The opinion of the court was delivered by: SHAPIRO
Three motions to vacate and/or set aside a sentence pursuant to 28 U.S.C.A. § 2255 (West 1982 & Supp. 1986) have been filed by defendants Alberto Ficalora ("Ficalora"), Paolo LaPorta ("P. LaPorta") and Giovanni LaPorta ("G. LaPorta"). The motions are denied for the reasons now stated.
On May 7, 1984, these three defendants entered guilty pleas
pursuant to Fed.R.Crim.P. 11(e)(1)(B) to various counts of an indictment charging them with conspiracy to distribute heroin and cocaine, distribution of heroin and cocaine, and aiding and abetting, in violation of 21 U.S.C.A. § 846, 21 U.S.C.A. § 841(a)(1), and 18 U.S.C.A. § 2(a). Ficalora pled guilty to six of eleven counts; P. LaPorta pled guilty to five of nine counts; and G. LaPorta pled guilty to three of four counts.
On June 13, 1984, Ficalora was sentenced to the custody of the Attorney General for 15 years and fined $ 25,000 on each of six counts. Sentence of imprisonment on five of the counts was concurrent so that Ficalora's total sentence was imprisonment for 30 years, a special parole term of 15 years and a fine of $ 150,000. P. LaPorta and G. LaPorta were both sentenced on June 22, 1984. P. LaPorta was sentenced to the custody of the Attorney General for 15 years on one count and five years followed by five-year special parole terms on each of the other four counts; he was also fined $ 25,000 on each of the five counts. P. LaPorta's total sentence was imprisonment for 35 years, a special parole term of 20 years and a fine of $125,000. G. LaPorta was sentenced to the custody of the Attorney General for 10 years on one count and five years followed by five-year special parole terms on the remaining two counts; he was also fined $ 25,000 on these counts. G. LaPorta's total sentence was imprisonment for 20 years, a special parole term of 10 years and a fine of $ 50,000.
On October 11, 1984, Ficalora filed a motion to correct a sentence imposed in an illegal manner and/or for a reduction of sentence pursuant to Fed.R.Crim.P. 35, on the ground that Ficalora was not afforded the opportunity to review his presentence report in violation of Fed.R.Crim.P. 32(c)(3)(A) and 32 (a)(1)(A); Ficalora contended that the court at sentencing was misled by inaccuracies in the presentence report. Ficalora also contended that the Government failed to describe accurately his culpability and financial gain from the crimes despite "off-the-record assurances by the government." (Ficalora's motion dated October 15, 1984 at p. 3). The court denied this Rule 35 motion for the reasons stated in its Memorandum and Order dated September 12, 1985.
On October 15, 1984, the LaPortas filed a motion to reduce sentence pursuant to Fed.R.Crim.P. 35, on the ground that the defendants' behavior in prison and projected parole release dates justified a reduction in sentences. The LaPortas also asserted that there were off-the-record assurances by Government representatives that their low levels of culpability would be brought to the court's attention. The court denied the LaPortas' Rule 35 motion for the reasons stated in its Memorandum and Order dated July 3, 1985.
The LaPortas filed a motion to vacate and/or set aside a sentence pursuant to 28 U.S.C.A. § 2255 on December 17, 1984. Ficalora filed an original motion pursuant to 28 U.S.C.A. § 2255 on January 9, 1985, and then filed an amended motion on October 7, 1985. The three defendants now argue that their guilty pleas were neither voluntary nor intelligent waivers of their rights because all the defendants allegedly relied upon a promise made by Drug Enforcement Administration ("DEA") Special Agent Frank Panessa ("Panessa") to G. LaPorta that their sentences on various counts would run concurrently. The defendants allege that Panessa stated to G. LaPorta that the defendants' sentences would "run together" and that Panessa would tell the court that the defendants were "meatballs." Therefore, it is argued that the Government's failure to fulfill Panessa's alleged promises constituted a breach of a plea bargain agreement that rendered the pleas invalid. In his amended motion, Ficalora, an Italian citizen, also argues that his guilty plea was not intelligently made because his attorney failed to provide effective assistance of counsel in not informing him of the effect of his guilty plea under the immigration laws. The court held an evidentiary hearing on these § 2255 motions on February 4 and 5, 1986.
Panessa, acting in an undercover role (as a drug dealer) for over nine months, collected evidence to support the indictment of Ficalora, the LaPortas, and five other defendants. During this DEA investigation, Panessa spent a significant amount of time with G. LaPorta. (Tr. 2/5/86 at 170-72).
G. LaPorta claims that he wanted Panessa to help the defendants obtain shorter sentences and incarceration at the same facility. (Tr. 2/5/86 at 97). Panessa testified that he did not know why G. LaPorta wanted to talk to him when he was asked to see G. LaPorta. (Tr. 2/5/86 at 155). G. LaPorta testified that he told Panessa he respected and liked Panessa, despite his role in the defendants' apprehension. (Tr. 2/5/86 at 96-97). G. LaPorta stated that he told Panessa of his fear that Ficalora, his brother and he would receive long prison sentences because there were so many counts against them. (Tr. 2/5/86 at 96-98).
G. LaPorta testified that Panessa assured him that, "you don't have to worry about this, you know. These counts don't mean anything . . . . They run together." (Tr. 2/5/86 at 97). G. LaPorta also testified that he asked Panessa to do him a favor and let the judge know that he and his brother and Ficalora were insignificant participants in the criminal activity charged. (Tr. 2/5/86 at 103-104). G. LaPorta claims that Panessa said that he would advise the court that the three defendants were "meatballs"; G. LaPorta interpreted this term to mean insignificant individuals. (Tr. 2/5/86 at 103-104). In his § 2255 motion, G. LaPorta argues that when he pled guilty on May 7, 1984, he relied upon these alleged promises by Panessa that the court would be advised of his low level of culpability, and that sentences on the various counts would run concurrently.
Panessa's recollection of the May 4, 1984 conversation differed significantly. Panessa testified that G. LaPorta sought his advice on whether or not to plead guilty and that G. LaPorta kept insisting the defendants were "small fries." (Tr. 2/5/86 at 156-57). Panessa denied using the term "meatballs" or telling G. LaPorta that he would inform the court of the level of the culpability of the defendants on his own initiative. (Tr. 2/5/86 at 159-60; 161). Panessa had stated in a prior affidavit that, "defendant [Giovanni] LaPorta requested that I do him one favor. He asked me to tell the truth if I were called upon to describe how big they [G. LaPorta, P. LaPorta and Ficalora] really were. I agreed to do so." (Panessa Affidavit, 12/14/84) (emphasis added). Panessa denied that he told G. LaPorta that all his counts would "run together." (Tr. 2/5/86 at 158, 162).
P. LaPorta testified that G. LaPorta spoke to P. LaPorta and Ficalora together at the Detention Center after the meeting of Panessa and G. LaPorta on May 4, 1984, but before May 7, 1984. (Tr. 2/5/86 at 142). P. LaPorta stated that G. LaPorta told P. LaPorta and Ficalora that Panessa was going to help the three men and if they pled guilty, "all counts are going to run together. . . . We're not going to do so many years." (Tr. 2/5/86 at 143). P. LaPorta and Ficalora do not argue in their motions that Panessa ever made any statements directly to either or both of them concerning concurrent sentences or discussions of culpability with the court; P. LaPorta and Ficalora argue that they relied to their detriment upon the statements Panessa made to G. LaPorta and reported by G. LaPorta to them.
On May 7, 1984, Ficalora, P. LaPorta and G. LaPorta entered guilty pleas pursuant to Fed.R.Crim.P. 11(e)(1)(B). Before accepting the guilty pleas, the court asked each of the defendants whether his plea was voluntary or the result of force or threats or promises; each of the defendants responded under oath that his plea was voluntary and not the result of threats or promises. (Tr. 5/7/84 at 22; 36; 45-46).3a,b,c
Prior to Ficalora's sentencing on June 13, 1984, the judge asked about a January, 1984 deportation order against Ficalora to determine if Ficalora would serve his prison sentence before he was deported. (Tr. 6/13/84 at 11-13). Assistant U.S. Attorney Terri Marinari ("Marinari") said that five years after Ficalora's deportation, he could make application for waiver of excludability from the United States without seeking special permission from the Attorney General. See 8 U.S.C.A. § 1182(a)(9), (10), (17), (23) and 8 U.S.C.A. § 1182(h) (West 1970 & Supp. 1986). Ficalora's attorney at the ...