U.S. v. Gambino

• Decision Date: 31 January 1989
• Docket Number: No. 87-5232,87-5232
• Citation: 864 F.2d 1064
• Parties: UNITED STATES of America v. GAMBINO, Rosario, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1064

864 F.2d 1064

UNITED STATES of America v. GAMBINO, Rosario, Appellant.

No. 87-5232.

United States Court of Appeals Third Circuit.

Argued Oct. 6, 1988.

Decided Dec. 30, 1988.

Rehearing and Rehearing In Banc Denied Jan. 31, 1989.

Ramsey Clark (argued), Herald Price Fahringer, Diarmuid White Lipsitz, Green, Fahringer, Roll, Schuller & James, New York City, for appellant.

Samuel A. Alito, Jr., U.S. Atty., Edna Ball Axelrod (argued), Chief, Appeals Div. U.S. Attorney's Office, Newark, N.J., for appellee.

Before SLOVITER, MANSMANN, GREENBERG, Circuit Judges.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

GREENBERG, Circuit Judge.

Appellant, Rosario Gambino, appeals from an order entered in the United States District Court for the District of New Jersey by Judge Bissell following a plenary hearing denying his motion under 28 U.S.C. Sec. 2255 to vacate his conviction entered on December 11, 1984 on various drug offenses and sentencing him to a total custodial term of 45 years and to pay a total fine of $105,000. The specific offenses and sentences were as follows:

counts 11 and 12, possession of heroin with intent to distribute and distributing heroin on or about January 18, 1984, at Atlantic City, New Jersey (merged), 15 years followed by a special parole term of ten years and a $25,000 fine; counts 17 and 18, possession of heroin with intent to distribute and distributing heroin on or about February 20, 1984, at Somers Point, New Jersey (merged), 15 years followed by a special parole term of ten years and a $25,000 fine, the sentence to be consecutive to those imposed on counts 11 and 12; count 2, conspiracy to distribute heroin from at least as early as October 1, 1983 until on or about March 16, 1984 at Atlantic City, New Jersey, 15 years and a fine of $25,000, the sentence to be consecutive to those imposed on counts 11, 12, 17 and 18; count 13, using a telephone at Cape May, New Jersey, on or about January 30, 1984 to facilitate the distribution of heroin, four years to be served concurrently with the other sentences and a $30,000 fine.

Appellant and co-defendants Erasmo Gambino, Antonio Gambino and Anthony Spatola, who were also convicted on various counts of the indictment, directly appealed from their convictions and, in addition, appellant appealed from an order denying him a new trial. We, however, affirmed. United States v. Gambino, 788 F.2d 938 (3d Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986). Another defendant, Giovanni Bosco, was a fugitive at the time of the trial and thus was not tried with appellant. He was later apprehended and pleaded guilty to certain offenses charged in the indictment. The final defendant, Mario Gambino, was acquitted of all charges against him.

Inasmuch as the facts of the case were set forth in our earlier opinion they will not be repeated at length. See 788 F.2d at 940-41. It should be indicated, however, that evidence at the trial showed that appellant supplied the heroin mentioned in counts 11 and 12 of the indictment and sold on January 18, 1984 to undercover agents and that Spatola and Bosco obtained the heroin at the Caffe Milano in Brooklyn on the night of January 17-18, 1984. In his earlier appeal appellant asserted that his trial attorney, Jacob Evseroff, had simultaneously represented Gaetano Mazzara in a case referred to as the pizza connection case, United States v. Badalamenti, et al., No. 84-Cr-286, a narcotics conspiracy case in the United States District Court for the Southern District of New York. Appellant asserted that Mazzara was under suspicion as the source of the heroin sold to the undercover agents on January 18, 1984 by Spatola and Bosco. This dual representation was said to give rise to a conflict of interest on Evseroff's part since he failed to establish that Mazzara, and not appellant, was the source of the heroin. After an extensive discussion of appellant's claim, we indicated that circuit precedent required us to affirm his conviction without prejudice to his right to initiate a collateral proceeding under 28 U.S.C. Sec. 2255 for the resolution of the conflict of interest question. 788 F.2d at 949-53.

Thus, appellant filed his motion in the district court claiming that his conviction was obtained in violation of his Sixth Amendment right to the effective assistance of counsel because of Evseroff's alleged conflict of interest which, in appellant's view, adversely affected his performance at appellant's trial. His motion was supported by an affidavit of Evseroff, dated June 9, 1986, which set forth that at the time of appellant's trial Evseroff was also representing Mazzara, who was charged with being a leader of a multi-million dollar heroin distribution organization, in the Badalamenti case. Evseroff indicated that during appellant's trial he obtained entries from surveillance logs for January 17, 1984 at the Caffe Milano that suggested Mazarra's involvement in the events of that day. ¹

Evseroff further stated that it occurred to him that there was substantial evidence from which an argument could be made that Mazzara was the actual source of the heroin. Nevertheless, according to his affidavit, when Evseroff cross-examined the surveillance agents, he carefully avoided any questions which might have implicated Mazzara, out of a sense of loyalty to him and for fear that he might jeopardize Mazzara's position in his impending trial. Evseroff also stated that he did not call appellant's attention to the fact that an argument could be made that Mazzara was the source of the heroin. The affidavit gave no indication of who its author was or how it came to be executed.

A plenary hearing was held on the motion on October 31, 1986. On direct examination by appellant's attorney, Evseroff testified that he had met Mazzara in April 1984 and represented him in the Badalamenti case. Evseroff testified that during appellant's trial he was supplied with government surveillance reports showing that Mazzara was seen around the Caffe Milano on January 17, 1984.

Surveillance log J-146 was then admitted into evidence. It indicates that Spatola arrived in the area of the Caffe Milano at 2:27 p.m. and entered at 2:30 p.m. At 2:40 a yellow Mercedes Benz departed from in front of the cafe, a significant fact as the vehicle was identified as being appellant's. At 2:47 p.m. Spatola exited the cafe and entered the nearby 18 Avenue Tile Co. with two unidentified men. Mazzara and Francesco Castronovo arrived at the scene at 2:58 p.m. and entered the Caffe Milano at 3:00. At 3:09 p.m. they were observed on the street and then entering the 18th Street Tile Co. At 3:41 p.m. Mazzara and Francesco Castronovo left the tile store and departed the scene. Nothing in the log indicated that Mazzara was seen delivering heroin. ²

Evseroff testified that the government argued at appellant's trial that appellant supplied the heroin to Spatola and Bosco which they sold to the undercover agents. But Evseroff said that even though he had examined the above described log prior to cross-examining the surveillance agents, he did not cross-examine them about Mazzara or seek additional information about his involvement in the episode because it would have been a "specious argument" to contend that Mazzara, and not appellant, was the source of the heroin and he did not want to bring out Mazzara's name. Evseroff said that while there was substantial evidence which could have been articulated to make an argument that Mazzara was the source of the heroin it would not have been a "substantial argument." He also said it would have been unfair to draw an inference that Mazzara was involved in the matter.

Evseroff also testified that he did not bring appellant's attention to the surveillance observations of Mazzara and did not tell appellant that an argument could be made that Mazzara was the source for the heroin. Further, he did not bring the matter to the attention of the trial judge as he perceived no conflict of interest requiring him to do so.

Evseroff explained how he came to execute the affidavit. After appellant's original appeal had been argued, another attorney, Charles Carnesi, who had represented the acquitted Mario Gambino at appellant's trial, asked Evseroff to sign an affidavit concerning the circumstances under which he made his decision not to examine the agents about Mazzara. Evseroff was willing to do this and, after appellant's convictions were affirmed, agreed to supply the affidavit. But he was busy on other matters so he therefore asked Carnesi to prepare the affidavit and submit it to him. Carnesi did so but Evseroff would not sign it in its original form as he objected to a statement in it that Mazzara was the source of the heroin. Consequently, the affidavit was redrafted and Evseroff then signed it. He said that the language in the affidavit was Carnesi's.

Evseroff testified that in October, 1986, a few weeks before the hearing on appellant's motion, he received from the Grievance Committee of the Appellate Division, Second Department of the Supreme Court of New York, an inquiry about a claim, predicated on his affidavit of June 9, 1986, that he had a conflict of interest in appellant's case. The government acknowledges that it brought the matter to the committee's attention. While Evseroff was concerned about the complaint it did not cause him to rethink the matter. He further testified that, because of his affidavit, the government had advised him it would object to his appearance pro hac vice in the District of New Jersey in another case. He also said that two weeks prior to the hearing, an FBI agent had served a subpoena on him for his income tax returns from 1979 to that time and that he had been asked to produce records of funds received from appellant and Mazzara. Evseroff engaged a lawyer to represent him and, after a meeting between his lawyer and the government attorney in charge of this case, at which the...