U.S. v. Giardino, No. 85-1752

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore BREYER and TORRUELLA; BREYER
Citation797 F.2d 30
PartiesUNITED STATES of America, Appellee, v. Robert J. GIARDINO, Defendant, Appellant.
Docket NumberNo. 85-1752
Decision Date29 July 1986

Page 30

797 F.2d 30
UNITED STATES of America, Appellee,
v.
Robert J. GIARDINO, Defendant, Appellant.
No. 85-1752.
United States Court of Appeals,
First Circuit.
Argued May 6, 1986.
Decided July 29, 1986.

Robert J. Flynn, Jr., Framingham, Mass., for defendant, appellant.

Oliver C. Mitchell, Jr., Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

Page 31

Before BREYER and TORRUELLA, Circuit Judges, and MALETZ, * Senior judge.

BREYER, Circuit Judge.

Robert Giardino brought a motion under 28 U.S.C. Sec. 2255, seeking to set aside his guilty plea to federal narcotics charges. 21 U.S.C. Secs. 841(a)(1), 846. He says that his plea is the product of ineffective assistance of counsel. More particularly, he says that his lawyer told him a lie; and, in the absence of the lie, he would have pleaded not guilty and insisted on a trial. The district court denied the Sec. 2255 motion summarily. In our view, however, it should have allowed further proceedings.

When Giardino pleaded guilty, the government outlined its evidence. It expected to show that an undercover drug enforcement agent tried to buy cocaine from Paul Masone. Masone took the agent to a room in South Boston where Giardino was present. Masone introduced Giardino as his partner. At one point, Giardino looked out the window to see if a police car was nearby. Masone then gave the agent a sample of cocaine. Later, the agents saw Giardino and Masone leave the building. Masone was carrying a bag that contained cocaine. The agents arrested them. The government indicted both of them.

At his plea hearing, after elaborate warnings and explanations by the district court, Giardino admitted that he had aided and abetted Masone, and conspired with him, to possess cocaine with an intent to distribute it; and, with full knowledge of the consequences, he entered a plea of guilty.

Giardino now says that his plea and his accompanying admissions rested on an important mistake. He says that his lawyer had told him, before his plea, that he (the lawyer) had spoken to the Assistant United States Attorney, who had said that Masone had made statements to the government incriminating Giardino--statements suggesting that Giardino had originally bought the cocaine in question. Giardino says that his lawyer also told him that he (the lawyer) had spoken to Masone and that Masone had confirmed the fact that he had made these incriminating statements to government agents. Giardino thought that the government would use these statements against him at trial.

But the truth, says Giardino, is that Masone made no such statements and that Giardino's lawyer never spoke to Masone. In fact, Masone would have testified in Giardino's behalf, claiming that Giardino was, in essence, an innocent bystander who was merely present at the scene of the drug transaction. Giardino has filed an affidavit to this effect, swearing that he was just an innocent bystander and that he would not have pleaded guilty had he known the truth about what Masone had (not) said and what he was willing to say. Masone has also filed an affidavit confirming what Giardino says.

Giardino, in essence, claims that, in light of the facts he and Masone swear are true, his counsel's assistance was "ineffective," to the point where Giardino should be entitled to have his guilty plea set aside. Under the Supreme Court's recent decision in Hill v. Lockhart, --- U.S. ----, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), Giardino must ultimately prove two things in order to warrant setting aside his plea. First, he must show that his counsel's challenged acts...

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32 practice notes
  • State v. McGurk, A-93-521
    • United States
    • Court of Appeals of Nebraska
    • May 30, 1995
    ...counsel effectively assisted him, he would have rejected a plea offer and insisted on going to trial). Compare United States v. Giardino, 797 F.2d 30 (1st Cir.1986) (vacating denial of motion under 28 U.S.C. § 2255 Page 364 (1988) seeking to set aside a guilty plea where defendant explicitl......
  • United States v. Sampson, Cr. No. 01–10384–MLW.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 20, 2011
    ...875 F.2d 8, 11 (1st Cir.1989)); see Owens, 483 F.3d at 57 (same); McGill, 11 F.3d at 226 (same); see also United States v. Giardino, 797 F.2d 30, 31–33 (1st Cir.1986). Doubts at this stage must be resolved in favor of the defendant. See 28 U.S.C. § 2255(b); Owens, 483 F.3d at 61 (emphasizin......
  • Grosvenor v. State, SC02-1307.
    • United States
    • United States State Supreme Court of Florida
    • March 25, 2004
    ...Key v. United States, 806 F.2d 133, 138 (7th Cir. 1986); Iaea v. Sunn, 800 F.2d 861, 865-66 (9th Cir.1986); United States v. Giardino, 797 F.2d 30, 31 (1st Cir.1986); People v. Robles, 74 P.3d 437 (Col.Ct.App.2003), cert. denied, No. 03SC241 (Colo. Aug.18, 2003); People v. Rissley, 206 Ill.......
  • US v. Cannistraro, Crim. No. 87-193.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 12, 1990
    ...v. Petsock, 816 F.2d 885, 889 (3d Cir.), cert. denied, 484 U.S. 863, 108 S.Ct. 182, 98 L.Ed.2d 135 (1987); United States v. Giardino, 797 F.2d 30, 31 (1st A court must be "highly deferential" to counsel's decisions in scrutinizing counsel's performance against the objective standard of reas......
  • Request a trial to view additional results
32 cases
  • United States v. Sampson, Cr. No. 01–10384–MLW.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 20, 2011
    ...875 F.2d 8, 11 (1st Cir.1989)); see Owens, 483 F.3d at 57 (same); McGill, 11 F.3d at 226 (same); see also United States v. Giardino, 797 F.2d 30, 31–33 (1st Cir.1986). Doubts at this stage must be resolved in favor of the defendant. See 28 U.S.C. § 2255(b); Owens, 483 F.3d at 61 (emphasizin......
  • Grosvenor v. State, No. SC02-1307.
    • United States
    • United States State Supreme Court of Florida
    • March 25, 2004
    ...Key v. United States, 806 F.2d 133, 138 (7th Cir. 1986); Iaea v. Sunn, 800 F.2d 861, 865-66 (9th Cir.1986); United States v. Giardino, 797 F.2d 30, 31 (1st Cir.1986); People v. Robles, 74 P.3d 437 (Col.Ct.App.2003), cert. denied, No. 03SC241 (Colo. Aug.18, 2003); People v. Rissley, 206 Ill.......
  • State v. McGurk, No. A-93-521
    • United States
    • Court of Appeals of Nebraska
    • May 30, 1995
    ...counsel effectively assisted him, he would have rejected a plea offer and insisted on going to trial). Compare United States v. Giardino, 797 F.2d 30 (1st Cir.1986) (vacating denial of motion under 28 U.S.C. § 2255 Page 364 (1988) seeking to set aside a guilty plea where defendant explicitl......
  • US v. Cannistraro, Crim. No. 87-193.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 12, 1990
    ...v. Petsock, 816 F.2d 885, 889 (3d Cir.), cert. denied, 484 U.S. 863, 108 S.Ct. 182, 98 L.Ed.2d 135 (1987); United States v. Giardino, 797 F.2d 30, 31 (1st A court must be "highly deferential" to counsel's decisions in scrutinizing counsel's performance against the objective standa......
  • Request a trial to view additional results

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