U.S. v. DiCarlo, 78-1026

• Decision Date: 20 April 1978
• Docket Number: No. 78-1026,78-1026
• Citation: 575 F.2d 952
• Parties: UNITED STATES of America, Appellee, v. Joseph J. C. DiCARLO and Ronald C. MacKenzie, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 952

575 F.2d 952

UNITED STATES of America, Appellee, v. Joseph J. C. DiCARLO and Ronald C. MacKenzie, Defendants, Appellants.

No. 78-1026.

United States Court of Appeals, First Circuit.

Argued March 6, 1978.

Decided April 20, 1978.

Francis J. DiMento and Earle C. Cooley, Boston, Mass., with whom DiMento & Sullivan and Hale & Dorr, Boston, Mass., were on brief, for appellants.

Edward J. Lee, First Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., and Alan D. Rose, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

This is an appeal from the denial of a new trial. Appellants, Joseph J. C. DiCarlo and Ronald C. MacKenzie, hereinafter defendants, were found guilty after a jury trial in the district court of conspiracy to violate, and of substantive violations of, the Hobbs and Travel Acts, 18 U.S.C. §§ 1951 and 1952. The offenses involved the extortion by defendants, then Massachusetts state senators, of $40,000 from McKee-Berger-Mansueto, Inc. (MBM), a New York based construction management firm, in connection with a report by a legislative committee chaired by DiCarlo concerning a state contract with MBM. While their principal appeal was pending, defendants moved the district court for a new trial, alleging, (1) constitutionally defective representation by defense counsel because of a conflict of interest, and because of incompetence; (2) a due process violation by the U. S. Attorney's failure, in response to a discovery request, to turn over certain letters allegedly having impeachment value in regard to a key government witness; (3) jury misconduct; and (4) newly discovered evidence, in the form of recantation of the testimony of certain witnesses. In connection therewith, defendants requested an evidentiary hearing.

In an extensive opinion, the district court denied defendants' motion. Almost coincidentally, we rejected the principal appeal. United States v. DiCarlo, 1 Cir., 1977, 565 F.2d 802. Being of the view that our decision was uncertworthy, First Circuit Rule 17, we denied bail pending petition therefor. Certiorari was thereafter denied, --- U.S. ----, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). In addition, in an unpublished memorandum, we refused to stay the district court's refusal of bail pending the present appeal.

At the outset is the threshold issue of the proper standard of review for a case in this posture. The government, focusing upon the fact that the relief sought is a new trial, argues that the decision below may not be reversed absent proof that the trial court committed an abuse of discretion the standard applied for motions for new trials under F.R.Crim.P. 33. See United States v. Zannino, 1 Cir., 1972, 468 F.2d 1299, 1303, cert. denied, 410 U.S. 954, 93 S.Ct. 1419, 35 L.Ed.2d 687. The district court, however, although defendants were not then in custody, treated their first three claims as falling under 28 U.S.C. § 2255, and only the last as of the discretionary scope of Rule 33. We agree.

In seeking collaterally to attack their convictions under section 2255, defendants bear the burden of establishing by a preponderance of the evidence that they are entitled to relief. Coon v. United States, 5 Cir., 1971, 441 F.2d 279, cert. denied, 404 U.S. 860, 92 S.Ct. 160, 30 L.Ed.2d 103. This includes the burden of showing that they are entitled, if they claim it, to an evidentiary hearing. Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the trial court may examine the record, the moving papers and any exhibits and affidavits submitted therewith and, on the basis of those materials, may summarily dismiss the motion if it "plainly appears . . . that the movant is not entitled to relief." See Miller v. United States, 1 Cir., 1977, 564 F.2d 103, 106; Moran v. Hogan, 1 Cir., 1974, 494 F.2d 1220. While genuine issues of material fact may not be resolved without a hearing, see Blackledge v. Allison, 1977, 431 U.S. 63, 80-81, 97 S.Ct. 1621, 52 L.Ed.2d 136, a hearing is not necessary "when a § 2255 motion (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case." Moran v. Hogan, ante, 494 F.2d at 1222. Moreover, if the claim is based upon facts with which the trial court, through review of the record or observation at trial, is familiar, the court may make findings without an additional hearing, and, as is the case for findings of the trial court generally, those findings will not be overturned unless they are clearly erroneous. Bartelt v. United States, 5 Cir., 1974, 505 F.2d 647; Zovluck v. United States, 2 Cir., 1971, 448 F.2d 339, cert. denied, 405 U.S. 1043, 92 S.Ct. 1327, 31 L.Ed.2d 585.

Ineffective assistance of counsel.

Defendants' attack upon trial counsel is in three layers. One is, broadly, that they were incompetent. This is a serious accusation to make against reputable and experienced attorneys. The court found it in no way borne out. We need not detail the court's reasons, nor consider the matter further, except to express surprise that, in light of their additional burden to overcome the district court's findings, they continue to press a charge that was baseless to begin with.

Secondly, it is claimed that in deciding not to elicit from certain witnesses the names of Senate President Kevin B. Harrington and former Governor Francis W. Sargent as recipients of questionable MBM payments, trial counsel were moved by concern for them rather than the interests of the defendants. ¹ Finally, defendants say that if, in fact, their counsel considered solely defendants' best interests, there was, nonetheless, a constitutionally impermissible conflict of interest which required a new trial.

Taking first the issue whether trial counsel in fact gave weight to the interests of Harrington and Sargent, there is no direct testimony, nor could any reasonably be expected. Defendants must establish their claim by inference from the circumstances. The circumstances are these. About one year prior to the return of the indictments in this case, DiCarlo was informed by Harrington that DiCarlo was the object of federal criminal investigation. Harrington suggested that DiCarlo obtain the services of an attorney. He recommended Walter J. Hurley, an experienced criminal defense lawyer, at all times relevant to this case associated in the practice of law with Thomas M. Joyce. Joyce was a well known lobbyist, with many friends in Massachusetts political circles, including Harrington and then Governor Sargent. DiCarlo met with Joyce, who stated that he knew someone in the Justice Department who would keep him abreast of the progress of the investigation, and thus enable him to alert Hurley of any developments.

DiCarlo retained Hurley. Thereafter, learning from Hurley that MacKenzie was also under investigation, DiCarlo so informed MacKenzie. MacKenzie told DiCarlo that he intended to retain his present counsel, Earle C. Cooley, and DiCarlo reported this to Hurley. Hurley urged DiCarlo to persuade MacKenzie to retain, instead, Robert V. Mulkern, a lawyer unconnected with him, or Joyce, but who he believed would cooperate in a coordinated defense. MacKenzie acceded, but, at various times thereafter, expressed dissatisfaction. DiCarlo, at Hurley's prompting, reassured MacKenzie that Mulkern was properly handling the case. It is unclear from the record whether Hurley was a partner of Joyce, or simply an associate, but, in any event, Joyce said he would set the fee, and ultimately did so. ² DiCarlo's checks to Hurley were endorsed for deposit to the account of Joyce's law firm.

On the sixth day of trial, the Assistant U. S. Attorney, Edward J. Lee, furnished Hurley and Mulkern with materials containing reports of FBI interviews with MBM president McKee, who was then on the stand, and MBM officer, Jack Thomas, who had yet to testify. These materials revealed, inter alia, statements of MBM officials that they had made payments to certain Massachusetts politicians, including $2,000 to Harrington and two $10,000 payments to one Albert Manzi, at least one alleged to be a political contribution to then Governor Sargent. On receipt of this material, defense counsel asked their clients whether the information should be used for the defense. DiCarlo's affidavit states that he told his counsel to use the information, "if it's helpful. Bring it out. Withhold nothing." The trial transcript reveals that both defense counsel used the general material extensively. During cross-examination of the MBM witnesses, who were crucial to the government's case, the issue of MBM's political contributions, nationwide, was probed in great detail, but the names of these recipients were not mentioned. Defendants now claim their counsel improperly refrained out of consideration for Harrington and Sargent. ³

We agree with the court's finding that there were substantial risks involved in using these names which prudent counsel might very reasonably wish to avoid. The jury might have viewed the dragging of prominent figures into the case a desperate, but not exculpatory, tactic, particularly if they had responded and denied receipt. Conversely, if it should appear that these contributions were in fact made, and illegal there is some suggestion that the second alleged payment to Manzi was the result of raw political blackmail it is hard to see how this would have helped persuade a jury that MBM had not been subject to, and capitulated to, similar conduct by defendants.

In this posture defendants argue that if, in fact, MBM had made these prior payments it would have had "friends in high places" enabling it to resist importunities by defendants. The suggestion that $2,000 purchased all-risk insurance, or that Harrington, for that amount, if requested, would have gone to DiCarlo and...