The opinion of the court was delivered by: BLOCK
In 1990, petitioner Rajan Patiwana ("Patiwana") was convicted after trial by jury on one count of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (the "1990 convictions"). He had previously been convicted for these crimes in 1987, but the Second Circuit reversed and remanded for retrial. See United States v. Tussa, 816 F.2d 58 (2d Cir. 1987). Patiwana challenges the legality of his 1990 convictions in this habeas corpus proceeding pursuant to 28 U.S.C. § 2255. He claims that he was deprived of his Sixth Amendment right to effective assistance of counsel because his trial attorney, Jack Litman ("Litman"), labored under an actual conflict of interest and provided ineffective assistance of counsel by failing to move to dismiss the indictment under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. (the "Act"), notwithstanding the lapse of some thirty-seven months from the issuance of the mandate to his retrial.
This case has a lengthy procedural history, encompassing two jury trials, two appeals to the Second Circuit, the present collateral attack, and the energies of numerous federal judges and Assistant United States Attorneys over the course of eleven years. Patiwana was arrested for these crimes on March 13, 1985. Later that year, following a jury trial in the United States District Court for the Eastern District of New York before Judge Herbert N. Maletz,
Patiwana was convicted and sentenced to a twelve-year prison term (the "1985 convictions"). In its reversal, the Second Circuit held, inter alia, that the admission at trial of hearsay testimony of an informant's statement was improper and not harmless error. Tussa, 816 F.2d at 67. The Second Circuit's mandate was issued on June 3, 1987.
Despite the Act's prescription that a retrial must commence within seventy days, see 28 U.S.C. § 3161(e), Patiwana's retrial did not commence until July 9, 1990 -- approximately thirty-seven months later.
After a jury trial before Judge Joseph M. McLaughlin, Patiwana was again convicted on both counts and again appealed to the Second Circuit. In this appeal, he claimed, inter alia, that the delay between the Second Circuit's remand and the second trial violated his statutory right to a speedy trial. In an unpublished decision, the Second Circuit affirmed, holding in that respect that petitioner had waived the claim by not raising it prior to trial. United States v. Spatola, 935 F.2d 1277, slip op. at 2 (2d Cir. 1991); (Gov't Ltr.-Mem. dated October 31, 1995, Ex. 2) (hereafter "Gov't Ltr.-Mem.").
It is this same delay which is the gravamen of petitioner's habeas corpus petition.
Because of the extensive retrial delay, the Court held a hearing.
Based on the facts adduced at the hearing and the parties' written submissions, the Court concludes, after a searching analysis of the circumstances impacting upon Patiwana's statutory speedy trial rights in the context of his Sixth Amendment right to effective assistance of counsel, that his petition should be denied.
The delay in this case can be broken down into two broad categories: 1) an initial period in which Litman was largely unavailable for trial; and 2) a later period in which the government delayed the trial and defense counsel failed to object.
1. Period One -- Unavailability of Defense Counsel.
After consulting with Nathan Dershowitz, Patiwana's counsel for his first appeal, Patiwana hired Litman to represent him for his retrial. (Tr. II at 198-99.)
According to Patiwana, he stressed from the outset of his relationship with Litman that he wanted to be retried "as soon as possible" and that he did not like being "in limbo." (Tr. I at 59, 71.) According to Dershowitz, there were two reasons for this attitude: first, Patiwana "really wanted to be vindicated"; second, they both believed that a favorable disposition was more likely if it appeared that they were "pushing" to go to trial. (Tr. II at 198.)
Litman, however, was unable to proceed immediately because of commitments to other clients, most notably Robert Chambers, who he was defending in the highly publicized "preppie murder" case. (Tr. II at 143.) In fact, Litman was essentially unavailable from the date of the mandate through the Fall of 1988, a period of almost 15 months, during which he conducted the pretrial hearings in the Chambers case (May - July 1987), tried a case in federal court in New Jersey (August - October 1987), selected the jury in the Chambers case (mid-October 1987), tried the Chambers case (January - March 1988), and tried and retried a murder case in Brooklyn (Spring 1988, Fall 1988). (Tr. II at 144-46, 151-53.)
Although Litman acknowledged that Patiwana may have initially desired a quick retrial, his view was that Patiwana made a choice to forego expeditious retrial in order to have Litman available as his counsel. (Tr. II at 145, 170-71.)
On three occasions during this initial period, time was excluded by Judge Mark Costantino without any ends-of-justice analysis, a signed speedy trial waiver or record consent by Patiwana. (Gov't Ltr.-Mem., Ex. B) (July 22, 1987 to September 16, 1987) (Court agrees that it will exclude the time due to the appointment of new counsel for co-defendant); (Gov't Ltr.-Mem., Ex. C) (September 16, 1987 to November 4, 1987) (Court sets trial date for November because Litman unavailable; states only that "this is in the interest of justice"); (Gov't Ltr.-Mem., Ex. D) (November 4, 1987 to January 21, 1988) (Litman still unavailable; defense counsel represents that speedy trial is waived by everyone involved; Court says, "All right.").
2. Period Two -- The Government's Failure to Push Forward and the Defendant's Strategy of Delay.
The second period is characterized by a lackadaisical attitude by the government and a willingness by the defense during the middle-end of 1988 to acquiesce in continued delay. According to Russell Gioiella ("Gioiella"), Litman's law partner, as time passed the defense began to view delay as beneficial:
[Initially], we all just assumed [the case] was going to be tried soon, because that's generally what happens when there's a reversal. As time went on, and it became apparent that this was a case that you could delay, that's when we started to think: hey, this could be to [Patiwana's] benefit.
(Tr. II at 46.) Gioiella testified that he had several conversations with Patiwana
about the fact that it seemed to [Litman and Gioiella] that his ultimate goal could be helped by a delay, that the longer that he was out, living a law-abiding life with Maria [Brodsky], and basically staying out of trouble, the better chance he would have, ultimately, if he were convicted, to either get a lesser jail sentence and/or avoid deportation because the INS does have the discretion in those instances. They don't have to deport you.
And also, we were always hoping against hope that we'd be able to work something out with the Government where he could plead to something that would be a non-controlled substances violation.
(Tr. II at 18-19.) Litman similarly testified that he and Gioiella realized
at some point, the longer the case, after a certain period, was delayed, that the better off it may be for [Patiwana], because the track record he would show as an excellent human being, an extraordinarily good companion to Ms. Brodsky, an extraordinary surrogate father to two boys, would be taken into account either by a prosecutor resolving the case; by a judge in recommending, even though a federal judge didn't have the power; and by INS in just deciding to exercise its discretion not to seek deportation.
During this second period, it was clear to both Litman and Gioiella that the government was not intent on pushing the case to trial. For example, although the defendant filed a motion to dismiss on May 25, 1988, the government did not respond to the motion until July 18, 1989, more than a year later. (Tr. I at 37.) Gioiella testified that the Assistant United States Attorney ("AUSA") handling the case during that period, Ephraim Savin, continually requested extensions of time to respond to the motion and that the defense repeatedly assented to his requests:
I would tell Ephraim Savitt: if you don't want to respond, or you want more time, it's okay with me, but I have to get the response two months prior to the trial date . . . I didn't have any interest in that one way or the other, but he obviously didn't want to respond to it, so that was fine with us.
Ephraim was a very nice guy, but he wanted this case like a hole in the head. He just didn't want to push the case. He would tell me he's got this other trial going on, this other matter --
He wouldn't say to me that he didn't want the case. He would just say . . . he didn't have any interest in pushing the case, and he has a lot of other things to worry about, and he's got this other trial going and --
(Tr. II at 69-70.) The motion was denied by Judge Costantino from the bench on September 21, 1989.
At the appearance on November 27, 1989, Judge Costantino scheduled the case for a February 9, 1990 control date, with the expectation that the case would be tried in late February. (Gov't Ltr.-Mem., Ex. K at 2.) This was the last occasion that Judge Costantino presided over the case because he fell ill during January 1990 and was no longer sitting on the bench by February 9, 1990. (Tr. II at 180.) Defense counsel viewed this additional delay as yet another opportunity to protract the retrial of the case and, accordingly, made no effort to have the case reassigned to another judge. (Tr. II at 25.) Gioiella testified that when he was asked by the AUSA who had taken over the case from Savitt whether he wanted her to do anything about the case, he "basically said no." (Tr. II at 25.)
3. The Proceedings Before Judge McLaughlin.
The delay due to Judge Costantino's illness lasted from February 9 to May 17, 1990, when a status conference was held by Judge McLaughlin, to whom the case had been reassigned. At that time, the Court and the attorneys engaged in a discussion, during which the government on its own initiative raised the speedy trial issue:
[AUSA] LUGER: The only other matter, your Honor, was speedy trial.
THE COURT: I imagine there are some ...