US v. Pellerito, Crim. No. 87-685 (JAF).
| Decision Date | 09 November 1988 |
| Docket Number | Crim. No. 87-685 (JAF). |
| Citation | 701 F. Supp. 279 |
| Parties | UNITED STATES of America, Plaintiff, v. Giuseppe PELLERITO, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Guillermo Gil & Everett M. de Jesús, Trial Attys., U.S. Dept. of Justice, San Juan, P.R., for plaintiff.
Frank A. Rubino, Coconut Grove, Fla., Mark A. Cristini, New York City, Lydia
Lizarribar-Masini, San Juan, P.R., for defendant.
EXPANDED OPINION AND ORDER
Defendant Giuseppe Pellerito ("Pellerito"), was indicted along with numerous other defendants, for his participation in a long-term, multistate conspiracy to possess with intent to distribute amounts of heroin. 21 U.S.C. §§ 841(a)(1) and 846. On the second day of trial, June 7, 1988, the court was informed that Pellerito wanted to change his plea to guilty as to count two naming him. Thereafter, the court held a change of plea hearing in accordance with Fed.R.Crim.P. 11. Eight weeks later, and prior to sentencing, Pellerito filed a motion seeking to withdraw the guilty plea. See Docket Document No. 900. The motion was filed on defendant's behalf by his fourth generation of attorneys, Frank A. Rubino, Mark Anthony Cristini, and Lydia Lizarribar. A hearing was held on August 24-26, 1988, wherein defendant testified in his own behalf. Testimony was given by attorney Ivan Fisher, who represented defendant from approximately April through June 1988, after Pellerito's original counsel, Marvin Segal, had withdrawn for unknown reasons. Also called as a witness was Fisher's successor, Emanuel Moore, who served as defendant's attorney at the time of trial and during the change of plea hearing of June 7, 1988. Former U.S. Attorney Julio Morales-Sánchez, who functioned as local counsel with both Fisher and Moore, additionally gave testimony at the plea withdrawal hearing of August 24-26, 1988. Based on consideration of the record and the evidence presented at the hearing, and for the reasons set forth by the court at the conclusion of the hearing, Pellerito's motion was denied. We now expand on the reasons behind our bench ruling.
We have set forth below the testimony and evidence of record at length, due to its legal significance in light of the applicable standards. We will first discuss the motion to withdraw guilty plea, including the grounds raised by the motion itself and during the course of the plea withdrawal hearing held August 24-26, 1988. We will next backtrack and set forth what transpired at the conference room hearing held prior to the commencement of trial on June 6, 1988. A discussion of the change of plea proceedings held on June 7, 1988, will follow. We will also review the plea withdrawal hearing, the legal standards applicable to defendant's request in light of the evidence received and, lastly, we will chart out our announced conclusion that defendant is bound by his plea of guilty in this case.
Defendant's motion alleges that Pellerito's execution of a guilty plea and concurrent waiver of his constitutional right to a jury trial was not made knowingly and intelligently. Such allegation is based upon a claim of ineffective assistance of counsel, which encompasses the theories that Pellerito was abandoned by Fisher, that Moore was unprepared to proceed through a full jury trial due to the fact that Moore assumed defendant's representation shortly before the trial date, and that Pellerito's decision to plead guilty was based upon erroneous facts presented to him by Moore. Pellerito's motion asserts that Fisher completely ignored defendant and the case, and that defendant was unable to locate Fisher, who was rumored to be in Hong Kong. It further claims that neither Fisher nor Moore showed defendant the discovery material. The motion states that Moore encouraged the defendant to plead guilty against his will and advised defendant that the plea would preclude defendant's indictment in other local or federal jurisdictions and preclude the seizure of any property owned by defendant in Puerto Rico. See Docket Document No. 900.
Defense arguments and testimony at the subsequent plea withdrawal hearing both clarified and embellished upon these grounds. Specifically, defendant argues that he misunderstood the consequences of the plea agreement. Pellerito alleges that he pled guilty because he erroneously understood that such plea would absolve him from any further criminal liability in the jurisdictions set forth in the indictment, namely Puerto Rico, New York, New Jersey, and Florida. See Transcript of August 24, 1988, Plea Withdrawal Hearing (hereinafter referred to as "PWH"), Docket Document No. 1026, at 165-68. During the plea withdrawal hearing on August 25, 1988, Pellerito testified that he pled guilty to be "clean", and from the beginning had been willing to plead guilty if the government granted him immunity from further prosecution in those four jurisdictions. Pellerito stated that if, however, the plea only eliminated the Puerto Rico conspiracy count, then he was willing to fight the instant charge through a jury trial. See Excerpt of Hearing, August 25, 1988, Docket Document No. 1027, at 12, 16-17. Pellerito argued that he expected his attorneys to provide him with some type of "paper" verifying the grant of immunity and that the failure to receive such document inspired Pellerito's alternative demand to seek a withdrawal of the guilty plea. See id. at 11-14; PWH, Docket Document No. 1026, at 168-70.
The government argued that Pellerito received effective assistance of counsel and that he fully understood the consequences of the plea agreement. Additionally, the government argued that it would suffer prejudice by the withdrawal of Pellerito's guilty plea for various reasons. Certain items of evidence, including the heroin, have been destroyed. Documents, such as airline tickets and hotel records, had been returned to their owners. A number of witnesses are outside Puerto Rico, and it may not be possible to locate some of them, which would cause a tremendous disadvantage to the government. See PWH, Docket Document No. 1026, at 194-95.
Prior to the commencement of trial on June 6, 1988, a conference was held on the record, in chambers. See Transcript of Conference Room Hearing, June 6, 1988, Docket Document No. 1025. Pellerito was represented at the hearing by attorneys Morales-Sánchez, Moore, and Moore's assistant, Mr. González. The government voiced a request that inquiry be made of both attorney Moore and Mr. Pellerito as to their independent beliefs on the subject of Moore's preparedness for trial. The government thereby sought to avoid a suspected future controversy on the matter, which it suggested might arise in the context of a proceeding under 28 U.S.C. § 2255. Mr. Moore mentioned his extensive criminal law experience and assured the court that despite the short notice between retainer and trial, he was well prepared to handle the case. He also confirmed that the defendant desired him to serve as his attorney. See Conference Room Hearing, Docket Document No. 1025, at 6-7. Defendant Pellerito was subsequently brought to the conference room and the following colloquy occurred:
See Conference Room Hearing, Docket Document No. 1025, at 22. The conference room hearing thereupon concluded, and jury selection continued during the afternoon of June 6, 1988.
At the change of plea hearing held on June 7, 1988,1 we set forth the purposes of the Rule 11 hearing to defendant, which included the following admonition:
THE COURT: Before I accept your plea, I would have to examine you under oath to determine whether your plea is a voluntary plea. That means whether you are pleading because you really want to plead, basically, with knowledge of consequences.
See Transcript of Change of Plea of Giuseppe Pellerito, June 7, 1988, Docket Document No. 944 (). Subsequently, the following colloquy occurred:
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...their pleas. The district court held separate evidentiary hearings and denied each motion by written opinion. United States v. Pellerito, 701 F.Supp. 279 (D.P.R.1988); United States v. Rivera-Martinez, 693 F.Supp. 1358 (D.P.R.1988). The court also denied certain further motions filed by Riv......
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