APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 75-0264)
Before: ALDISERT, GIBBONS and VAN DUSEN, Circuit Judges
Before: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
ALDISERT, Circuit Judge, with whom GIBBONS, HUNTER, WEIS, and HIGGINBOTHAM, Circuit Judges, join.
In Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970), we determined that the standard of competence mandated by the sixth amendment for counsel in criminal cases was "the exercise of the customary skill and knowledge which normally prevails at the time and place." In this appeal from an order of the district court denying relief requested under 28 U.S.C. § 2255 without an evidentiary hearing, the major question presented is whether that standard can be properly vindicated when counsel, while representing appellant on a direct criminal appeal, was himself under indictment and had entered into a plea bargain, during the pendency of the appeal, in the same federal district court from which the appeal was taken. We hold that it cannot.
Appellant Albert DeFalco had been convicted in the United States District Court of New Jersey of conspiracy under 18 U.S.C. § 371 and of three counts of falsey impersonating a federal official under 18 U.S.C. § 912. The charges alleged that DeFalco had illegally represented himself to be a spokesman for Congressman Henry Helstoski. He was sentenced on December 8, 1975 by Judge Frederick B. Lacey and thereafter filed a notice of appeal to this court at No. 76-1028. Subsequently, on January 8, 1976, he retained Vincent L. Verdiramo, Jr., to represent his appeal. Briefs were filed and the matter was listed for disposition without oral argument on October 6, 1976. The judgment of conviction was affirmed on October 8, 1976. United States v. DeFalco, 546 F.2d 419 (3d Cir. 1976), cert. denied, 430 U.S. 965 (1977).
At the time appellant retained Mr. Verdiramo, the attorney had already been indicted three times by a grand jury of the United States District Court of New Jersey.*fn1 After filing appellant's brief, Mr. Verdiramo was indicted at No. 76-201-4 on June 2, 1976. One of the other defendants charged in this indictment was Congressman Helstoski.
Verdiramo entered a plea of not guilty before Judge Lacey at indictment No. 74-313 on August 23, 1974. His motion for assignment of a judge from outside New Jersey was filed on September 13, 1974, and was denied by Judge Lacey on October 29, 1974. He requested from Judge Lacey a bill of particulars and was granted some relief. Judge Lacey denied Verdiramo's reasserted motions for discovery and for a judge from another district on November 19, 1974, and released certain property from Verdiramo's recognizance bond on January 30, 1974. The case was transferred to Judge H. Curtis Meanor on April 21, 1975. Following his indictment at No. 76-201-4, on June 2, 1976, Verdiramo again filed a motion to recuse the trial court; on September 8, 1976, this case was also transferred to Judge Meanor by order of Chief Judge George H. Barlow.
Before DeFalco's appeal was decided by this court, Mr. Verdiramo consummated a plea bargain with the United States Attorney for the District of New Jersey and on September 28, 1976, his guilty plea at No. 76-201-4 was entered before Judge Meanor. The reception of Verdiramo's guilty plea was interrupted in order to advise Judge Lacey of the assignment of Verdiramo's case to another judge. Judge Lacey appeared at the Verdiramo plea reception and gave his consent to the transfer of the Verdiramo case to another judge after being advised of the specifics of the Verdiramo plea bargain.*fn2
During the Rule 11 inquiry, the sentencing judge informed Verdiramo that if the plea were accepted
it will be my duty... to suspend you immediately from the further practice of law before this court.... [This] plea places you in jeopardy of disbarment both form this Court and before the New Jersey courts, and perhaps before any other court to which you are admitted to practice.
Appendix at 163-64. On the same date, September 28, 1976, Judge Meanor entered an order suspending Verdiramo "from further practice of law in the United States District Court for the District of New Jersey." (Docket entry October 4, 1976, Indictment No. 76-201-4). Thus, while DeFalco's appeal was still pending in this court, eight days before the scheduled date of disposition of his appeal, his attorney had entered into a plea bargain, had pleaded guilty, and had been suspended from practicing law in the United States District Court at the District of New Jersey.
In an affidavit filed in this court at No. 76-1028, Mr. DeFalco stated:
1. I am the appellant in the instant matter.On the 8th day of December 1975, I was convicted in the United States District Court for the District of New Jersey, of a violation of law and received a sentence of six years.
2. Thereafter, and on the 8th day of January 1976, I retained VINCENT L. VERDIRAMO, ESQ., a member of the bar of the State of New Jersey, to represent me in the appeal to this Court. At no time during any of the ensuing months was I aware of the fact that Mr. Verdiramo had committed any actions which would disqualify him from the practice of law, or in representing me in connection with this appeal.
3. In fact, prior thereto, and subsequent there-to, Mr. Verdiramo had committed actions and participated in actions which resulted in his indictment by a Federal grand jury. Although I learned of Mr. Verdiramo's indictment in alleging a conspiracy to commit perjury and to obstruct justice, he informed me that the allegations were worthless, and that he would be vindicated at trial, and that the matter would not prevent him from representing me fully on my appeal. He assured me that he would prosecute the appeal vigorously, and he was confident that my conviction would be reversed. I was therefore astounded to read in the public press on September 30, 1976 that Mr. Verdiramo had pleaded guilty to one indictment, and that there were, in fact, other indictments against him which would not be prosecuted as a result of his dealings with the government.
The present appeal arises from the denial of DeFalco's claim to vacate his sentence pursuant to 28 U.S.C. § 2255 because of ineffective assistance of counsel on his direct appeal.*fn3 He argues that adequate representation under the sixth amendment is denied "if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents -- as a vigorous advocate having the single aim of acquittal by all means fair and honorable -- are hobbled or fettered or restrained by commitments to others." Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962). He enhances his position by delineating certain arguments which he contends an aggressive appellate lawyer would have urged upon this court on the direct appeal. The district court, after examining Verdiramo's appellate brief, determined that Verdiramo's representation satisfied the standard of "customary skill" established in Moore . It therefore concluded that DeFalco's allegations concerning the impact of Verdiramo's indictment were insufficient, as a matter of law, to establish a violation of the sixth amendment. The district court appears to have reasoned that in the absence of a showing of actual prejudice, no relief was available under the Moore standard.*fn4
It is true that when an appellant's claim is based on simple incompetence, this court has generally required him to show both a breach of the Moore standard and specific prejudice resulting from that breach. Moore, 432 F.2d at 737; accord, United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir. 1970). In cases in which the defendant's attorney jointly represented another codefendant, however, we have allowed relief upon a showing of "a possible conflict of interest or prejudice, however remote...." United States ex rel Hart v. Davenport, 478 F.2d 203, 210 (3d Cir. 1973); Walker v. United States, 422 F.2d 374, 375 (3d Cir.), cert. denied, 399 U.S. 915 (1970). This stricter standard is based upon the recognition that, in cases involving a conflict of interest, it is often difficult or impossible to determine whether the defendant has actually been prejudiced by improper representation. Holloway v. Arkansas, 435 U.S. 475, 490-91 (1978). In describing the problem at the trial level, the Court, speaking through Chief Justice Burger, has explained that
a rule requiring a defendant to show that a conflict of interests... prejudiced him in some specific fashion would not be susceptible of intelligent, even-handed application.... [The] evil -- it bears repeating -- is in what the advocate finds himself compelled to refrain from doing.... It may be possible in some cases to identify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney's representation of a client.
Id. at 490-91. Moreover, apparently legitimate decisions are rendered suspect if made by counsel with conflicting loyalties "because a reviewing court cannot reliably determine to what extent that decisions were based on legitimate tactical considerations and to what extent they were the result of impermissible [considerations]...." United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 520 (3d Cir. 1979), cert. granted, 444 U.S. 823, 100 S. Ct. 44, 62 L. Ed. 2d 30, 48 U.S.L.W. 3217 (October 2, 1979). To ...