U.S. v. Stantini
| Decision Date | 14 May 1996 |
| Docket Number | D,1160,Nos. 1159,s. 1159 |
| Citation | 85 F.3d 9 |
| Parties | UNITED STATES of America, Appellee, v. Orazio STANTINI, also known as Ozzie, and Robert Bisaccia, Defendants-Appellants. ockets 95-1355, 95-1375. |
| Court | U.S. Court of Appeals — Second Circuit |
Alan S. Futerfas, New York City, (Ellen B. Resnick, of Counsel), for Defendant-Appellant Stantini.
David A. Lewis, New York City, The Legal Aid Society, Federal Defender Division, Appeals Bureau, for Defendant-Appellant Bisaccia.
Geoffrey S. Mearns, Brooklyn, NY, Special Assistant United States Attorney for the Eastern District of New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, James Orenstein, Assistant United States Attorney, of Counsel), for Appellee.
Before: FEINBERG, WALKER and PARKER, Circuit Judges.
Orazio Stantini and Robert Bisaccia appeal their convictions for both conspiracy to murder and murder following a jury trial in the United States District Court for the Eastern District of New York (I. Leo Glasser, J.). Each claims primarily that he did not receive a fair trial because Stantini's trial counsel was laboring under a conflict of interest due to his representation of a defendant being prosecuted for participation in the same murder in the United States District Court for the Southern District of New York at about the same time. For the reasons stated below, we affirm.
In April 1993, Stantini and Bisaccia were indicted and charged with conspiring to murder and murdering Francesco Oliveri in May 1988 for the purpose of maintaining or increasing their position in the Gambino organized crime family (the Gambino family) in violation of 18 U.S.C. §§ 1952B(a)(5) and 1952B(a)(1), respectively. 1 The indictment resulted from the ongoing cooperation with federal authorities of Salvatore Gravano, the alleged underboss of the Gambino family. The indictment identified John Gotti, Gravano, Lorenzo Mannino, John Gambino and Joseph Gambino as unindicted co-conspirators.
At trial and during all of the relevant pre-trial proceedings, Stantini was represented by Charles Carnesi and Bisaccia was represented principally by Joel Winograd. The trial took place in November 1993, and the jury found Stantini and Bisaccia guilty of conspiracy as well as the substantive murder charges.
Also pertinent to this appeal is the roughly contemporaneous progress of United States v. John Gambino, 88 Cr. 919 (PKL) (S.D.N.Y.) in the Southern District of New York (the Southern District case). The initial indictment in that case, filed over three years before the instant indictment of Stantini and Bisaccia, charged Lorenzo Mannino, John Gambino and Joseph Gambino, among others, with a single narcotics conspiracy. Subsequent superseding indictments added charges of additional racketeering activity. In an eighth superseding indictment returned in August 1992, the Oliveri murder was added as one of 28 predicate acts in a charge of racketeering conspiracy. Counts of conspiracy to murder and the murder of Oliveri were also added. Carnesi, who was Stantini's trial counsel, represented Mannino throughout the entire Southern District proceedings. The first trial in that case began in January 1993 and ended in a mistrial in June 1993, due to a hung jury.
The retrial in the Southern District case was originally scheduled to begin in November 1993, and after postponement (due in part to Carnesi's scheduling conflict with the Stantini trial), began in December 1993. In January 1994, before the trial concluded, Mannino and John and Joseph Gambino pled guilty. Plea negotiations with Mannino had been going on since at least September 1993. In exchange for a recommendation of a 15-year sentence, Mannino pled guilty to the racketeering conspiracy and admitted, among other things, his participation in the Oliveri murder. Mannino's plea agreement contained a provision that his plea allocution could not be used as evidence in any other criminal trial.
At the trial of Stantini and Bisaccia in the Eastern District, the bulk of the government's evidence was Gravano's testimony regarding the motivation for, as well as the planning and implementation of, the murder. Gravano testified that the murder was retaliation against Oliveri for his involvement in the murder of Giuseppe Gambino, a member of John Gambino's "crew." John Gotti, the alleged boss of the Gambino family, approved the murder of Oliveri and put Gravano in charge of supervising it. The team was made up of Gravano, Joseph Gambino, Mannino, Bisaccia (brought in at the suggestion of Gotti and designated by him as the shooter) and Stantini (brought in at the suggestion of Gravano). After a dry run to reconnoiter the area, a date for an attempt was set. The night before this attempt, all of the participants met at the Ravenite Social Club in Manhattan to go over the details of the plan. Mannino and Joseph Gambino were responsible for securing guns and walkie-talkies as well as stolen and legitimate cars for use in the murder. The attempt went ahead as planned, but the team arrived too late to confront Oliveri outside his apartment building. The participants agreed to try again one week later. The night before the second attempt Gravano, Joseph Gambino and Bisaccia met at the Ravenite Club and briefly discussed the murder preparations.
Gravano testified that on the day of the murder he and Mannino arrived at the scene in one car and Bisaccia, Joseph Gambino and Stantini were in another car. Stantini's role was the back-up shooter. After Oliveri was spotted outside his building, Bisaccia approached Oliveri and shot him a number of times. The participants then fled the scene.
Gravano testified that after their participation in the Oliveri murder, Stantini became a "made" member of the Gambino family and Bisaccia became a "captain" of the New Jersey faction of the family.
Gravano's testimony was corroborated primarily by (1) a videotape of a meeting of the entire murder team on April 25, 1988, the night before the failed attempt, outside the Ravenite Club; (2) a videotape of Gotti, Gravano, Joseph Gambino and Bisaccia outside the Ravenite Club on May 2, 1988, the night before the murder; (3) audiotapes containing a conversation between Joseph Gambino and Mannino in which they discussed plans for obtaining cars to be used in the murder; and (4) phone records of Mannino's car phone indicating a call to Safe Auto Sales just prior to when the intercepted conversation noted above took place.
Gravano also testified that when he was initially debriefed by federal agents in November 1991 regarding the Oliveri murder, he had forgotten Stantini's involvement and made no mention of him. At some point in 1992, he received a call from FBI Special Agent Thomas Petrouskie who was investigating the murder. Petrouskie asked Gravano if Stantini had been involved in the murder. Gravano immediately remembered that Stantini had taken part in both the planning and the execution of the murder. Thereafter, Gravano called John Gleeson of the United States Attorney's Office and informed him that Stantini was involved.
As already indicated, Stantini and Bisaccia were found guilty in November 1993 in the Eastern District trial presided over by Judge Glasser. In April 1994 Stantini, now represented by Alan S. Futerfas, moved for a new trial based on Fed.R.Crim.P. 33 and 18 U.S.C. § 2255. Stantini claimed that his Sixth Amendment right to counsel had been violated because Carnesi's simultaneous representation of Mannino in the Southern District case created an actual conflict of interest that adversely affected Carnesi's representation of Stantini in the Eastern District trial with respect to both plea negotiations and the defense strategy selected at trial. Bisaccia, still represented by Winograd, joined Stantini's new trial motion claiming that Carnesi's conflict of interest "severely prejudiced" Bisaccia.
Following oral argument, but without holding an evidentiary hearing, Judge Glasser denied the motion. The judge ruled that (1) insofar as the motion sought relief under Criminal Rule 33, it was untimely; and (2) insofar as the motion sought relief under § 2255, "[t]he submissions in support of [the motion] are facially insufficient" and therefore "a hearing is not warranted." In support of the latter conclusion, the judge held that Stantini did not establish that, with respect to plea negotiations, Carnesi was laboring under an actual conflict of interest and that Carnesi's alleged concerns about the effect of a Stantini guilty plea on Mannino in the Southern District case were realistic. Further, Stantini had failed to demonstrate that a plausible alternative defense strategy or tactic had not been pursued at trial because of Carnesi's representation of Mannino. Finally, Bisaccia's joinder of Stantini's motion was "patently frivolous."
Stantini and Bisaccia were both sentenced in June 1995. Primarily, Stantini was sentenced to 324 months in prison and Bisaccia to life in prison. This appeal followed.
On appeal, Stantini again claims that Carnesi's concurrent representation resulted in an actual conflict of interest that adversely affected his representation. He further claims that the district court improperly ruled on this issue without an evidentiary hearing. In addition, Stantini claims for the first time that automatic reversal of his conviction is required because the district court should have been aware of Carnesi's conflicting interests and failed to inquire into them. Bisaccia claims that Carnesi's conflict and the district court's failure to inquire into it prejudiced him to an extent that requires a reversal as well. Furthermore, he argues that his trial counsel's failure to address affirmatively Carnesi's conflict and the adoption of a joint defense strategy with Carnesi resulted in ineffective assistance of counsel. Finally,...
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Table of Cases
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