United States v. Martorano, Crim. No. 75-436-C.

• Citation: 457 F. Supp. 803
• Decision Date: 20 September 1978
• Docket Number: Crim. No. 75-436-C.
• Parties: UNITED STATES of America, Plaintiff, v. James MARTORANO, Defendant.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

457 F. Supp. 803

UNITED STATES of America, Plaintiff, v. James MARTORANO, Defendant.

Crim. No. 75-436-C.

United States District Court, D. Massachusetts.

September 20, 1978.

Martin D. Boudreau, Sp. Atty., U. S. Dept. of Justice, Boston, Mass., for plaintiff.

Richard J. Vita, Boston, Mass., for defendant.

OPINION

CAFFREY, Chief Judge.

Petitioner James Martorano has moved for a new trial pursuant to Fed.R.Crim.P. 33, claiming that he was denied effective assistance of counsel in violation of the Sixth Amendment. Martorano is currently incarcerated after his conviction on each count of a four count indictment. Counts one and two charged him with conspiring to make and with making an extortionate extension of credit (loansharking) in violation of 18 U.S.C.A. § 892(a). Count three charged conspiracy to use extortionate means to collect an extension of credit in violation of § 894(a). Count four charged one particular act of using extortionate means to collect an extension of credit. The Court of Appeals affirmed petitioner's conviction, 557 F.2d 1 (1st Cir. 1977), and denied a petition for rehearing, 561 F.2d 406 (1977). The Supreme Court denied certiorari, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978).

A threshold question to be resolved is whether or not alleged ineffective assistance of counsel constitutes "newly discovered evidence" for purposes of Rule 33 of the Federal Rules of Criminal Procedure pursuant to which rule Martorano has brought the instant proceeding. The Court of Appeals for the District of Columbia has allowed a defendant to proceed on a Rule 33 motion based on ineffective assistance of counsel on the theory that such ineffective assistance constituted newly discovered evidence for purposes of the rule. United States v. Thompson, 154 U.S.App.D.C. 347, 475 F.2d 931 (1973); United States v. Smallwood, 473 F.2d 98 (1972). That position has been squarely rejected by the Court of Appeals for the Seventh Circuit in United States v. Ellison, 557 F.2d 128 (7th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977). The Court of Appeals for the Tenth Circuit in United States v. Allen, 554 F.2d 398, 404-405 (10th Cir. 1976), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977), took a position which seems to agree with the Seventh Circuit. The Court of Appeals for this Circuit, because of the peculiar facts involved in the case before it, found it unnecessary to take a position on this point in United States v. McCambridge, 551 F.2d 865 (1977). If this issue be an open question in this Circuit, as it appears to be, the Court is of the opinion that the weight of authority supports a ruling that the issue of ineffective assistance of counsel is not "newly discovered evidence" for purposes of Rule 33, and I so rule.

In view of the fact that the above issue was not raised by counsel for the government and in view of the further fact that there has been a full evidentiary hearing supplemented by briefing by the parties, judicial economy dictates that rather than dismiss this matter this Court should treat it as if defendant had captioned his pleading as a petition under 28 U.S.C.A. § 2255, which the Court of Appeals in United States v. Ellison, supra at 134, took pains to point out is a permissible way for a defendant to raise the issue of inadequate representation. Accordingly, the remainder of this Opinion will proceed to a consideration of the merits of Martorano's claim as if he had filed a petition under 28 U.S.C.A. § 2255.

The essence of Martorano's bid for a new trial is an allegation that his Sixth Amendment rights were violated because Attorneys Joseph S. Oteri and Martin G. Weinberg, members of the same law firm, jointly represented Martorano and a co-defendant, Brian Halloran. Oteri and Weinberg were retained, not appointed, counsel, but that fact has no bearing on the claims raised here. Foster v. United States, 469 F.2d 1, 4 n.2 (1st Cir. 1972). The United States argues in response that Martorano exercised a knowing waiver of his right to separate counsel and, more importantly, that no prejudice resulted to him as a result of the joint representation.

A one-day evidentiary hearing of this matter was held, during which various witnesses, including the petitioner, Attorneys Oteri and Weinberg, and several F.B.I. agents, testified. On the basis of that hearing, and my review of the trial record, I find and rule as follows:

Martorano contacted Oteri to represent him prior to his indictment. Because Oteri was out of town at the time of Martorano's arraignment, September 26, 1975, before a Magistrate of this Court, another attorney, with no affiliation to the Oteri/Weinberg firm, represented him. Oteri's appearance was filed four days later. At Halloran's arraignment September 29, 1975, he was represented by Weinberg. No record of either Martorano's or Halloran's arraignment exists, but all parties concede that at the time of Halloran's arraignment, the Magistrate questioned him about possible conflict of interest in joint representation. The Magistrate also requested that counsel inform each defendant of his right to separate counsel and of the necessity of filing with the Court letters of waiver if either defendant wished to relinquish that right.

Consequently, Weinberg met with Martorano in his office on October 1, 1975. At that meeting, the following letter was hand-delivered to the petitioner by Weinberg.

Dear Jim:

Pursuant to general instructions issued by the Magistrate Willie Davis on September 29, 1975, I advise you as follows pursuant to the rules articulated by the United States Court of Appeals for the First Circuit in a case styled United States v. Foster, 369 F.2d 1. As you know, I represent both yourself and Brian Halloran in the above-captioned matter. The Foster case held that there were dangers to criminal defendants like yourselves inherent in any joint representation. The Court asked me to advise you of the risks involved in joint representation so that you would be aware of these risks and, would if you wished, retain separate counsel.

I enclose for consideration the following letter which I have authored on your behalf which, if it conforms to your desires, may be signed by you and forwarded back to me for the purposes of sending to the Court to satisfy its burden under the Foster case of ascertaining whether or not you are conscious and aware of the fact that you may retain separate counsel and may be prejudiced by joint representation.

Sincerely Joseph S. Oteri

As the clear language of the letter demonstrates, Martorano's counsel intended that it satisfy the Court's requirement that petitioner be advised of the risks of joint representation. In addition to receiving that letter from Oteri, during his meeting with Weinberg, Martorano himself signed the following letter, which was filed with this Court October 3, 1975, well before the trial:

Dear Magistrate Davis:

Pursuant to your instructions of September 29, 1975, I state to you that I am aware of the dangers which exist to criminal defendants and which are inherent in joint representation. I have discussed these risks with my attorney, Joseph S. Oteri, and I understand that I may retain separate counsel or if I qualify as an indigent I may have such counsel appointed for me by the Court. I am mindful of the risks and dangers of joint representation and I desire for Mr. Oteri to continue to represent me despite these risks and despite my knowledge that his office also represents a co-defendant in the above-captioned matter.

Sincerely James Martorano

Martorano now complains that this letter of waiver to the Court was not knowingly executed. The basis of his claim is his assertion that the letter was drafted by Weinberg and that he never read it prior to affixing his signature. He further alleges that neither Oteri nor Weinberg informed him of any specific conflict of interest possible in joint representation. He also complains that the Court never conducted an inquiry on the record as to whether he understood the potential conflict of joint representation.

In determining whether Martorano's waiver was knowingly executed, I recognize at the outset that the Supreme Court has unequivocally stated that joint representation is not per se violative of the Sixth Amendment. E. g., Halloway v. Arkansas, 435 U.S. 475 at 482, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). I note also that only recently the Court of Appeals for this Circuit has reiterated that a defendant may waive his right to separate counsel. United States v. Waldman and Dick, 579 F.2d 649, 652 (1978). On the other hand, I do not minimize the importance of a defendant's right to be represented by counsel possessing zealous and undivided regard for his interests. See, e. g., Glasser v. United States, 315 U.S. 60, 67-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

In assessing Martorano's letter of waiver, I note its absolutely clear, unambiguous and straightforward language. While Martorano has testified that he signed the letter without reading it, I find that testimony preposterous. The petitioner is a college graduate with the obvious ability to understand the meaning and impact of both Oteri's letter to him and his own letter to the Court. He is also a sophisticated businessman, and as such, I find he would not and did not sign such a letter without reading it, particularly since not only has it not been suggested that he lacked the time to read it, but Weinberg specifically testified that he left Martorano sitting along with the letter in the law firm's law library for a period of between five to ten minutes while he (Weinberg) took a telephone call from another client. While Oteri and Weinberg testified that they failed to inform petitioner of any specific potential dangers of joint representation, I find that testimony less than credible, in light of the Oteri letter to Martorano.¹ That letter reveals in the first place that ...