The opinion of the court was delivered by: Rodriguez, District Judge
Defendant Joseph Lore and two co-defendants were indicted in June of 1996, and charged with loansharking activity from 1987 through 1991. Specifically, the indictment contained counts for conspiracy to make extortionate extensions of credit in violation of 18 U.S.C. § 892 (Count I based on six loans); conspiracy to collect extensions of credit by extortionate means in violation of 18 U.S.C. § 894 (Count II based on six loans); making an extortionate extension of credit in violation of 18 U.S.C. § 892 (Counts III and IV based on two loans); and collecting an extension of credit by extortionate means in violation of 18 U.S.C. § 894 (Counts V, VI and VII based on three loans). On June 18, 1997, and after a four week trial, a jury returned verdicts of guilty on all counts against all three defendants. *fn1 On April 27, 1998, Lore was sentenced to prison for a term of fifty-one months on each Count, to be served concurrently. He was also ordered to pay restitution to the United States in the amount of $20,000.
Defendant Lore filed a motion for a new trial, pursuant to 28 U.S.C. §2255. This motion, which was based on an ineffective assistance of counsel claim, raised troubling questions regarding the effectiveness of his defense counsel, the ethical propriety of counsel's admitted actions, and possible violations of the defendant's constitutional rights. For these reasons, this court ordered a full evidentiary hearing, which was held on June 8, 1998.
Due to defense counsel's failure to vindicate defendant's constitutional right to testify, and for the reasons expressed herein, a new trial under 28 U.S.C. § 2255 must be granted.
This ineffective assistance of counsel claim raises unanswered questions of constitutional proportions. The core issue presented can be stated as this: does a non-testifying criminal defendant who remains silent as the defense rests its case, waive his admittedly-known right to testify when he is unaware that he can overrule the tactical decision by his attorney not to have him testify? This issue generates peripheral questions as to the proper involvement of the trial court and defense counsel. Specifically, what role, if any, should (or must) a trial court play in assuring, on the one hand, that a defendant knows his right to testify and that any waiver is knowing and intelligent, but on the other, steering well clear of any intrusion into the attorney- client relationship, and the more fragile right not to testify? And does defense counsel's failure to inform a defendant that it is defendant's decision whether or not to testify fall outside the bounds of professionally competent assistance in support of an ineffective assistance of counsel claim?
During the four week trial which resulted in Joseph Lore's conviction for his alleged involvement with the extension and collection of credit by extortion, the government offered a witness-informant, John Antos, who testified extensively to receiving two illegal loans through Giacomo "Jake" Guagliardo, an owner of Grace's Luncheonette in Bayonne, New Jersey, and one of the two other co-defendants. Antos testified that although Guagliardo physically extended the moneys to him, it was in fact Joseph Lore who was the true backer of these loans. In fact, Antos recounted the two times he received the loans in Lore's presence, and Lore's instructions that he pay every week, but even if he could not, to at least stop by the luncheonette and have a cup of coffee. Only once, however, in multiple tape recordings offered by the government documenting these activities, was Lore caught on tape. On that tape, Lore is heard saying that he has nothing to do with Antos' outstanding loan, but that he would speak to Guagliardo, and that the loan balance could be reduced thereby saving Antos approximately $500. (Tape Recordings between Joseph Lore & John Antos, October 16, 1991). On several other tapes, the government alleges that Lore is referred to as `the other guy' in incriminating references.
The government also offered the testimony of an undercover detective, Dennis Vecchiarelli, who received four different loans from Guagliardo. He testified that on one occasion he witnessed Lore place a white object, possibly an envelope, on the counter in Grace's, the luncheonette owned by Guagliardo. Guagliardo later went over and apparently picked up the object and motioned for Vecchiarelli to come to the back work area. At that point, a second usurious loan was extended to Vecchiarelli. The inference of this testimony was that the white object dropped off by Lore contained the loan moneys. However, during the disbursement of the money, Guagliardo specifically asked Vecchiarelli not to tell Lore about the loan, because he had to go through other people for this money. (Transcript, June 5, 1997, 45-48).
At trial, Lore did not testify and was convicted. He now claims that his privately-retained attorney, Dennis McAlevy, prevented him from doing so on the last day of the defense's case. Defendant does not feign ignorance of his right to testify; rather he claims ignorance of his right to overrule trial counsel during the course of litigation regarding this right. Notably, never during the course of the four week trial did the Defendant bring to the court's attention his desire to testify or any disagreement with counsel.
What distinguishes this case from the ordinary is the exceptional evidence that Defendant now brings forward to prove that his constitutionally-guaranteed right to testify was denied by his own counsel. At the post-trial hearing on this motion, Defense Counsel McAlevy *fn2 admitted under oath, that "[t]here's no question about the fact that he wanted to testify and I didn't want him to, so in that context there's no question I coerced him." (Hearing Transcript, June 8, 1998, 88-89). By his own admission, McAlevy "never explained to Lore that he had a constitutional right to testify in his own defense, that he could overrule my judgment, or that the decision to testify was his to make." (McAlevy Aff. ¶ 9). Rather, he explained, "I called the shots in the case. I made all policy decisions and that it was, it's my case. He's my client. He listens to me." *fn3 (Hearing Transcript, June 8, 1998, 15).
Some of these admissions were substantially corroborated by two other attorneys for a co-defendant. For example, one co-defendant's attorney, Thomas Cammarata, stated under oath that Lore expressed to him his desire to testify `on a number of occasions,' and that in fact a session was scheduled to prepare Lore to testify, but that session was never held. (Cammarata Aff. ¶¶ 3-5). Cammarata's associate, Jeffrey Garrigan, recounted an incident between Lore and his attorney in the halls of the courtroom during a break in the trial. During that incident, Lore again expressed his desire to testify, but McAlevy refused to put him on the stand. (Garrigan Aff. ¶¶ 5,6). Garrigan recounted the incident at the evidentiary hearing in the following words:
Q: Can you describe that conversation?
A. Sure. My recollection of it was it was the Thursday that we were on the defense case, the week before the case ended. I think it was the 12th of June, the conversation was out at the end of the hallway, if you go out the door, make a right-hand turn at the end of the hallway. It was a few minutes before we started court that day, I think we were starting at 9:30, so it was like maybe five minutes before we went into the courtroom. We were, myself and Mr. McAlevy were just discussing some things about testimony and who was going to testify. And Mr. Lore come down the hallway with us, talking about some other things and then he started, Joe said to Dennis, when am I going to testify? He said you're not testifying. He said what do you mean I'm not testifying? And he said you're not taking the stand, I'm not putting you on the stand. And then he asked why, he said because you're going to get killed. And Joe said, but I want to testify. And he said, look, and I'm leaving out some of the choice words that Mr. McAlevy uses, used repeatedly, and at one point he said, well, I want to testify. I didn't do anything, how could he kill me on cross-examination, that was Mr. Lore. He [McAlevy] said, look, we got this case won. You're not testifying. And at one point he just turned around, walked away, I think somebody was actually calling us into the courtroom, it was right around 9:30, he just turned his back on Mr. Lore and walked away. And Mr. Lore put his hands up, looked at me like what's going on here, what am I doing, what's going on. I didn't say anything to him. (Transcript, June 8, 1998, 112-13.)
Had Mr. Lore been permitted to testify, he claims he would have been able to testify to the following facts:
1. That he has known John Antos for many years as a patron of Grace's luncheonette in Bayonne. That he further knew John Antos as the neighbor of his brother, as well as from playing cards with him on occasion at the Moose Lodge in Bayonne.
2. In the summer of 1986, Antos approached him at the lodge and told him that he needed money for his tree trimming business. Although he had tried to borrow the money from Jake Guagliardo, the owner of Grace's luncheonette, Guagliardo was reluctant to make the loan because Antos had bounced checks used to pay his tab at Grace's. Antos asked Lore to `vouch' for him to Guagliardo.
3. When Lore saw Guagliardo, he told him that Antos was a good fellow and asked if he could help Antos out with a loan. According to Lore, he agreed to repay the loan if Antos did not pay.
4. When Antos came to the club to pick up the money, Guagliardo told him that he agreed to make the loan because Lore `OK'd' it. Lore also told Antos to be sure to see Guagliardo every week, even if he could not make a payment, because he was responsible if Antos did not pay.
5. The money that Guagliardo loaned to Antos did not come from him. Nor did Lore receive any money that Antos repaid to Guagliardo, his only role was to guarantee payment in the event of Antos' default.
6. To the best of Lore's knowledge, the first loan was fully repaid. In the fall of 1988, Guagliardo approached him at Grace's and told him that Antos wanted a second loan, and asked if Lore would `OK' this one as well. He agreed to back this loan as well, although his role was limited in the same manner he backed the first loan.
7. Several months later, Lore was eating in Grace's when Guagliardo mentioned that Antos was falling behind in this payments, and not coming to see him each week. Subsequently, Lore mentioned to Antos on several occasions that he should catch up on his payments to Guagliardo.
8. On October 16, 1991, Antos flagged down Lore a block or two away from his house. Antos informed him that he still owed $1,500 and asked if he thought Guagliardo would take $1,000 as full payment. Lore agreed to speak with Guagliardo to ask, as a favor, whether he would take the $1,000 and forgive the outstanding balance.
9. The next morning, he saw Guagliardo when he went to eat at Grace's, but he forgot to mention Antos' loan. When he heard nothing about it, Lore assumed Antos and Guagliardo had worked something out.
10. With respect to Dennis Vecchiarelli, an undercover detective, Lore claims he only met him once while playing cards at Mario Lammano's social club in Bayonne. He spoke with Dennis briefly that evening about a restaurant in Caldwell, and some additional small talk.
11. Lore was not aware that Guagliardo had loaned money to Vecchiarelli, and that he had nothing ...