U.S. v. Merlino, Criminal Action No. 99-10098-04-RGS.
| Decision Date | 21 November 2007 |
| Docket Number | Criminal Action No. 99-10098-04-RGS. |
| Parties | UNITED STATES of America v. William MERLINO. |
| Court | U.S. District Court — District of Massachusetts |
Defendant William Merlino (Merlino), together with three co-defendants,1 was convicted of Hobbs Act and firearms offenses after enlisting in a conspiracy to rob a Loomis Fargo armored car facility in Easton, Massachusetts.2 Unbeknownst to the conspirators, one of their confidants was acting as an informant for the Federal Bureau of Investigation (FBI). The conspirators were arrested in the early morning of February 7, 1999, the appointed day of the robbery, as they converged on the facility with an impressive arsenal of weapons, including handguns, an assault rifle, and a hand grenade, as well as a grab bag of highwaymen's accouterments — masks, gloves, bullet proof vests, police scanners, a radio frequency detector, carry-away duffle bags, and escape vehicles.3 On April 14, 1999, Attorney E. Peter Parker (Parker) undertook representation of Merlino pursuant to a Criminal Justice Act appointment. The case was tried over a five-week period in September and October of 2001. Defendants were convicted on all counts of the Indictment. Merlino subsequently filed a motion for a new trial, asserting that his Sixth Amendment right to effective assistance of counsel was violated by Parker's mid-trial agreement with the United States Department of Justice (DOJ) to represent H. Paul Rico (Rico), a retired FBI agent, in an unrelated matter. On July 26, 2007, the court denied Merlino's motion for a new trial indicating that a statement of the reasons for the denial would follow. This is that statement.
Merlino and Parker agreed that their primary defense at trial would be that the FBI, acting through the informant, Anthony Romano (Romano), had inveigled Merlino into joining the Loomis Fargo conspiracy. The theory of the defense was that Romano had entrapped Merlino, through persistent entreaties and fear tactics, in order to pressure Merlino's uncle, Carmello,4 the architect of the conspiracy, into cooperating with the FBI. Carmello was believed by the FBI to possess information regarding the whereabouts of priceless paintings stolen in a spectacular 1990 heist from the Isabella Stewart Gardner Museum.5 In addition, Parker and Merlino planned to "fold in[to]" their strategy Merlino's co-defendants' claim of outrageous government conduct.6 On October 5, 2001, mid-way through the trial, Parker contracted with the DOJ to represent Rico in a matter in which he was accused of the gravest kinds of official misconduct.7 In addition, on February 7, 2002, Parker agreed to represent Rico in an investigation being conducted by the House Committee on Government Reform into FBI mishandling of so-called "top-echelon" informants. Neither Merlino nor the court was informed by Parker of his agreement to represent Rico.8 Merlino now claims that Parker unilaterally undertook a litigation strategy at trial that deviated radically from the one they had previously agreed upon — to attack the government for its role in instigating the crime. Specifically, Merlino claims that Parker: (1) conducted tepid cross-examinations of the government's witnesses; (2) failed to call as witnesses Romano's ex-wife and a private investigator who had taken a statement from her; and (3) prevented Merlino from testifying in his own defense.9
The constitutional right to counsel carries with it a correlative right to representation free from any conflict of interest. See Cuyler v. Sullivan, 446 U.S. 335, 345, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The right is not, however, self-effectuating. In Cuyler, the Court held that to establish a Sixth Amendment violation warranting a new trial, a defendant could not rely on any presumption of prejudice, but "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 348, 100 S.Ct. 1708. The Court has since expanded on Cuyler by emphasizing that an "actual" conflict of interest must adversely affect counsel's performance in the real world, as opposed to being "a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).
"[I]n order to show an actual conflict of interest, a defendant must show that (1) the lawyer could have pursued a plausible alternative defense strategy or tactic and (2) the alternative strategy or tactic was inherently in conflict with or not undertaken due to the attorney's other interests or loyalties." United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994). See also Bucuvalas v. United States, 98 F.3d 652, 656 (1st Cir.1996). It would appear that Merlino satisfies the first prong of the test because it was a "plausible (though likely unwise) alternative defense strategy" for Merlino to take the stand and proclaim his innocence, or possibly to call Mrs. Romano and the private investigator as impeachment witnesses. Reyes-Vejerano v. United States, 276 F.3d 94, 97 (1st Cir.2002). Therefore, the question for the court is whether Parker declined to pursue such a strategy because of his divided loyalties. Id. at 98.
Parker invited the spectre of a potential conflict of interest by taking on the representation of Rico during Merlino's trial without giving notice to Merlino or the court. To be sure, Parker's contract with the DOJ made clear that Rico was his client, and not the government. Parker, nonetheless, knew that he would be compensated for his services by the government, and that the representation of Rico promised to be far more lucrative than anything that might be gleaned from the Merlino appointment.10 He therefore opened himself to the argument that by presenting a strong defense on behalf of Merlino, he might jeopardize his prospects of receiving future favors from the government.
The determination of whether an attorney had an actual conflict that adversely affected his performance at trial is Familia-Consoro v. United States, 160 F.3d 761, 765 (1st Cir.1998). A fair discharge of the court's obligation in this regard has required not only a hearing to permit Merlino to develop his claims, but also a review of the transcripts of the entire trial.
Merlino claims that Parker's cross-examination of the FBI agents and Romano at trial was "anemic" in comparison to the "highly effective" and "surgical" examinations that he conducted during the evidentiary hearing on alleged outrageous government conduct. Merlino states that at trial, Parker spent a "minuscule" amount of time questioning the government's witnesses, as he asked no questions of Cronin and only the most "rudimentary and innocuous" questions of Nadolski. According to Merlino, this sudden quiescence reflects a fatal lapse in Parker's representation — and a betrayal of Merlino.
On October 17, 2001, shortly after he had signed the contract with the DOJ, Parker cross-examined Nadolski. Nadolski had already been relentlessly grilled by counsel for Merlino's co-defendants. The issue of the Gardner heist had been fully aired; any further questioning by Parker on that issue, would have been likely perceived by the court and the jury as unduly repetitive. At the hearing on the motion for a new trial, Parker testified that he in fact did not want to cross-examine Nadolski at all, because Nadolski had never mentioned Merlino during his direct examination. (Parker's recollection is confirmed by the trial transcript). Merlino states that he wanted Parker to elicit from Nadolski the testimony that he gave at the evidentiary hearing, to wit, that the FBI had no interest in Merlino prior to Romano's suggestion that he be recruited as a member of the "crew."11 Parker felt that it was more prudent to forego any questioning of Nadolski. As Parker testified, "[i]t's always dangerous to give a witness who hasn't said anything about your client an opportunity to say something about your client." Tr. of September 27, 2005, at 55. Nonetheless, Parker complied with Merlino's wishes.12 Although his cross-examination of Nadolski was brief, Parker elicited the statement that Merlino sought, that it was Romano who had taken the initiative in his recruitment. Tr. of October 17, 2001, at 56-59. With regard to Parker's decision not to question Cronin, it is crucial to note that the government did not call Cronin as part of its case-in-chief. Rather, it was Turner who called Cronin after the government (and Merlino) had rested. Cronin, like Nadolski, did not mention Merlino in his testimony.
Parker's approach to the questioning of Nadolski and Cronin cannot be gainsaid. Parker testified that it was critical to the trial strategy, which he and Merlino had developed, to set Merlino apart from the other defendants. Parker diligently sought to keep Merlino on the periphery of the conspiracy, portraying him as a "gopher" kept largely in the dark by the "big boys." This tactic might well have been undone if Parker had challenged the testimony (or lack thereof) of either of the FBI agents in a manner that might have focused them on Merlino. "[A]lthough a more aggressive cross-examination of [Nadolski and Romano] may have been a `plausible' strategy, it was probably not superior to [Parker's] approach: in fact, [a] low-key...
To continue reading
Request your trial
-
U.S. v. Merlino
...assistance of counsel based on an alleged conflict of interest. That motion was denied in a published opinion. See United States v. Merlino, 523 F.Supp.2d 66, 76 (D.Mass.2007). Merlino filed a timely notice of appeal on August 2, On appeal, Merlino challenges the district court's determinat......
-
Harrison v. United States
...of such a strategy, because, as long as it is reasonable, even an unwise strategy may still be plausible. Cf. United States v. Merlino, 523 F. Supp. 2d 66, 70 (D. Mass. 2007) ("It would appear that Merlino satisfies the first prong of the test because it was a 'plausible (though likely unwi......