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GRANT v. UNITED STATES

March 7, 1978

WALTER GRANT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent



The opinion of the court was delivered by: BRYAN

VAN PELT BRYAN, SENIOR DISTRICT JUDGE:

 In 1973, after a six-week jury trial before me, petitioner Walter Grant and nine other defendants were convicted of violating the federal narcotics laws, 21 U.S.C. §§ 843(b), 846, 848. *fn1" The convictions were affirmed in United States v. Sisca, 503 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008, 42 L. Ed. 2d 283, 95 S. Ct. 328 (1974). Grant and five of his codefendants, Willie Abraham, Robert Hoke, Erroll Holder, Margaret Logan and Alphonse Sisca, retained the law firm of Lenefsky, Gallina, Mass, Berne & Hoffman (the Gallina firm) to represent them at trial. Three years later, Grant moved, under 28 U.S.C. § 2255, to vacate his conviction on the ground that he was deprived of the effective assistance of counsel guaranteed by the sixth amendment.

 Lead counsel for the Gallina firm was Gino Gallina, though several other lawyers in the office were actively involved in the case from the start. While the firm generally represented all six defendants during pretrial proceedings, for purposes of trial, the lawyers working on the case were individually assigned to represent various defendants. Jeffrey Hoffman, a member of the Gallina firm, was assigned to Grant. *fn2"

 At trial the Government introduced overwhelming evidence of Grant's participation in a large-scale narcotics conspiracy which was doing $5,000,000 of business distributing 200 kilos of heroin a year. *fn3" Grant was arrested on December 15, 1971, after he and two of his coconspirators left the home of codefendant Robert Hoke where they had been dividing up their latest shipment of heroin. When Grant was arrested, he had 2 kilos of heroin in his possession. A search of his home later that day revealed a large quantity of mannite, a dilutant for cutting heroin, in the basement and another bag of mannite in the kitchen. Prior to his arrest, Grant was observed meeting with his coconspirators, particularly Willie Abraham who headed the conspiracy, on several occasions.

 The Government also introduced in evidence tapes of three phone calls on November 11, 13 and 14, 1971, in which Grant asked Abraham for "help" in getting more heroin when one of the biweekly shipments was late. *fn4" The alleged ineffectiveness of defense counsel is based entirely on the untimeliness of the Gallina firm's motion to suppress these tapes for failure of the monitoring agents to minimize their interception of innocent conversations. 18 U.S.C. § 2518(5)(1970); New York Criminal Procedure Law § 700.30(7) (McKinney 1971).

 The minimization argument was not put before the court until five days after the trial commenced when John Pollok, an associate in the Gallina firm assigned to represent the defendant E. Holder, suggested it (Transcript at 749). The following day, January 24, 1972, Pollok formally moved to suppress for failure to minimize and the other defendants who had participated in the taped conversations, including Grant, joined that motion. I reserved decision until after the jury verdict.

 After a post-trial hearing, I denied the motion to suppress on the ground that the motion was required to be made before trial and therefore the defendants had waived the right to so move. United States v. Sisca, 361 F. Supp. 735, 738-41 (S.D.N.Y. 1973). In addition, I held that the defendants were only entitled to suppression of innocent conversations which the agents would not have heard had they followed the minimization directive. 361 F. Supp. at 745-48.

 On appeal, the Second Circuit affirmed the convictions, upholding my denial of the minimization motion on the waiver issue, United States v. Sisca, 503 F.2d 1337, 1346-1349 (2d Cir.), cert. denied, 419 U.S. 1008, 42 L. Ed. 2d 283, 95 S. Ct. 328 (1974), without reaching the issue of the remedy for failure to minimize. Id. at 1347. The court of appeals stated:

 
We affirm the district court's denial of the motions to suppress . . . on the ground that appellants waived their right to challenge the admissibility of wiretap evidence by deliberately refusing to raise the failure to minimize claim in a pretrial motion. Appellants knew of the alleged failure to minimize at least three weeks prior to trial. Indeed, they themselves brought to the attention of the court the facts on which such a motion could have been made, had their trial strategy called for it. Despite a clear direction from the court, however, they made no pretrial minimization motion.

 503 F.2d at 1347-48. Continuing, the court said:

 
We will not countenance such deliberate and subtly disruptive tactics as those employed here. They would unnecessarily obfuscate the issues, confuse the jury and otherwise interfere with the judicial process. . . . [We] reject, as did the district court, appellant's contention that the finding of waiver here is inconsistent with the view that courts should "indulge every reasonable presumption against waiver of fundamental constitutional rights." Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). We hold that appellants, by ignoring the district court's explicit directive to make their minimization motions before trial, elected to pursue a strategy of intentional relinquishment of a known right and the deliberate by-pass of the orderly and timely suppression procedure provided by Section 2518(10)(a). In doing so, they waived their right thereafter to challenge the admissibility of the wiretap evidence.

 503 F.2d at 1349.

 In March, 1976, two of Grant's codefendants who had been represented by the Gallina firm, Willie Abraham and Erroll Holder, filed motions pursuant to 28 U.S.C. § 2255 to vacate their convictions on the ground that they had been denied the effective assistance of counsel at trial by their joint representation by one law firm. They claimed that in representing several codefendants, the Gallina firm was hampered by a conflict of interest which was prejudicial because counsel failed to file the minimization motion in timely fashion. Abraham and Holder contended that the Gallina firm deliberately delayed raising the minimization argument in timely fashion because the tapes, although damaging to them, would exculpate their codefendant Sisca. Petitioners also claimed that they should have had outside counsel to advise them on the conflict of interest problem.

 The motions of Abraham and Holder were assigned to Judge Bonsal who held an evidentiary hearing on May 25, 1976. After that hearing, on June 14, 1976, Grant and Robert Hoke filed similar § 2255 motions seeking to vacate their convictions on the same conflict of interest ground. Their cases were also assigned to Judge Bonsal. Finding the evidence at the May 25 hearing applicable to the issues raised by Hoke and ...


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