Polizzi v. U.S.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before NEWMAN and WINTER, Circuit Judges, and DALY; DALY; Polizzi next argues that, even if a waiver need not have come directly from his mouth, any waiver by his counsel could not have been effective. Since he now claims ignorance of the severance a
• Citation: Polizzi v. U.S., 926 F.2d 1311 (2nd Cir. 1991)
• Decision Date: 25 February 1991
• Docket Number: D,No. 772,772
• Parties: Francesco POLIZZI, Appellant, v. UNITED STATES of America, Appellee. ocket 90-2362.

Page 1311

926 F.2d 1311

Francesco POLIZZI, Appellant, v. UNITED STATES of America, Appellee.

No. 772, Docket 90-2362.

United States Court of Appeals Second Circuit.

Argued Dec. 5, 1990.

Decided Feb. 25, 1991.

Samuel J. Buffone, Washington, D.C. (Asbill, Junkin, Myers & Buffone, Washington, D.C., L. Barrett Boss, of counsel), for appellant.

Andrew C. McCarthy, Asst. U.S. Atty. S.D. of New York (Otto G. Obermaier, U.S. Atty. S.D. New York, Daniel C. Richman, Asst. U.S. Atty., of counsel), for appellee.

Before NEWMAN and WINTER, Circuit Judges, and DALY, District Judge. ¹

DALY, District Judge:

Francesco Polizzi appeals from a judgment of the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, denying his petition filed pursuant to 28 U.S.C. Sec. 2255 ("Sec. 2255 petition") to vacate his convictions in that court. One of 35 defendants charged in the so-called Pizza Connection indictment, Polizzi was convicted of narcotics and racketeering offenses in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 1962(d). ² Over a year after his convictions, Polizzi's newly retained counsel filed a Sec. 2255 petition motion alleging constitutional violations arising, inter alia, from: 1) the absence of any knowing and voluntary waiver of Polizzi's right to be present at trial during a five-week absence for medical-related reasons; and 2) the ineffective assistance of his counsel. Following extensive briefings and a three-day evidentiary hearing in December, 1988, the district court issued a 38-page Opinion and Order on July 13, 1990 ("Opinion and Order"), rejecting all of Polizzi's claims. Polizzi v. United States, No. 88-1631, 1990 WL 100891 (S.D.N.Y. July 13, 1990) (Available on LEXIS, Genfed Library, 2Dist file). The present appeal, challenging only the court's rulings with respect to the above arguments, followed.

We agree with the district court that Polizzi's convictions were not constitutionally deficient, and, therefore, affirm the district court's denial of Polizzi's Sec. 2255 petition.

BACKGROUND

A. The Underlying Trial

This appeal stems from what can only optimistically be called an aberration in the federal judicial system--the RICO megatrial. Begun on September 30, 1985, the so-called Pizza Connection case continued for seventeen months, consuming approximately 265 trial days, and concluding with the convictions of 18 of 22 defendants on March 2, 1987. The case produced over 40,000 pages of trial transcript, and involved the introduction of thousands of exhibits and the testimony of more than 275 witnesses. As we have previously noted, "[b]y any standard, the magnitude of this trial was extraordinary." Casamento, 887 F.2d at 1149.

The district court recognized early on that the challenges of the Pizza Connection case called "for a somewhat different approach to trial management," particularly as regarded the presence of defendants throughout the trial. Joint App. at 8 (Opinion and Order). Although under normal circumstances a defendant is required to be present at trial, see Fed.R.Crim.P. 43(a), the court concluded that "[w]hen the trial will last nearly a year and a half ..., to take an inflexible approach to the usual rule would be something akin to the execution of a substantial sentence of incarceration long before the verdict." Id. at 9. Such a result is even more disturbing, the court explained, in the circumstances of the Pizza Connection trial, where "[l]iterally months passed without mention of a particular defendant or group of defendants." Id. (footnote omitted). ³ So concluding, the court undertook a more flexible approach to the attendance of the defendants at trial.

Initially, the court's method for allowing personal and medical-related absences was sometimes informal and off the record. If permission was granted, a record was made. As the trial progressed, a procedure evolved that included bench conferences. The defendant's counsel would approach the prosecutor with a request for absence. If the prosecutor agreed, both parties would either address the judge in open court or by approaching the bench. In the resulting colloquy, according to Judge Leval, "[t]he court would generally inquire whether the defendant understood his right to be present and whether he was voluntarily and knowingly waiving that right, affirmatively requesting that the trial proceed in his absence and giving up any claim that he was prejudiced by the trial being conducted in his absence. The court would also ascertain whether the Government consented or objected. Upon satisfactory answers, the requests were often granted." Id. at 10. According to the Government, the first nine months of the trial saw approximately 50 such oral motions. Thereafter, the court adopted more formal written waiver procedures which continued in use until the end of the trial.

Polizzi had occasion to avail himself of these procedures through the course of the trial. ⁴ On March 13, 1986, one of Polizzi's trial counsel, Michael Querques, requested permission for Polizzi to absent himself from trial. In an off-the-record colloquy that took place in Polizzi's presence, counsel advised the court that Polizzi understood his right to be present, and the implications of being absent, and that Polizzi "would never argue that his rights had been violated by his absences at his request." Id. at 12. The following on-the-record colloquy ensued, again in Polizzi's presence:

THE COURT: Mr. Querques has requested that the absence of his client, Mr. Polizzi, be permitted on Thursday of this week. Mr. Querques says that his client wishes to use that time in important trial preparation purposes, that he recognizes his right to be at trial but prefers to use the time for important evidence preparation serving part of his case. I gather, Mr. Querques, that you on behalf of your client represent that he will never contend in this court or any other court that his rights were in any way violated by permitting him to be absent at his request.

MR. QUERQUES: That's absolutely correct.

THE COURT: And that will be true even if vitally important evidence comes out against him during the session that he misses.

MR. QUERQUES: Absolutely.

Id.

Again on March 25 and March 31, 1986, Querques requested permission from the court for Polizzi to absent himself from trial for medical-related reasons. On each occasion, an on-the-record exchange evinced Polizzi's affirmative request through counsel that the trial proceed in his absence and a waiver of any claim of prejudice arising from his absence. ⁵ On April 1, 1986, Querques again asked that the trial proceed in Polizzi's absence. He indicated that Polizzi was not in court that day, explaining that a physician had informed Polizzi that he could not attend the trial. On the record, Querques asked "that we proceed in his absence with his permission. He waives his right to be here." Absent objection from the government, the court granted the request.

In late April of 1986, Polizzi entered the hospital for non-elective surgery to remove a possibly cancerous lump on his throat. During the course of his surgery and subsequent recuperation, Polizzi was absent from the trial for approximately five weeks. Although the trial transcript does not reflect any application made by Polizzi and/or his lawyer that he be permitted to absent himself from the trial, and that the trial continue in his absence, the record does include references to the surgery and to Polizzi's postoperative convalescence. The Government cites to the June 2, 1986 portion of the transcript, indicating Querques' report to the court on Polizzi's recuperation:

THE COURT: Mr. Querques, the clerk just handed me some papers from you. Can you elucidate, please?

MR. QUERQUES: The first one is a note from the doctor, Judge, explaining that Mr. Polizzi is going to be delayed in getting back because of some problem he had. The note doesn't refer to it, but it has to do with the stitching in the throat not healing well.

Gov't Brief at 11 (quoting transcript at 18849). Additionally, on June 5, 1986, a prosecutor inadvertently asked a witness for an in-court identification of Polizzi. When it became apparent that Polizzi was still absent, Polizzi's counsel stipulated that Polizzi was not present in court that day, and succeeded in urging the court to advise the jury that Polizzi's absence was due to "medical reasons." Id. at 11-12 (quoting transcript at 19406-07). Some time later, on September 30, 1986, the court noted on-the-record that Polizzi had "had an operation a while ago." Id. at 12 (quoting transcript at 27602). ⁶

On March 2, 1987, Polizzi was convicted on the two counts in which he had been charged--count one charging a narcotics conspiracy in violation of 21 U.S.C. Sec. 846, and count sixteen, charging a racketeering conspiracy in violation of 18 U.S.C. Sec. 1962(d). On June 23, 1987, he was sentenced to 20 years imprisonment and a fine of $50,000. Approximately a year after his convictions, on March 3, 1988, Polizzi filed the Sec. 2255 petition which is the focus of this appeal.

B. The Sec. 2255 Petition

That portion of Polizzi's petition confronting this Court on appeal rests, in large part, on the troubling absence of any mention in the trial transcript of a waiver of Polizzi's right to be present with respect to his five-week absence for surgery. Judge Leval candidly stated at the evidentiary hearing on the petition that he was "astonished when it turned out that the record didn't reflect that." Joint App. at 225 (Remarks of Judge Leval). Polizzi submitted that the trial transcript only corroborated his contention that "[a]t no time before I went into the hospital for surgery or thereafter did the judge ask me about my right to be present at trial or ask me if I was voluntarily waiving my right to be present at trial." Id. at 45 (Certification of Francesco Polizzi). Citing the right to be present at all...