Locascio v. U.S., 00 CV 6015(ILG).

• Decision Date: 25 May 2005
• Docket Number: No. 00 CV 6015(ILG).,00 CV 6015(ILG).
• Citation: 372 F.Supp.2d 304
• Parties: FranK LOCASCIO, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

372 F.Supp.2d 304

FranK LOCASCIO, Petitioner, v. UNITED STATES of America, Respondent.

No. 00 CV 6015(ILG).

United States District Court, E.D. New York.

May 25, 2005.

Diarmuid White, New York, NY, Dennis P. Riordan, San Francisco, CA, for Plaintiff.

Andrew Weissman, United States Attorney's Office, Brooklyn, NY, James Orenstein, U.S. Department of Justice Office of

the Deputy Attorney General, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

GLASSER, District Judge.

In a decision reported in 267 F.Supp.2d 306 (E.D.N.Y.2003), this Court denied the petitioner's motion to vacate, set aside or correct his sentence imposed 13 years ago, on June 23, 1992. His motion was based, among other things, upon a claimed ineffective assistance of counsel which, in turn, was based upon facts supporting that claim, facts of which he asserts could not have been discovered through the exercise of due diligence. That claim is bottomed upon an affidavit from one of his lawyers in which he states that Anthony Cardinale, LoCascio's trial lawyer, was threatened by LoCascio's co-defendant, John Gotti, warning Cardinale not to emphasize the interest of LoCascio at Gotti's expense during the course of the trial. That affidavit also avers that Cardinale thereafter, intimidated by Gotti's threats, conformed his conduct of the trial to comply with Gotti's wishes. The affidavit to which I make reference was not Cardinale's, but that of LoCascio's lawyer reporting what he was told by Cardinale. Cardinale refused to allow his sworn declaration in support of the motion to be submitted out of alleged fear for his welfare, but advised that he would testify if compelled to do so.

In my decision denying the motion, I wrote: "That LoCascio first became aware of the strictures (if indeed there were any) under which his counsel labored when he read the Second Circuit's opinion on December 8, 1998, defies credulity."¹ 267 F.Supp.2d at 316. The opinion then discusses at great length the relevant portions of the record of the trial in support of that conclusion. In the course of that discussion the Court observed that "The reasons advanced by Cardinale for his silence until now, defy credulity, stating as he does that, notwithstanding Gotti's death, he is still in fear for `his welfare.' One is then led to infer that a degree of fear has fallen below a level, finely calibrated by Cardinale, which has now given him the comfort to come forward that he didn't have while Gotti was imprisoned for life." 267 F.Supp.2d at 319-20. And after setting out relevant portions of Cardinale's summation which vigorously emphasizes the lack of evidence against LoCascio and individualizes his interest and not Gotti's, I wrote that his summation "thus exposes the baselessness of his allegedly anticipated declaration" arguing as his summation does, the "lack of evidence against LoCascio without a reference to or even a mention of Gotti." 267 F.Supp.2d at 322.

LoCascio appealed only that portion of his motion claiming ineffective assistance of counsel which this Court denied as being procedurally barred and otherwise meritless. The Court of Appeals remanded the case to this Court for an evidentiary hearing believing, "albeit by a narrow margin, that an evidentiary hearing would best clarify whether that subversion [of the adversary process] was attempted and succeeded." 395 F.3d 51, 57 (2d Cir.2005).

The Mandate of the Court of Appeals was issued on February 28, 2005, and precluding an evidentiary hearing in accordance therewith is a motion to recuse and disqualify me pursuant to 28 U.S.C. §§ 144 and 455 which is currently pending before me. Before addressing the legal issues raised by this motion, I will address the pertinent paragraphs of LoCascio's affidavit, filed as required by 28 U.S.C. § 144, the affirmation and Certificate of Good Faith of Herald Price Fahringer made "based on personal knowledge, my familiarity with and review of the record, personal investigation as well as on information and belief in support of Frank LoCascio's motion to recuse." Mr. Fahringer also certifies that he prepared the affidavit of Frank LoCascio at his request. (Notice of Motion at 24).

I Petitioner's Submissions

In Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir.1966) (Friendly, J.), the Court wrote:

The principles governing the disposition of affidavits for disqualification under what is now 28 U.S.C. § 144 were laid down in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). Although the facts stated in the affidavit are to be taken as true, the judge may inquire into their legal sufficiency. Indeed he must do so. There is `as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is,' an obligation especially strong in a case like the present where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience. To be sufficient an affidavit must show `the objectionable inclination or disposition of the judge'; it must give `fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.' 255 U.S. at 33-34, 41 S.Ct. at 233. (internal citation omitted).

In the discharge of that duty, I undertake an inquiry into the legal sufficiency of the affirmation and Certificate of Good Faith and the Affidavit of Frank LoCascio. Because the affidavit of LoCascio was prepared by Counsel and is an abbreviated version of Counsel's affirmation and certificate, I will address the latter first and then the affidavit.

Counsel's affirmation begins with a "Procedural History" which is remarkable for its selectivity,² citing only this Court's exhaustive opinion denying the defendant's motion for a new trial reported in 171 F.R.D. 19 (E.D.N.Y.1997), and the Summary Order affirmance in 166 F.3d 1202, 1998 WL 870230 (2d Cir.1998). The only other "Procedural History" event he notices is this Court's disqualification of Bruce Cutler, Gerald Shargel and John Pollok reported in 771 F.Supp. 552 (E.D.N.Y.1991), (which he doesn't cite), and the disqualification of George Santangelo reported in 782 F.Supp. 737 (E.D.N.Y.1992) (which he does cite). Curiously, the last citation is followed by the citation to 6 F.3d 924 (2d Cir.1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994), with no indication that the disqualifications were affirmed. As regards the disqualification of Santangelo, the Court of Appeals wrote:

LoCascio's Sixth Amendment concerns are not the only interests at stake here: the district court has an independent duty to protect the integrity of the judicial process, and the government has its own fair trial interests that should not be unnecessarily impaired so that LoCascio can enjoy the services of ethically compromised counsel. This is especially true in these circumstances, since LoCascio suffered no prejudice from the disqualification of Santangelo .... it is worth noting that this is not a case where an attorney worked on a case for months only to be disqualified on the eve of trial. Santangelo filed his first notice of appearance on January 6, 1992, and was disqualified fifteen days later. LoCascio cannot argue this disqualification impacted his ability to prepare for trial.³ (emphasis added).

6 F.3d at 935.

Bearing in mind that this is a motion to recuse and disqualify me pursuant to 28 U.S.C. § § 144 and 455, the issues raised by those statutes being very discrete and to be addressed subsequently, the purpose to be served by the balance of counsel's "Certificate of Good Faith" and its blatant irrelevancies to those issues will be left to others to surmise.

The next section of his "Certificate" is introduced as follows:

The Trial

His one paragraph description of the trial is also memorable for its non-relevance to this motion:

The government's main offensive was launched on the questionable words of Sammy Gravano and electronically intercepted recordings of conversations between Gotti, Gravano and others including Petitioner, on occasion. (emphasis mine).

The credibility of Gravano has been the suspect of several post-trial motions on which the Court has written extensively and which were decided adversely to the movants by this Court and the Court of Appeals, but nevertheless subtly raised again. A cursory review of the conversations introduced at trial reveals at least 8 extensive conversations to which the petitioner was a party and intercepted on November 8 and 30, 1989; December 12, 1989; January 4, 17 and 24, 1990.

In a footnote, Counsel writes that "the intercepted conversation concerning Gotti's direction to have Louis DiBono killed were conducted in the absence of Frank LoCascio. These discussions formed the core of the proof against Gotti at trial." (emphasis his).

That statement is false. LoCascio was the only one present. In the conversation between John Gotti and the petitioner intercepted on December 12, 1989, the following was heard:

Gotti: * * *

"DiB," did he ever talk subversive to you?

LoCascio: Never.

Gotti: Never talked it to Angelo and he never talked to "Joe Piney." I took Sammy's word that he talked about me behind my back. Louie, did he ever talk to any of you guys?

LoCascio: No.

Gotti: I took Sammy's word. Louie DiBono. And I sat with this guy. I saw the papers and everything. He didn't rob nothin'. You know why he's dying? He's gonna die because he refused to come in when I called. He didn't do nothing else wrong.

Gov. Ex. 3041 1A(T) at 31-32. See also the trial transcript of February 20, 1992 at 2672-73.

The next section is headed:

Judge Glasser is the Subject of Bomb Threats During the Trial of John Gotti and Frank LoCascio

I will not unduly burden this Memorandum and Order by a full replication of the relevant portions of the transcript which will put into proper context the reference to bomb threats and courtroom...