The opinion of the court was delivered by: DITTER
Relator, Ronald Turchi, was convicted of conspiracy, racketeering and mail fraud arising out of the arson of three buildings. He has brought this habeas corpus petition pursuant to 28 U.S.C. § 2255 alleging various violations of his rights under the fifth and sixth amendments. Reading the issues raised in relator's petition together with those raised in his subsequently filed memorandum of law, and construing them generously, relator presents claims under four distinct legal theories: counsel's conflict of interest, counsel's incompetence, violation of fundamental fairness, and the government's Brady violation.
I referred this petition to a magistrate who conducted an evidentiary hearing and recommended that the habeas petition be granted on the basis that relator was deprived of his sixth amendment right to effective counsel as a result of his counsel's conflicting interests. After carefully reviewing the trial record, my files,
the transcript of the magistrate's evidentiary hearing, the parties' motions and memoranda of law, the magistrate's report and recommendation, and the parties' objections thereto, I must respectfully disagree with his conclusion. The magistrate rejected the relator's fifth amendment Brady claim. As no objections have been raised to this determination, I will not consider it here. I have considered the relator's remaining fifth and sixth amendment claims and conclude that they are also meritless.
Turchi asserts three separate conflicts of interest based upon three different factual situations, each pertaining to a professional relationship his counsel had with other counsel or clients. In order to establish a conflict of interest violative of the sixth amendment, relator must prove each of the following elements. First, he must show multiple representation which means that his counsel actively represented conflicting interests. Second, he must show that the representation of conflicting interests created an actual conflict of interest. An actual conflict of interest exists if, during the course of the representation, the conflicting interests diverge with respect to a material factual or legal issue or to a course of action. Third, he must show that the actual conflict adversely affected his counsel's performance, that is, the conflict must cause some lapse in representation contrary to relator's interests. Actual prejudice need not be shown; however, overemphasis on the presumption of prejudice does not obviate the necessity of demonstrating the existence of an actual conflict. Strickland v. Washington, 466 U.S. 668, 692, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Cuyler v. Sullivan, 446 U.S. 335, 342-50, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); United States v. Gambino, 788 F.2d 938, 951 (3d Cir. 1986); Government of Virgin Islands v. Zepp, 748 F.2d 125, 134-39 (3d Cir. 1984); Sullivan v. Cuyler, 723 F.2d 1077, 1084-87 (3d Cir. 1983).
Relator claims that his counsel, James T. Vernile, Esquire, was ineffective as a result of a conflict of interest resulting from Vernile's professional contacts with Robert F. Simone, Esquire, counsel for co-defendant Michael Morrone. To support this contention, Turchi points to the attorneys' contacts in their practice of law generally, as well as in their preparation and presentation of the defense in this case. The record reveals the following facts.
In 1972, Vernile was admitted to the Pennsylvania Bar and was employed by Simone as an associate in his law offices. As an associated attorney, Vernile used Simone's office space, facilities, and support staff to do legal work for Simone's clients. In addition, Vernile accepted other legal work which he did independently of Simone's practice and for which he made his own fee arrangements.
As time passed, Vernile's own practice grew and he had less time to devote to Simone's work. As a result, he ended his formal association with Simone and established his own practice. This change occurred prior to the time he assumed Turchi's defense in 1979 and was evidenced by the following: Vernile had his own clients, made his own fee arrangements, employed his own secretary, had his own telephone listing, used stationery with his own letterhead, and reported his own taxes.
Vernile used an office in Simone's suite where he shared with Simone certain common areas such as the library and waiting room. Vernile paid for the use of these facilities by making appearances for Simone when he was unavailable and preparing legal memoranda for Simone. Additionally, Vernile did legal work for Simone as an "independent contractor" and accepted referrals from Simone. Simone paid Vernile for matters contracted out by him and done on his behalf; Vernile's clients paid him for the work which was referred. Turchi, Vernile, and Simone each testified that Simone referred Vernile to Turchi
and that Turchi paid Vernile's legal fee, although there was some question as to whether Turchi gave the money directly to Vernile or whether it was delivered by Simone. The fact that Vernile was retained and paid by Turchi, independently of Simone, is further demonstrated by Vernile's post-trial desire to withdraw from the case, in part, as a result of Turchi's failure to pay outstanding expenses owed to Vernile.
At the hearing before the magistrate, prosecutor Ronald Cole, Esquire, testified that he knew that Vernile and Simone shared office space, but assumed from Vernile's letterhead that he was an independent practitioner. Cole did not know that Vernile had worked for Simone in the past or that Simone had referred Turchi to Vernile. Turchi, having already been apprised of the importance of independent counsel, see infra slip op. at 13-16, raised no objections until the present habeas petition concerning a conflict of interest. Consequently, I, of course, was unaware at trial of Vernile's past or present professional contacts with Simone, or of any other circumstances that would urge further inquiry into the possibility of conflict.
The facts introduced by Turchi in the evidentiary hearing fail to establish that Vernile was either a formal or de facto associate in Simone's practice of law during the time of relator's trial in 1979. While the evidence indicates that Vernile and Simone had continuing professional contacts in 1979, there is no evidence that their practices were interdependent formally, financially, or otherwise. Neither is there any indication that Vernile was subordinate to Simone, or felt obligations or loyalties to either Simone or Morrone because of Vernile's professional contacts, or for any other reason.
In the absence of these concerns, which underlie the Disciplinary Rules and Ethical Considerations set forth in Canon 5 of the Code of Professional Responsibility, I will not infer that Vernile represented conflicting interests on the basis of shared office space, referrals, or unrelated work performed as payment for rent or as an independent contractor on an as-needed basis. See United States v. Badalamente, 507 F.2d 12, 20-21 (2d Cir. 1974), cert. denied, 421 U.S. 911, 43 L. Ed. 2d 776, 95 S. Ct. 1565 (1975) (held no conflicting interests where record showed that attorneys shared office space and secretary, but interests did not overlap in acceptance of clients or sharing of fees); United States v. Bell, 165 U.S. App. D.C. 146, 506 F.2d 207, 224-25 (D.C. Cir. 1974) (held no conflicting interests where evidence disclosed that attorneys shared office space but practiced independently). Consequently, I conclude that there was no multiple representation.
Turchi also contends that conflicting interests arose out of Vernile's contacts with Simone during the preparation and presentation of the defense in this case. He bases this argument on the fact that Vernile, as well as the other defense attorneys, met with Simone to plan the defense together and allowed Simone to proceed first on cross-examination.
If this were sufficient grounds to establish multiple representation, a conflict would arise every time multiple defendants maintain a common defense. It is unrealistic to expect that defense attorneys presenting a common defense will not discuss trial strategy and procedure. In the absence of undue influence, or other facts evidencing multiple representation, it is desirable that they do so in order to present a common defense effectively and to facilitate the orderly conduct of the trial. In this case, Simone and Vernile agreed on a common defense strategy - to discredit the government's chief witness, Richard Coppola, and to blame him for the arsons. Simone went first on cross-examination because Morrone was named as the first defendant, and it was agreed that the defendants would proceed in the ...