United States v. Riley
| Decision Date | 18 October 1971 |
| Docket Number | No. 7718.,7718. |
| Citation | 332 F. Supp. 831 |
| Parties | UNITED STATES of America v. John RILEY, Robert Jusseaume, et al. |
| Court | U.S. District Court — District of Rhode Island |
Lincoln C. Almond, U. S. Atty., and S. Michael Levin, Sp. Atty., U. S. Department of Justice, Providence, R. I., for plaintiff.
John D. Lynch, Warwick, R. I., for Riley.
Dominic A. St. Angelo, Providence, R. I., for Jusseaume.
The defendants' motions for a new trial pursuant to Federal Rule Crim.P. 33 are premised on the contention that they were denied such effective representation by counsel as to amount to a deprivation of Sixth Amendment Constitutional rights.
These defendants together with four others, namely Dennis Raimondi, Thaddeus Bigos, Nicholas Pari and Joseph DiCarlo, were tried jointly and convicted for theft and/or conspiracy to steal from an interstate shipment 18 U.S.C. §§ 659, 371. During the trial all were represented by private counsel—Raimondi by Alfred A. Farese, Esq., Bigos by Anthony DeCecca, Esq., DiCarlo and Pari by John Cicilline, Esq. and both the moving defendants by Robert H. O'Brien, Esq. Following the return of the verdict on July 12, 1971 and before sentence, bail was revoked. The reasons for bail revocation and subsequent affirmation by the court of appeals, not being pertinent to this motion, need not be discussed.
On August 2, 1971, defendants Riley and Jusseaume executed affidavits and appeared before the Court requesting that they be incarcerated in a jail other than the one holding defendant Raimondi because they feared for their lives, having been threatened by Raimondi on a number of occasions.
The Riley affidavit states in part, The Jusseaume affidavit has substantially the same language. They further requested that the Court appoint counsel for them as indigent defendants as they no longer wanted to be represented by O'Brien.
Separate attorneys were appointed by me and they filed and argued motions for a new trial presenting evidence which established that following the return of the indictments on January 27, 1971, defendants Riley and Jusseaume employed the services of Andrew Bucci, a lawyer practicing in Rhode Island, who entered his appearance only on behalf of Riley. Though the testimony is that he was retained by both and paid a two hundred dollar retainer by Jusseaume, no explanation was given for this single entry. Mr. Bucci advised his clients that he intended to file a motion to sever Riley and Jusseaume's trial from that of Raimondi and the other defendants. Riley claims Raimondi, on hearing this, disagreed with such tactics and directed them by way of a threat to discharge Bucci and go to the office of Farese, where an attorney would be provided for them. Fearing Raimondi, they did this and there they were met by Mr. Farese's son, also a lawyer, who talked with them for approximately fifteen minutes. There is a dispute as to whether or not Mr. O'Brien was present at this meeting. O'Brien claims he was, though the defendants state otherwise. There is no question that O'Brien did not engage in any of the conversation.
Between this time and the trial date many pre-trial motions were disposed of by the Court, all of which had been presented on behalf of the other four defendants. Conceding none had been presented for Jusseaume and Riley, Mr. O'Brien states this was so because he did not represent them at the time of the filing.
The defendants Riley and Jusseaume further assert that they did not see O'Brien until 20 minutes before the commencement of the trial—which is somewhat confirmed by the records in the case showing his appearance as of that date. Furthermore, it is not denied.
Mr. O'Brien stated to this Court that he is an attorney practicing in Massachusetts and an associate of Mr. Farese, who pays him a set salary. Prior to meeting the two defendants in question he had prepared all the motions filed on behalf of Raimondi together with the legal memoranda; he was not paid any moneys over and above his salary for representing Riley and Jusseaume since he did this at the direction of Mr. Farese as his employer. All trial expenses for Riley and Jusseaume were paid by Farese, and O'Brien did not discuss the case with his clients before trial. He does contend, however, he conducted an independent defense based on trial strategy he thought was in the best interests of his clients; and that he did confer with them privately during the course of the trial. On the other hand, the defendants deny this stating, "* * * that during the trial days and intervening Saturdays and Sundays * * * (they) were never allowed to speak with their attorney Robert O'Brien without the presence of Dennis Raimondi or Dennis Raimondi's attorney, Al Farese * * * that (Riley) did not trust Raimondi's attorney, Mr. Farese, and was afraid to discuss certain matters in confidence with Mr. O'Brien while in the presence of Mr. Farese * * * that he had no trust and confidence in Attorney O'Brien and that on at least two occasions during his trial he asked for permission of O'Brien and Farese to have Mr. Bucci reenter the case on behalf of himself and defendant Jusseaume * * *" that this was turned down by Farese and Raimondi. (Defendant's Brief on Motion for New Trial.) This recitation substantially comports with Riley's testimony. O'Brien, however, contends he told his clients he was ready to withdraw if they were dissatisfied but was told by them not to do so.
From these facts this Court can easily make the following findings based on the unrefuted testimony and portions of the record, together with reasonable inferences therefrom:
To these findings of fact this Court, as the Presiding Judge at the trial, notes that Mr. O'Brien ostensibly conducted an adequate defense. He cross-examined witnesses and presented independent "alibi" testimony. In its outward appearance his advocacy neither appreciably rose nor fell below the performance level of the other defense counsel.
On these facts the defense contends deprivation of effective assistance of counsel of constitutional proportions while the prosecution argues waiver.
"The court may grant a new trial to a defendant if required in the interest of justice. * * *" Fed.R.Crim. Proc. 33.
This is declaratory of the court's power founded in the raison d'etre of its own existence—"* * * the interest of justice." Limitation of this power is addressed to the sound discretion of the court and a finding must stand inviolably absent abuse of discretion.
The right to a fair trial through the effective assistance of counsel evolved from Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) through Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This is a long and scholarly history with travels to varying cognate areas on the same theme. I believe we are brought today to another one of these areas.
We are not discussing the effective assistance of an unfettered appointed counsel whose trial strategies, techniques, or ability may be questioned. This is an area of many shadings that I do not feel are relevant to the issue at hand. Rather this Court has before it the coercive acceptance of a lawyer whose parameters of human conduct cannot be viewed as reaching any plateau of required independence. Can it be said in the light of the established facts that no conflict of interests existed, no tacit economic pressures insidiously pervaded the defense? Indeed, can any argument be proffered to justify the inference in finding no. 7—so abhorrent to even a modicum of fair play. To condone such execrable conduct is to place an imprimatur on a procedure criminally controlled to the desecration of substance—justice and fair play.
I am constrained to say the answers to the questions must be in the negative and extrapolate such conclusion with the further question—Were these defendants denied the right to counsel of their own choosing whose services they could afford? This I answer in the affirmative. "Since the right to counsel is a matter of substance not form, it is the solemn duty of the trial judge to make sure that representation is not an empty gesture, but is the fulfillment of the spirit and purpose of the constitutional mandate." Willis v. Hunter, 166 F.2d 721 (10th Cir. 1948), quoted in Gadsden v. United States, 96 U.S.App.D.C. 162, 223 F.2d 627 (1955).
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United States ex rel. Means v. Solem
...specific showing of prejudice made to the trial court). The cases cited by petitioner are readily distinguishable. In United States v. Riley, 332 F.Supp. 831 (D.R.I.1971), following their indictment, the defendants had engaged an attorney to represent them. Subsequently, they discharged the......