The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Vincent DeMartino, a "made member" of the Colombo Organized Crime Family of La Cosa Nostra (the "Colombo Family" or "the Family"), was tried before a jury in this district and found guilty of conspiring to murder Joseph Campanella, a "soldier" of the same Colombo Family, assaulting him with a dangerous weapon, and using a firearm in connection with the attempted murder. DeMartino, sentenced to 300 months of incarceration, now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed on him. For the reasons set forth below, petitioner's application is denied.
Beginning on April 26, 2004, DeMartino and co-defendant Giovanni Floridia, an "associate" of the Colombo Family, stood trial for the unsuccessful assassination attempt made against Campanella. The Honorable Raymond J. Dearie, now Chief Judge, presided.
I. DeMartino's Representation
DeMartino initially retained George Santangelo, Esq. to represent him in this case. By letter to the court dated September 3, 2003, the government informed the court and petitioner that it was possible the government would call Santangelo as a fact witness to testify about phone calls Santangelo received on the night of the attempted assassination from a cellular telephone the government sought to prove belonged to petitioner. The government argued that, at the very least, Santangelo had a potential conflict of interest, and it requested a hearing pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982). The government suggested that such a hearing, coupled with a stipulation on the facts the government sought to establish through Santangelo's testimony, would resolve any problems posed by the potential conflict, and would prevent the potential conflict from ripening into an actual conflict. Defendant and Santangelo refused to consent to any stipulation, offering only that Santangelo would make a proffer in camera demonstrating "that the inferences which the government seeks to draw by calling [him] as [a] witness are false." Gov't Supp. Opp'n (Docket Entry ("D.E.") 40) Ex. A at 3-4. After a lengthy colloquy, Judge Dearie agreed to consider counsel's proposal. At a subsequent status conference, Judge Dearie rejected Santangelo's proposed procedure, finding that the in camera proceeding would be "beside the point" and "would serve no purpose." Id. Ex B at 3-4. The judge noted that the choice rested with petitioner-he could agree to a stipulation or retain a new lawyer, since Santangelo would "be disqualified absent some other alternative." Id. at 4. Because no stipulation could be agreed upon, Santangelo was disqualified on the basis of an actual conflict of interest.
After Santangelo's disqualification, DeMartino retained James LaRossa, Esq., an experienced defense attorney in the New York area, to represent him at trial. LaRossa had previously represented William Cutolo, Sr., the then-acting underboss of the Colombo Family,*fn1 in a 1994 racketeering murder conspiracy trial held in the Eastern District of New York before Judge Eugene Nickerson, United States v. Cutolo, No. 93-CR-1230, in which DeMartino was a co-defendant.
On November 14, 2003, when LaRossa first appeared as DeMartino's attorney in this case, the government noted in the presence of petitioner and on the record the fact of LaRossa's prior representation of Cutolo, Sr. The government stated at the time:
Mr. LaRossa previously represented in a trial in this Court back in '93 or so William Cutulo [sic.] who was a captain in the Colombo Family who disappeared on May 26, 1999, has been presumed dead since then, and so he obviously had a previous relationship with someone who is going to figure in the testimony of some of the cooperating witnesses in this trial. I don't think there's a conflict as long as Mr. DeMartino understands that any confidence that Mr. LaRossa had in that representation he couldn't share with him and that type of thing but I don't think it is anything that is not waivable.
Gov't App'x at 68 (Transcript of Status Conference (11/13/2003)). LaRossa stated immediately that DeMartino was prepared for a hearing pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982),at any time. The court responded that "it would be prudent given our earlier discussion that [the court] take Mr. DeMartino through the first stage of a Curcio hearing." Id. at 77.
In a subsequent status conference held on January 9, 2004, the parties and the court again discussed the issue of LaRossa's prior representation of Cutolo, Sr.*fn2 Upon the court's inquiry, LaRossa confirmed that he had discussed the issue with DeMartino who "is aware of it and [has no] problem complying with the Curcio hearing." He also noted that: in that Cutolo trial... and I guess I was considered lead counsel in that case,... Mr. DeMartino was good friend in that case. He sat and participated in what was probably three and half months, if my recollection is current, and the jury acquitted the defendants of that case.
So the answer is yes, he is aware of it and I don't think he has any problem complying with the Curcio hearing.
Id. at 80-81. The court again indicated that it would go through the initial stage of the Curcio hearing with DeMartino, though the proceeding ended without it. Id. at 80-81. The trial court did not hold a formal Curcio hearing at any time thereafter.
II. Government's Case in Chief
The government's case consisted of two general categories of evidence: evidence establishing both defendants' participation in the assassination attempt against Campanella and evidence demonstrating that one of the motives for the defendants' criminal actions was to maintain or increase their positions in the Colombo Family.
A. Evidence as to Defendants' Participation in the Shooting
The evidence, taken in the light most favorable to the government, proved that, on July 16, 2001, Floridia was the driver of the green minivan that approached Campanella as he was opening his own car and that DeMartino, the passenger, fired four or five shots with a handgun at him before speeding away from the scene of the incident. In establishing its case, the government presented testimony of the victim himself, Joseph Campanella, who was a cooperating witness, eyewitnesses who were otherwise uninvolved with the government and the case, and law enforcement officers, along with corroborating documentary evidence, including telephone records, recordings, and photographs. Campanella testified that he recognized both defendants as they approached him on the date of the incident. Civilian eyewitnesses and a law enforcement officer corroborated the events of that day, as testified to by Campanella, and further testified as to identifying descriptions of the defendants' appearance and the getaway car. The documentary evidence included numerous telephone records from a cellular phone, established as DeMartino's secret line (the "Scott phone"), which was retrieved from the minivan identified as the getaway car and belonging to Floridia. These records showed that Floridia made several calls from payphones to DeMartino during times and dates that Campanella was present near the eventual scene of the assassination attempt. The records also showed several calls to other Colombo Family members and to several criminal defense attorneys after the shooting.
B. Evidence as to Defendants' Motive for the Shooting
The government also introduced evidence of the defendants' motive for engaging in the assassination attempt, pursuant to 18 U.S.C. § 1959.*fn3 The government began its case with the testimony of Campanella, who explained at length the history, rules, and structure of the Colombo Family. In addition to elucidating the requirements to become a "made member" of the Family and describing the Family's induction ceremony, Campanella indicated that the Colombo Family is generally comprised of, in decreasing order of prestige and power, a boss, an underboss, a consiglieri, captains, soldiers, and associates. Campanella described the rules governing the conduct of made members, specifying that made members of the Family are not permitted to kill other made members without permission from Family leadership. If a made member kills or attempts to kill another made member without permission, the former is "supposed to get killed." Tr. 573. Campanella also testified that Family rules bar sleeping with another member's wife, "hitting on other friends of the [F]amily," and disallow made members from "doing nothing that the captain doesn't know about." Tr. 599.
Campanella's testimony included several facts from which the jury could infer that the Family leaders had approved a request to kill Campanella. These included: Campanella's unwillingness to participate in a plan to kill the then-underboss of the Family; the hatred Campanella's superior, John "Jackie" DeRoss, felt for Campanella; a recording in which DeRoss is heard expressing ire about Campanella; and Campanella's pending indictment in 2001, of which other Family members were aware. Campanella also testified that, as far as he knew, no one in the Colombo Family had investigated his shooting, tried to find out who shot him, or sought revenge against the perpetrator(s), as Family rules would require for an unauthorized assassination attempt.
C. Evidence as to Campanella's and DeMartino's Relationship
Campanella testified about the history of his relationship with DeMartino, whom Campanella identified as a "made member" of the Family since 1991 or 1992. Campanella stated that he and petitioner were friends growing up and grew closer in the 1980s, when DeMartino was incarcerated and Campanella helped DeMartino's wife obtain money from the Family, and helped her care for the DeMartinos' daughter. Campanella also described a complaint DeMartino lodged against Campanella with the Family leadership in 1993 or 1994, alleging that Campanella had slept with DeMartino's wife while DeMartino was in prison. The Family leadership believed Campanella's representation that there had been no affair, and the matter was dropped. Campanella stated that he ...