The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
In this motion brought pursuant to 28 U.S.C. § 2255 (1982) the petitioner, Chowdary Anwar, challenges his conviction in federal court after a jury trial on four counts of conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1982). Petitioner claims he was afforded ineffective assistance of counsel due to a conflict of interest on the part of his trial lawyer in violation of his sixth amendment right to counsel and his fundamental right to a fair trial.
The scenario developed by the government at trial is as follows: In the summer of 1981, petitioner, a Pakistani national, obtained approximately one kilogram of pure, brown Pakistani heroin from Muhammed Aslam, his contact in Pakistan. (Trial Transcript 128). Petitioner then delivered the heroin to James Grieco in Albany, who agreed to find a buyer for the drug and to split any profits with petitioner. (Tr. 360-65). They agreed to refer to the drug in future conversations as "carpets" or "bottles of whiskey." (Tr. 365). Petitioner also insisted that he was not to meet any potential buyer, on the theory that if the conspirators minimized the number of individuals who had contact with them, the risk of exposure would be reduced. (Tr. 365-66). Thereafter, Grieco solicited the help of Berton Hunter, who agreed to try to find a buyer for the heroin. It was agreed that Hunter would not meet petitioner, and that Grieco would not meet any buyer that Hunter located, again for security reasons. (Tr. 369-70).
A month passed without Grieco or Hunter finding a buyer. Petitioner then informed Grieco that the supplier in Pakistan wanted the heroin returned. Petitioner instructed Grieco to remove approximately eight ounces of heroin before returning the drug, however, and to replace it with brown sugar. The packets of heroin and sugar were then delivered to petitioner. (Tr. 376-77). In November and December 1981 Grieco and Hunter sold the eight ounces of heroin that had been retained to Vic Lindberg for $29,000, of which petitioner received $19,000. (Tr. 377-82).
In the spring of 1982 a Pakistani heroin ring headed by Khwaja Majid and Zulkarnen Khan smuggled approximately four kilograms of heroin into the United States via Sherul Zaman Khan (Zaman). Zaman stayed at the Philadelphia residence of Zafar Qureshi, and kept the heroin at the same residence. (Tr. 109-12). Majid Kahn thereafter telephoned Zaman and instructed him to await a telephone call from a "Mr. Javed" from Albany, New York. Within a couple of days, "Javed" attempted to contact Zaman. In a subsequent telephone conversation, Zaman agreed to deliver the drugs to "Javed." (Tr. 112-16). In April or May 1982 Zaman and Qureshi delivered approximately 1.5 kilograms of heroin to "Javed" in Albany. (Tr. 116-20). Quereshi identified petitioner as "Javed," the man to whom the contraband was delivered. (Tr. 122-23). Petitioner paid Zaman $6,000 as a courier fee and agreed to pay an additional $14,000 upon the sale of the heroin. (Tr. 123-25). Petitioner delivered the heroin to Grieco, and Grieco and Hunter again sought out buyers. (Tr. 385-92).
Meanwhile, in June 1982, Majid ordered Qureshi to deliver 2.5 kilograms of heroin to Ali Malik in Brooklyn. By this time, however, Malik was cooperating with the Drug Enforcement Administration (DEA). When Qureshi arrived in Brooklyn to deliver the heroin to Malik, he was arrested. Thereafter, Qureshi also agreed to cooperate with the government. (Tr. 133-41).
Qureshi placed a series of telephone calls to petitioner in Albany advising him that he had a buyer for the heroin he had delivered to petitioner earlier that spring. These conversations were tape recorded.
In one recorded conversation, Qureshi advised petitioner that this buyer was willing to pay $80,000 for a kilogram of heroin. Qureshi agreed to repay petitioner the $6,000 that was previously paid to Zaman plus an unspecified additional amount if petitioner would supply the heroin to complete the deal. (Tr. 145-53). On June 30, 1982 Qureshi, in custody, and DEA Special Agent Emilio Garcia, posing as a buyer, met petitioner in an Albany hotel room to complete the deal. Petitioner did not have the drugs with him. Surprised by the unexpected presence of Garcia, petitioner suspected that Qureshi was cooperating with the government and refused to discuss any transaction. After thirty-five minutes, petitioner terminated the meeting. (Tr. 155-61). Petitioner, however, apparently verified that Qureshi had been arrested and concluded that the suppliers in Pakistan would believe that the heroin then in the possession of Grieco had been seized from Qureshi at the time of his arrest. Petitioner then advised Grieco that whatever proceeds could be obtained from the sale of the heroin in Grieco's possession was theirs to keep, and that the Pakistani suppliers would be none the wiser. (Tr. 393-401).
Ultimately, an acquaintance of Grieco and Hunter, James Massaro, introduced the two to Christopher Egan, a DEA Special Agent posing as a figure from the Boston underworld. Grieco and Hunter sold Egan seven ounces of heroin on December 18, 1982 for $16,500, which was split among petitioner, Grieco, Hunter, and Massaro. Future deals were discussed, and it was agreed that an additional nineteen ounces of heroin would be sold to Egan for approximately $80,000. Upon delivery of the heroin to Egan on January 5, 1983 Hunter was arrested. (Tr. 93-99/12). Grieco and petitioner were arrested soon thereafter, and a marked $100 bill used in the December 18, 1982 transaction was found in petitioner's possession. (Tr. 564-69).
On January 12, 1983 a grand jury in Syracuse indicted petitioner, Grieco and Hunter on four counts of conspiracy to distribute heroin and possession with intent to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1)(1982).
At his arraignment before then-United States District Judge Roger J. Miner on January 14, petitioner was represented by Paul T. DeVane, Esq. At the arraignment, all three defendants pleaded not guilty, but on March 11, 1983 Grieco pleaded guilty on two of the four counts in satisfaction of the indictment. A week later, Hunter also pleaded guilty to two counts.
Though not representing Grieco on the charges arising out of the events described above, attorney DeVane had known Grieco since the early 1970s and had represented him in a variety of matters, including a real estate transaction, a pending divorce action and the defense of certain traffic violations. When Grieco pleaded guilty, it became apparent that Grieco would testify at petitioner's trial. DeVane, in part because of the potential conflict of interest raised, sought and obtained court leave to withdraw as petitioner's attorney.
On March 18, 1983 DeVane was replaced by Bertrand Gould, Esq.
On April 27, 1983 Gould represented petitioner at his suppression hearing. The trial commenced on the afternoon of the same day. On May 4, 1983 the jury convicted petitioner on all counts of the indictment. Petitioner was sentenced to four consecutive four and one-half year terms of imprisonment, totaling eighteen years, plus a special parole term of three years. In November 1985 the instant motion to vacate petitioner's conviction and sentence pursuant to 28 U.S.C. § 2255 (1982) was filed.
Petitioner alleges that at the time of their representation of petitioner, DeVane and Gould were de facto law partners. (Doc. 101, at 2, 308). Petitioner claims that Gould assisted DeVane before DeVane asked to be excused as petitioner's counsel, that the two attorneys shared the fee paid by petitioner, that both attorneys worked out of the same office, and that they otherwise conducted business as partners. It is also alleged that DeVane, at the urging of Grieco, sought out and "thrust himself" upon petitioner after the arrest, becoming petitioner's counsel. As DeVane prepared to take petitioner's case to trial, Grieco negotiated a plea and received a reduced sentence. On the eve of petitioner's trial, DeVane arranged to have his "de facto" law partner, Gould, substituted as counsel. At trial, Grieco became the prosecution's "star witness," essential to the conviction of petitioner. Gould, it is alleged, was unprepared and represented petitioner so ineffectively that petitioner received the most severe sentence ever rendered in this ...