The opinion of the court was delivered by: WEINFELD
This is the second motion made by petitioner Vincent Yanni pursuant to 28 U.S.C., section 2255, to vacate his judgment of conviction which was entered more than five years ago. He was convicted with others of conspiracy to distribute narcotics, which the Court of Appeals, in affirming the conviction, described as "a large scale narcotics ring from suburban New York and New Jersey which supplied dealers and distributors in Harlem."
He was sentenced by former Judge Harold R. Tyler, Jr. to a term of eight years.
His first motion, made four years after his conviction, was based upon the ground that because of a head injury sustained a decade before trial he was incompetent to stand trial. This Court found, in denying the application, that it was "wholly without merit."
The Court of Appeals affirmed without opinion on April 7, 1977. Within a month thereafter petitioner filed the instant motion. This time he seeks to vacate his conviction on the ground that he was unconstitutionally denied effective assistance of counsel based upon an alleged conflict of interest because his attorney also represented at the trial another defendant, Anthony Colangelo.
After a careful review of the record of over 3000 pages of minutes, from the suppression hearing through the conclusion of the trial, the Court finds that this motion, like the prior one, is without merit and that petitioner's allegations do not require a hearing.
Yanni was one of thirteen original defendants who were charged with membership in the conspiracy extending over a two-year period and involving transactions totalling millions of dollars. The government's proof established that petitioner and others, including one codefendant Colangelo, were distributors and relied upon Joseph LaCosa, a major figure in the conspiracy, for their supply of narcotics. Yanni and Colangelo were convicted primarily on the basis of wiretapped conversations that each separately had with LaCosa. In the instance of Yanni, there were five such intercepted calls; evidence was also offered that LaCosa was seen leaving Yanni's home with a box which the government contended contained cash received from Yanni for the purchase of heroin. In the instance of Colangelo, the proof against him was primarily one wiretapped call and one call placed by an undercover agent pretending to be a narcotics buyer. Neither defendant challenged the identification of his voice.
The government's case against Yanni in large measure rested upon the use of the word "shirts" in the wiretapped conversations, and as against Colangelo it was based upon the use of the word "pants" in his telephone conversation with LaCosa. The government contended that "shirts" was a code word for heroin and "pants" was a code word for cocaine. Neither defendant testified. The thrust of the defense advanced during the cross-examination of government witnesses and in summation was that the words were innocently used in their ordinary sense, whereas the government contended they described illicit transactions. Other than the fact that Yanni and Colangelo made separate telephone calls to LaCosa, who was the principal supplier of narcotics to distributors, no evidence in the entire case in any respect related petitioner and Colangelo.
Petitioner contends that he was denied a constitutionally adequate trial in that Judge Tyler failed to question the defendants concerning their joint representation by Lewis Alperin,
and that such an inquiry would have established that Yanni's interests were in conflict with those of his codefendant Colangelo. Yanni alleges that he was prejudiced by the joint representation as follows: that his counsel, Lewis Alperin, devoted more time to the defense of Colangelo; that he was dissuaded from taking the stand on his own behalf by Alperin because he, according to Yanni, feared that Yanni's "testimony may develop so as to disclose matters which would be harmful to [Colangelo]"; and that because he did not take the stand, he was "unable to present to the jury facts that would tend to exculpate him" or "his 15 year work record and other matters which would have enhanced his credibility . . . ."
The government asserts that Yanni in no respect was prejudiced by Alperin's representation of petitioner and Colangelo. It contends that the evidence demonstrated that the two defendants were involved in different aspects of the conspiracy, that their paths did not cross, and that no evidence was presented at the trial to indicate that they acted together, that they knew one another, or that the participation of each in the conspiracy was such so that joint representation in the slightest degree could produce a conflict of interest. Moreover, the government emphasizes that before the trial it initially, and on its own, raised the issue of possible conflict before the Court, following which Alperin wrote to Judge Tyler, wherein he noted his joint role and stated:
I have advised both of my clients that the United States Attorney has stated that there is a possibility of a conflict unless each defendant has a separate lawyer.
Both of my clients have stated that there is no possible connection between them and they know of no conflict. Therefore, they wish me to continue to represent both of them.
Alperin also has submitted an affidavit in the present proceeding wherein he swears that "At the time of writing the letter to Judge Tyler, I reviewed the situation with my clients, and we came to the conclusion that there was no conflict of interest. Up to and including the conclusion of the trial, no factors arose which changed my opinion."
Yanni challenges the veracity of Alperin's statements, alleging that counsel never consulted him concerning the issue of joint representation. He also submits codefendant Colangelo's affidavit that "at no time prior to the aforemention [sic] trial did I discuss the dangers of joint representation with Mr. Lewis Alperin." Because the Court finds no prejudice from the joint representation, it need not resolve this factual dispute. Moreover, it is significant that petitioner is silent as to what he would have testified to with respect to the basic testimony of his telephone conversations with LaCosa had he not been "dissuaded" from taking the stand, and how any such testimony would have been in conflict with the defense of Colangelo.
The rule in this Circuit is clear that for a court to vacate a conviction on the ground of joint representation, the petitioner must demonstrate "some specific instance of prejudice, some real conflict of interest, resulting from a joint representation."
As established by United States v. Alberti,6 a trial court is required, when confronted with joint representation, to conduct a hearing to determine
whether there exists a conflict of interest with regard to defendant's counsel such that the defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the sixth amendment. In addition, the trial judge should see that the defendant is fully advised of the facts underlying the potential conflict and is given an opportunity to express his or her views.
If no such inquiry occurred at the time of trial, the government bears the burden of proving no prejudice.
The government ...