U.S. v. Aiello

• Decision Date: 02 April 1990
• Docket Number: D,No. 259,259
• Parties: UNITED STATES of America, Respondent-Appellee, v. Antonino AIELLO, Petitioner-Appellant. ocket 89-2220.
• Court: U.S. Court of Appeals — Second Circuit

Page 528

900 F.2d 528

UNITED STATES of America, Respondent-Appellee, v. Antonino AIELLO, Petitioner-Appellant.

No. 259, Docket 89-2220.

United States Court of Appeals Second Circuit.

Argued Oct. 25, 1989.

Decided April 2, 1990.

Martin G. Weinberg, Boston, Mass. (Lillian A. Wilmore, Boston, Mass., of counsel), for petitioner-appellant.

Andrew C. McCarthy, Asst. U.S. Atty., New York City (Benito Romano, U.S. Atty. S.D. New York, Kerry Martin Bartlett, Asst. U.S. Atty., New York City, of counsel), for respondent-appellee.

Before OAKES, Chief Judge, and KEARSE and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Petitioner-appellant Antonino Aiello appeals from an Order of the United States District Court for the Southern District of New York (Kevin T. Duffy, J.) denying his motion for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2255 (1982). In February 1988, Aiello was convicted on numerous counts of narcotic-related crimes after a two-month jury trial before Judge Duffy. On direct appeal, this court affirmed the judgment of the district court. See United States v. Aiello, 864 F.2d 257 (2d Cir.1988) ("Aiello II "). Aiello now has brought this habeas motion seeking to set aside his conviction on the ground of an alleged conflict of interest on the part of his trial counsel.

For the reasons stated below, we affirm the order of the district court denying his Section 2255 motion.

BACKGROUND

The extensive evidence that Aiello acted as the "kingpin" of an enormously lucrative narcotics enterprise from at least 1978 through 1984 is recounted in our opinion affirming his conviction. See Aiello II, 864 F.2d at 260-65. At two jury trials before Judge Duffy, Aiello was represented by Joel Winograd, Esq. The first trial was declared a mistrial after four weeks of the government's direct case. At the second trial, the jury convicted Aiello of numerous counts of narcotic-related conspiracy in violation of 21 U.S.C. Sec. 846 (1982), distributing and possession with intent to distribute heroin and cocaine in violation of 21 U.S.C. Secs. 812, 841(a)(1) & (b)(1)(A) (1982 & Supp. III 1985) and 18 U.S.C. Sec. 2 (1982), and operating a continuing criminal enterprise for the distribution of narcotics in violation of 21 U.S.C. Sec. 848 (1982 & Supp. III 1985). On March 18, 1988, the district court imposed, inter alia, a sentence of life imprisonment.

After we affirmed Aiello's conviction on direct appeal, new counsel filed a Section 2255 petition before Judge Duffy. Through the habeas petition, Aiello sought to set aside his conviction on the basis that a conflict of interest between Winograd and himself had resulted in a less than vigorous representation. After examining the record, and without conducting an evidentiary hearing, the district court dismissed the Section 2255 petition.

According to papers submitted to the district court by Aiello in support of his Section 2255 petition, Winograd was under investigation by the Organized Crime Strike Force for the Eastern District of New York ("Eastern District Strike Force" or "Strike Force"). The Strike Force conducted the investigation before and during the time of the proceedings against Aiello. The investigation concerned allegations that Winograd participated in the obstruction of justice and subornation of perjury in the 1982 case, United States v. Cunningham, No. 81 Cr. 480 (E.D.N.Y.1982). The Cunningham case was a result of an investigation by the Eastern District Strike Force into labor racketeering offenses involving the Allied International Union and the Allied Security Health and Welfare Fund (collectively "Allied"). Winograd had represented Salvatore Ponte, a defendant in Cunningham. In November 1986, approximately two months prior to Winograd's filing a notice of appearance for Aiello, Winograd was made aware of the Strike Force investigation. At that time, the government moved to disqualify him from representing Mitchell Goldblatt in a criminal case in the United States District Court for the Eastern District of New York. That case, United States v. Goldblatt, No. 85 Cr. 7555 (E.D.N.Y.1986), also involved labor racketeering activities at Allied. In light of the investigation of Winograd's alleged criminal conduct in Cunningham, Winograd voluntarily withdrew as Goldblatt's counsel in December 1986.

Several months prior to the commencement of Aiello's first trial, the Eastern District Strike Force received authorization to expand the scope of its investigation of Winograd to encompass possible tax-related offenses. Ten days after Aiello was sentenced, Winograd entered into a plea agreement with the Special Counsel for the Eastern District Strike Force. As a result, Winograd pled guilty to a one count Information charging him with tax evasion in 1985. A government sentencing memorandum detailed Winograd's tax crimes since the mid-1970's and mentioned the allegations of Winograd's obstruction of justice and subornation of perjury in connection with the Cunningham trial.

In support of his Section 2255 petition, Aiello submitted an affidavit in which he maintained that he suspected Winograd's attention was diverted during his second trial. The affidavit claims that Winograd "started acting very strangely" in November 1987, shortly after the start of the second trial. Aiello further asserts that Winograd never informed him that Winograd had legal problems in the Eastern District of New York. There are no allegations against Winograd of any wrongdoing committed in the Southern District of New York where the Aiello prosecution transpired. Nor is there any suggestion that Winograd was in any way a participant in the Aiello drug empire.

DISCUSSION

A. The Alleged Conflict of Interest

Aiello argues that Winograd's alleged conflict of interest resulted in a per se violation of the sixth amendment right to effective assistance of counsel. In order to sustain such a claim, "a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980); see also United States v. Aiello, 814 F.2d 109, 112 (2d Cir.1987) ("Aiello I"). The standard in Cuyler rests on the rationale that some conflicts of interest so affront the right to effective assistance of counsel as to constitute a per se violation of the sixth amendment. Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1718-19. Upon a showing of such a conflict, a defendant need not demonstrate prejudice. Id. Instead, "[t]he conflict itself demonstrate[s] a denial of the 'right to have the effective assistance of counsel.' " Id. at 349, 100 S.Ct. at 1718 (quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942)).

In support of his claim, Aiello relies on two cases of this circuit consistent with the Cuyler rationale. In Solina v. United States, 709 F.2d 160 (2d Cir.1983) we found a per se sixth amendment violation where a criminal defendant was represented by a person unauthorized to practice law. We reasoned that an unauthorized attorney could not "be wholly free from fear of what might happen if a vigorous defense should lead the prosecutor or the trial judge to inquire into his background and discover his lack of credentials." Id. at 164. Such a flagrant conflict, we observed, could not be reconciled with the right to effective assistance of counsel by any kind of harmless error analysis. Id. at 168-69.

Subsequently, we extended our reasoning in Solina to another set of facts in United States v. Cancilla, 725 F.2d 867 (2d Cir.1984). Cancilla involved trial counsel who was actually implicated in the very crime for which his client was on trial. As in Solina, we concluded that the clear conflict of interest between trial counsel's conducting a vigorous defense and risking exposure of his own wrongdoing constituted a per se violation of the sixth amendment. Id. at 870. Confronted with such per se constitutional violations, we reversed the convictions of the criminal defendants in both of these cases, "without enthusiasm". Solina, 709 F.2d at 169; see also Cancilla, 725 F.2d at 870.

More recently, our reasoning was further elucidated in Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 564, 107 L.Ed.2d 558 (1989). In Waterhouse, we refused to reverse a criminal defendant's conviction on the ground that he was represented at a pre-trial proceeding by a lawyer who was subsequently disbarred as a result of a matter unrelated to the crimes for which the defendant was being tried. After a guilty plea to second degree murder in state court, the defendant in Waterhouse brought a habeas petition in which he argued that "the pressure of facing disbarment substantially affected" his lawyer's ability to provide effective representation. Id. at 380. In reversing the federal district court's grant of the habeas petition, we explained:

Unlike the phony attorney in Solina, or the attorney who himself was guilty of the same crimes for which his client was being tried in Cancilla, [counsel] had no reason to fear that vigorous advocacy on behalf of his client would expose him to criminal liability or any other sanction. If anything, the charges pending against [counsel] provided an incentive for the vigorous efforts he appears to have expended. Moreover, the charges underlying his disbarment were unrelated to his representation of Waterhouse....

Id. at 383. Thus, we have recently refused an invitation to extend the parameters of the per se rule "beyond the sort of egregious conduct present in Solina and Cancilla." Id.

In accordance with Waterhouse, we must again decline such an invitation. First, unlike the facts in Cancilla, it is clear that Winograd's purported crimes were totally unrelated to the narcotics and tax crimes for which Aiello was being tried. By conducting a vigorous defense of Aiello, Winograd would not have risked revealing...