aider and abettor and that the jury was instructed as to
aiding and abetting, Appellant's Appendix at pp. 45-47,
Virella's argument that the general verdict was ambiguous is
Moreover, contrary to his assertion that he suffered
"substantial prejudice of a fundamental kind" due to the
jury's general verdict, it is clear that Virella suffered no
prejudice whatsoever. Special verdicts are not favored in
criminal cases and generally are appropriate only "when the
information sought is relevant to the sentence to be imposed."
United States v. Orozco-Prada, 732 F.2d 1076, 1084 (2d Cir.),
cert. denied, 469 U.S. 845, 105 S.Ct. 154, 83 L.Ed.2d 92
(1984). Here, whether the jury convicted Virella under § 2114
alone or as an aider and abettor to that crime, under the
language of 18 U.S.C. § 2 he was equally punishable for either
role. Cf. Allen v. United States, 257 F.2d 188, 189 (D.C.Cir.
1958). Thus, no possible prejudice could have resulted from the
form of the jury's verdict. In any event, the jury's general
verdict of guilty constitutes a finding that he was guilty "as
charged," see United States v. Drebin, 557 F.2d 1316, 1332-33
(9th Cir. 1977), rehearing denied, 572 F.2d 215 (9th Cir.),
cert. denied, 436 U.S. 904, 98 S.Ct. 2232, 56 L.Ed.2d 401
(1978), and, as discussed above, the indictment clearly charged
Virella with aiding and abetting the postal robbery.
Accordingly, this challenge to his sentence should also be
C. Double jeopardy
Virella claims that he was placed in double jeopardy by his
convictions for both conspiracy under 18 U.S.C. § 371 and
aiding and abetting the commission of a postal robbery under
18 U.S.C. § 2 and 2114. However, this claim, too, must be
rejected because "[c]onspiracy to commit a substantive offense
and aiding and abetting the commission of the same offense
constitute separate and distinct crimes," United States v.
Tropiano, 418 F.2d 1069, 1083 (2d Cir. 1969), cert. denied,
397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530 (1970) (citing Nye &
Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed.
919 (1949)), and the double jeopardy clause poses no bar to a
defendant's conviction of both where the conspiracy and
substantive counts require proof of different elements. United
States v. Udey, 748 F.2d 1231, 1237-38 (8th Cir. 1984), cert.
denied, 472 U.S. 1017, 105 S.Ct. 3477, 87 L.Ed.2d 613 (1985);
United States v. Slocum, 695 F.2d 650, 656 (2d Cir. 1982),
cert. denied, 460 U.S. 1015, 103 S.Ct. 1260, 75 L.Ed.2d 487
(1983) (citing Blockburger v. United States, 284 U.S. 299, 304,
52 S.Ct. 180, 186, 76 L.Ed. 306 (1932)); Marino v. United
States, 735 F. Supp. 60 (E.D. N.Y. 1990); United States v.
Esposito, 726 F. Supp. 991, 997 (D.N.J. 1989), aff'd,
912 F.2d 60 (3d Cir. 1990); United States v. Stratton, 583 F. Supp. 1234,
1240 (S.D.N. Y.), aff'd, 751 F.2d 373 (2d Cir. 1984). Whereas a
conspiracy conviction under 18 U.S. § 371 requires proof of an
unlawful agreement between two or more persons to commit an
offense against the United States,*fn6 see, e.g., United
States v. Rubin, 844 F.2d 979, 983-84 (2d Cir. 1988) (citing
United States v. Wardy, 777 F.2d 101, 107 (2d Cir. 1985), cert.
denied, 475 U.S. 1053, 106 S.Ct. 1280, 89 L.Ed.2d 587 (1986)),
a conviction for aiding and abetting a postal robbery does not
require proof of an agreement but does require, inter alia,
proof of aiding, abetting, counseling, commanding, inducing,
procuring or causing an assault with the intent to rob or the
actual commission of a robbery of a postal office. See
footnotes 3, 4, supra. As stated by the Supreme Court,
"[a]iding, abetting, and counseling are not terms which
presuppose the existence of an agreement. Those terms have a
broader application, making the defendant a principal when he
consciously shares in a criminal act regardless
of the existence of a conspiracy." Pereira v. United States,
347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954).
D. Ineffective assistance of counsel
Virella claims his trial counsel's performance was deficient
based on counsel's failure to (1) argue on summation the lack
of credibility of a key prosecution witness; (2) cite specific
authority at sentencing concerning the court's discretion to
suspend the then mandatory twenty-five year sentence for
postal robbery; (3) request a jury instruction on a lesser
included charge; (4) challenge the indictment as defective;
(5) raise a claim of double jeopardy. Each alleged error is
The two-pronged standard for evaluating a claim of
ineffective assistance was delineated by the Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). See also Kimmelman v. Morrison,
477 U.S. 365, 374-75, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986);
Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473,
91 L.Ed.2d 144 (1986); United States v. Nersesian,
824 F.2d 1294, 1320-21 (2d Cir.) cert. denied, 484 U.S. 957, 108 S.Ct.
355, 98 L.Ed.2d 380 (1987). The court explained that the
purpose of the sixth amendment's requirement of effective
assistance of counsel is to ensure a fair trial, so that "[t]he
benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on
as having produced a just result." 466 U.S. at 686, 104 S.Ct.
at 2064. See also United States v. Ditommaso, 817 F.2d 201, 215
(2d Cir. 1987).
The court stated that on a claim of ineffective assistance
a petitioner must demonstrate two elements. See also United
States v. Aiello, 900 F.2d 528, 532 (2d Cir. 1990); Abdurrahman
v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990). First, he must
show that counsel's performance was deficient to the extent
that the errors made were not within the realm of
reasonableness under the professional norms prevailing at the
time of trial, id. 466 U.S. at 687-88, 104 S.Ct. at 2064-65,
and there is a "strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance"
and that counsel has "made all significant decisions in the
exercise of reasonable professional judgment." 466 U.S. at
689-90, 104 S.Ct. at 2065-66. A defendant "must overcome the
presumption that, under the circumstances, the challenged
action 'might be considered sound trial strategy.'" Id. at 689,
104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91,
101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). See also Mills v.
Scully, 826 F.2d 1192, 1197 (2d Cir. 1987).
The second element that must be shown on an ineffective
assistance claim is prejudice. If a defendant can establish
that his counsel's performance fell below the prevailing
professional norms, he must also show that there is "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." 466 U.S. at 694, 104 S.Ct. at 2068. See also
Kimmelman v. Morrison, 477 U.S. at 375, 106 S.Ct. at 2583;
United States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990);
United States v. Reiter, 897 F.2d 639, 645 (2d Cir. 1990). The
Court defined a reasonable probability as "a probability
sufficient to undermine confidence in the outcome" of the
proceeding. Strickland v. Washington, 466 U.S. at 694, 104
S.Ct. at 2068. It is not sufficient to show merely that
counsel's errors had "some conceivable effect" on the result
for "not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the
proceeding." Id. at 693, 104 S.Ct. at 2067. It is movant's
burden to show that absent counsel's errors, "the decision
reached would reasonably likely have been different,"
considering the totality of all the evidence. Id. at 696, 104
S.Ct. at 2069. See also United States ex rel. Roche v. Scully,
739 F.2d 739, 742-44 (2d Cir. 1984). The Court further noted
that, although analysis of an ineffective assistance claim
involves the two elements of counsel's error and prejudice to
the defendant, it is not necessary for a reviewing court to
address both elements if the defendant makes an insufficient
showing on either one. Strickland v. Washington, 466 U.S. at
697, 104 S.Ct. at 2069; See also Mitchell v. Scully,
746 F.2d 951, 954 (2d Cir. 1984), cert. denied, 470 U.S. 1056, 105 S.Ct.
1765, 84 L.Ed.2d 826 (1985).
Movant alleges that his counsel failed, during summation, to
discuss the lack of credibility of Martinez who "was the one
whom [sic] organized and planned the entire robbery scheme."
Memorandum at 3. He refers to Martinez's "lengthy list of
prior convictions" and alleges that Martinez had motivation to
give false testimony, arguing that counsel's failure to
mention these factors during summation constituted ineffective
assistance of counsel.
However, even the failure to make any argument at all on
summation is generally considered merely to be a matter of
trial strategy and not one to be second-guessed by a reviewing
court. For example, in Melvin v. Laird, 365 F. Supp. 511, 521-22
(E.D.N.Y. 1973), the court explained that defense counsel could
have reasonably anticipated that the prosecution would have
countered any summation arguments and that the further exchange
of said arguments might have hurt, rather than helped, the
defendant. Similarly, counsel's decision to waive closing
argument in United States ex rel. Turner v. Cuyler, 443 F. Supp. 263
(E.D.Pa. 1977), aff'd, 595 F.2d 1215 (3rd Cir. 1979), was
found to be a tactical decision that did not constitute
ineffective assistance. Cf. United States v. Nersesian, 824
F.2d at 132 (waiver of opening statement treated as reasonable
choice of strategy). Virella argues only that his counsel did
not discuss the credibility of a prosecution witness during
summation. It is the movant's duty to overcome the presumption
of competent assistance, Strickland v. Washington, 466 U.S. at
689, 104 S.Ct. at 2065, and I find that Virella has not shown
that his counsel's behavior was below prevailing professional
norms. As he also has not demonstrated a "reasonable
probability that the closing argument . . . changed the outcome
of the trial," Thompson v. Wainwright, 787 F.2d 1447, 1456
(11th Cir. 1986), rehearing denied, 792 F.2d 1126 (11th Cir.
1986) (en bane), cert. denied sub nom. Thompson v. Dugger,
481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987), his claim
must be denied under both prongs of the Strickland test.