One of the defendants named in the original indictment, Filippo Mauro, did go to trial and was found not guilty by the jury. Unlike Ficalora, Mauro allegedly played a minor role in the co-defendants' conspiracy. That one defendant was found not guilty does not mean that Ficalora would have insisted on trial but for his attorney's errors. Mauro's acquittal is not Simone's error.
Because Ficalora cannot carry his burden of proof on either of the two required standards under Hill v. Lockhart, his § 2255 motion is denied.
All findings of fact and conclusions of law in this Discussion are deemed incorporated in those sections.
Conclusions of Law
Ficalora, P. LaPorta, and G. LaPorta made knowing, voluntary, and intelligent waivers of their rights when they entered guilty pleas.
The government did not breach plea bargain agreements with Ficalora, P. LaPorta, and G. LaPorta. Their guilty pleas were not induced in reliance on authorized or binding promises made as part of the plea bargaining.
The alleged statements made by Panessa to G. LaPorta were too vague to characterize as authorized or binding promises upon which the defendants could rely.
An unauthorized promise made by a DEA agent to a third person, other than a government prosecutor, and communicated by the third person to a criminal defendant, cannot bind the government as does an authorized promise by a prosecutor made as inducement for a plea bargain agreement.
The defendants failed to prove that Panessa had express authority to make binding promises to G. LaPorta.
Ficalora fails to carry his burden of proof under Hill v. Lockhart that counsel's representation fell below an objective standard of reasonableness.
Ficalora fails to carry his burden of proof under Hill v. Lockhart that there was a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
AND NOW, this 24th day of December, 1986, upon consideration of the motions to vacate and/or set aside sentences pursuant to 28 U.S.C.A. § 2255 filed by Paolo LaPorta, Giovanni LaPorta and Alberto Ficalora, the responses of the government thereto, and for the reasons set forth in the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that said motions are DENIED.