Andrea Aiello, Francesca Bartolotta and Lorenzo Scaduto appeal from an order entered June 6, 1986 in the United States District Court for the Eastern District of New York (Constantino, J.) that treated their Fed. R. Crim. P. 33 motion for a new trial as an application for a writ of habeas corpus and denied the application. Appellant Scaduto separately appeals from an order of February 13, 1986 that denied his Fed. R. Crim. P. 35(a) motion to correct his sentence. Insofar as the order denied habeas relief, it is reversed and remanded for further proceedings. Insofar as it denied appellant Scaduto's motion for resentencing, it is affirmed.
Oakes, Cardamone and Davis*fn* Circuit Judges.
Loyalty of a lawyer to his client's cause is the sine qua non of the Sixth Amendment's guarantee that an accused is entitled to effective assistance of counsel. Because defense counsel are best positioned to know when a conflict exists or will likely develop during the course of trial, the initial responsibility for preventing the erosion of a client's rights rests on the lawyer's shoulders. This appeal raises questions concerning whether in this case that duty was adequately discharged.
Andrea Aiello, Francesca Bartolotta and Lorenzo Scaduto appeal from the disposition of their Fed. R. Crim. P. 33 motion for a new trial, which the district court treated as an application for a writ of habeas corpus, 28 U.S.C. § 2255, and denied. Appellants' claims arising from their convictions on heroin importation and distribution charges have been previously considered and affirmed on direct appeal in United States v. Aiello, 771 F.2d 621 (2d Cir. 1985). On the present appeal appellants assert that their trial attorneys had conflicts of interest that deprived them of effective assistance of counsel in derogation of their Sixth Amendment rights. Although the district court reviewed all the affidavits submitted on this issue, it denied the application without a hearing. Because we think that appellants are entitled to a fuller inquiry into their claim, the order denying the writ is reversed and the matter is remanded to the district court for further proceedings. Appellant Scaduto also appeals the denial of his Fed. R. Crim. P. 35(a) motion to correct his sentence. Finding no merit to his claim, we affirm.
A brief summary of background facts is necessary. Federal and state agents arrested Lorenzo Scaduto, Andrea Aiello, Salvatore Bartolotta, and Filippo Ragusa in September 1983. Ragusa is the father of appellant Francesca Bartolotta, wife of Salvatore Bartolotta, and Maria Scaduto, wife of appellant Lorenzo Scaduto. Francesca Bartolotta was arrested and indicted several months later. Shortly after the initial arrests, the two sisters -- Francesca and Maria -- asked Mr. Evseroff to represent all of those arrested on drug charges. He agreed to represent Francesca's husband Salvatore and recommended a number of lawyers to represent the other defendants. Among these were Mr. Jeffrey A. Rabin, who later became Francesca Bartolotta's trial counsel and Mr. Arnold Taub, who represented appellant Andrea Aiello at trial. Attorney Evseroff, in an affidavit, states that shortly after Salvatore Bartolotta's arrest and indictment by a New York State Grand Jury he was asked to represent Bartolotta in the state proceeding. Once Bartolotta was severed from the original federal charge, Mrs. Scaduto and Mrs. Bartolotta then asked Evseroff to represent Lorenzo Scaduto on the federal charge. Attorney Evseroff further states that attorney Rabin was retained to assist him in representing Scaduto on the federal charge. Neither attorney indicates in their affidavits who retained attorney Rabin. In addition to appearing for Scaduto, Mr. Rabin states that he made appearances for Salvatore Bartolotta in the state proceeding. Thus, at the end of 1983, Mr. Rabin was assisting Mr. Evseroff in his representation of Salvatore Bartolotta and Lorenzo Scaduto.
When appellants' trial began in March 1984 Evseroff continued to represent Salvatore Bartolotta and Scaduto, Mr. Rabin represented Mrs. Bartolotta, and Mr. Taub defended Aiello. Evseroff's affidavit merely states that "it was decided that Mr. Rabin . . . would represent Francesca Bartolotta." Mr. Rabin's affidavit does not indicate whether he was still consulting with her husband when he undertook Mrs. Bartolotta's defense. No dates are provided.
B. Alleged Areas of Conflict of Interest
There are two areas of disagreement between the affidavits submitted by appellants and the attorneys' affidavits furnished by the government -- each area raises the possibility of a conflict of interest. The first area of an alleged conflict of interest is the failure to call Salvatore Bartolotta to testify. This conflict of interest contention centers on attorney Jacob Evseroff who served as Scaduto's trial counsel. Mr. Evseroff also represented Francesca Bartolotta's husband, Salvatore, who was an unindicted co-conspirator in his wife's federal trial and a defendant in state court for his part in the heroin scheme. Appellants assert that Evseroff failed to call his client Salvatore Bartolotta to testify in appellants' federal trial because he put Bartolotta's interests above their interests. Trial counsel representing the other appellants also failed to call Bartolotta as a witness because these lawyers were controlled, appellants allege, by attorney Evseroff.
Appellants insist that they wanted Salvatore Bartolotta to testify. Scaduto and Aiello state that they asked their attorneys to call him, and Francesca Bartolotta indicates that she discussed this possibility with Mr. Rabin. In their affidavits attorneys Evseroff, Taub, and Rabin aver that their respective clients did not wish them to call Bartolotta as a witness.
The affidavits submitted in support of the appellants' applications suggest a reason for the failure to call Salvatore Bartolotta. Scaduto, Aiello, Maria Scaduto, and Rosa Ragusa -- another daughter of Filippo Ragusa and sister of Maria Scaduto and Francesca Bartolotta -- all claim that Mr. Evseroff stated that he would not call Bartolotta because he would get "50 years to life" for the charges he was facing in state court if he testified in the federal case. Francesca Bartolotta attributes that same statement to attorney Rabin. Mr. Evseroff responds to that claim by stating that he discussed the possibility of Bartolotta testifying with Scaduto and Francesca Bartolotta and that they vociferously opposed it. Mr. Taub states that he never heard Mr. Evseroff state that Salvatore Bartolotta would get more time if he testified. Attorney Rabin admits discussing with Francesca Bartolotta the possible consequences of her husband's testifying, but denies stating that Salvatore Bartolotta would receive "50 years" if he did in fact testify. Moreover, attorneys Taub and Rabin cite tactical considerations for not having Bartolotta testify. Finally, Salvatore Bartolotta himself states in his affidavit that he was willing to testify, if called, but does not indicate what his testimony would have been.
The affidavits differ most sharply in the second area where there is a claimed conflict of interest. That alleged conflict concerns counsel fees. While Maria Scaduto and attorneys Taub and Evseroff agree that Maria Scaduto was the ultimate source of the money paid to the trial attorneys, they disagree as to the amount of fees paid and how the fees were paid. Maria Scaduto claims that she gave Mr. Evseroff $500,000 to pay for Evseroff's representation of both Lorenzo Scaduto and Salvatore Bartolotta, and for the services of the other attorneys. She further claims that Mr. Evseroff told her that the money would be distributed among the other attorneys, and informed her of what attorneys Rabin's and Taub's fees would be as part of that distribution. Her affidavit is silent as to who would make the distribution.
Mr. Evseroff denies that the aggregate fee for all the lawyers amounted to "anything approximating" $500,000. He does acknowledge that Maria Scaduto brought cash to his office for distribution and that the money was distributed according to each lawyer's fee arrangement. But he does not indicate who effected the distribution. Nor does Mr. Evseroff explain how he knew that the money was distributed according to each lawyer's fee arrangement, when he was ignorant of ...