The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Defendant James Ventry was convicted of one count of witness tampering in violation of 18 U.S.C. § 1512(b)(1). After unsuccessfully appealing his conviction, the defendant moved to vacate his conviction asserting that trial counsel was ineffective because he suffered from an actual conflict of interest. This Court denied the motion to vacate. On appeal, the United States Court of Appeals for the Second Circuit found that the record did not support this Court's determination that no conflict existed. Accordingly, the Second Circuit remanded for an evidentiary hearing on the conflict issue.
An evidentiary hearing was held on June 30, 2009. Post-hearing briefs were filed and the matter was deemed submitted. For the reasons stated, the Court finds that Ventry has failed to show an actual conflict of interest that adversely affected counsel's performance. Accordingly, the motion to vacate is denied.
A. Basis for Ventry's Witness Tampering Conviction
On August 1, 1996, three masked intruders attempted a home invasion robbery at the Niagara Falls, New York residence of Michael Palmeri. Palmeri was a bookmaker, and during the attempted robbery the intruders exhibited a belief that he had a substantial amount of cash generated by his bookmaking activities hidden in the house. Upon entering the house, the intruders encountered Palmeri's wife, Colleen Palmeri, and proceeded to hold her at gunpoint for about 55 minutes while they demanded money from her and ransacked the house looking for the bookmaking proceeds they believed were there. Throughout the entire course of the attempted robbery, the Palmeri's five children were asleep in the house, four in the basement, and one in the upstairs bedroom. Eventually the robbers gave up and left empty-handed.
An investigation into the robbery led the government to suspect Ventry and two others, Wared Abdellatif and Robert Vitagliano. Ventry was called to testify before a federal grand jury on September 7, 2000. After his grand jury appearance, Ventry told his then-fianceee Christine Janik about his role in the robbery.
Janik was subsequently interviewed by Federal Bureau of Investigation ("FBI") Special Agent Robert Utz on February 5, 2001. Janik told Utz about Ventry's September 7, 2000 confession to his role in the robbery. Utz reduced this to a written statement, which Janik signed. After Utz left, Janik called Ventry to tell him that she had just spoken with the FBI and had told the agent the truth. Ventry immediately came to Janik's residence where he and Janik had a confrontation. Janik ended the confrontation by telling Ventry that she never wanted to see him again.
That night, Ventry called attorney Thomas Eoannou on his cell phone. As will be discussed in detail below, Ventry had not retained Eoannou or any attorney at that time.
On February 6, 2001, the day after speaking to Eoannou, Ventry sent Janik an e-mail that read as follows:
Chrissy, I just want you to know that I spoke to a lawyer last night and they said that if you made that statement under deress that they can not hold you to that and that's all you have to do is call Anthony Bruce who is the prosecutor and tell him that the statement was made under deress and that it is not true and that is what you will say if they make you tetsifie in front of a Grand Jury. You should get a lawyer to make the call but if you can't just call yourself. He said it is absolutely legal to do and they can not get you in any trouble for it no matter what they say. Anthony Bruce's number is 221-4811 ext. 886. They have not one bit of physical evidence or Bobby would be arrested for something other than threatening a witness. Also when and if you go to the Grand Jury you can remain silent after you change your statement. Listen I know you hate me but I am a very good person and I know you don't want me to go to jail. But I want you to know that if you do this that my lawyer will have to try and destroy your reputation and I will have to tell him everything [including private embarrassing information about you].*fn1 Now I know your thinking I hate this asshole but believe me I love you more than anything and it would break my heart to ever have to do something like that but I can not fo to jail for something I did not do. I'm really sorry for having to say those things to you, I know I've hurt you enough, but I will have no choice. I don't think you understand I can go jail for 13 years and when I get my life will be over. I will be 40 years old, no job, no chance of ever getting married or having kids. So please call him today, I know you were trying to protect me and yourself but its not to late that statement is not binding. Take care of yourself and again I am sorry for saying those things to you. Love always, james (spelling, grammatical errors and paragraph break as in original e-mail).
On February 16, 2001, an indictment was returned charging Ventry, Abdellatif and Vitigliano with conspiracy and attempted robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 and using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Additionally, the indictment charged Ventry with making false declarations before the grand jury, in violation of 18 U.S.C. § 1623; and tampering with a witness, in violation of 18 U.S.C. § 1512(b)(1).
The witness tampering charge was based upon Ventry's e-mail to Janik. It was the government's theory at trial that Ventry sent Janik the e-mail in order to coerce her to withdraw her statement to Agent Utz. Janik testified that if she had done so, she would have been lying because her statement to Agent Utz was the truth.
The defense theory was that Janik's statement to Utz was untrue, and that it was given under duress because Janik was worried she would be arrested if she did not give that statement. During trial, Ventry's attorney, Anthony Lana, got Janik to admit on cross-examination that she made her statement under duress and only after Agent Utz yelled and screamed at her and threatened to arrest her and charge her as an accomplice. She testified that she was scared and that she felt compelled to give Utz that statement. She also stated that Agent Utz provided some of details about the robbery that she included in her statement.
After eliciting that testimony, Lana argued to the jury in his closing that Janik's statement was untrue, that Ventry never confessed, and that Janik felt compelled to give that statement to Utz to save herself. Lana argued that in sending the e-mail, Ventry was merely trying to convince Janik to tell the truth. With regard to Ventry's threat to disclose Janik's personal secrets, Lana argued that Ventry, a non-lawyer, was merely speculating as to what he thought would happen at trial if she refused to do so.
Ventry was found guilty of the witness tampering charge, but acquitted on all charges. He was sentenced principally to 48 months in prison. ...