UNITED STATES DISTRICT COURT, NORTHERN DISTRICT NEW YORK.
November 18, 1986.
Chowdary M. ANWAR, Petitioner,
UNITED STATES of America, Respondent.
The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
MUNSON, Chief Judge.
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 district for the crime with which he was charged. All of this, petitioner claims, was part of a scheme to obtain leniency for Grieco at the expense of petitioner's right to a vigorous defense. This depiction of events forms the basis of petitioner's § 2255 motion.
When a prisoner in federal custody brings a motion under 28 U.S.C. § 2255 (1982)
to vacate, set aside or correct his sentence, the court must first determine whether an evidentiary hearing need be held. Section 2255 requires such a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." See Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461, 1462, 36 L. Ed. 2d 169 (1973). In addressing this threshold inquiry, the court must ascertain whether a petitioner's affidavit, read in conjunction with the available record, is sufficient on its face to warrant a hearing. Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974); see also Newfield v. United States, 565 F.2d 203, 207 (2d Cir.1977); Williams v. United States, 503 F.2d 995, 998 (2d Cir.1974); Word v. United States, 616 F. Supp. 695, 699 (S.D.N.Y.1985). Affidavits submitted by the government in opposition to a § 2255 motion cannot be deemed a part of the "records and files of the case" for the purpose of determining whether petitioner is entitled to a hearing, Taylor v. United States, 487 F.2d 307, 308 (2d Cir.1973), though such affidavits "may be considered in assessing the sufficiency of the petitioner's supporting affidavit." Dalli, 491 F.2d at 762 n. 4; see also Wright v. United States, 732 F.2d 1048, 1057 n. 10 (2d Cir.1984), cert. denied, 469 U.S. 1106, 105 S. Ct. 779, 83 L. Ed. 2d 774 (1985); United States v. Franzese, 525 F.2d 27, 31 (2d Cir.1975), cert. denied, 424 U.S. 921, 96 S. Ct. 1128, 47 L. Ed. 2d 328 (1976). Further, conclusory statements in a petitioner's affidavit will not suffice; "[t]he petitioner must set forth specific facts which he is in a position to establish by competent evidence." Dalli, 491 F.2d at 761 (citing Machibroda v. United States, 368 U.S. 487, 495-96, 82 S. Ct. 510, 514-15, 7 L. Ed. 2d 473 (1962)).
In his affidavit, petitioner claims he was denied effective assistance of counsel as a result of a conflict of interest on the part of his defense attorney in violation of his sixth amendment right to counsel. Ordinarily, a petitioner alleging ineffectiveness of counsel must establish (1) that his attorney's performance was so deficient and riddled with "errors so serious that counsel was not functioning as the 'counsel' guaranteed the [petitioner] by the Sixth Amendment;" and (2) that the deficient performance prejudiced the defense to such an extent that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674 (1984); Cuevas v. Henderson, 801 F.2d 586, 589-90 (2d Cir.1986). However, "[p]rejudice is presumed . . . if the [petitioner] demonstrates that counsel 'actively represented conflicting interests' and 'that an actual conflict of interest adversely affected his lawyer's performance.'" Strickland, 466 U.S. at 692, 104 S. Ct. at 2067 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348, 100 S. Ct. 1708, 1718, 1719, 64 L. Ed. 2d 333 (1980) (footnote omitted)); United States v. Iorizzo, 786 F.2d 52, 58 (2d Cir.1986). Thus, a petitioner is entitled to a hearing under § 2255 if he alleges facts sufficient to establish that his lawyer had an actual conflict of interest, and that a "lapse in representation" resulted from the conflict. Cuyler, 446 U.S. at 349, 100 S. Ct. at 1718-19; Iorizzo, 786 F.2d at 58.
A. Petitioner's Allegations of a Conflict of Interest
In order to establish a presumption of prejudice arising out of an alleged conflict of interest, "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 348, 100 S. Ct. at 1718 (emphasis added). A potential conflict of interest is not sufficient. Bryan v. United States, 645 F.2d 842, 843 (9th Cir. 1981). Whenever a defense attorney has previously represented an important government witness who testifies against his client, the possibility of a conflict of interest exists.
See Iorizzo, 786 F.2d at 57; United States v. Shepard, 675 F.2d 977, 979 (8th Cir.1982). Three major potential areas of conflict arise: the attorney's pecuniary interest in furthering his business relationship with the government witness may impair the attorney's ability to cross-examine the witness zealously, see Shepard, 675 F.2d at 979; Model Code of Professional Responsibility Canon 7, DR 7-101, DR 5-101 (1984); the attorney "may misuse confidential information obtained from the [witness], or may fail to fully cross-examine for fear of misusing confidential information," Shepard, 675 F.2d at 979; see also United States v. Jeffers, 520 F.2d 1256, 1264-65 (7th Cir.1975), cert. denied, 423 U.S. 1066, 96 S. Ct. 805, 46 L. Ed. 2d 656 (1976); or the attorney may be required to testify about material aspects of the witness' testimony or otherwise place his own credibility at issue either in cross-examining the witness or in attacking the witness' testimony in summation. See Iorizzo, 786 F.2d at 57; United States v. McKeon, 738 F.2d 26, 34-35 (2d Cir.1984); Model Code of Professional Responsibility DR 5-102(A) (1984).
In the present case, petitioner does not allege that attorney Gould ever represented witness Grieco.
Instead, petitioner argues that DeVane and Gould were "de facto partners" and that the conflict of interest that prevented DeVane from representing petitioner should be imputed to Gould. Petitioner alleges that DeVane and Gould shared an office suite and shared rent and secretaries. In affidavits submitted in response to the present motion, DeVane and Gould admit this, but claim that they otherwise conducted business as sole practitioners, maintaining separate clients and refraining from sharing fees or income.
Petitioner further alleges that Gould assisted DeVane in the preparation of petitioner's case before DeVane asked to be relieved as petitioner's counsel. Petitioner cites a number of instances where the two attorneys visited him together at the Montgomery County Jail in Fonda, New York and the fact that Gould allegedly conferred with petitioner over the telephone while DeVane was still his attorney of record in support of his claim that he believed that both attorneys were in fact representing him. Indeed, both attorneys admit that they would assist each other for a fee on different cases by making court appearances or providing consultation or advice, and that in petitioner's case DeVane sought Gould's assistance because of the latter's experience in criminal cases.
Petitioner further alleges that the two attorneys shared in the fee paid by petitioner.
Petitioner's allegations, if true, do not indicate a general partnership relationship between DeVane and Gould extending beyond the representation of petitioner himself. It is not alleged that the two attorneys regularly shared clients; nor is it claimed that they represented themselves to the world at large as partners. It is commonplace for sole practitioners to share office space, office expenses, and secretaries. In sum, taking petitioner's allegations as true, the most that can be said is that DeVane and Gould were sole practitioners who worked together as "de facto partners" for the purpose of defending petitioner only.
The general rule in this Circuit is that in the absence of evidence that two attorneys are partners and that their interests overlap generally in the acceptance of clients and in the sharing of fees, a mere showing that "they worked in close physical proximity, that they shared an office and perhaps a secretary," by itself, is an "insufficient basis on which to erect a claim of conflict of interest." United States v. Badalamente, 507 F.2d 12, 21 (2d Cir.1974), cert. denied, 421 U.S. 911, 95 S. Ct. 1565, 43 L. Ed. 2d 776 (1975); cf. Davis v. Franzen, 671 F.2d 1056, 1058-59 (7th Cir.1982) (no actual conflict of interest when co-defendants represented by different lawyers from same public defender's office). Thus, in order to prevail in his motion, petitioner must be able to establish that by working together on petitioner's case, Gould's representation of petitioner at the suppression hearing and at trial was tainted by the conflict of interest that caused DeVane to withdraw. Petitioner fails to allege facts that can establish this, largely because he focuses on the wrong attorney-client relationship.
Petitioner's allegations concern the joint efforts of DeVane and Gould in the preparation of his own defense; but the attorney-client relationship that gave rise to DeVane's potential conflict of interest was that of DeVane and the witness, Grieco. Petitioner does not allege facts indicating that Gould was connected in any way with the representation of Grieco. By failing to allege facts sufficient to support the conclusion that Gould represented Grieco, petitioner failed to show that Gould had a pecuniary interest in furthering a business relationship with Grieco such that his ability to represent petitioner to the best of his ability was impaired; that Gould possessed confidential information obtained from Grieco hampering his ability to cross-examine Grieco vigorously; or that Gould's credibility could become a material issue when he attacked the testimony of Grieco on cross-examination and in summation. Petitioner has failed to allege facts supporting a conclusion that any of the potential areas of conflict arising when an attorney has previously represented an important witness for the prosecution existed in this case. Thus, petitioner has failed to demonstrate an "actual conflict of interest adversely affect[ing] his lawyer's performance," Cuyler, 446 U.S. at 348, 100 S. Ct. at 1718, and is not entitled to a presumption of prejudice under Strickland and Cuyler.9
B. Sufficiency of Representation
Even if petitioner were able to establish an actual conflict of interest, he could not obtain relief under § 2255 absent a showing that his attorney's performance was so inadequate that the attorney "was not functioning as the 'counsel' guaranteed the [petitioner] by the Sixth Amendment." Strickland, 446 U.S. at 687, 104 S. Ct. at 2064; Cuevas v. Henderson, 801 F.2d 586, 589 (2d Cir.1986). The standard for attorney performance is "reasonably effective assistance." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Trapnell v. United States, 725 F.2d 149, 151-52 (2d Cir.1983). "Reasonableness" must be gauged in light of all of the circumstances, 466 U.S. at 688, 104 S. Ct. at 2065, and "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2065. To avoid placing any oppressive constraints on a defense attorney's wide latitude in making tactical decisions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689, 104 S. Ct. at 2066 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83 (1955)). Petitioner's specific allegations of misfeasance on the part of attorney Gould do not overcome this presumption of reasonable professionalism.
The most serious challenge to the effectiveness of Gould's representation of petitioner is the assertion that Gould failed to impeach Grieco's credibility by probing into his criminal record. Grieco's record before his guilty plea on March 11, 1983, however, consisted only of one conviction for petit larceny in 1962 and an arrest for the possession of a defaced firearm in 1972.
The 1962 conviction was more than ten years old and thus was not admissible under Fed.R.Evid. 609.
Further, since the 1972 arrest was more than ten years old and was not probative of Grieco's truthfulness or untruthfulness, it was inadmissable under Fed.R.Evid. 608(b).
Gould reasonably concluded that inquiry into Grieco's prior arrests was impermissible and did not pursue such questioning.
Petitioner also asserts that Gould's cross-examination of Grieco was marred by his failure to inquire into the seizure of weapons and money found in Grieco's apartment at the time of his arrest on January 5, 1983. Since no criminal charges were brought against Grieco as a result of this seizure, it could not be raised on cross-examination under Rule 609. Further, since the items seized were not relevant to Grieco's character for truthfulness or untruthfulness, such inquiry was not permissible under Rule 608(b).
Petitioner contends that his defense was damaged by Gould's failure to question Grieco more fully about his acquaintance with at least three other men from Lahore, Pakistan, the origin of the heroin sold to undercover DEA Agent Egan. Apparently, petitioner believes that such inquiry might have left the jury with the impression that Grieco implicated petitioner in order to protect those men. This is speculative at best; it is just as possible that the jury would have inferred that these men were a part of a larger network of drug smugglers to which petitioner belonged. Under the circumstances, it was well within the bounds of reasonable trial strategy not to probe too deeply into a potentially damaging matter when the result of such inquiry was uncertain.
Petitioner also finds significance in Gould's failure to exploit a contradiction between the testimony given by Grieco and that of Berton Hunter. Grieco testified that he had given Hunter $5,000 after the sale of heroin to undercover DEA Agent Egan on December 18, 1982. (Tr. 418). Hunter testified that he had received only $4,900. (Tr. 552). Petitioner claims that this $100 discrepancy "could have been shown to have been the $100 alleged to have been found on [petitioner's] person." (Doc. 101, at 16). However, petitioner offered other evidence, through the testimony of petitioner's wife, Najma Anwar, to explain petitioner's possession of the marked $100 bill. Najma Anwar testified that she had given a woman change for the $100 bill while waiting in the check-out line at a supermarket and that she had given the $100 bill to her husband. (Tr. 581-82). It is possible that Gould reasonably concluded that contradictory "alibi" testimony would harm more than help petitioner's cause, and did not pursue the tactic petitioner now suggests.
The other tactical "errors" cited by petitioner are either minor, irrelevant or non-existent.
Evaluating Gould's performance "from counsel's perspective at the time" of the trial and affording him a strong presumption that he exercised reasonable professional judgment, it cannot be said that his conduct fell outside "the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S. Ct. at 2066.
Petitioner has failed to allege facts which, if taken as true, would establish that attorney Gould had an actual conflict of interest at the time he represented petitioner. Petitioner has not alleged facts which, when considered in light of the files and records of this case, are sufficient to support his claim that Gould's performance was so inadequate that petitioner was not afforded "the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Therefore, petitioner is not entitled to an evidentiary hearing under 28 U.S.C. § 2255 (1982).
Petitioner's motion is denied.