United States v. DeFalco

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ALDISERT, Circuit Judge,

with whom GIBBONS, JAMES HUNTER, III, WEIS and A. LEON HIGGINBOTHAM, Jr., Circuit Judges, join.

In Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970), we determined that the standard of competence mandated by the sixth amendment for counsel in criminal cases was “the exercise of the customary skill and knowledge which normally prevails at the time and place.” In this appeal from an order of the district court denying relief requested under 28 U.S.C. § 2255 without an evidentiary hearing, the major question presented is whether that standard can be properly vindicated when counsel, while representing appellant on a direct criminal appeal, was himself under indictment and had entered into a plea bargain, during the pendency of the appeal, in the same federal district court from which the appeal was taken. We hold that it cannot.

Appellant Albert DeFalco had been convicted in the United States District Court of New Jersey of conspiracy under 18 U.S.C. § 371 and of three counts of falsely impersonating a federal official under 18 U.S.C. § 912. The charges alleged that DeFalco had illegally represented himself to be a spokesman for Congressman Henry Helstoski. He was sentenced on December 8,1975 by Judge Frederick B. Lacey and thereafter filed a notice of appeal to this court at No. 76-1028. Subsequently, on January 8,1976, he retained Vincent L. Verdiramo, Jr., to represent his appeal. Briefs were filed and the matter was listed for disposition without oral argument on October 6,1976. The judgment of conviction was affirmed on October 8, 1976. United States v. DeFalco, 546 F.2d 419 (3d Cir. 1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977).

At the time appellant retained Mr. Verdi-ramo, the attorney had already been indicted three times by a grand jury of the United States District Court of New Jersey.¹ After filing appellant’s brief, Mr. Verdiramo was indicted at No. 76-201 — 4 on June 2, 1976. One of the other defendants charged in this indictment was Congressman Helstoski.

Verdiramo entered a plea of not guilty before Judge Lacey at indictment No. 74-313 on August 23, 1974. His motion for assignment of a judge from outside New Jersey was filed on September 13,1974, and was denied by Judge Lacey on October 29, 1974. He requested from Judge Lacey a bill of particulars and was granted some relief. Judge Lacey denied Verdiramo’s reasserted motions for discovery and for a judge from another district on November 19,1974, and released certain property from Verdiramo’s recognizance bond on January 30, 1974. The case was transferred to Judge H. Curtis Meanor on April 21, 1975. Following his indictment at No. 76-201-4, on June 2, 1976, Verdiramo again filed a motion to recuse the trial court; on September 8, 1976, this, case was also transferred to Judge Meanor by order of Chief Judge George H. Barlow.

Before DeFalco’s appeal was decided by this court, Mr. Verdiramo consummated a plea bargain with the United States Attorney for the District of New Jersey and on September 28, 1976, his guilty plea at No. 76-201 — 4 was entered before Judge Mea-nor. The reception of Verdiramo’s guilty plea was interrupted in order to advise Judge Lacey of the assignment of Verdira-mo’s case to another judge. Judge Lacey appeared at the Verdiramo plea reception and gave his consent to the transfer of the Verdiramo case to another judge after being advised of the specifics of the Verdira-mo plea bargain.²

During the Rule 11 inquiry, the sentencing judge informed Verdiramo that if the plea were accepted

it will be my duty ... to suspend you immediately from the further practice of law before this court . [T]his plea places you in jeopardy of disbarment both from this Court and before the New Jersey courts, and perhaps before any other court to which you are admitted to practice.

Appendix at 163-64. On the same date, September 28, 1976, Judge Meanor entered an order suspending Verdiramo “from further practice of law in the United States District Court for the District of New Jersey.” (Docket entry October 4,1976, Indictment No. 76-201-4). Thus, while DeFalco’s appeal was still pending in this court, eight days before the scheduled date of disposition of his appeal, his attorney had entered into a plea bargain, had pleaded guilty, and had been suspended from practicing law in the United States District Court at the District of New Jersey.

In an affidavit filed in this court at No. 76-1028, Mr. DeFalco stated:

1. I am the appellant in the instant matter. On the 8th day of December 1975,1 was convicted in the United States District Court for the District of New Jersey, of a violation of law and received a sentence of six years.

2. Thereafter, and on the 8th day of January 1976, I retained VINCENT L. VERDIRAMO, ESQ., a member of the bar of the State of New Jersey, to represent me in the appeal to this Court. At no time during any of the ensuing months was I aware of the fact that Mr. Verdiramo had committed any actions which would disqualify him from the practice of law, or in representing me in connection with this appeal.

3. In fact, prior thereto, and subsequent thereto, Mr. Verdiramo had committed actions and participated in actions which resulted in his indictment by a Federal grand jury. Although I learned of Mr. Verdiramo’s indictment in alleging a conspiracy to commit perjury and to obstruct justice, he informed me that the allegations were worthless, and that he would be vindicated at trial, and that the matter would not prevent him from representing me fully on my appeal. He assured me that he would prosecute the appeal vigorously, and he was confident that my conviction would be reversed. I was therefore astounded to read in the public press on September 30, 1976 that Mr. Verdiramo had pleaded guilty to one indictment, and that there were, in fact, other indictments against him which would not be prosecuted as a result of his dealings with the government.

Appendix at 166-67.

The present appeal arises from the denial of DeFalco’s claim to vacate his sentence pursuant to 28 U.S.C. § 2255 because of ineffective assistance of counsel on his direct appeal.³ He argues that adequate representation under the sixth amendment is denied “if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents — as a vigorous advocate having the single aim of acquittal by all means fair and honorable — are hobbled or fettered or restrained by commitments to others.” Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962). He enhances his position by delineating certain arguments which he contends an aggressive appellate lawyer would have urged upon this court on the direct appeal. The district court, after examining Verdiramo’s appellate brief, determined that Verdiramo’s representation satisfied the standard of “customary skill” established in Moore. It therefore concluded that DeFalco’s allegations concerning the impact of Verdiramo’s indictment were insufficient, as a matter of law, to establish a violation of the sixth amendment. The district court appears to have reasoned that in the absence of a showing of actual prejudice, no relief was available under the Moore standard.⁴

It is true that when an appellant’s claim is based on simple incompetence, this court has generally required him to show both a breach of the Moore standard and specific prejudice resulting from that breach. Moore, 432 F.2d at 737; accord, United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir. 1970). In cases in which the defendant’s attorney jointly represented another codefendant, however, we have allowed relief upon a showing of “a possible conflict of interest or prejudice, however remote . . . .” United States ex rel. Hart v. Davenport, 478 F.2d 203, 210 (3d Cir. 1973); Walker v. United States, 422 F.2d 374, 375 (3d Cir.), cert. denied, 399 U.S. 915, 90 S.Ct. 2219, 26 L.Ed.2d 573 (1970). This stricter standard is based upon the recognition that, in cases involving a conflict of interest, it is often difficult or impossible to determine whether the defendant has actually been prejudiced by improper representation. Holloway v. Arkansas, 435 U.S. 475, 490-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). In describing the problem at the trial level, the Court, speaking through Chief Justice Burger, has explained that

a rule requiring a defendant to show that a conflict of interests . . . prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. . . . [T]he evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing . . . . It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client.

Id. at 490-91, 98 S.Ct. at 1182. Moreover, apparently legitimate decisions are rendered suspect if made by counsel with conflicting loyalties “because a reviewing court cannot reliably determine to what extent the decisions were based on legitimate tactical considerations and to what extent they were the result of impermissible consideration[s] . . . .” United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 520 (3d Cir. 1979), cert. granted, 444 U.S. 823, 100 S.Ct. 44, 62 L.Ed.2d 30 (1979). To avoid the appearance as well as the fact of impropriety in the adversary system, doubtful cases are resolved in favor of the defendant.

It is for this reason that in representation cases we have emphasized not proof of prejudice, but possibility oí prejudice. Thus, speaking through Judge Rosenn, in the context of joint representation, we have said: “The possibility of prejudice lies in the reality of trial practice — a given course of action may be advantageous to one defendant but not the other.” United States v. Dolan, 570 F.2d 1177, 1180 n.4 (3d Cir. 1978). Judge Rosenn explained:

To protect the interests of criminal defendants enmeshed in the midst of our adversarial system of justice, the Sixth Amendment of the United States Constitution guarantees each defendant the “assistance of counsel for his defense.” This guarantee “contemplates that such assistance be untrammeled and unimpaired,” Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942). Representation of co-defendants by one attorney, when it is possible to discern a prejudicial conflict of interest arising therefrom, is no longer “untrammeled and unimpaired” and will constitute a constitutionally defective denial of effective counsel. Walker v. United States, 422 F.2d 374 (3d Cir.), cert. denied, 399 U.S. 915, 90 S.Ct. 2219, 26 L.Ed.2d 573 (1970).

Id. at 1180 (footnotes omitted).

The issue before us, then, is whether appellant can establish a legally sufficient risk of prejudice or conflict of interest under Hart to obtain a new appeal by demonstrating that his appellate counsel, unbeknownst to appellant, is under indictment, participating in plea negotiations, and entering a guilty plea for himself in the same court and with the tangential involvement of the sentencing judge from which his client’s appeal is prosecuted. We conclude that he can.

The adversary system of the common law, as distinguished from the inquisitorial system of the civil law, is regarded in the Anglo-American tradition as the surest method of arriving at the truth when facts are disputed, and for discerning the proper legal precepts to be applied to those facts. These goals are to be achieved by the healthy and forceful presentation of partisan viewpoints. Although the ultimate decision is always the responsibility of the jury and the judge, our system can prosper only when lawyers, as officers of the court, are able to develop the fullest dimensions of „ the cause being heard. “[The lawyer’s] principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation.” Ferri v. Ackerman, 444 U.S. 193, 204, 100 S.Ct. 402, 409, 62 L.Ed.2d 355 (1979). If there is any constraint on counsel’s complete and exuberant presentation, our system will fail because the basic ingredient of the adversary system will be missing. The essence of the system is that there be professional antagonists in the legal forum, dynamic disputants prepared to do combat for the purpose of aiding the court in its quest to do justice. Therefore, if any circumstance impedes the unqualified participation by an attorney, the adjudicatory function is inhibited, ultimately threatening the object of that function, justice in the cause at hand.

Appellate courts under the Anglo-American tradition most often entertain assertions of legal error, and a direct appeal usually involves a contention that the trial judge has erred in the choice, interpretation, or application of a legal precept. Although allegations of error in a criminal case are directed at the trial court, they are, more often than not, presented in terms that the error was caused or importuned by the government. Thus, the substance of a criminal appeal usually consists of complaints against both the trial court and the government. For there to be the minimal level of attorney competence on the prosecution of an appeal, counsel must be totally unshackled in his presentation to the appellate court. It is essential that the advocate owe no fealty that conflicts, or even appears to conflict, with the paramount ethical loyalty he owes his client. The competent advocate must stand tall before the appellate tribunal and assert his client’s contentions without fear or favor. This is not the posture a defendant in a criminal case assumes as he goes, hat in hand, to negotiate a plea bargain with his adversary. Nor is it the posture a defendant assumes as he appears before the trial court following a plea of guilty to beg the mercy of the court before sentence is pronounced. The cooperative nature of the plea bargaining process involves compromise of positions by both the accused and the government, positions that would have been ardently asserted or defended in a purely adversarial setting. A plea bargain itself is the product of delicate negotiation conducted in an atmosphere of cooperation and give and take.

We conclude that inherent emotional and psychological barriers created an impermissible potential of preventing appellate counsel from competing vigorously with the government. The totality of the circumstances presented here, including the facts that DeFalco’s appeal emanated from the same district court in which his attorney was indicted, that three of his attorney’s indictments were processed, prior to the striking of the plea bargain, before the same district judge who presided over De-Falco’s trial, that the same United States Attorney’s office prosecuted DeFalco and his lawyer, and that Verdiramo entered into plea bargaining during the pendency of De-Falco’s appeal with the same United States Attorney’s office that constituted his adversary on appeal, presents, under the rule of Hart, “a possible conflict of interest or prejudice, however remote.”⁵ We are persuaded that, even without proof of actual conflict of interest, legitimate decisions of counsel were rendered suspect because of the potential for conflicting loyalties to himself and to his client and because, as we have heretofore observed, a reviewing court cannot reliably determine to what extent the decisions were based on legitimate tactical considerations and to what extent they were the result of impermissible considerations. We therefore hold as a matter of law that the standard of normal professional competence cannot have been achieved by appellant’s counsel. -

Thus DeFalco’s allegations, if proven, would constitute a deprivation of effective assistance of counsel on appeal, entitling him to a direct appeal de novo. On this record, however, that remedy would be premature. For although the government has conceded the facts of Verdiramo’s indictment, it has not admitted that DeFalco was unaware that his attorney had been indicted. The possibility therefore remains that in a factual hearing the government may be able to show a knowing and deliberate waiver by DeFalco of his right to effective assistance of counsel. On remand, unless the government can show such a waiver, a new direct appeal will be ordered on application to this court for vacation of our judgment of October 8, 1976 at No. 76-1028. Because this contention is based on a constitutional deprivation, § 2255 is the proper vehicle for relief. United States v. Addonizio, 442 U.S. 178, 190, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).

We decline to meet the bulk of appellant’s remaining contentions relating to trial error in view of the likelihood that on remand he may establish a right to a direct appeal de novo, nunc pro tunc. In the event the district court concludes that he waived his sixth amendment right and is precluded from reprosecuting his direct appeal, he will of course be entitled to an appeal from final judgment in this § 2255 collateral proceeding.

We do, however, meet and reject appellant’s contention that the trial judge should have recused himself. Measuring the stated allegation and the record before us in this appeal against the precepts announced in United States v. Thompson, 483 F.2d 527 (3d Cir. 1973), and Mayberry v. Maroney, 558 F.2d 1159 (3d Cir. 1977), we conclude that the trial judge did not misuse his discretion in refusing to disqualify himself.

The judgment of the district court will be reversed, and the case remanded for proceedings in accordance with this opinion.

1 . Indictment No. 74-313 had been returned against Verdiramo on August 6, 1974, charging violations of 18 U.S.C. §§ 371, 1503, and 2512. A second indictment had been returned against him May 15, 1975 at No. 75-221 and was dismissed by Judge Lacey on December 17, 1975. A third indictment was returned December 4, 1975 at No. 75-521-1 charging him with, inter alia, mail fraud under 18 U.S.C. § 1341.

2 . See Verdiramo Rule 11 transcript 4-5.

Judge Lacey, in addition to presiding at No. 74-313, had also been assigned the Verdiramo indictment at No. 75-521-1 at which Verdira-mo had entered a plea of not guilty on December 12, 1975. The judge had presided over a multitude of motions and hearings and entered orders on this particular indictment on January 26, 1976, January 30, 1976, April 20, 1976, May 20, 1976, May 26, 1976, May 28, 1976, June 1, •1976, June 2, 1976, September 23, 1976, and September 24, 1976. Indictment No. 75-521-1 apparently was dismissed as against Verdiramo as a result of the plea bargain at No. 76-201-4 consummated on September 28, 1976. Indictment No. 74-313 was also eventually dismissed on September 21, 1977.

3 . DeFalco moved for other relief in his § 2255 motion including, inter alia, disqualification of the trial judge, as well as a new trial based on allegations of newly discovered evidence and failure of the government to disclose certain materials as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

4 . The litigants before us do not challenge the relevance of the sixth amendment to the contentions presented in this appeal. This appeal implicates a criminal prosecution by the federal government. The sixth amendment provides explicitly: “In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.”

5 . It is elementary law that all these facts are essential ingredients in the rule we suggest today. A legal rule is a legal precept attaching a definite detailed legal consequence to a definite detailed state of facts. Addonizio v. United States, 573 F.2d 147, 151 (3d Cir. 1978), rev’d on other grounds, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Judge Garth’s insistence, in which Judge Sloviter concurs, that our conclusion is predicated solely on the indictment of Verdiramo requires us to state what we consider to be obvious: This is not a case of mere indictment of a lawyer; it is indictment plus plea bargaining plus entry of a plea of guilty. The presumption of innocence no longer applies after a defendant in a criminal proceeding enters a plea of guilty. The law plucks the cloak of innocence from the shoulders of a pleader — whether a layperson or lawyer — as soon as he admits guilt. Thus, the rule we announce today offends neither the presumption of innocence generally, nor the presumption of innocence that applies to a lawyer who, though indicted, has not been adjudged, nor pleaded, guilty.

Judge Weis would go even further in responding to the presumption of innocence argument in the dissenting opinions. He notes that the court has previously suggested that the presumption of innocence does not serve as the source for the substantive rights of pretrial detainees. “Rather, the presumption allocates the burden of proof. It is a principle of evidence, 9 J. Wigmore, Evidence § 2511 (3d ed. 1940), acting as the foundation for the procedural due process requirement of proof beyond a reasonable doubt.” Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1080 n.1 (3d Cir. 1976) (citations omitted).