it is clear that Donnelly adequately cross-examined those witnesses at trial in an effort to undermine their credibility. See, e.g. Trial Transcript at 227 (Simmons); at 395 (A. Rocke); at 696-702 (V. Rocke); at 200 (Morrison); at 696-702 (Praga); at 133-164 (Kritzman); at 668 (Jablanski); and at 53 (Egan). Thus, Petitioner's claim that his attorney conducted no independent investigation is contradicted by the record of the trial.
The second alleged error is Donnelly's failure to request a "Swiderski" instruction. In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit held that joint purchasers and possessors of a controlled substance, who intend to share the substance between themselves as users, may not be found guilty of possession with "intent to distribute", but only of the misdemeanor charge of simple possession. The Court held that the Government must prove the defendant's intent to distribute to someone other than one of the initial purchasers.
Petitioner contends that Donnelly was familiar with this law and that the facts justified such an instruction. Here again, however, Petitioner offers no evidence to support this contention. In any event, even if it is to be assumed that Donnelly was in fact familiar with this law, the failure to request a Swiderski instruction was not objectively unreasonable and would not have resulted in a different outcome at trial.
Swiderski is distinguishable from the instant case in that it applies to circumstances in which co-conspirators jointly and simultaneously acquire drugs. In the instant case, however, the record indicates that there were several instances where quantities of crack and cocaine were distributed by Petitioner and other co-conspirators to individuals who did not participate in the acquisition of the drugs. See, e.g. Trial Transcript at 173-176 (Witness William Morrison testified that when he went to the apartment of witness Kritzman, Petitioner and the others were already in possession of crack which they then shared with him), Trial Transcript at 384 (Andrea Rocke testified that on one occasion Petitioner shared his cocaine with her); and Trial Transcript at 274-279 (Linda Briggs testified that on one occasion she went to Kritzman's apartment where she was given crack by Petitioner and Kritzman). Thus, even if a Swiderski instruction had been given, the Government satisfied its burden of proving intent to distribute.
The third alleged error concerns Donnelly's summation at trial. Petitioner claims that "no rational defense counsel would close with allegations which are unsupported by the record and thereby open the door for a devastating rebuttal summation". (Petitioner's memorandum at p. 9). This allegation, however, can summarily be disposed of because even if the allegation is true, and assuming arguendo that Donnelly did close with allegations which were unsupported by the record, it is not probable that the result at trial would have been different. The jury was instructed that statements of counsel are not evidence and that it is the jury's recollection of the evidence which controls (Trial Transcript at 859); therefore, the second prong of the Strickland standard is not satisfied.
The fourth alleged trial error fails the second prong of Strickland as well. Petitioner asserts that "no rational defense counsel would stand by as the prosecutor characterizes the defendant as a professional witness. " (Petitioner's memorandum at p. 10). This phrase was used in the prosecutor's closing argument on a single occasion and Donnelly's failure to object does not constitute "ineffective assistance" under Strickland. As just mentioned, the jury was properly instructed as to the status of counsel's statements. Moreover, even if Donnelly did object to the characterization, in light of the overwhelming evidence aligned against Petitioner at trial, it is not probable that the result at trial would have been different. See U.S. v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992), cert. denied, 121 L. Ed. 2d 92, 113 S. Ct. 139 (1992) (citing Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir. 1990)) (it is a rare case in which improper comments in a prosecutor's summation are so prejudicial that a new trial is required).
Finally, as his fifth assertion of error Petitioner maintains that "no rational defense counsel would advise the defendant to withdraw his direct appeal in exchange for no consideration." (Petitioner's memorandum at p.10). This contention is clearly incorrect. The Respondent filed a notice of appeal from the court's decision to grant Petitioner's motion for a downward departure from the sentencing guidelines. If Petitioner's motion had not been granted, Petitioner faced a sentence of up to 63 months in prison. Petitioner was only sentenced to 24 months. Therefore, if Respondent succeeded on appeal, Petitioner potentially could have received a sentence more than twice as long as he was sentenced to serve.
Moreover, as Respondent notes, Petitioner had no significant issue from which to appeal his conviction. The trial of his case focused almost exclusively upon the credibility of the witnesses. Although the issue of witness credibility is appealable, where there are conflicts in the testimony, which there were in this case, the court "must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses." U.S. v. Leroy, 687 F.2d 610, 616 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 74 L. Ed. 2d 1019, 103 S. Ct. 823 (1983). Under these circumstances, attorney Donnelly's advice to Petitioner to withdraw his appeal in exchange for a withdrawal of the appeal by Respondent was reasonable as it was in return for consideration. Therefore, as to this assertion of error, the first prong of the Strickland standard is not satisfied.
For these reasons, the contention by Petitioner that his Sixth Amendment rights have been violated is without foundation. Petitioner has demonstrated "cause" as to his conflict of interest claim, but he has failed to demonstrate the existence of an actual conflict, and therefore prejudice. Petitioner has failed to demonstrate "cause" for his failure to raise the instant ineffective assistance of counsel claim; and alternatively, he has failed to demonstrate prejudice from the alleged trial errors. Therefore, it is hereby
ORDERED, that Petitioner's motion pursuant to 28 U.S.C. § 2255 is denied in its entirety.
July 28, 1993
Thomas J. McAvoy
Chief U.S. District Judge