Ciak v. U.S.

• Decision Date: 20 June 1995
• Docket Number: D,No. 1236,1236
• Citation: 59 F.3d 296
• Parties: Scott C. CIAK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 94-2245.
• Court: U.S. Court of Appeals — Second Circuit

Page 296

59 F.3d 296

Scott C. CIAK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 1236, Docket 94-2245.

United States Court of Appeals Second Circuit.

Argued March 30, 1995.

Decided May 25, 1995.

Amended Opinion Filed June 20, 1995.

Mark B. Gombiner, The Legal Aid Soc., Fed. Defender Div., Appeals Bureau, New York City, for appellant.

Jonathan A. Bailey, Asst. U.S. Atty. for the D. of Conn. (Christopher F. Droney, U.S. Atty., D. of Conn.) for appellee.

Before: MINER, ALTIMARI and CABRANES, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

We review a judgment of the United States District Court for the District of Connecticut (Alfred V. Covello, Judge), denying a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2255. The question presented is whether petitioner's application for habeas relief must be granted under the rule of "automatic reversal" discussed in United States v. Levy, 25 F.3d 146 (2d Cir.1994), because the trial judge failed to inquire into the possible conflicts of interest of petitioner's trial counsel. In Levy, we held that a conviction is subject to automatic reversal where the trial court fails to conduct an inquiry into an attorney's conflict of which the court was aware or reasonably should have been aware.

In this case, an important government witness was a recent client of petitioner's trial counsel in a substantially related matter, and defense counsel presented a theory that possibly was at odds with the position he took in the related proceeding. The trial court was aware of these circumstances but conducted no inquiry. In these circumstances, we must reverse the district court's denial of the habeas petition, vacate the conviction and sentence, and remand to the district court with instructions to release petitioner from custody unless the government brings Ciak to trial again within 120 days of the issuance of the mandate.

I. FACTS

On April 12, 1991, petitioner and his former girlfriend, Rebecca Durosette, visited petitioner's sister, Kristine Ciak, at her apartment. Petitioner left the apartment temporarily with Michael Reed, Kristine Ciak's then-fiance. When petitioner and Reed returned, a fight broke out between Reed, Kristine Ciak, and Kristine's former boyfriend and father of her child, David Santos. At one point, petitioner intervened and took a gun away from Santos. Fearing that the police had received word of the commotion, everyone left the apartment. Petitioner and Durosette drove off in a Pontiac Trans Am, which earlier that day Kristine and Reed had jointly registered in their names. Petitioner and Durosette did not go far before being pulled over by East Hartford police officers. The officers proceeded to search the car and found two guns hidden under the front seat. They arrested petitioner and impounded the Trans Am.

Petitioner retained Jacob Wieselman to represent him. On June 11, 1991, a federal grand jury indicted petitioner for possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1). On June 25, 1991, Wieselman met with Kristine Ciak and Reed to discuss petitioner's defense. During the meeting, Wieselman agreed also to represent Kristine Ciak and Reed in their efforts to recover their Trans Am. Over the next few months, the relationship between Kristine Ciak and Reed deteriorated. After Wieselman successfully secured the return of the Trans Am to Kristine Ciak in forfeiture proceedings in the Connecticut Superior Court, but before petitioner's trial, Reed, no longer Kristine Ciak's fiance, obtained the car.

At trial, the government presented evidence from police officers, eye witnesses, and petitioner's own statement to Special Agent Zane Roberts of the Treasury Department's Bureau of Alcohol, Tobacco, and Firearms, to prove that petitioner knowingly possessed the guns found in the Trans Am. The defense countered with testimony that the guns belonged to Reed and Kristine Ciak, who had placed the guns in the Trans Am without petitioner's knowledge.

Rebecca Durosette was called by the defense and testified that on April 12, 1991, she accompanied petitioner to Kristine Ciak's apartment, where she saw two guns lying near a desk--guns that she later identified as similar in appearance to those seized from the Trans Am. She testified also that, later in the day, petitioner intervened in the dispute between Reed, Kristine Ciak and Santos, grabbing a gun from Santos, who had picked it up in the apartment during the dispute. Durosette testified that petitioner then handed the gun to Kristine Ciak. While the men continued to fight outside the apartment, according to Durosette, Kristine Ciak told her that she did not have to worry about use of the guns because she (Kristine Ciak) had "put the guns in the car." Wieselman did not call Kristine Ciak to testify.

The government called Reed, Wieselman's former client in the forfeiture litigation, to rebut Durosette's testimony. By this time, Reed was no longer engaged to Kristine Ciak and was no longer a friend of petitioner. Reed was a key government witness insofar as he was the only one who provided a detailed version of the events leading up to petitioner's arrest different from that of Durosette (neither Santos nor Kristine Ciak testified, and the other eyewitnesses only saw bits and pieces of the fighting). Reed denied owning the guns, denied that the guns had been in Kristine Ciak's apartment when petitioner first arrived, and contended that they belonged to petitioner, who allegedly had picked them up from behind a boiler at the home of petitioner's mother on April 12th. While Reed admitted that petitioner had disarmed Santos, Reed further testified that petitioner later pulled a gun on him (Reed) when the argument with Santos continued outside the apartment. Reed admitted, however, that when he first provided a statement to the East Hartford police he had not said anything about petitioner's possession, use, or knowledge of the guns.

Wieselman spent much of his cross-examination of Reed--fully sixteen pages of the trial transcript--attempting to ascertain the current location of the Trans Am. By the time Wieselman had recovered the car in the forfeiture litigation, Kristine Ciak and Reed had broken off their relationship. Wieselman had had the car returned to Kristine Ciak, but before petitioner's trial began, she had reported the car stolen and told Wieselman that she believed Reed had taken it. This news was significant to Wieselman because he was counting on the sale of the car to recover his fee for petitioner's defense. At the beginning of his cross-examination of Reed, Wieselman accused Reed of knowing the car's whereabouts and demanded that Reed disclose its present location. Wieselman went so far as to state that he was "ordering" the district judge to compel Reed to tell Wieselman where the car was. Notwithstanding several attempts by both the prosecutor and the court to have Wieselman discontinue the questioning on what the prosecutor referred to as a "collateral matter," Wieselman persevered in questioning Reed about what had transpired after Wieselman had recovered the Trans Am. The questioning degenerated into an argument between Wieselman and Reed. Reed repeatedly accused Wieselman of misstating facts and even corrected Wieselman's recollection of events:

Wieselman: [Y]ou [Reed] called me and I said ...

Reed: Wrong ... you called me.

Wieselman: I'm sorry. I called you last week to tell you the car was back, correct?

Reed: Yes

Wieselman: And I said, "Now you and Kristine work it out"?

Reed: It wasn't the reason you called me....

The trial judge was obviously puzzled by Wieselman's repeated questions relating to the current ownership and location of the car. Wieselman explained to the judge that he had represented both Reed and Kristine Ciak in the earlier forfeiture proceeding. The trial judge did not inquire further.

When Wieselman eventually turned to the events of April 12, 1991, he sought to impeach Reed by reminding him of statements Reed had made to him during the course of their attorney-client relationship. While suggesting to the jury that he had notes documenting what Reed had told him, Wieselman did not present them because doing so, he told the court, would violate the attorney-client privilege. Instead, Wieselman argued with Reed over what Reed had said on these earlier occasions, and Reed again accused Wieselman of misrepresenting facts.

Wieselman: I have here [in my notes], "[Reed] says, [Reed] says." That's all wrong?

Reed: Who was talking?

Wieselman: I thought you were.

Reed: You knew for a fact that I wasn't talking. You know it was all bull.

Wieselman: And you didn't say anything?

Reed: I sure didn't.

....

Wieselman: And the fact I asked [you], "Did Scott have a gun?" and you [Reed] said, "No."

Reed: I didn't say no.

....

The Court: I can't hear this. It's my duty to see that [your] [sic] questioning makes sense to the Jury. At the present time it doesn't make sense.... Now, if you've got a statement that he gave, why don't you say, "Did you give this statement on such and such a date," so we'll know what you're questioning about."

Wieselman: These are my notes. Frankly, the Court knows it's improper for me to turn over the notes. I'm not going to make myself a witness.... This is work product. This is [sic], in fact, my handwritten notes.

The government objected to Wieselman's questioning Reed about his prior statements on the ground that "[Wieselman] is making himself a witness in this proceeding."

Despite Wieselman's admission that he had represented both Reed and Kristine Ciak in a previous matter pertaining to the recovery of the Trans Am, and despite Wieselman's questioning of Reed about prior statements made while Wieselman represented him, the trial court made no inquiry into the extent of any possible conflict of interest. Nor did the court ask petitioner whether h...