U.S. v. Tarricone

• Decision Date: 24 June 1993
• Docket Number: 1176,Nos. 1175,D,s. 1175
• Citation: 996 F.2d 1414
• Parties: 39 Fed. R. Evid. Serv. 174 UNITED STATES of America, Appellee, v. Arthur TARRICONE, John Pabone, Dominic A. Bombace, Defendants, John Barberio and Marat Balagula, Defendants-Appellants. ockets 92-1622, 92-1687.
• Court: U.S. Court of Appeals — Second Circuit

Page 1414

996 F.2d 1414

39 Fed. R. Evid. Serv. 174

UNITED STATES of America, Appellee, v. Arthur TARRICONE, John Pabone, Dominic A. Bombace, Defendants John Barberio and Marat Balagula, Defendants-Appellants.

Nos. 1175, 1176, Dockets 92-1622, 92-1687.

United States Court of Appeals Second Circuit.

Argued March 17, 1993.

Decided June 24, 1993.

Scott A. Schumacher, U.S. Dept. of Justice, Washington DC (James A. Bruton, Acting Asst. Atty. Gen., Robert E. Lindsay and Alan Hechtkopf, U.S. Dept. of Justice, Zachary

Carter, U.S. Atty., of counsel), for appellee.

J. Shane Creamer (Mark A. Nation, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, PA), for defendant-appellant John Barberio.

Ephraim Savitt, New York City, for defendant-appellant Marat Balagula.

Before: ALTIMARI and WALKER, Circuit Judges, and LASKER, ^* District Judge.

LASKER, District Judge:

John Barberio and Marat Balagula appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York in 1992 following a jury trial. The indictment charged Barberio, Balagula and three additional defendants with one count of conspiracy to evade the federal excise tax on the sale of gasoline in violation of 18 U.S.C. §§ 371 and 3623, and two counts of attempted excise tax evasion in violation of 26 U.S.C. § 7201 and 18 U.S.C. §§ 2 and 3623. Barberio was convicted on the first and third counts and sentenced to three years' imprisonment, the sentences to run concurrently, fined $100,000 and assessed $100. Balagula was convicted on all three counts and sentenced to five years' imprisonment on each of counts one and two, the sentences to run consecutively, five years probation and an assessment of $150. Balagula's sentence is to run consecutively to an eight year prison term he is presently serving.

Barberio appeals on the ground that the District Court erred in denying him a post-trial evidentiary hearing regarding the effectiveness of trial counsel's assistance. Balagula argues on appeal that the District Court committed reversible error in admitting certain testimony by one John Quock primarily because the criteria for the admission of "other act" evidence under Fed.R.Evid. 404(b) were not satisfied. In addition, Balagula contends that his sentence was improperly enhanced by the District Court because of his foreign national origin.

For the reasons discussed below, we conclude that Barberio's case should be remanded for an evidentiary hearing on his claim of ineffective assistance of counsel, but that Balagula's contentions are without merit and his conviction and sentence are affirmed.

BACKGROUND

Barberio, Balagula and their three co-defendants were in the gasoline wholesale business. They were charged with participating in the evasion of over $400,000 in gasoline excise taxes for the last quarter of 1985 and the first quarter of 1986. During that time, federal law imposed an excise tax of nine cents per gallon on sales of gasoline. However, sales between companies holding a Registration for Tax-Free Transactions, a so-called "Form 637," from the Internal Revenue Service were tax exempt. The defendants were charged with using false invoices to disguise the taxable gasoline sales of a company called A. Tarricone, Inc. ("ATI") as tax exempt transactions between Form 637 holders.

At trial, the government produced evidence that the defendants had devised a "daisy chain" scheme to avoid the payment of the federal excise tax. Under this arrangement, ATI, a Form 637 company, purchased barge loads of gasoline from other Form 637 holders and then created fictitious invoices for sales to a transient front company called Conlo, Inc., which also held a valid Form 637. However, these purported sales to Conlo never took place; Conlo operated only to allow ATI to document the fictitious transactions. ATI, in fact, sold the gasoline to non-Form 637 holders, including Barberio and Balagula, and accordingly should have paid the federal excise tax on these sales. The conspirators contemplated that Conlo would subsequently be conveniently dissolved and would be unavailable to pay the tax.

To complete the daisy chain, the defendants used another front company called The jury convicted Barberio of knowingly participating in the scheme by purchasing gasoline tax free from ATI on behalf of a company called Shoreline Oil Co. Balagula was convicted of purchasing gasoline tax free from ATI for a company called Hamilton Oil Brokers and of enlisting ATI as the gasoline supplier for the tax evasion scheme.

                Beck Equities, Inc., which did not have a Form 637, to issue invoices for fictitious sales to the non-Form 637 holders which were actually buying the gasoline directly from ATI.   At the end of this contrived process, it appeared on paper that ATI had sold the gasoline tax-free to Conlo, Conlo had in turn sold the gasoline to Beck Equities and Beck Equities had sold it to the end purchasers.   Although Conlo, as a Form 637 holder selling to a non-Form 637 holder, should have paid the federal excise tax, no taxes were ever paid
                

DISCUSSION

1. John Barberio.

One significant piece of evidence presented by the government tying Barberio to the tax evasion scheme was his alleged handwriting on a so-called "throughput agreement," Government Exhibit 31-1. A throughput agreement allows a company to store gasoline in a terminal for a fee and withdraw it as needed. On the cover page of Exhibit 31-1 there are handwritten insertions which give the name of the throughput customer, in this case Beck Equities, the address of that company, and the date of the agreement. At trial, Louis Capossela, Barberio's boss, testified that he "would think" that that handwriting was Barberio's. Moreover, Joanne DeVito, Capossela's secretary, testified without qualification that the handwriting on the throughput agreement was Barberio's. In addition, DeVito testified that the handwriting on another document, Government Exhibit 31-11C, which was a note showing an address for a branch of the Bank of New York in Yonkers, New York and an account number for "A. Tarricone, Inc." also was Barberio's. Barberio's counsel conceded at trial that the writing on the latter exhibit was Barberio's.

Barberio's ineffective assistance claim is based on trial counsel's failure to consult a handwriting expert to determine whether the handwriting on the throughput agreement was Barberio's. After the verdict, Barberio discharged his trial attorney and retained new counsel. Barberio then filed a motion for a new trial and subsequently a supplemental motion for a new trial based on the ineffective assistance of his trial counsel. These motions were summarily denied by the District Court. Thereafter Barberio moved for reconsideration of his earlier motion and requested an evidentiary hearing on the claim of ineffective assistance of counsel. Barberio contended that at a hearing he would be able to establish that his trial counsel had failed to consult an expert to determine whether the handwriting on the throughput agreement was Barberio's and that the handwriting, in fact, was not Barberio's. He argued that, if counsel had put expert testimony before the jury that Barberio's handwriting was not on the throughput agreement, there would have been a reasonable probability that the jury would not have found him guilty. Barberio also sought to present other evidence bearing on trial counsel's ineffectiveness, including his failure to call certain "key" defense witnesses. The District Court summarily denied the motion for reconsideration.

Barberio contends that his post trial motions set forth a viable claim of ineffective assistance of counsel and that the District Court erred in refusing to grant him an evidentiary hearing. We agree.

To maintain a claim of ineffective assistance of trial counsel in a criminal case, a defendant must establish both "that counsel's representation fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

The question presently before us is whether Barberio has presented a sufficient claim We now examine whether Barberio has set forth a plausible or viable claim under the Strickland test.

                to entitle him to a hearing as to whether his trial counsel did act ineffectively.   To prevail on his motion for a hearing, Barberio must establish that he has a "plausible" claim of ineffective assistance of counsel.   See United States v. Matos, 905 F.2d 30, 33-34 (2d Cir.1990);  see also United States v. Cruz, 785 F.2d 399, 404 (2d Cir.1986) ("[W]ere we to deem the [ineffective assistance] claim viable, we would very likely have to remand to the district court for the purpose of developing a full factual record following an evidentiary hearing.").   At this preliminary stage he is not required to establish that he will necessarily succeed on the claim, and indeed, if he could presently prove that proposition, no hearing would be necessary
                

i. Unreasonableness of trial counsel's performance.

Barberio argues that trial counsel's failure to consult a handwriting expert was unreasonable because of the "paramount importance" at trial of the testimony of the two witnesses that the handwriting on the throughput agreement belonged to him. He points out that the American Bar Association Standards for Criminal Justice, which were accepted by the Strickland court as a proper guide for determining what is reasonable conduct, require counsel to "conduct a prompt investigation of the circumstances of the case and to explore all the avenues leading to facts relevant to the merits of the case and the penalty in...