US v. Panzardi-Alvarez
| Decision Date | 28 January 1988 |
| Docket Number | Civ. No. 87-0827 (JAF) and 87-1044 (JAF).,Cr. No. 85-493 (JAF) |
| Parties | UNITED STATES of America, Plaintiff, v. Jose E. PANZARDI-ALVAREZ, Nestor Manuel Cancel-Hernandez, Defendants. Jose E. PANZARDI-ALVAREZ, Petitioner, v. UNITED STATES of America, Respondent. Nestor M. CANCEL-HERNANDEZ, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Daniel López-Romo, U.S. Atty., San Juan, P.R., for plaintiff.
José E. Panzardi-Alvarez, pro se.
José A. Fuentes-Agostini, San Juan, P.R., for defendant/petitioner Néstor M. Cancel-Hernández.
This case is submitted for decision concerning the 28 U.S.C. sec. 2255 habeas corpus petitions of former codefendants José E. "Polo" Panzardi-Alverez ("Panzardi") and Néstor Manuel "Papo" Cancel-Hernández ("Cancel"). With this opinion and order, we shall resolve the claims presented in the habeas petitions, along with those in several other pending motions — all toward a final determination of matters that have concerned this court, if not this judge, since April, 1985. A review of the factual and procedural history to date will facilitate our ruling on the filings before us.
Two days before he was scheduled to testify about the drug trafficking activities of, among others, petitioner Panzardi, the barely recognizable remains of government informant Avelino Cabrera-Díaz were found. After being shot to death, Cabrera-Díaz' torso had been burnt and his head, hands, and feet cut off. All of the gruesome details, provided by an agent of the FBI and eyewitnesses to the crime, can be found set out in the Detention Order, Docket Document No. 84, pp. 1-12. Panzardi and Cancel, along with Gloria Nieves-Báez, Héctor Arnaldo Reyes-Andújar, Arnaldo Hernández-Hernández, Angel Alberto Rosario-Hernández, and Jose D. Del Valle-Soledad, were subsequently indicted for the offense and each charged with: (1) depriving Cabrera-Díaz of his civil rights which resulted in his death, in violation of 18 U.S.C. sec. 241 ("Count I"); (2) aiding and abetting each other with the intent to retaliate against Cabrera-Díaz in violation of 18 U.S.C. secs. 1513 and 2 ("Count II"); and (3) aiding and abetting each other in the unlawful use of a firearm in violation of 18 U.S.C. sec. 16 ("Count III"). The six defendants eventually consented to separate plea agreements with the government, but only the circumstances surrounding those signed by Panzardi and Cancel are relevant to the instant action.
Cancel agreed to plead guilty to Counts I and II of the indictment, in exchange for a recommendation from his prosecutors for consecutive sentences of fifteen years imprisonment on Count I and ten years on Count II. Docket Document No. 187. In the agreement signed by Cancel, his attorneys, and the Assistant U.S. Attorney prosecuting the case, it was stated that then-defendant Cancel "understands and agrees that this Plea Agreement is not binding on the Court and that it may impose any sentence and conditions of imprisonment authorized by law ..." Cancel Plea Agreement, p. 2. In fact, Cancel was sentenced to 99 years imprisonment on both counts and served with an additional $150,000 fine. Docket Document No. 227.
Panzardi consented to a different arrangement. In return for pleading guilty to Count I, testifying at any trial or other proceeding concerning the killing of Cabrera-Díaz, and promising to reveal any and all information he had about other criminal activity in Puerto Rico, including narcotics' trafficking, the government agreed to dismiss Counts II and III and to recommend that whatever sentence the court imposed for Count I run concurrently with any given at the conclusion of the other pending criminal proceedings. Docket Document No. 10. The government further agreed to make the full extent of Panzardi's cooperation known to the sentencing judge, to the United States Parole Commission, and to any other prosecuting authorities, if requested. Like Cancel's agreement, Panzardi's contained the identical clause stating that the terms of the agreement were not binding on the sentencing court which could impose any sentence and conditions of imprisonment authorized by law. Panzardi Plea Agreement, p. 3. Also, like Cancel, Panzardi was sentenced to be incarcerated for 99 years. Docket Document No. 237. No fine was imposed, however, and that sentence now runs concurrently with those for his convictions in the narcotics' trafficking cases.1
While our holdings concerning the habeas corpus petitions filed by Cancel and Panzardi comprise the bulk of this opinion, we are also at this point prepared to decide Panzardi's motion to reconsider his sentence on the basis of the cooperation he has rendered since signing the plea agreement. Initially, though, we must pass on Panzardi's pro se motion for our recusal, which focuses on Panzardi's choice of counsel to represent him on the charges and our intervention in that respect. That necessitates a more detailed recital of the events from indictment to sentencing.
When the indictment was filed charging Panzardi with the death of Cabrera-Díaz, Panzardi was already being represented in one of the pending narcotics' trafficking cases, Criminal No. 85-116(CC), by attorney Charles G. White, a Florida lawyer who is not a member of the Federal Bar for the District of Puerto Rico. On December 4, 1985, White requested admission to defend Panzardi against the charges for the death of the witness, filing what would be the first of several motions for admission pro hac vice. Docket Document No. 9.
According to the rules of this court, the decision to admit an attorney pro hac vice is up to the discretion of each trial judge, who "in writing or otherwise, may find the person meets the standards for practice in the Court." Local Rule 204.2 of the United States District Court of the District of Puerto Rico (emphasis added). The fact that White had been admitted by another judge in this district and that he was clearly Panzardi's counsel of choice, along with his credentials, and finally his behavior subsequent to his request for admission, were all factors to be weighed in our determination.
White's initial motion was denied with a short order issued the same day the motion was filed. Docket Document No. 10. In so doing, we noted that not only had White failed to meet the procedural requirements of Local Rule 204 mandating the designation of a member of the bar of this court to act as local counsel, but, also, since he had been allowed to represent Panzardi in criminal case No. 85-117 (PG) four months before, his request ran afoul of the limitation in the rule stating that "appearances allowed pursuant to this rule shall be limited to one case per year."2 In an Expanded Order and Opinion issued on December 6, 1985, we elaborated on our initial findings and held the one-case-per-year limitation to be a valid constraint despite the effect it could have on a defendant's right to counsel of choice. United States v. Panzardi-Alvarez, 623 F.Supp. 108 (D.P.R.1985). We found then that since Panzardi had ample opportunity to secure the representation of perfectly capable attorneys who were members of the local federal bar, as he eventually did, his sixth-amendment right to effective assistance of counsel remained unabridged.3
After our December 4 short order of denial regarding White's initial petition, we were given the firsthand opportunity to observe his style and tactics. On December 5, a petition for a writ of habeas corpus pursuant to 28 U.S.C. secs. 2241 and 2255 was filed on behalf of codefendant Gloria Nieves-Báez. Docket Document No. 27. Nieves-Báez was Panzardi's girlfriend and had accompanied him the night Cabrera-Díaz was killed.4 The petition was handwritten on yellow legal pad paper and signed by both Paul A. McKenna, whose petition to appear pro hac vice had been denied for failure to conform to the provisions of Rule 204.2, and Eric Singleton, who was apparently Ms. Nieves-Báez' local counsel. Although the petition failed to meet numerous filing standards, it was duly considered and denied that same day. Docket Document No. 26.
The behavior of Attorneys White and McKenna, however, not the merits of that petition, are of present concern. After filing the scribbled motion, McKenna and White positioned themselves at the doors to this judge's chambers, constantly knocking and inquiring whether a decision had been rendered. Finally, a U.S. Marshal was called to remove the two attorneys and abate the nuisance.5
Meanwhile, with White's request for admission denied, Panzardi retained the services of Peter John Porrata, a San Juan Attorney who represented Panzardi through his sentencing. Porrata almost immediately filed a slew of pretrial motions which we subsequently passed upon.6
White, however, had only lost the first battle in an ongoing war. After Panzardi was denied release on bail in early January, White again moved, through Panzardi, for admission pro hac vice. Docket Document No. 120. In his January 21, 1986 motion, White argued that since he had corrected the procedural deficiencies of his first motion and since 1986 was a new and different calendar year, the limitations of Rule 204.2 should no longer apply. That request was denied, firmly, on February 7, 1986, Docket Document No. 137, when we held, first, that the term "one case per year" must require a twelve-month span between one appearance and the next. In that same opinion, however, we intimated that other considerations weighed more heavily than the provisions of the local rule in our determination to deny White's request. Sealed hearings, held on February 6 and 7, indicated that serious ethical considerations operated against White's admission. At that time, we provided no details from the hearings, noting only that they concerned the representation of codefendant Nieves-Báez. We later had...
To continue reading
Request your trial
-
US v. Pasciuti
...cases where dangerousness, jury tampering, threats against witnesses, and even violence have occurred. See United States v. Panzardi-Alvarez, 678 F.Supp. 353 (D.P.R.1988), aff'd 879 F.2d 975 (1st Cir.1989). We have been exposed to these problems and to the solutions crafted by other courts ......
-
Panzardi-Alvarez v. U.S.
...to be sealed. Because of the evidence presented at this hearing of an apparent "joint representation scheme," United States v. Panzardi-Alvarez, 678 F.Supp. 353 at 358 (D.P.R.1988), as well as the scene that had occurred outside of the judge's courtroom, the judge below denied White's appli......
-
Panzardi-Alvarez v. US, Civ. No. 92-1273 (JAF). Crim. No. 85-493.
...v. Panzardi-Alvarez, 816 F.2d 813 (1st Cir.1987), as well as a number of published opinions of this court, United States v. Panzardi-Alvarez, 678 F.Supp. 353 (D.P.R.1988), aff'd without opinion, 873 F.2d 1433 (1st Cir.1989); United States v. Panzardi-Alvarez, 628 F.Supp. 667 (D.P.R.1986). T......
-
US v. Pellerito, Crim. No. 87-685 (JAF).
...a guilty plea involuntary and thus a nullity, such ineffective representation was not afforded to Pellerito." U.S. v. Panzardi-Alvarez, 678 F.Supp. 353, 364 (D.P.R.1988) (determination in context of a 28 U.S.C. § 2255 petition). The standard for evaluating a claim of ineffective assistance ......