The opinion of the court was delivered by: GOETTEL
Peter Paese ("Petitioner" or "Paese") in this 28 U.S.C. § 2255 petition seeks to have his conviction (by plea of guilty) set aside with respect to one count, to have his sentence reduced by five years, and other related relief.
The government opposes the petition, arguing that it should be dismissed as an abuse of the Writ since the issues should have been raised earlier. The government also argues that, to the extent Petitioner is alleging ineffective assistance of counsel, there clearly was none. Finally, the government contends that there is no merit to the grounds asserted for setting aside the conviction count in question. The first two issues can be better understood by first discussing the third issue.
Petitioner was a member of a gang (which included a Lieutenant in the Orange County Sheriff's Department) which committed several bank robberies in Westchester County. When the fourth robbery was committed, the government, acting upon a tip from a confidential source, was waiting for the robbers and arrested the entire gang after they left the bank.
Although Petitioner was involved in all four robberies, he was indicted only on the last two. In March of 1993, he pled guilty as part of a plea agreement to two counts of armed bank robbery, two counts of conspiracy in connection with these robberies, and one count of aiding and abetting the use or carrying of a weapon during the last bank robbery. In both of the bank robberies to which he pled guilty, Petitioner drove his car, a Lincoln, while other cars were driven by other members of the gang. (Bank robbers often use more than one car so that they can switch cars and avoid detection while escaping.) Although Petitioner attempts to minimize his role in these two robberies, he had, particularly in the last robbery, a much more important assignment.
At the first of the two robberies to which he pled guilty, the robbery of Barclays Bank in Eastchester, New York, on July 29, 1992, the seven robbers met first and then drove in two cars, one of which went to the bank. Paese and Thomas Corton, Jr. ("Corton") parked near the bank awaiting the others. Two of the robbers entered the bank, one stationing himself at the counter and producing a firearm. The other robber, carrying an attache case and displaying a gun, went to the manager's desk and told him that his attache case contained dynamite. He then handcuffed the case to the wrist of a teller and directed the bank manager and teller to give them money. Threats were made to the bank employees concerning their safety if they attempted to resist. The attache case handcuffed to the teller was partially opened to reveal three purple sticks and a transistor with wiring, and one of the robbers advised the bank employees that he had a remote control to operate the device. (The purported bomb was a fake, but it resembled real explosives.) The robbers compelled the bank employees to open the vault and then fled with almost $ 83,000. A third confederate drove the two to where Paese and Corton were located. The entire gang later shared the proceeds of the robbery, none of which was recovered.
The next robbery, at the Bank of New York in White Plains on December 23, 1992, followed somewhat the same pattern but with an important new role for Petitioner. After a joint meeting, the seven drove to the bank in three separate vehicles. Petitioner parked his 1989 Lincoln near the bank. He was accompanied by Corton. Petitioner then walked to a public telephone. One of the robbers went into the bank and approached the bank manager on the ruse of opening a business account. While they were talking, his telephone rang. Petitioner, the caller, inquired about the presence of the other robber across from the bank manager and then read the following message to him from a note he had in his possession:
MR. RICHIE PAY ATTENTION AND DON'T HANG UP. THE MAN SITTING AT YOUR DESK IS ARMED WITH 7 STICKS OF DYNAMITE AND A REMOTE CONTROL DETONATOR. WE HAVE ANOTHER EXPLOSIVE DEVICE AT YOUR HOUSE ON 258 ROMBOUTS AVENUE WAITING FOR YOUR WIFE, SON AND DAUGHTER. DO NOT HIT ANY ALARMS AS WE ARE MONITORING ALL SILENT ALARMS AND POLICE CALLS IN THE AREA. WE WILL NOT HESITATE TO KILL EVERYONE. ESCORT HIM TO THE VAULT AND GIVE HIM ALL THE MONEY. WE KNOW HOW THE SAFE OPERATES, THERE IS NO WAITING PERIOD. DO IT NOW OR EVERYBODY AND YOUR FAMILY WILL DIE.
At the same time, the other robber passed the bank manager a note with his home address printed on it and told him that if he did not open the vault, he would kill him. Indeed, he put a gun to the bank manager's head. The vault could not be opened because it was on a time lock. Consequently, the robbers had to satisfy themselves with some $ 76,000 from the tellers' drawers.
All of the robbers were then apprehended, albeit two led the FBI on a high-speed chase throughout the area and one fled on foot and had to be chased. Petitioner and Corton were apprehended nearby and Corton was found to be in possession of a loaded 45 caliber handgun. The FBI found in Petitioner's possession a piece of paper with the message that he had read to the bank manager over the telephone. The paper also had the bank's telephone number written on it.
As noted above, Petitioner, through his counsel, negotiated a plea agreement in which he pled guilty to certain offenses in exchange for the government dropping other charges. Most pertinent was that, in addition to a Title 18, Section 924(c) gun charge as to the last robbery, there was a similar charge lodged with respect to the earlier robbery. Because of the manner in which the statute is drafted, it would have required, in addition to the mandatory minimum additional five years on one gun charge, an additional 20 years mandatory for the second gun charge. In allocating to his guilt with respect to the gun charge on the last robbery, Petitioner at first hedged about his knowledge that his confederate was armed, saying first that he saw the gun after they were arrested. The Court specifically asked him, "you didn't know in advance that Mr. Corton was going to be armed? " Petitioner responded, "he told me he had a gun, yes." The government indicated that it could also prove that Petitioner was aware that the robber who entered the bank and used his gun so viciously was armed. The Court later sentenced Petitioner to 70 months on the two bank robberies (which was 17 months less than the pre-sentence report recommended), to be followed by the mandatory consecutive five years on the gun count.
In his Memorandum of Law submitted in opposition to that of the government, Petitioner now argues that Corton did not tell him he was armed "until seconds before the arrest," id. at pg. 4, and that the total time period of his knowledge consisted of no more than two minutes before arrest. Petitioner also submits one-sentence affidavits prepared three years ago from Corton and another robber, who entered the bank and used the gun, that Petitioner "had no knowledge that I was in possession of a firearm on December 23, 1992 or any time in the commission of any crime." We give no credence to these affidavits. The statements were obviously designed to assist Petitioner without in any way hurting the affiants. Neither of them are honest or believable persons. More important, they cannot testify to knowledge in the mind of the Petitioner.
In his petition, Paese attempts to minimize his involvement in the last bank robbery, saying that he was not even at the scene of the crime. His role, however, was not minimal. The telephone call which he made from the nearby telephone booth in which he threatened to kill both the bank manager and the bank manager's family was a very serious crime for which he could have been separately indicted. In addition, the telephone call was an essential part of the threats being made to obtain money from the bank.
That this petition has any merit whatsoever is due to the fact that there have been changes in the case law concerning gun charges since the time of the plea and sentence. The law at that time was to the effect that a defendant aids and abets a violation of section 924(c) if there is a planned crime of violence and he has knowledge that a firearm will be used, regardless of whether the defendant carried a gun or facilitated or encouraged the use of a firearm in relation to the underlying crime. United States v. Medina, 32 F.3d 40, 46 (2d Cir. 1994). However, in the unusual circumstances of that case, the Second Circuit held that the evidence did not support a conviction for aiding and abetting the use or carrying of a firearm. The Court reasoned that Medina had devised the plan to rob his former employer but, since he feared he would be recognized if he were present during the crime, he recruited another person (Lopez) to carry out the plan. Lopez, in turn, recruited two more confederates. Before the day of the planned robbery, Lopez agreed to act as an informant and betrayed the plot to the police. On the day of the planned robbery, Medina gave a gun to Lopez but he promptly turned it over to the police. When Lopez took the other confederates to the site of the planned crime, they were armed with guns of their own, but Lopez was not. They were arrested outside the premises. Consequently, the Second Circuit noted that although Medina had furnished a gun, it was not used during the attempted robbery, his plan did not entail that the gun would be ...