On Appeal from the United States District Court for the District of New Jersey, Crim. Action No. 84-00098-01 § 2255.
Sloviter, Mansmann, Greenberg, Circuit Judges.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
GREENBERG, Circuit Judge.
Appellant, Rosario Gambino, appeals from an order entered in the United States District Court for the District of New Jersey by Judge Bissell following a plenary hearing denying his motion under 28 U.S.C. § 2255 to vacate his conviction entered on December 11, 1984 on various drug offenses and sentencing him to a total custodial term of 45 years and to pay a total fine of $105,000. The specific offenses and sentences were as follows:
counts 11 and 12, possession of heroin with intent to distribute and distributing heroin on or about January 18, 1984, at Atlantic City, New Jersey (merged), 15 years followed by a special parole term of ten years and a $25,000 fine; counts 17 and 18, possession of heroin with intent to distribute and distributing heroin on or about February 20, 1984, at Somers Point, New Jersey (merged), 15 years followed by a special parole term of ten years and a $25,000 fine, the sentence to be consecutive to those imposed on counts 11 and 12; count 2, conspiracy to distribute heroin from at least as early as October 1, 1983 until on or about March 16, 1984 at Atlantic City, New Jersey, 15 years and a fine of $25,000, the sentence to be consecutive to those imposed on counts 11, 12, 17 and 18; count 13, using a telephone at Cape May, New Jersey, on or about January 30, 1984 to facilitate the distribution of heroin, four years to be served concurrently with the other sentences and a $30,000 fine.
Appellant and co-defendants Erasmo Gambino, Antonio Gambino and Anthony Spatola, who were also convicted on various counts of the indictment, directly appealed from their convictions and, in addition, appellant appealed from an order denying him a new trial. We, however, affirmed. United States v. Gambino, 788 F.2d 938 (3d Cir.), cert. denied, 479 U.S. 825, 107 S. Ct. 98, 93 L. Ed. 2d 49 (1986). Another defendant, Giovanni Bosco, was a fugitive at the time of the trial and thus was not tried with appellant. He was later apprehended and pleaded guilty to certain offenses charged in the indictment. The final defendant, Mario Gambino, was acquitted of all charges against him.
Inasmuch as the facts of the case were set forth in our earlier opinion they will not be repeated at length. See 788 F.2d at 940-41. It should be indicated, however, that evidence at the trial showed that appellant supplied the heroin mentioned in counts 11 and 12 of the indictment and sold on January 18, 1984 to undercover agents and that Spatola and Bosco obtained the heroin at the Caffe Milano in Brooklyn on the night of January 17-18, 1984. In his earlier appeal appellant asserted that his trial attorney, Jacob Evseroff, had simultaneously represented Gaetano Mazzara in a case referred to as the pizza connection case, United States v. Badalamenti, et al., No. 84-Cr-286, a narcotics conspiracy case in the United States District Court for the Southern District of New York. Appellant asserted that Mazzara was under suspicion as the source of the heroin sold to the undercover agents on January 18, 1984 by Spatola and Bosco. This dual representation was said to give rise to a conflict of interest on Evseroff's part since he failed to establish that Mazzara, and not appellant, was the source of the heroin. After an extensive discussion of appellant's claim, we indicated that circuit precedent required us to affirm his conviction without prejudice to his right to initiate a collateral proceeding under 28 U.S.C. § 2255 for the resolution of the conflict of interest question. 788 F.2d at 949-53.
Thus, appellant filed his motion in the district court claiming that his conviction was obtained in violation of his Sixth Amendment right to the effective assistance of counsel because of Evseroff's alleged conflict of interest which, in appellant's view, adversely affected his performance at appellant's trial. His motion was supported by an affidavit of Evseroff, dated June 9, 1986, which set forth that at the time of appellant's trial Evseroff was also representing Mazzara, who was charged with being a leader of a multi-million dollar heroin distribution organization, in the Badalamenti case. Evseroff indicated that during appellant's trial he obtained entries from surveillance logs for January 17, 1984 at the Caffe Milano that suggested Mazarra's involvement in the events of that day.*fn1
Evseroff further stated that it occurred to him that there was substantial evidence from which an argument could be made that Mazzara was the actual source of the heroin. Nevertheless, according to his affidavit, when Evseroff cross-examined the surveillance agents, he carefully avoided any questions which might have implicated Mazzara, out of a sense of loyalty to him and for fear that he might jeopardize Mazzara's position in his impending trial. Evseroff also stated that he did not call appellant's attention to the fact that an argument could be made that Mazzara was the source of the heroin. The affidavit gave no indication of who its author was or how it came to be executed.
A plenary hearing was held on the motion on October 31, 1986. On direct examination by appellant's attorney, Evseroff testified that he had met Mazzara in April 1984 and represented him in the Badalamenti case. Evseroff testified that during appellant's trial he was supplied with government surveillance reports showing that Mazzara was seen around the Caffe Milano on January 17, 1984.
Surveillance log J-146 was then admitted into evidence. It indicates that Spatola arrived in the area of the Caffe Milano at 2:27 p.m. and entered at 2:30 p.m. At 2:40 a yellow Mercedes Benz departed from in front of the cafe, a significant fact as the vehicle was identified as being appellant's. At 2:47 p.m. Spatola exited the cafe and entered the nearby 18 Avenue Tile Co. with two unidentified men. Mazzara and Francesco Castronovo arrived at the scene at 2:58 p.m. and entered the Caffe Milano at 3:00. At 3:09 p.m. they were observed on the street and then entering the 18th Street Tile Co. At 3:41 p.m. Mazzara and Francesco Castronovo left the tile store and departed the scene. Nothing in the log indicated that Mazzara was seen delivering heroin.*fn2
Evseroff testified that the government argued at appellant's trial that appellant supplied the heroin to Spatola and Bosco which they sold to the undercover agents. But Evseroff said that even though he had examined the above described log prior to cross-examining the surveillance agents, he did not cross-examine them about Mazzara or seek additional information about his involvement in the episode because it would have been a "specious argument" to contend that Mazzara, and not appellant was the source of the heroin and he did not want to bring out Mazzara's name. Evseroff said that while there was substantial evidence which could have been articulated to make an argument that Mazzara was the source of the heroin it would not have been a "substantial argument." He also said it would have been unfair to draw an inference that Mazzara was involved in the matter.
Evseroff also testified that he did not bring appellant's attention to the surveillance observations of Mazzara and did not tell appellant that an argument could be made that Mazzara was the source for the heroin. Further, he did not bring the matter to the attention of the trial judge as he perceived no conflict of interest requiring him to do so.
Evseroff explained how he came to execute the affidavit. After appellant's original appeal had been argued, another attorney Charles Carnesi, who had represented the acquitted Mario Gambino at appellant's trial, asked Evseroff to sign an affidavit concerning the circumstances under which he made his decision not to examine the agents about Mazzara. Evseroff was willing to do this and, after appellant's convictions were affirmed, agreed to supply the affidavit. But he was busy on other matters so he therefore asked Carnesi to prepare the affidavit and submit it to him. Carnesi did so but Evseroff would not sign it in its original form as he objected to a statement in it that Mazzara was the source of the heroin. Consequently, the affidavit was redrafted and Evseroff then signed it. He said that the language in the affidavit was Carnesi's.
Evseroff testified that in October, 1986, a few weeks before the hearing on appellant's motion, he received from the Grievance Committee of the Appellate Division, Second Department of the Supreme Court of New York, an inquiry about a claim, predicated on his affidavit of June 9, 1986, that he had a conflict of interest in appellant's case. The government acknowledges that it brought the matter to the committee's attention. While Evseroff was concerned about the complaint it did not cause him to rethink the matter. He further testified that, because of his affidavit, the government had advised him it would object to his appearance pro hac vice in the District of New Jersey in another case. He also said that two weeks prior to the hearing, an FBI agent had served a subpoena on him for his income tax returns from 1979 to that time and that he had been asked to produce records of funds received from appellant and Mazzara. Evseroff engaged a lawyer to represent him and, after a meeting between his lawyer and the government attorney in charge of this case, at which the lawyer disclosed what Evseroff's position would be at the hearing, the demand for the tax returns was withdrawn.
On cross-examination by an assistant United States attorney, Evseroff explained what he meant by substantial evidence to argue that Mazzara was the source of the heroin. He indicated that the only information on the point he had at the trial was that Mazzara had been in the area on January 17, 1984 and had been arrested in an unrelated drug case. Evseroff felt that this would have been an insufficient basis upon which to pursue a line of questioning to establish Mazzara's involvement. He said appellant had "a good, viable, solid defense" with respect to the events of January 17, 1984, as appellant was never in Brooklyn on that day and his car, which was identified as being in the area of the Caffe Milano, was being used by someone else. Evseroff considered that the Mazzara defense was a specious argument irrelevant to his actual defense and would have impacted unfavorably upon appellant a conclusion he based on his substantial experience as a trial lawyer. He was also concerned that the government might be able to link appellant and Mazzara in which event it would have been counterproductive to have brought up the Mazzara defense.
He further indicated that it was part of his defense strategy to establish that on January 17 there were 13 surveillance agents in Brooklyn but none saw appellant and that he, in fact, carefully brought this out on cross-examination. He further developed at trial that only one agent saw appellant's car in the area on January 17. He also planned to call Carlo Filiberto, appellant's neighbor, to testify that he used appellant's car in Brooklyn on January 17 and that appellant was home in Cherry Hill, New Jersey that day. Filiberto in fact so testified. Evseroff also knew that appellant would testify, deny guilt and confirm that he had lent his car to Filberto.
Evseroff said that Spatola testified at the trial and gave testimony exculpatory as to appellant. In fact, Spatola testified at the trial that he obtained the heroin in Brooklyn on January 17 from Giovanni Saia and not from appellant. Evseroff said that when he cross-examined Spatola he did not try to discredit his statement that he obtained the heroin from Saia. He also said that Spatola's lawyer told him in advance that if Spatola testified he would exonerate his client. Evseroff further indicated that Spatola testified that appellant had nothing to do with the heroin sold on February 20, 1984. At the trial Spatola said that that heroin came from the "Little Baron."
Evseroff, however, was not completely clear as to when he knew Spatola would testify but he was certain that it was during the government's case, quite a while before the defense started and he thought it was before he cross-examined the surveillance agents. Thus, Evseroff considered that he would be impeaching the anticipated Spatola testimony if he attempted to show that Mazzara supplied the heroin and he did not want to do this as Spatola was his best witness. He also reiterated that while he did not discuss Mazzara's presence at the Caffe Milano with Gambino, that omission had nothing to do with loyalty to Mazzara. He further testified that he was aware that at trial he was not confronted with an either/or situation between appellant and Mazzara as the heroin source so that naming Mazzara would not necessarily exonerate appellant.
Carnesi also testified at the hearing. He said that he and Evseroff have offices in the same building in Brooklyn and are colleagues and friends. He represented Mario Gambino who was a defendant at appellant's trial and was acquitted on all charges. About two months after the trial he was contacted by a defendant in the Badalamenti case regarding representation. To determine whether he would get into that case he examined certain documents from the case in which there were references to the events of January 17, 1984, which indicated it was the government's position that Mazzara and Castronovo had supplied the heroin for the January 18 sale. He brought this information to Evseroff's attention and he then cooperated with the attorney, Pamela Higgins, who prosecuted appellant's original appeal. He attributed his involvement on behalf of appellant to the facts that he was familiar with both appellant's case and the Badalamenti matter and that Evseroff was continuously on trial and less available to help on the appeal.
Carnesi testified that after the argument before this court on appellant's original appeal, Herald Fahringer, who along with Higgins was representing appellant, got in touch with him about obtaining an affidavit from Evseroff. Carnesi discussed the matter with Evseroff but no affidavit was executed until after appellant's convictions were affirmed. Evseroff asked him to draft the affidavit, and he did so, but then Evseroff objected to a portion indicating that the government had evidence that Mazzara or Castronovo was the source of the heroin. Thus he changed the affidavit to say only that there was substantial evidence that Mazzara was the source of the heroin. According to Carnesi, Evseroff never contended that it would be a specious argument to raise the Mazzara defense. Evseroff signed the changed affidavit.
After Evseroff received the grievance inquiry he began to refer to his eschewing cross-examination of the surveillance agents on the Mazzara defense as a tactical decision. It also appeared from Carnesi's testimony that Evseroff had not seen the documents which Carnesi obtained in the Badalamenti case until after appellant's trial. The documents which Carnesi examined suggested that Castronovo and Mazzara arranged for the delivery of the heroin on January 17 at the Caffe Milano to a "Gambino representative."
Judge Bissell decided appellant's 28 U.S.C. § 2255 motion in an unpublished decision dated March 10, 1988. He reviewed the law regarding conflicts of interest and the Sixth Amendment right to counsel and stated that when there is an actual conflict proven, prejudice to the defendant is presumed, though this presumption does not relieve a defendant of the burden of proving the existence of an actual conflict adversely affecting his attorney's performance. He found that there was no conflict and appellant was not deprived of effective assistance of counsel. The judge gave little weight to Evseroff's affidavit as he thought that its execution had been coerced. He pointed out that he observed Evseroff testify and he believed the testimony which explained Evseroff's trial tactics. The judge found that Evseroff was not aware of the Badalamenti papers which Carnesi read after appellant's trial suggesting Mazzara as the source of the heroin. Thus, Evseroff had very little actual knowledge linking Mazzara to the actual sale or delivery to Spatola. Judge Bissell accepted Evseroff's testimony that the Mazzara defense would have been specious because of the paucity of evidence available to Evseroff connecting Mazzara to the heroin, and would thereby imperil the credibility of appellant's defense.
The judge also said that inasmuch as "Evseroff had no idea as to what evidence the government might have linking Mazzara" with appellant it would have been foolish to launch a "Mazzara defense" only to be confronted with rebuttal evidence linking them and providing an argument that both were involved in the heroin delivery. Moreover, the judge said that "although he was not absolutely certain, Evseroff's best recollection was" that he knew prior to reviewing the surveillance log that Spatola would name someone other than appellant as his source for the heroin and, therefore, Spatola's credibility would be imperiled if Evseroff cross-examined the government agents about Mazzara's presence and the possibility of his involvement. Inasmuch as the success of appellant's defense depended in large measure on Spatola's credibility, the judge found that it was a reasonable exercise of professional judgment by Evseroff not to push the Mazzara defense and jeopardize his real position.
Judge Bissell also found that Evseroff ably developed appellant's defense that he was not involved through witnesses such as Carlo Filberto, who testified at trial that he had borrowed appellant's yellow Mercedes Benz on January 17 and had driven to Brooklyn. This vehicle was, of course, identified as being at the Caffe Milano. The credibility of this defense could have been compromised by a "Mazzara defense" which might be viewed as "grasping at straws." Evseroff did not have a conflict of interest as it was completely consistent with his representation of both clients not to launch blindly a Mazzara defense. Even if a possible conflict existed, it was extremely speculative since even at the time of the 28 U.S.C. § 2255 hearing, the evidence was equally consistent with an inference that Mazzara, who had departed the area eight hours before the heroin was received by Spatola and Bosco, was not its source or was part of the same distribution chain as appellant. In view of these findings, Judge Bissell denied appellant's motion and this appeal followed.
In a discussion of the merits of the appeal the well-established governing law should be set forth. The Sixth Amendment guarantee of effective assistance of counsel includes two correlative rights, the right to adequate representation by an attorney of reasonable competence and the right to the attorney's undivided loyalty free of conflict of interest. Government of Virgin Islands v. Zepp, 748 F.2d 125, 131 (3d Cir. 1984). To establish constitutionally inadequate representation a defendant must prove that the attorney's performance was unreasonable under prevailing professional standards and that this performance prejudiced the defense, i.e., "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984); see also Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987), cert. denied, 485 U.S. 979, 108 S. Ct. 1277, 99 L. Ed. 2d 488 (1988).
In this proceeding, however, appellant does not claim that Evseroff's representation was inadequate. Rather, he asserts that Evseroff had a conflict of interest because of his representation of Mazzara in view of the evidence pointing to Mazzara as the source of the drugs. In that circumstance appellant need only establish that there was multiple representation, the existence of which the government does not dispute and which thus need not be further discussed, and that there was an actual conflict of interest which adversely affected Evseroff's performance. Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 3120, 97 L. Ed. 2d 638 (1987). Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333 (1980); Sullivan v. Cuyler, 723 F.2d 1077, 1086 (3d Cir. 1983). If appellant is able to make these showings he is not obliged to demonstrate prejudice as it will be presumed. Strickland v. Washington, 446 U.S. at 692, 104 S. Ct. at 2067; Cuyler v. Sullivan, 446 U.S. at 349-50, 100 S. Ct. at 1719; United States v. Gambino, 788 F.2d at 950-51; United States v. Costanzo, 740 F.2d 251, 259 (3d Cir. 1984), cert. denied, 472 U.S. 1017, 105 S. Ct. 3477, 87 L. Ed. 2d 613 (1985). However, it "is important to note that overemphasis on the presumption of prejudice cannot operate to obviate the requisite obligation to demonstrate the existence of an actual conflict." United States v. Gambino, 788 F.2d at 951.
An actual conflict of interest "is evidenced if, during the course of the representation, the defendants' interests diverge with respect to a material factual or legal issue or to a course of action." Sullivan v. Cuyler, 723 F.2d at 1086. To reach the level of constitutional ineffectiveness the conflict "must cause some lapse in representation contrary to the defendant's interests but such lapse need not rise to the level of actual prejudice." Ibid. A lapse in representation adversely affecting the defendant's interests can be demonstrated not only by what the attorney does, but by what he refrains from doing. Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S. Ct. 1173, 1181-82, 55 L. Ed. 2d 426 (1978).
It seems clear that the existence of an actual conflict and adverse effects from it are more likely to be evident in cases in which an attorney takes positive steps on behalf of one client prejudicial to another than in cases in which the attorney's actions are based on inaction and are passive, as is charged here. Thus, if an attorney jointly represents in one trial two defendants claiming innocence, his conflict in arguing that one should be acquitted because the other is guilty is obvious. On the other hand, an attorney presenting a stronger defense for one client than another might well be free of conflict. Overall, conflicts problems are more likely to arise in cases involving joint representation in a single proceeding rather than multiple representation in which the attorney represents different clients in different matters, the situation here. See United States v. Fahey, 769 F.2d 829, 834 (1st Cir. 1985).
Here, the alleged Sixth Amendment violation is that Evseroff did not advance the Mazzara defense because to do so would have been adverse to Mazzara. The United States Court of Appeals for the First Circuit in United States v. Fahey, 769 F.2d at 836, in which the alleged conflict was based on what an attorney did not do, indicated that:
In order to establish an actual conflict the petitioner must show two elements. First, he must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. He need not show that the defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative. Second, he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.
Clearly, a defendant who establishes that his attorney rejected a plausible defense because it conflicted with the interests of another client establishes not only an actual conflict but the adverse effects of it. Consequently, the test set forth in United States v. Fahey includes both the actual conflict and adverse effects prongs of the conflict of interest analysis. On the other hand, there is no conflict of interest adversely affecting the attorney's performance if an attorney at trial does not raise a defense on behalf of his client because to do so is not in that client's interest even though it is also in the interest of another client that it not be raised. To the contrary, that is a coincidence of interests.
The record must be considered in the light of the foregoing principles.*fn3 It is clear that the multiple representation did not give rise to an actual conflict of interest in the sense that anything which Evseroff could have done at the trial on behalf of appellant but omitted to do could have prejudiced Mazzara. Mazzara, of course, was not a defendant at the trial nor was he even named in the indictment against appellant and his co-defendants. Thus, he could not have been directly affected by the outcome of the case. Further, while Mazzara presumably would have preferred not to see his name advanced as a possible source of the heroin, appellant has not demonstrated how Mazzara would have been injured or prejudiced if this had happened. It is important to remember that the evidence available to Evseroff regarding Mazzara which he did not bring out at trial was already in the government's files. Thus, Evseroff's failure at worst is that he should have cross-examined the surveillance agents regarding their observations of Mazzara and otherwise used evidence in the government's possession regarding Mazzara to establish Mazzara as the source of the drugs sold January 18, 1984. Mazzara would not have been prejudiced if Evseroff had done this and thus it follows that appellant and Mazzara did not have conflicting interests in Evseroff's performance at appellant's trial.*fn4
It is also important to remember that there is nothing in the record to support a contention that Evseroff had information not known to the government linking Mazzara to the heroin. Indeed, appellant does not allege that he did. Thus, Evseroff did not suppress evidence useful to appellant in order to avoid inculpating Mazzara. Accordingly, it must be concluded that from an objective viewpoint it was a matter of indifference to Mazzara if Evseroff had advanced him as the source of the heroin at appellant's trial.
It must be realized, however, that an attorney, though not having an objective conflict of interest, might for other reasons be reluctant to make a contention reflecting adversely on a client. Thus, as recognized by the Court of Appeals in United States v. Fahey, an attorney might not advance an alternative defense because of his other loyalties or interests. 769 F.2d at 836. Here, however, after listening to Evseroff's testimony and observing his demeanor at the hearing, Judge Bissell concluded that Evseroff did not raise the Mazzara defense because he concluded that it was specious and could have imperiled the credibility of appellant's entire defense. While it is true that there was some reason beyond the logs, in the form of the Badalamenti materials, to link Mazzara to the January 18 heroin transaction, Evseroff was not aware of the materials at the trial and thus it cannot be concluded that his failure to use them was because of loyalty to Mazzara. Further, Evseroff knew, probably before he cross-examined the surveillance agents, that Spatola would testify that Saia was the source of the heroin delivered at the Caffe Milano, and that any attempt to establish that Mazzara had supplied that heroin would undermine Spatola's testimony. Thus, Evseroff's loyalty to Mazzara did not cause him to forego the Mazzara defense. The defense was not raised because from appellant's point of view it would have been foolish to do so. Therefore, Evseroff had no conflict of interest ...