Rugiero v. United States, CRIM. 90-80941-01.
| Decision Date | 19 August 2004 |
| Docket Number | No. CIV. 96-40376.,No. CRIM. 90-80941-01.,CRIM. 90-80941-01.,CIV. 96-40376. |
| Citation | 330 F.Supp.2d 900 |
| Parties | Patrick RUGIERO, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
David I. Schoen, Montgomery, AL, for petitioner.
Richard L. Delonis, Kathleen M. Nesi, U.S. Atty's Office, Detroit, MI, for respondent.
Before the Court is Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The thrust of Petitioner's § 2255 motion is that, in violation of the Sixth Amendment, his former counsel, N.C. Deday LaRene, had a personal interest conflict that adversely affected LaRene's representation of Petitioner: LaRene was the subject of a federal investigation during the pretrial and trial proceedings in Petitioner's case. LaRene was indicted between Petitioner's trial and sentencing. LaRene later pled guilty to conspiracy and tax charges and was sentenced to twelve months of imprisonment.
The Court referred the § 2255 motion to the Honorable Steven D. Pepe, United States Magistrate Judge, for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. On April 30, 2004, Magistrate Judge Pepe issued a report and recommendation (hereinafter "R & R") recommending that the Court grant Petitioner's § 2255 motion. On June 21, 2004, the Government filed objections to the R & R in which the Government requests that the Court reject the R & R and deny Petitioner's § 2255 motion. On July 27, 2004, Petitioner filed a response to the Government's objections.1 On August 5, 2004, the Court held a hearing on the objections.
For the reasons set forth below the Court will overrule the Government's objections, accept and adopt the R & R, and grant Petitioner's § 2255 motion. The Court commends Magistrate Judge Pepe for his diligent and thorough work on this matter. This opinion and order is not intended to supplant the R & R. The R & R is so sound that the Court could accept and adopt it without further comment. However, given the importance of the matter, the Court believes some additional comment is warranted. Nonetheless, this opinion and order is intended only to amplify certain points in light of the Government's objections, and this opinion and order and the R & R should be read as one integrated document.
On June 19 and 23, 1992, a jury of his peers convicted Petitioner of (count one) conspiracy to distribute, or possess with intent to distribute, cocaine and heroin, 21 U.S.C. § 846, and (count two) distribution of cocaine, 21 U.S.C. § 841(a)(1). See United States v. Rugiero, 804 F.Supp. 925, 926 (E.D.Mich.1992) (Gadola, J.). The jury acquitted Petitioner on three other drug counts. On October 6, 1992, the Court sentenced Petitioner to 360 months of imprisonment and five years of supervised release.
The United States Court of Appeals for the Sixth Circuit affirmed Petitioner's conviction and sentence on March 22, 1994. See United States v. Rugiero, 20 F.3d 1387, 1392-95 (6th Cir.1994). The Supreme Court of the United States denied Petitioner's petition for the writ of certiorari on October 3, 1994. See Rugiero v. United States, 513 U.S. 878, 115 S.Ct. 208, 130 L.Ed.2d 137 (1994).
On October 28, 1996, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. On November 20, 1997, the Court referred the § 2255 motion to Magistrate Judge Pepe. On April 30, 2004, after prolonged discovery proceedings, Magistrate Judge Pepe issued the aforementioned R & R.
The Court relies on the extensive background section in the R & R, see R & R at 1-19; nevertheless, it is important to highlight certain facts and dates.
On November 11, 1990, a federal grand jury indicted Petitioner in this case.
On December 14, 1990, the Government opened a criminal investigation into possible extortion, money laundering, and conspiracy charges against LaRene and one of his clients, Vito Giacalone.
On February 28, 1991, Petitioner retained LaRene in Petitioner's criminal case.
On August 8, 1991, the Government subpoenaed LaRene for handwriting exemplars, photographs, fingerprints, and non-privileged records of Giacalone. This subpoena was LaRene's first notice of the Government's investigation. See Gov't Objs. at 3; see also R & R at 12-13 n.12. Moreover, Keith Corbett, the Assistant United States Attorney assigned to LaRene's case, has stated that "[b]y at least ... the summer of '91, long before [Petitioner's] trial, [LaRene] knew the Government was looking at him." R & R at 12 n.12.
On September 4, 1991, the Government's LaRene/Giacalone investigation expanded to include possible tax charges.
In April 1992, a government document — known as a Special Agent's Report (hereinafter "SAR") — was wrongfully copied and disclosed to an individual connected to Giacalone. See United States v. Forman, 71 F.3d 1214, 1215-17 (6th Cir.1995). This SAR was prepared by Special Agent Frank Scartozzi of the Internal Revenue Service (hereinafter "IRS"). The SAR included (1) a summary of the Government's LaRene/Giacalone investigation, (2) a statement of the Government's theory for the prosecution of the case, and (3) a discussion of potential defenses to the prosecution. LaRene had access to this illicit copy of Scartozzi's SAR. See id. at 1216; R & R at 12.
On May 5, 1992, Petitioner's trial began.
In June 1992, during jury deliberations and related court proceedings, Petitioner first became aware of the Government's criminal investigation of LaRene. See Rugiero, 804 F.Supp. at 927-28. This awareness resulted from local news broadcasts on June 17, 1992, which reported that LaRene was the subject of a federal criminal investigation. One of the broadcasts stated that the investigation of LaRene was complete and that the Government was waiting to indict LaRene until Petitioner's trial was completed.
As of August 6, 1992, according to the Government, the Government was still investigating LaRene, and it had not, at that juncture, decided whether it would prosecute LaRene.
On September 16, 1992, a federal grand jury indicted LaRene and Giacalone. The indictment alleged conspiracy, tax evasion, and aiding and abetting.
On October 6, 1992, the Court sentenced Petitioner. LaRene represented Petitioner at sentencing.
On December 9, 1993, the Sixth Circuit heard oral arguments on Petitioner's appeal, and LaRene argued for Petitioner.
On December 22, 1993, LaRene pled guilty — pursuant to a Rule 11 plea agreement filed on December 21, 1993 — to conspiracy and tax charges, 18 U.S.C. § 371 and 26 U.S.C. § 7201. See United States v. LaRene, No. 92-80848-03 (E.D.Mich. Dec. 21-22, 1993).
On February 14, 1994, LaRene filed a motion with the Sixth Circuit to withdraw as counsel for Petitioner and to permit the substitution of new counsel; the Sixth Circuit granted the motion on March 11, 1994.
On March 22, 1994, the Sixth Circuit affirmed Petitioner's conviction and sentence.
On May 4, 1994, the Honorable Patrick J. Duggan, United States District Judge, sentenced LaRene to twelve months of imprisonment.
To obtain relief pursuant to § 2255, a petitioner must establish any one of the following: (1) his sentence was imposed in violation of the Constitution or federal law; (2) the Court lacked jurisdiction to impose such a sentence; (3) the sentence exceeded the maximum allowed by law; or (4) his sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255.
The Court's review of a report and recommendation is de novo when, as here, timely objections to the report and recommendation have been filed. See Fed.R.Civ.P. 72(b); Spooner v. Jackson, 321 F.Supp.2d 867, 868-69 (E.D.Mich.2004) (Gadola, J.); Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D.Mich.2002) (Gadola, J.). De novo review in these circumstances entails at least a review of the evidence that faced the magistrate judge; the Court may not act solely on the basis of a report and recommendation. See 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 3070.2 (1997)(citing Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981)). Whether the Court supplements the record by entertaining further evidence is a matter committed to the Court's discretion. See 12 Wright, Federal Practice § 3070.2. After conducting this review, the Court is free to accept, reject, or modify the findings or recommendations of the magistrate judge. See Fed.R.Civ.P. 72(b); Spooner, 321 F.Supp.2d at 868-69; Lardie, 221 F.Supp.2d at 807.
The Government's primary objection is the legal standard applied in the R & R to Petitioner's Sixth Amendment conflict claim. See Gov't Objs. at 7-9.
Conflicts of interest for attorneys representing criminal defendants are generally grouped into three categories: (1) concurrent representation (also referred to as joint, multiple, or simultaneous representation) of clients with conflicting interests, (2) successive representation of clients with conflicting interests (i.e., when counsel has previously represented a co-defendant or trial witness), and (3) conflicts that pit the attorney's personal interests against those of the defendant. See Mark W. Shiner, "Conflicts of Interest Challenges Post Mickens v. Taylor: Redefining the Defendant's Burden in Concurrent, Successive, and Personal Interest Conflicts," 60 Wash. & Lee L.Rev. 965, 971-72 (2003); McFarland v. Yukins, 356 F.3d 688, 701 (6th Cir.2004). The third type of conflict, a personal interest conflict, is at issue in this case.
It is well settled that when a concurrent representation conflict is at issue, the applicable...
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