Frank Locascio v. United States, 395 F.3d 51, 2d Cir. (2005)
Frank Locascio v. United States, 395 F.3d 51, 2d Cir. (2005)
Frank Locascio v. United States, 395 F.3d 51, 2d Cir. (2005)
3d 51
BACKGROUND
2
the present matter. See United States v. Gotti, 753 F.Supp. 443 (E.D.N.Y.1990)
(bail hearing closed), reconsideration denied by, 776 F.Supp. 666
(E.D.N.Y.1991); 771 F.Supp. 552 (E.D.N.Y.1991) (defense attorneys
disqualified); 777 F.Supp. 224 (E.D.N.Y.1991) (anonymously selected and
sequestered jury ordered); 782 F.Supp. 737 (E.D.N.Y.1992) (defense attorney
disqualified); 784 F.Supp. 1013 (E.D.N.Y.1992) (motion to identify jurors from
previous trials denied); 1992 U.S. Dist. LEXIS 11400 (E.D.N.Y. June 24, 1992)
(motion to set aside verdict or grant new trial denied), aff'd sub nom. United
States v. LoCascio, 6 F.3d 924 (2d Cir.1993), cert. denied sub nom. Gotti v.
United States, 511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994). Various
counsel represented LoCascio and Gotti after their arraignment and before trial.
The government successfully moved to disqualify two of Gotti's counsel on the
grounds that both were "house counsel" for Gotti and received "benefactor
payments" from him to represent others involved in the charged criminal
enterprise, the Gambino crime family. See Gotti, 771 F.Supp. at 560.
3
LoCascio was tried and convicted along with Gotti of the murder of Louis
DiBono and numerous other crimes of racketeering by the Gambino family.
See LoCascio, 6 F.3d at 930. LoCascio was acquitted, however, of one count on
which Gotti was found guilty. Id. Following this court's affirmance, id. at 931,
certiorari was denied by the Supreme Court in 1994, see Gotti, 511 U.S. at
1070, 114 S.Ct. 1645.
In October 2000, LoCascio filed the instant Section 2255 motion. He was
represented by Dennis P. Riordan. The motion alleged, inter alia, that LoCascio
was not afforded the effective assistance of counsel based on counsel's failure
to pursue certain lines of cross-examination allegedly to protect Gotti. Two
years later, while the motion was still pending, a motion to amend was filed.
The motion was based on the allegations of an affidavit from Thomas Harvey,
an attorney who was of counsel to Riordan. The affidavit stated in pertinent
part:
Mr. Cardinale revealed that after Mr. Gotti learned that Mr. Cardinale met
alone with defendant LoCascio, Mr. Gotti stated he would harm Mr. Cardinale
if he ever met alone again with Mr. LoCascio. Thereafter, Mr. Cardinale failed
to meet with Mr. LoCascio without Mr. Gotti being present....
Mr. Cardinale never revealed the aforementioned facts to anyone, including Mr.
Locascio, and the only reason he is coming forward at this time with the
information is that Mr. Gotti's death has lessened the threat to his life, although
the threat has not been completely removed.
10
Although Dennis Riordan, Esq. had interviewed Mr. Cardinale concerning the
subject whether [sic] he suffered from a conflict of interest during LoCascio's
trial prior to the preparation of both the 2255 motion itself and the Reply
Memorandum filed on Mr. LoCascio's behalf in February 2001, Mr. Cardinale
did not divulge the instant information and this information was not available to
Mr. LoCascio or his present counsel, and is critical to the Court's consideration
of the defendant's pending claim of deprivation of his constitutional right to
conflict-free counsel.
11
Mr. Cardinale has declined at this time to allow his declaration in support of
this motion to be submitted because he is concerned for his welfare and on
advice of his counsel. However, Mr. Cardinale has advised me that if he is
LoCascio also submitted an affidavit stating that Gotti was his co-defendant
and that "[a]lthough my co-defendant and I had some issues in common, I at no
time agreed that Mr. Cardinale could act in my co-defendant's best interest at
my expense." LoCascio's affidavit further stated that:
13
I at no time was advised, or was otherwise aware, that Mr. Gotti had threatened
to kill Mr. Cardinale if he individualized my interests at Mr. Gotti's expense
and that, as a result, Mr. Cardinale was restrained in cross-examining Salvatore
Gravano concerning my lack of involvement in the murder of Louis DiBono, or
in asking questions solely about me, and was forced to cross-examine witnesses
about facts and charges that involved only Mr. Gotti and to concentrate on Mr.
Gotti during the second part of Mr. Cardinale's summation.
14
The district court denied the motion to amend as time-barred and in the
alternative found the underlying ineffective assistance claims raised by the
affidavit to be without merit. LoCascio v. United States, 267 F.Supp.2d 306,
322, 324 (E.D.N.Y.2003). The court granted a certificate of appealability. On
appeal, LoCascio asks principally for a remand for an evidentiary hearing on
his ineffective assistance claim.
DISCUSSION
15
We "review[ ] factual findings for clear error and questions of law de novo."
Triana v. United States, 205 F.3d 36, 40 (2d Cir.2000) (internal quotation
marks and citation omitted). "The question of whether a defendant's lawyer's
representation violates the Sixth Amendment right to effective assistance of
counsel is a mixed question of law and fact that is reviewed de novo." United
States v. Blau, 159 F.3d 68, 74 (2d Cir.1998). However, the district court's
denial of a motion to amend a Section 2255 motion is reviewed for abuse of
discretion. See Ching v. United States, 298 F.3d 174, 180 (2d Cir.2002).
16
a) Procedural Bar
17
The district court held that LoCascio's ineffective assistance of counsel claim
based on the Harvey affidavit was time-barred and therefore denied the motion
to amend the Section 2255 petition.
18
Section 2255 provides that: [a] 1-year period of limitation shall apply to a
motion under this section. The limitation period shall run from the latest of
******
19
20
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
21
28 U.S.C. 2255(4). Subsection (4) "does not require the maximum feasible
diligence, only `due,' or reasonable, diligence." Wims v. United States, 225 F.3d
186, 190 n. 4 (2d Cir.2000).
22
The Harvey affidavit stated that Cardinale revealed the threats from Gotti for
the first time during the three weeks preceding October 22, 2002 the date on
which the affidavit was signed. Denying the motion to amend as time-barred
and therefore futile, the district court found that "the `new evidence' upon
which it is based, is not new at all. Gotti's insistence upon controlling the
attorneys appearing not only on his behalf, but on behalf of other members of
the organized crime family of which he was the boss, was captured on tape in
the starkest terms and was known to LoCascio long before this trial began."
LoCascio, 267 F.Supp.2d at 322.
23
Although a close call, the present claim involves more in our view than Gotti's
general practice of controlling attorneys in particular those on his payroll. It
also may involve more than the joint defense strategy in the trial, of which
LoCascio was aware. The claim here involves allegations that Gotti, without
LoCascio's knowledge, interceded directly with trial counsel who was not
from the area or on Gotti's payroll gained control of LoCascio's defense by
threatening to kill counsel, and forbade counsel from meeting alone with
LoCascio. Moreover, it is claimed that counsel altered his conduct of the trial in
response. There is presently no evidence that LoCascio was aware of the
particular death threat alleged, of Gotti's direct orders to counsel, or of counsel's
conduct in response. While these facts are not inconsistent with LoCascio's
understanding of Gotti's practices, as alleged they go far beyond the previously
available information (on this record) on the extent of Gotti's control of defense
tactics during the trial.1
24
Moreover, on the present record, the facts as alleged could not have been
discovered earlier through due diligence. The Harvey affidavit states that
Cardinale disclosed the threat only after Gotti died because of the reduced
danger to Cardinale. Further, the affidavit and an accompanying affidavit of
Riordan state that Riordan interviewed Cardinale "concerning the subject
whether [sic] he suffered from a conflict of interest during LoCascio's trial prior
to the preparation of both the 2255 motion itself and the reply memorandum
filed on Mr. LoCascio's behalf in February of 2001, I did not receive from him
at those times any of the information contained in Mr. Harvey's declaration or
any other information demonstrating a conflict of interest."
25
Thus, the requirements of Subsection (4) were met as to the discovery of new
facts. The motion to amend the Section 2255 motion with an ineffective
assistance of counsel claim based on the new facts was not time-barred,2 and
denial of leave to amend was an abuse of discretion.
26
27
28
30
With regard to the existence of a conflict of interest, no one would question that
a credible death threat from a co-defendant ordering a lawyer to sacrifice a
client's interests constitutes an actual conflict of interest. However, whether a
hearing is required on the present record is a very close question. In
determining that issue we look "primarily to the affidavit or other evidence
proffered in support of the application in order to determine whether, if the
evidence should be offered at a hearing, it would be admissible proof entitling
the petitioner to relief." Dalli v. United States, 491 F.2d 758, 760 (2d Cir.1974).
In this regard, "[m]ere generalities or hearsay statements will not normally
entitle the applicant to a hearing, since such hearsay would be inadmissible at
the hearing itself." Id. (internal citations omitted). Rather, "[t]he petitioner must
set forth specific facts which he is in a position to establish by competent
evidence." Id. at 761; see also Hayden v. United States, 814 F.2d 888, 892 (2d
Cir.1987) (same); United States v. Aiello, 814 F.2d 109, 113 (2d Cir.1987)
(holding that hearing is appropriate when application contains "assertions of
fact that a petitioner is in a position to establish by competent evidence").
31
The allegations in the Harvey affidavit concerning Gotti's orders and death
threat to Cardinale are entirely hearsay. Similarly, Cardinale's alleged
willingness to appear at an evidentiary hearing under subpoena to confirm those
allegations under oath is based on hearsay. We do not ignore the fact that this
method of presenting the claim allows the various persons involved to avoid
stating under oath any personal knowledge of a material fact regarding Gotti's
orders and threats. Moreover, the timing years after the pertinent events
adds to the difficulty of verification. Ordinarily, we would be inclined not to
order a hearing, particularly in light of the puzzling inconsistency between
Cardinale's fear of submitting his own affidavit and his conversing with Harvey
in a way that seems equally dangerous. However, the allegations here, if
credited, involve an attempt to subvert the adversary process in a fundamental
and criminal manner, and we are assured by an officer of the court that trial
counsel has made the statements claimed and will provide testimonial evidence
33
34
We have examined the record and find nothing in the transcript alone
without supporting credible testimony from Cardinale that would support an
inference of Cardinale's altering his conduct of the trial because of a death
threat. The record does indicate that LoCascio and Gotti engaged in a joint
defense at trial to which LoCascio agreed. Indeed, both the district court and
this court have made findings in this regard. See United States v. Gotti, 171
F.R.D. 19, 34 (E.D.N.Y.1997) (finding that "even the most objective reading of
the entire trial record could lead only to the conclusion that there was an
implicit, if not an explicit, joint defense attack [by LoCascio and Gotti]
mounted against the indictment"); LoCascio, 267 F.Supp.2d at 324 (observing
that "LoCascio certainly knew of the joint defense"); United States v. Gotti,
Nos. 97-1228(L), 97-1248, 166 F.3d 1202, 1998 U.S.App. LEXIS 31190, at * 4
(2d Cir. Dec. 8, 1998) (explaining that "LoCascio and Gotti conducted a joint
defense at trial, and we have no reason to believe that they were not sharing all
information relevant to their defense," and describing the "strategic reasons"
why "neither Gotti nor LoCascio sought to examine Gravano on his statements
regarding narcotics trafficking").
35
If the death threat and orders to Cardinale are credibly established, therefore,
the hearing must also address whether the threat altered Cardinale's conduct of
the trial. A defendant of course is free to pursue a joint defense strategy with a
co-defendant, and such a strategy does not create a conflict of interest tainting a
trial. See United States v. Kirsh, 54 F.3d 1062, 1072 (2d Cir.1995) ("The fact
that Joseph and Mara may have decided to pursue a joint defense strategy in
which Washburn acted as lead counsel, does not mean that Washburn
represented both defendants. Mara failed to show a conflict of interest."). If,
independent of the threats, Cardinale's representation followed LoCascio's and
Gotti's joint defense strategy and any failure to individuate LoCascio was the
result of that strategy, the threats cannot be said to have caused Cardinale to
forgo the alternative defense of separating LoCascio from Gotti at trial. See
Winkler v. Keane, 7 F.3d 304, 309 (2d Cir.1993) ("[T]rial counsel did not
pursue a plea bargain because Winkler rejected this path, not because of trial
counsel's [conflict of interest]."). In other words, LoCascio cannot now claim a
lapse in representation simply because Gotti may have threatened Cardinale to
stick to the plan that LoCascio had already agreed upon. In such a circumstance
it would have been LoCascio's direction, not Cardinale's conflict, that avoided
the alternative plausible defense. However, why Cardinale did or did not do
certain things cannot be determined without hearing his live testimony under
oath.
CONCLUSION
36
For the foregoing reasons, the case is remanded to the district court for an
evidentiary hearing.
Notes:
1
In this regard, the district court's and the government's reliance onUnited States
v. Pollard, 161 F.Supp.2d 1 (D.D.C.2001), is misplaced. The petitioner in that
case, who alleged ineffective assistance of counsel based on his attorney's
incompetence, had been aware at all pertinent times of his counsel's
shortcomings and had argued that he had "discovered" the relevant facts only
when advised of the legal consequences of the attorney's mistakes. Id. at 9. The
court held the petitioner's claims untimely on the ground that "paragraph four
of 2255 is only triggered when a defendant discovers facts, not the legal
consequences of those facts." Id. at 10. By contrast, new facts were allegedly
discovered in the instant case i.e., the threats to Cardinale's life, the order to
him not to meet alone with LoCascio, and the consequent alteration in counsel's
conduct of the trial.
LoCascio claims that the district court had an obligation to inquire into
Cardinale's conflict because the court was aware that Gotti desired control over
attorneys working on Gambino-related cases. The trial court has an obligation
to inquire into the facts and circumstances of an attorney's interests either in
response to a timely conflict of interest objection,Holloway v. Arkansas, 435
U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), or "when it knows or
reasonably should know of the possibility of a conflict of interest," Strouse v.
Leonardo, 928 F.2d 548, 555 (2d Cir.1991). In fact the district court here
disqualified two sets of prior counsel on the government's motion. Both sets of
counsel had close ties to Gotti, and the district court found that the attorneys
were "house counsel" for the Gambino crime family, which was at that time
controlled by Gotti, and that the attorneys received "benefactor payments" from
him. In contrast, no evidence suggested Cardinale had any prior contact with
Gotti, let alone that he was under Gotti's control. There was thus nothing before
the court triggering an obligation to inquire further.