What’s going on? And I asked
him about this nolo thing. He said don’t worry
about it. It means I don’t admit nothing. You're
going to go to trial. I got a bigger headache. I gota
rape case. But I’m going to get you out of trouble. I
got you a lawyer. Don't [13] worry about it. I’m
waiting and waiting for this lawyer to come and
see me.

On January 12% of 1959 you were brought back
to the Superior Court, is that right?

Right.

And was it the same judge that you had seen on
December 12t? |

rPO?rOr CO POPrPOrF OF OF CO >O >

O >

43a

Yes.

On that occasion was the lawyer present?

I can't tell you because I don’t what the guy looked
like, you know. I don’t know. There was a couple
of guys standing next to me but nobody said I’m
your lawyer, you know.

All right. Were you told on that date that you
weren't going to have a trial?

No.

Were you told anything about rights you were
waiving?

No.

Were you told anything about the penalty for
robbery?

No.

Were you asked any questions at all?

None.

What actually occurred on January 12t?

The clerk said again Your Honor this is nolo plea
contendere. The judge said okay nolo contendere.
I [14] sentence you six years ACI and that’s it. I
turned around and --

Before the judge pronounced sentence were you
given any opportunity to speak on your behalf?
No.

Were the facts explained to you that day?

Nothing.

After you got the six years where did you go?

Back to the can.

MR. CICILLINE: That’s all I have.

THE COURT: Mr. Fowler, questions?

MR. FOWLER: Yes.

CROSS-EXAMINATION BY MR. FOWLER:

Mr. Ouimette, you said at the time that you took
this plea you only had a seventh grade education,
is the correct?

About that.

So you never graduated from high school?

OFOPrPOYF OFO P

44a

No. I took the GED about 1970. Maybe 75, ’74.
I’m not sure. Around there.

And did you get your GED?

Yeah.

In fact not only did you get your GED, you took
some college courses, didn’t you?

No, I was tutored. [15]

You were tutored?

Yes.

You didn’t take any college courses?

Not that I can remember.

Back in September--on September 15% of 1976
when you were before Justice Needham in
Providence Superior Court do you recall being
asked, Mr. Ouimette, How far did you go in school
and you replied I took a few college courses, do
you remember that?

I remember I was tutored by college students. But
if you call that a course, you know, that’s what I
meant. I took the SAT just prior to that, too. I was
looking to go to college actually.

You stated that you had been in juvenile court a
few times, isn’t that correct?

Yeah.

When you went into the juvenile court do you
recall having some kind of exchange with the
judge before they did anything with you?

Well, actually when you got to juvenile when you--
this is in the ‘50’s now. The only times |! can
remember when I went in front of the judge, which
he was a judge, you sat at a table like this. There
was a couple of people there and they said well,
you know, we got to send you back to the training
school. That was it, you know. [16] You had no
rights. You had nothing. I had no lawyer. So I
mean when | got arrested in ’58 I figured this is
like the juveniles. You go in. You get accused of
something and they put you in the can.

OF OFOF OF OFO>?>

rFOPrOFrOPr> OF O

45a

And you testified, did you not, that before October
of 1958 when you appeared in Superior Court on
the robbery charge you had never been to court
before?

I don’t believe I was ever in Superior Court.

Were you in District Court?

I think I had a couple of--I had a fight or two.

Do you recall when you were arrested on the
robbery charge what the date was?

Not really, no.

Do you recall being put in prison on October 22nd
of 1958?

Yeah.

Was that with respect to the robbery charge?
Yeah.

And Mr. Kandos was also charged with that
robbery, isn’t that correct?

Right.

On August 1* of 1958 almost three months before
being arrested for this robbery do you remember
being in Sixth Division District Court charged with
a simple assault by the Providence police? [17]

I remember being in a restaurant one night and
Some guy come in and bumped me and I hit him a
punch and he hit his head in the juke box. I think
that’s the case you're talking about.

So my question to you do you remember being in
court for that charge?

I remember just getting arraigned.

Do you recall pleading to that charge and
receiving thirty days to serve?

Not really, no. I think I did get thirty days for it.
You don’t recall pleading to it in court?

No. What was the date, sir?

On August 1+ of 1958?

What date was the plea?

August 1* of 1958.

I pleaded the same day I got arrested--that I got
arraigned.

> O

Oo F&F OF OF OF O FOP O

O >

O >

46a

Is that air to say you plead the same day?

It might have been. I remember being in court for
the assault.

At about three and a half weeks later on August
30t do you recall being back in court in Sixth Di-
vision District Court on a Providence police charge
of a misdemeanor larceny and pleading to that
charge for a [18] thirty day concurrent sentence?
That’s possible, yeah.

Do you recall that today?

Yeah, I say that I remember going to the lower
court, yeah.

Were you represented by a lawyer in either of
those cases?

I don’t think so.

Do you recall being represented by the Public
Defender?

Possibly, but I don’t remember.

Do you recall discussing those cases with an
attorney before you pled to them?

I’m trying to think. I don’t think I had a lawyer.

So you're telling us today that you have no
recollection of having a lawyer?

No, I just don’t remember having a lawyer. |
remember being there.

Do you remember being there? You remember
pleading to those cases? You're not disputing
that?

Yeah.

Mr. Ouimette, since October of 1958 you have
been in Providence Superior Court a number of
times, haven’t you?

Yes.

You entered pleas of nolo contendere to a number
of [19] different cases, haven’t you?

I pleaded to the possession of burglary tools. I had
a master key. Somebody developed it trying to sell
to the Russian people and I pleaded again with

> Or OP Or OF O

> O

OF OP

47a

Jack on a gun case for assault. They were guilty
pleas. I don’t know if they were nolo pleas.

You have also been to Providence Superior Court
for trials on certain cases, haven't you?

Yes.

In fact you have been convicted in Providence
Superior Court before, haven't you?

Twice, yeah.

Do you recall being before the Providence Superior
Court in July of 1965 and receiving a sentence of
fifteen months at ACI suspended?

‘Um-hum.

With three years probation for possession of
burglary tools?

That was the master key I told you about it, yeah.
Is that fair to say that was the master key that
they had found on you that fit George’s T.V. store
on Eddy Street? Do you recall that?

Well, the cops said I kicked the window in or
something. Either I was going through the front
door or I was going to kick the window in. [20]
We're talking about the same case?

Jack said they considered a master key a burglary
tool so I had to plead to it.

So on August 31s of 1965 do you recall having
that fifteen months suspended sentence revoked
and being sent to the ACI for fifteen months based
on a Warwick Police Department report that you
were involved in an incident with Ronald Sweet at
the rear of the Gordon Junior High School in
Warwick?

Yeah.

Isn't it also true the substantive charge was
dropped? That case was later dismissed?

Right.

On January 17% of 1968 do you recall being
charged with possession of a firearm while you
were in a private club in Providence and arrested
by Detective Vincent Vespia?

>O>

O >

48a

Honest Vinny.
Do you recall that?
They bargained with Corrine Grande. He lied so
much. Let me explain one thing about that case if
I can.

THE COURT: Go right ahead.
I went on a motion for illegal entry with Mr. Vinny
Vespia. I want to tell you his testimony was all in
contempt. He said that he walked in the door and
Mr. Anthony Caruso was cleaning the gun. He
pushed the [21] gun to me and I! pushed it out of
the way. That was the hearing. During the trial a
year later Mr. Vespia said when he walked in the
door Mr. Caruso was cleaning the gun. I took the
gun off Mr. Caruso turned around and pointed at
him and threw it over my shoulder. That’s how I
got found guilty if you want to talk about the case.
That’s all on record.
In spite of that isn’t it fair to say on May 28 of
1958 you were found guilty after trial to the
charge of possession of a firearm after having a
prior conviction of a crime of violence and--
1958?
And you were sentenced to five years at the ACI,
isn’t that correct?
Right. And the robbery case prevented me from
testifying in my own defense because I had the
robbery case in 1958.
On July 14% of 1969 isn’t it also true that you
were found guilty after trial on a Providence
charge of assault on a uniformed police officer and
you received a three year suspended sentence with
three years probation?
Another honest guy who was indicted five years
later for fourteen breaking and entries. If the jury
would have known his character then you think
they would have found [22] me guilty of assault
when he hit me in the head with a blackjack.
Come on.

Or OF O > or O YP O > OFO > O

>

>

49a

Is that a yeah?

The same cop that said I assaulted him hit me in

the head with a blackjack and then years later got

indicted for fourteen breaking and enterings and

got off the force. Indicted and charged.

Mr. Ouimette, do you remember my question?

Yes, sir.

My question to you is you were found guilty after

trial and sentenced to three years suspended,

three years probation?

Absolutely.

On June 4% of 1971 did you plead nolo to

possession of a firearm and received two years at

the ACI?

The guns were in my house. I had a bullet in my

foot. I had people trying to kill me, sir.

You were found to be in possession of a .45 caliber

pistol, isn’t that correct?

Yeah.

On March 16% of 1973 do you recall pleading to

the charge of failure to stop for a police officer in

Washington County Superior Court and receiving

a sentence of a fifty dollar fine and court costs?

Yeah, [23]

On July 10% of 1972 do you recall being

sentenced to ten years at the ACI consecutive to

the sentence you were already serving for

conspiracy to commit murder?

Right.

Isn't it also true that you later filed a motion

through counsel to reduce that sentence?

Yes.

That sentence was reduced from ten years to serve

consecutive to ten years to serve concurrent, isn’t

that true?

Because you know why? Can I explain that, sir.
THE COURT: Yes.

Mr. Billy Miller had forty years and he stuck upa

bank. He got forty years in the Federal:

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penitentiary. They made a deal with him to take
four years to take the forty years away and give
him four years to do on some air force base. Six
months after the trial was over we found Mr.
Miller’s wife. She testified that he was hiding in an
alley way when somebody got shot. His wife later
said that he was an out-and-out liar to the police.
Told her to leave town. This is all on record. And
that she was home with him the whole month that
she testified he was hiding in an alley way. That
substantiated his testimony and they found him
not guilty on murder so another good case they
had against [24] me.
Mr. Ouimette, isn’t it also true on June 4% of 1971
you pled nolo contendere to a charge of assault on
a correctional officer and you were sentenced to
one year at the ACI consecutive to the sentence
you were already serving?
That was all one thing put together I believe.
Is it fair to say that was the sentence you received
on that?
Yes.
On September 15% of 1976 isn’t it also correct
that you plead nolo contendere on a charge of
assault with a dangerous weapon and conspiracy
to assault with a dangerous weapon and received
a sentence of three years suspended and four
years probation on each count concurrent?
Yes.

MR. FOWLER: May I have one moment please
Your Honor.

THE COURT: Yes.
Mr. Ouimette, isn’t it also true that on February
11 of 1984 you were found guilty of receiving a
firearm that had been transported in interstate
commerce after having a prior conviction of a
crime punishable by more than one year in jail,
that being in the Federal [25] District Court for

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the District of Rhode Island, and you received a
sentence of nine years, is that correct?

No. I received a sentence of eighteen years.

There were two counts, isn’t that correct?

Count 1 nine years, Count 2 nine years
consecutive.

Isn’t it also true that on February 1* of 1996 the
Federal District Court sentenced you to life
without parole based upon a conviction for
conspiracy to collect extensions of credit by
extortion and actual collections of credit by
extortion and aiding and abetting?

Right.

That’s correct?

Yeah.

Mr. Ouimette, you also stated that just minutes
ago that during the time of this robbery case in
Providence Superior Court in 1958 not only were
you never advised of the rights that you were
giving up or the rights that you in fact had but
there were never any discussions about the facts
of the case. Is that what your testimony is here
today?

I never saw a lawyer.

You appeared in court on more than one occasion
for that case, isn’t that correct? Three actually?
Well, three in Superior Court.

Mr. Ouimette, you’re familiar with the workings of
the [26] Providence Superior Court to some extent,
aren't you, with respect to criminal charges and
appeals?

You know, the worse thing I ever did I got thirty-
four years in the penitentiary. In the last thirty-
two years I never picked up a law book. You know,
you always count on your lawyer. You know what
I mean. You say, well, my lawyer is going to take
care of it. But your lawyer is not God, you know.
You know, they only have enough time in a day.

Is that a no?

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As far as the mechanisms of the courthouse?
Yes,
I mean, what do I know? What is there to know? I
mean I never went to law school. How do you find
out? Is the clerk got time enough to tell you, you
know? Now I imagine the laws are different. The
judge explains things to you. You have to sign an
agreement. In 1958 it was like makeup George. I
don’t know where you were, sir, but you know it
was like a Lassen. Bring them in and that’s it.
Mr. Ouimette, with respect to my question, today
as you stand here you are fairly familiar with the
workings of the court, are you not?

MR. CICILLINE: I object to this fairly familiar.

THE COURT: Overruled. You can answer the
[27] question.
In what sense?
You have been before the Superior Court more
than a dozen times, haven’t you?
I haven’t been in this courtroom in this court
house in the last twenty-five years.
That’s not my question, Mr. Ouimette. Did you
hear my question? The number of times that you
have been in court in the last forty years is over a
dozen, is it not?
I don’t know about here but probably over a dozen
with postponements and trials, yeah. Probably.
And on motions as well, isn’t that fair to say?
Well, you know, like I said, you know, you don't
think about motions because those are lawyers
things to do, you know. If you paid a lawyer you
figure he is going to take care of you. You don’t
ask questions.
And you have paid lawyers in the past, haven’t
you?
Absolutely.
Can you recall some of those lawyers?
Please.

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Can you recall--do you remember some of those
lawyers?

John Sheehan, Jack Cicilline. Mostly Jack. He has
been my lawyer since 1956.

How about Paul DiMaio, did he ever represent
you? [28]

Paul DiMaio, what a mistake that was.

How but Richard Egbert?

Egbert is an excellent lawyer.

He represented you as well?

Yes.

In fact he represented you in 1976, didn’t he?
Please.

In 1976 he represented you, didn’t he?

No.

In 1981?

81, what did I get? No. Jack represented me in
1981.

Mr. Egbert did represent you at some point, didn’t
he?

I didn’t meet Egbert until--oh, wait a minute. No,
no. 86 was the first time when I went back for a
hearing in Connecticut on the motion on the gun
case.

That was on your motion?

The Circuit Court in Connecticut sent it down for
a hearing because of something that happened.
We had a witness that said that the cops
kidnapped him. But Egbert didn’t handle it. It was
Konselor.

Mr. Egbert did represent you, correct?

In ’86, year, he represented me in my last case.
Stephen Famiglitti also represented you, did he
not?

No, he prosecuted me, but he never represented
me.

You have been represented by a number of
attorneys? [29]

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Yeah, but mostly by Jack and John Sheehan.
Never by Mr. LaFazia who has been listed as my
attorney from 1958. You can see that I never,
never let him represent me so I don’t even know
where he came from.

You have been in Federal Court as well on a
number of occasions, isn’t that fair to say?

On probably two or three occasions, yeah.

When you were in Federal Court you were
represented by counsel, were you not?

Yes.

Do you recall being before Federal District Court
judges in the past?

Federal District Court judges?

Yes.

Sure.

Have you plead in the Federal District Court in the
past?

Yeah, once. Assault on an agent. But Jack says
that if he thought I was going to assault him then
I am guilty of assault so what are you going to do.
In addition to that plea you have been convicted in
the Federal Court, correct?

Yeah.

After you were convicted or pled in Federal Court
before you were sentenced you were presented
with a presentence [30] report?

Absolutely. You have to read it and agree to it.

You were given that presentence report thirty days
before the time of sentencing and you were given
ten days to review it and object to any portion of
it, isn’t that fair to say?

Well, you know, what do you do? You’re found
guilty. The guy wants you to read the presentence
report. You know, what are you going to get. So
most of the time you just say listen here, I will
sign it, and that’s it, you know.

In answer to my question is that a yes?

What’s your question?

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My question is you are aware of the procedure?
Right.

And you had the opportunity to look at your
presentence reports in Federal Court, did you not?
Right.

And in fact on prior occasions when you were
presented with those presentence reports they
include the details of the arrests and convictions
you had in the past, isn’t that true?

Right.

And not only did they list arrests and conviction
but the listed dates, sentences? [31]

Right.

And a summary of the facts, isn’t that true?

Right.

And in fact specifically with respect to the 1958
robbery those presentence reports listed a
paragraph detailing that you along with your co-
defendant robbed the shop owner by name of Mrs.
Kirzner at gun point. That an undetermined
amount of cash was taken. That Mrs. Kirzner was
placed in a storage area in the cellar, and that you
later admitted that you were the suspect holding
the gun when the incident took place?

Not true.

You don’t recall reading that summary of facts?

I remember reading the presentence report but not
that I admitted to anything. As a matter of fact the
presentence report says that there were two
masked men. That wasn’t true either. That wasn't
true either.

MR. FOWLER: Your Honor, I have a document
entitled District Court of the United States for the
District of Rhode Island criminal proceeding
number 83-59 addendum to an opinion dated
June 24, 1984, I ask it be marked for
identification.

THE COURT: The clerk will mark it for
identification.

Q

Q

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MR. FOWLER: May I approach the witness. [32]

THE COURT: You may.
Mr. Ouimette --

THE DEFENDANT: Can I get my glasses over
there.
I’m going to show you a District Court opinion,
and that was issued on June 28% of 1984 by
Judge Raymond Pettine. On page two Judge
Pettine indicates that the presentence report in
this case shows the following. I’m going to ask you
to take a look at that first indented paragraph. It
begins 5-18-58 robbery.
I see these things were misleading. When my case
went for the sentencing Kandos with his lawyer
made a deal for his rape case and said that I was
the guy with the gun. That’s what I was sentenced
under those facts. Never did I admit in court or
anywhere else that I had anything to do with this
case.

MR. FOWLER: Your Honor, I move to have that
stricken. I haven’t even posed a question yet.

THE COURT: Granted.
Mr. Ouimette, my question to you is you just told
us that on more than one occasion you had the
opportunity to review your presentence reports
before you were sentenced in the District Court,
isn’t that true?
Yeah, absolutely.
And during those times have you ever seen that
charge with that paragraph of facts listed? [33]
Actually I didn’t. But let me tell you something
else. In 1984 --
You answered my question. Thank you.
Can I explain?

THE COURT: Your attorney will have an
opportunity to ask you further questions.

MR. FOWLER: Your Honor, I would ask that be
admitted as a full exhibit if there is no objection to
its authenticity.

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MR. CICILLINE: I have no objection.

THE COURT: Full exhibit.

THE CLERK: State’s one marked full.
Mr. Ouimette, let’s forget about January of 1959
for a moment. Let’s talk about some of your other
convictions in Providence Superior Court. On the
occasions later on in your career when have been
a Providence Superior Court do you recall taking
pleas before Providence Superior Court judges?
Yeah.
And you just stated, did you not, that the
procedure now is different, isn’t that correct?
Well, in the last couple of years I started to realize
that, you know, you start investigating. I never
knew you could attack prior convictions. That’s
why I never bothered to do anything about what
my presentence report [34] says.
Well, when was it you first realized that the
procedure is different now?
When I starting reading in the last year or two.
But in fact you had been to court at least nine
times in the cases that I just reviewed with you
before the last year when you started reading, isn’t
that correct?
Yes.
On those occasions when you pled to a case or
before you went to trial you were aware of the
rights that you had, isn’t that true?
Well, your lawyer usually takes care of all that so
when you're going to plead guilty he says well, I’m
going to go in there and plead you guilty, and
that’s it. Here’s what we are going to do, and so
there is not much. You don’t have to be a rocket
scientist. You have a lawyer that’s going to do all
the work for you. That’s what he’s paid for.
Is it your testimony today that in the last twenty
or so years Mr. Cicilline has never told you your
rights when you came to court either to be
involved in a trial or to take a plea?

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Oh, yeah. He told me we can go to trial or we
cannot go to trial. If you go to trial here’s what
they are going to prove. Here’s what they are going
to put against you [35] so we make a decision.
You have never been dissatisfied with Mr.
Cicilline?
Never. He is not only my lawyer, he is my friend.
He has always been honest with me.
You always felt he advised you of everything you
needed to know before you made a decision?
Absolutely.
Mr. Ouimette, in February of 1994 after you were
convicted by a jury for receiving the firearm that
had been transported into interstate commerce
after a prior conviction, isn’t it true that the
Government moved to have you sentenced under
the dangerous special offender statute?
That’s true.
You were quite aware they were attempting to do
that?
And they used that robbery charge again for that.
They used that robbery charge?
For everything.
As part of their reasoning, isn’t that correct?
Yeah, they destroyed me. That robbery charge was
the worst thing that ever happened to me in my
life, and I was stone innocent of it, sir.

MR. FOWLER: I just ask the answer be
stricken, the last portion.

THE COURT: I will allow it to stand. Go ahead.
[36]
And at the time that the Government attempted to
have you sentenced under the dangerous special
offender statute you through your attorney
objected to that, didn’t you?
Yeah, but not enough. I wish I would have known
a little about the law then that I know now.

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You know enough about the law to know that at
that time that you were denied and the
Government won and you were sentenced?

I am the only man in the country--I am going to
answer that--that is sentenced for one course of
conduct twice. No one else in the country is
sentenced this way. I am the only guy in the
country--went to the United States Supreme
Court--that got nine years for possession and nine
years of possession with erased numbers. You can
only possess a gun once. The Eighth Circuit Court
of Appeals just come down with a decision, the
Blockburger decision. I’m going to give him that
case which says the Federal District Court was
wrong. I am the only guy in the country sentenced
that way.

So you remember that one very well?

I have to live with these things. I mean I've been
crippled in the last few years.

My question is you remember that one very well,
don’t you? [37]

The two nine year sentences?

The sentencing enhancement?

Of course.

In fact when that occurred Judge Pettine issued a
written opinion, the addendum to which has been
moved into evidence, do you recall that
happening?

I told you I used Mr. DiMaio once and never again,
and it was a mistake.

My question to you is when that happened Judge
Pettine issued a written opinion. Did you ever look
at it?

I never got it. I fired Paul DiMaio right after the
trial and hired Bill Konselor.

So you're aware that, according to your testimony,
you're the only person who has ever had his
sentence enhanced in that fashion?

60a

A One course of conduct. The way I was sentenced I
am the only guy in the country sentenced that
way up until the Federal guidelines come into
effect. Now I don’t know but we researched it.
When I went to the can I sat down with a jail
house lawyer and he said there are seven circuits
in my favor that said they couldn’t do it and two
circuits said they could, the First Circuit and the
Second Circuit.

Q During the course of your research didn’t you also
find that a criminal conviction could be shown to
be invalid [38] if for example a defendant was not
afforded a lawyer at the time of the proceeding?

A Well, no, because I wasn’t looking in that direction
and never thought that. After the sentence was
over I figured it was over with. The damage is done
and let me move on with my life. I didn’t start
really trying to find out about the laws until the
last couple of years because in the penitentiary
now everybody is into dealing with laws because
they got so much time they got to go to the law
library.

Q Incidentally, Mr. Ouimette, today here in the
Providence Superior Court this is the first time
you ever suggested to any court that your pleas in
1959 was not a knowing and voluntary plea?

MR. CICILLINE: Objection.
THE COURT: Overruled.
MR. CICILLINE: Judge --

A Yeah, it’s clear I got the case filed long before

today. |

THE COURT: You want to rephrase the
question.

MR. FOWLER: I will rephrase the question.

Q The motion that you filed with respect to the
hearing, the reason why you are here today, that
motion is the first time in the last forty years --

A Absolutely.

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That you ever brought to the attention of the
Court that [39] your plea was not a knowing,
voluntary plea, isn’t that correct?
Absolutely. Because I told you I never realized that
there was anything that could be done about it.
In 1984 you filed a motion--strike that.

MR. FOWLER: May I have just one moment,
please, Your Honor.

THE COURT: Yes.
Mr. Ouimette, we just spoke about your being in
court in the Federal District Court for the District
of Rhode Island in 1984 and being sentenced as a
dangerous special offender. While that sentencing
was pending or you had been sentenced, I’m not
sure which, isn’t it correct that you filed a motion
in the State court challenging your good time
credits that were owed to you at the ACI in the
State system?
Yeah.
By alleging that your release date from State
prison was later than it should have been on your
ten year sentence?
Yeah, right.
And in fact you took that case all the way to the
Rhode Island Supreme Court, didn’t you?
I had Konselor on that case, yeah.
So you were represented then as well? [40]
I was a big boy then, Mr. Fowler. No disrespect. |
had to grow up in a hurry.
And as I said before you took that case to the
Rhode Island Supreme Court. In fact it was a
reported decision, isn’t that true, you were
denied?
I got out and then I would imagine the case
became moot. That’s what Konselor told me.
Let me just --
I think that’s what happened.
You recall that motion to get your good time
credit?

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62a

A Yeah, sure. The iudge sentenced me concurrent.
He first of all sentenced me consecutive. Then he
sentenced me concurrent. Concurrent meant
concurrent with the eight year sentence that
you're now serving sO my argument was that
concurrent meant together. He didn’t say
concurrent from this day. He said concurrent so
my good time should have added time, six and a
half years. They held me almost nine years. So
that was where my beef was.

Q You filed that motion after you got out of prison in

fact?
I filed that--are you kidding. I filed that in 76.
That’s when I got Konselor actually when this *76
case happened, if I can explain it. I really didn’t
wart to plead to this 76 case because I did
nothing wrong. And [41] when I got in a little
argument with Needham I said, well, let me get
another lawyer. So I had DiBiase and I eventually
hired Konselor then the prosecutor called me to
testify as a witness, State witness, which was a
sneak attack. I testified. Then he gave me eight
perjury charges for testifying because I took the
plea that I didn’t want to take in front of Needham
so now I am stuck with Konselor who I paid to get
my motion for new trial on the conspiracy case.
Now he’s got to go in and represent me on the
eight perjury charges and I got to go back in front
of Needham who I got to be good to him because if
I ain’t this guy ain’t going to let me off the hook
between the eight perjuries. I got stuck between a
rock and a hard place. Needham dismissed eight
perjury charges, and I just forgot about it.

Q Your motion for good time credit was denied,
wasn’t it?

A Like I said it became moot. I don’t know. I never
got the decision.

Q_ Well, you filed another motion in Federal?

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I hired lawyers. I didn’t do nothing. I don’t know
what they were doing.

Mr. Ouimette, when I said you filed, you filed
through your attorney?

I higher the lawyer. He does the work. Half the
time you don’t want to look at these things. I don’t
know [42] what legal terms mean. I mean I don't
know what to do. Do you look at a dictionary? Do
you look at a law book? Just recently in the last
year and a half and only because I see a lot of
common sense that guys say, Jerry, look, read it.
It’s just common sense. But prior to that I didn’t
want to see about the law. I had a hundred things
on me happening. I paid lawyers to represent me.
Mr. Ouimette, were you aware at the time that
your lawyer filed a motion, the same type of
motion was filed in Federal Court to try and get
your good time credits?

Which case is this now? I mean I filed motions in
75, 76 to try to get out.

After you were released from prison October of
1977?

I don’t know if he did that. Konselor did that. Why
would I do it? I’m home.

So you're not aware that your attorney filed a
motion on your behalf?

No. He might have did it on his way. Konselor was
a strange guy. He had just started coming to
Rhode Island and he was bouncing around doing
a lot of things in the town. He might have took it
on his own to do it.

So you're telling this Court that you're not aware
of the fact that that motion was filed
coincidentally in Federal Court? [43]

Federal time, I know we filed a motion prior to my
sentencing as a dangerous special offender
because if they were to give me my good time the
way they were supposed to give it to me then the

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five year period would have ran, and they couldn't
have given me dangerous special enhancement.
Exactly. That’s just my question to you. So you
were aware that a motion was filed to try and
prevent you from being sentenced?
Right.
As a dangerous special offender?
Right, yeah.
Exactly the same time?
The decision that came down I never read it
because like I said, you know, if a judge gives you
a decision he is a judge. He is a brilliant guy. Am |
going to start reading things and say the guy is
wrong. I don’t know. The lawyer says he did.
That’s it.

MR. CICILLINE: Would you accept that?

THE COURT: Thank you, Mr. Cicilline.
Just another bad decision you get and you throw
it in the box.
My point is you were very aware at that time if the
Federal Court accepted your lawyer’s argument
you would have been taken out of the Federal
statute definition of [44] a dangerous special
offender?
Let me explain something. Paul DiMaio --
Please just answer my question first.
If the judge agreed with my good time, yeah, |!
would have--they would have taken me out.
It would have taken you out of the definition of
special offender?
Absolutely.
So you have experience?
No. You're misleading this court.
Please let me finish my question. You have
experience through the attorney--through the
attorneys that you hired of filing motions in order
to escape Federal enhancements in sentencing?
I had the experience of his analogy. That’s all we
get. The lawyer says to me listen here, here’s what

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we are going to do. Fine. If it doesn't work out five
months later, a year later, what are you going to
do. You don't know the intricacies of what’s going
on. I never picked up a legal piece of paper in my
life. I figured if the lawyer can't do it, shame on
me.
MR. FOWLER: One moment, please, Your
Honor.

THE COURT: Yes.
Mr. Ouimette, on February 1* of 1996 was the last
time you were sentenced in Federal Court, isn’t
that correct? [45]
February what?
February 1* of 1996?
1996, yeah.
That’s the last time you were sentenced in Federal
Court?
Yeah, I think so.
Correct?
1996, yeah.
And during that procedure that presentence
report was used?
And I didn’t read that either. I mean actually I’m
glad you bring this up because this is on record,
too. | was supposed to have a four hour
sentencing hearing. The trial was so bad the
Government was so treacherous | said, Richard,
sit down and keep your mouth shut. The judge
looked at us three times. Ten minutes went by. I
said I guess there’s no secrets. Why stand up. |
knew I was going to get a life sentence. What’s the
sense of reading anything. Stand up, Mr.
Ouimette, and I got a life sentence.
Mr. Ouimette, the --
No disrespect, Your Honor.
Mr. Ouimette, in September of 1976 when you
entered the pleas before Judge Needham on the
assault with a dangerous weapon and the
conspiracy charge do you recall [46] that?

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Yes.

That was with respect to the incident at the ACI?
Absolutely.

Pasco Meo was the alleged victim--was a victim,
isn’t that correct?

Right.

Isn’t it true that after you received the three year
suspended sentence with four years probation on
September 15, 1976, in February of 1981 you
appeared in court to argue or be heard on a
motion for post-conviction relief, do you recall
that?

You know, I didn’t even know Jack filed a motion
to withdraw the plea until he came and see me
about a year ago. But I know, year, we were
looking to withdraw the plea.

Do you recall being in court for that?

Well, I had some other problems at the time so I
mean we were in court a couple of times, but I
don’t know which time in front of which judge.

MR. FOWLER: I have a one-page document
entitled post-conviction relief I ask be marked
State’s two as a full exhibit if there is no objection.

MR. CICILLINE: No objection.

THE COURT: Full exhibit. [47]

MR. FOWLER: May I have one moment again,
please, Your Honor.

THE COURT: Yes.

MR. FOWLER: I don’t have any other questions.
Thank you, Your Honor.

THE COURT: Thank you. Redirect.

REDIRECT EXAMINATION BY MR. CICILLINE:
Mr. Ouimette, you were asked some questions
about some pleas in District Court in 1968?

58.

I’m sorry, 1958. Larceny and simple assault. Do
you remember being asked that = and
acknowledging that you had those convictions?
Yeah.

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Do you remember standing before any judge and
saying I plead nolo?

No.

Do you know where the nolo conviction which is
entered on your records comes from?

I don’t know what you mean.

Do you know how the words nolo got on your file
for the summer of 1958?

Probably because of a guilty plea.

Do you have any recollection going back to that
summer of 1958 what would happen in District
Court when you [48] went in and entered a plea to
some case?

You go in. See the clerk. And said okay. Listen,
pay a fine, and that’s it. That’s it. You go in front
of the judge. He gives you the fine, and that’s it.
Okay. Did you ever utter the words nolo or nolo
contendere yourself prior to October 28t of 1958?
No.

Now, later on in 1969, 1970, 1971 and 1976, you
entered pleas of nolo, is that right?

Right.

And by that time the use of the plea affidavit was
in place, is that right?

Right.

And lawyers in those days went through the rights
form with you?

Right.

And gave you an opportunity to read it?

Right.

But prior to 1969 none of that ever happened, did
it?

No.

Now, with reference to this report which indicates
Ouimette admitted I was the suspect holding the
gun, did you ever tell a probation officer that?

No.

Did you ever tell a policeman that? [49]

No.

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68a

How did that get in this report?
Because that was part of the --

MR. FOWLER: Objection.

THE COURT: Overruled.
That was part of the deal that Kandos made to get
himself off the hook for the rape case which I
knew nothing about.
At the time you and Kandos were arraigned on a
robbery charge?
Yeah.
Kandos had a separate case?
Yeah.
And what was he charged with in that case?
Rape.
Okay. And he entered pleas in both those cases,
the robbery and his rape case?
He got six and a half years for it. I find out later on
they wanted to give him ten years.
Was there ever a time that you looked into the
information regarding the robbery of Betsy
Kirzner?
Yeah, of course.
When was that?
A couple of years after I bounced around the can
and tried to find out what was going on. I went
back. I [50] was eighteen. It was devastating to be
in the can. I was all alone. But I finally found out
that his partner was a kid named Bobby
Charpeneau who he was protecting at the time,
and Bobby Charpeneau incidentally was one of
the guys that was arrested that night. He is the
one that hooked up with Kandos to put me in the
middle of this robbery.
Now, when was it that you first realized that you
could undo an invalid plea?
Actually about a year and a half, two years ago.
What got me stimulated was this Singleton
decision. Everybody in the can was stimulated by
the Singleton decision and then everybody

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69a

Starting going to the library. Then I started to talk
to guys and, you know, then you start realizing
that there are some things that can be done.
That’s when I got in touch with you and I said,
Jack, you know, first of all I never had a lawyer.
Second of all I never robbed the joint so then we
started to communicate.

Had you been visiting the library at any prison
prior to the decision of Singleton? )

I went once in 1986 or ’87--in ’86 | think it was--]
was in the southern joint for six months. I had
met a guy from New York. He said, you know, this
case you got, it should be reversed because there
is no way I could see [51] they can sentence youa
twenty-year sentence with one gun. He said give
me a couple of dollars. Il research it for you.
Once in awhile you got to come to the library, but
I wasn’t interested in this law stuff. I used to tell
him you go do it. Just give me some facts. I gave
him some facts. That’s about how I really got
involved with this law. That's about as far as |]
went.

What year was that?

85, 86.

Then more recently in the past year and a half?
Yeah, the last couple of years. Everybody now in
the penitentiary is getting more aware of legal
things because everybody is getting buried.

As a result of your first learning that there was a
chance for you to undo your 1958 conviction what
is it that you did?

What?

What did you do when you learned there was a
change to vacate the 1958 plea?

I got in touch with you.

You got in touch with me. Write, call? How did you
go about it?

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70a

I think I called. I wrote to you first and then
Johnny went to see you. And then we started
communicating back [52] and forth.
Okay. Prior to that did you ever nave any
information or knowledge of the fact that undoing
a 1958 conviction was a possibility?
No. Actually if I could have did in 84 it would
have saved me nine years now that you look at,
but I didn’t know in ’84 you could attack prior
convictions. If you could I wasn’t aware because |
didn’t go to the library.
Are you guilty of this robbery of Betsy Kirzner?
No.

MR. CICILLINE: That’s all.

THE COURT: Recross.

MR. FOWLER: I don’t have anything else.
Thank you, Your Honor.

THE COURT: Okay. The witness will step down.

MR. CICILLINE: Judge, I have no _ other
witnesses. However, I am a little concerned about
some of the questions that Mr. Fowler asked as it
relates to the practice that was in place in 1958 as
to whether or not the defendants were being
advised of their rights back then and whether or
not the form was in place. I would tell you that in
Bishop against Longlois the Rhode Island
Supreme Court acknowledged that none of this
went on in the 1950’s and that pleas were taken
without giving defendants--without defendants
being given their [53] rights and it was usually
done in connection with a defendant’s thought he
might get lienency by doing it. The Rhode Island
Supreme Court has acknowledged that was the
practice that was in place. Since neither Mr.
Fowler or I were around practicing in those days it
would be extremely difficult to get witnesses to
come in and testify to that. I am relying on what
the Supreme Court said in that case that was the
practice that was in place. Boykin was not

ni eines aati Esteli di

7la

decided until 1969. So there would have been no
reason why any Superior Court judge would
advise a defendant about all these rights before
Boykin was decided. As a matter of fact Boykin is
a United States Supreme Court case. Doyle,
which is a Rhode Island case, was decided in the
same year. The practice didn’t come in place until
Doyle was decided and Boykin. So if there is a
dispute over that I would rest on these motions.

THE COURT: Okay. The applicant rests. Does
the State have any evidence for the Court to
consider with respect to this application?

MR. FOWLER: No, Your Honor. The State is not
going to put any witnesses on. However, with
respect to the motion for the application for post-
conviction relief as to information number 75-
1436, which is the 1976 conviction, Mr. Cicilline
just stated to the Court [54] that the copy of the
transcript that he supplied to the court was
attached to the motion itself. I would just like to
have an opportunity with Mr. Cicilline just to look
at the motion.

THE COURT: Let’s revisit that in a minute. But
going back to the first application that’s contained
in PM 98-4646 he has rested. The State has
nothing to offer, is that correct?

MR. FOWLER: That’s correct, Your Honor. I
would just like to be given the opportunity to go
through the memorandum and case law to argue.

THE COURT: We will return to that in a
moment. The 75-1436, you're offering a transcript
only, is that correct?

MR. CICILLINE: Yes, Your Honor.

THE COURT: Okay. Do you have a copy of that
so the two of you can confer on that to make sure
that there is no objection to the form that’s being
offered?

MR. CICILLINE: Unfortunately the only one I
have is a marked copy. |

72a

THE COURT: Okay. Would the two of you
approach for a second.

(Bench conference inaudible to reporter)

THE COURT: The transcript is being given to
the clerk. That will be marked as petitioner’s full
exhibit [55] with respect to the 75-1436.

MR. CICILLINE: That’s correct.

THE COURT: Nothing further in that?

MR. FOWLER: I have something further, Your
Honor. With respect to the 75-1436 could |
approach once more for a moment with Mr.
Cicilline.

THE COURT: You may
(Bench conference inaudible to reporter)

MR. FOWLER: Your Honor, on the record I
would like to submit a certified copy of the
stenographic record of the hearing before Mr.
Justice Needham on miscellaneous petition
number 14244 Kent County Superior Court on
February 24% and 25% of 1981. Preset at that time
was Stephen Famiglietti, Special Assistant
Attorney General for the State, and John F.
Cicilline for the petitioner. I ask that be marked as
a full exhibit.

MR. CICILLINE: Judge, I reserve the right to
challenge this. I have no idea what that transcript
is about.

THE COURT: I will mark it full. If after your
review you feel it should not be considered, I will
give you an opportunity to file an appropriate
motion.

MR. CICILLINE: Thank you.

THE COURT: Full exhibit. Is there anything [56]
further the State has with respect to the second
matter?

MR. FOWLER: Only just to clarify for the
record, Your Honor, and perhaps for ease of
bookkeeping I would like to submit --

MR. CICILLINE: That’s fin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0140%3A1. Public record. Not legal advice.