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UNITED STATES

June 10, 1998

UNITED STATES OF AMERICA, Respondent. against VITTORIO AMUSO, Petitioner.


The opinion of the court was delivered by: NICKERSON

This Court sentenced petitioner on October 9, 1992 to life imprisonment, a fine, and a special assessment. The Court of Appeals for the Second Circuit affirmed on April 20, 1994. United States v. Amuso 21 F.3d 1251 (2d Cir.), cert. denied U.S. , 115 S. Ct. 126 (1994). The opinion by the Court of Appeals summarizes in some detail the evidence at trial. Id. at 1254-57.

 I

 The government says that the petition was not filed within time limits prescribed by 28 U.S.C. § 2255. The Antiterrorism and Effective Death Penalty Act of 1996 (the Act), Pub. L. No. 1034-132, 110 Stat. 1214, 120 (1996), amended 28 U.S.C. § 2255 to require that a habeas petition be filed no later than one year after the date on which a judgment of conviction becomes final. The Act became effective on April 24, 1996.

 Petitioner filed the application for habeas corpus on April 22, 1997, two days less than a year after the effective date of the Act.

 In Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997), the Court of Appeals said in dicta that in circumstances where a petitioner has had several years to contemplate bringing a habeas corpus petition, it saw "no need to accord a full year after the effective date of the Act." A petitioner must be accorded a "reasonable time" to file a petition, a standard not to be "applied with undue rigor." It is true that Amuso waited to file his petition for about a year and six months after the Supreme Court denied certiorari. But under the circumstances, the Court deems the petition filed within a reasonable time.

 II

 This Court, after being advised that Mr. Shargel had potential conflict of interest, held a hearing on March 20, 1992, two months before the trial, to satisfy the requirements set forth in United States v. Curcio, 680 F.2d 881 (2d Cir. 1982). Amuso, Mr. Shargel, the government attorneys, and later another defense attorney, Martin Geduldig, attended.

 Mr. Shargel opened the hearing by stating that he and the government had "discussed several potential conflicts of interest that Mr. Amuso is prepared to waive." He advised the Court that Mr. Geduldig was "an independent counsel", that his participation would "ameliorate some of these conflicts", but that, in any event, "even absent independent counsel, Mr. Amuso [had] been fully apprised," and Mr. Shargel had "discussed with him in detail all of these potential conflicts, and he is prepared to waive them."

 Assistant United States Attorney Gregory O'Connell described the "inventory of conflicts." Mr. Shargel (1) was personally a target "of a criminal tax and obstruction of justice investigation," (2) had "for quite some time, represented a co-defendant in the superseding indictment, namely, Anthony Casso," the Underboss of the Luchese crime family, who was "currently a fugitive," (3) was through his office representing Dennis DeLucia, who had been convicted in a earlier case in which Amuso had been indicted, (4) was representing Michael Vuolo, a potential witness in the case, (5) had represented Sammy Gravano, the Underboss of the Gambino Crime Family, who was then, with the advice of other counsel, cooperating with the government in the Gotti case, (6) through his office had represented Joseph Zito, formerly a co-defendant of Amuso, (7) had seen Peter Savino, a potential witness in the case, about a grand jury matter, and (8) had been approached by Barbara Amuso, Amuso's wife, and Lillian Casso, Casso's wife, who had been subpoenaed and had a "longstanding relationship" with Mr. Shargel.

 Mr. Shargel explained that he would represent Mrs. Amuso only if it would not exacerbate the conflict problem and that if the potential witnesses were called Mr. Geduldig would conduct the cross-examination. Mr. Shargel added that from what he had read in the transcript of the John Gotti trial then ongoing, Gravano had not waived his attorney client privilege. Mr. Shargel affirmed that he had made certain not to share any information he had learned from Gravano with Amuso or anyone on the trial team.

 Mr. O'Connell confirmed his understanding that Mr. Shargel would insure that Amuso had been properly advised and counseled as to the foregoing conflicts by having Mr. Geduldig, who posed no conflicts, review with Mr. Amuso each of the conflicts and "their ramifications."

 The Court then addressed a few preliminary remarks to Amuso and emphasized that Amuso should discuss the conflicts with Mr. Geduldig, and that he was entitled "to a lawyer that doesn't have any of the problems" that had been discussed. Amuso acknowledged that he understood.

 Later the same day, Amuso and Messrs. Shargel, Geduldig, O'Connell, as well as Mr. Alan Futerfas, an associate of Mr. Shargel, returned to the courtroom. Mr. Geduldig, who had an opportunity to talk to Amuso at length, reported that he and Amuso had discussed the three categories in which Mr. Shargel had a conflict or a potential conflict, namely, that (1) Mr. Shargel was under investigation, (2) several persons whom Mr. Shargel had represented were potential witnesses, and (3) several persons whom Mr. Shargel had represented were not potential witnesses but presented potential conflicts.

 Most prominent in the third category was Anthony Casso, the Underboss of the Luchese crime family. He had become a fugitive in company with Amuso, and was a co-defendant in the superseding indictment. Mr. ...


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