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United States v. Martorano

filed: January 11, 1989.

UNITED STATES OF AMERICA
v.
MARTORANO, GEORGE, A/K/A COWBOY GEORGE MARTORANO, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 83-00314-01.

A. Leon Higginbotham, Jr., Mansmann and Greenberg, Circuit Judges.

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

In this case, the appellant, George Martorano ("Martorano"), appeals from a judgment of conviction entered after resentencing upon a plea of guilty to all 19 counts of a narcotics indictment, including one count of managing a continuing criminal enterprise. Martorano also challenges the sentence of life imprisonment without possibility of parole that was imposed on him both at the first sentencing proceeding and on resentencing. Martorano makes many arguments concerning issues that have already been addressed by an earlier decision of this Court,*fn1 and therefore we do not discuss them here. In his remaining arguments, Martorano argues that the sentence imposed violated the Eighth Amendment. He also argues that the district judge abused his discretion in not recusing himself because of the alleged appearance of impropriety given by the district judge's having testified, after Martorano's initial sentencing, at the tax evasion trial of Martorano's then counsel. Martorano further alleges that the district judge held an improper bias against Martorano because one of Martorano's codefendants had accused the district judge of physically assaulting the co-defendant during the co-defendant's separate criminal trial.

We hold that a sentence of life imprisonment without possibility of parole does not violate the Eighth Amendment where defendant pled guilty to charges of masterminding a conspiracy that distributed drugs in wholesale quantities. We also hold that the district court did not abuse his discretion by denying the motions to recuse. Accordingly, we will affirm the judgment of conviction and sentence.

I.

Martorano pled guilty to charges that he had been a wholesale distributor of large amounts of cocaine, methamphetamine, methaqualone, and marijuana. The indictment also alleged that Martorano had conspired to purchase large amounts of heroin for distribution in the Philadelphia area. According to the indictment, the drugs sold yearly by Martorano's organization were worth millions of dollars. The indictment further charged that Martorano had supervised a number of other people in the drug enterprise. Martorano was alleged to have made a substantial income through this drug network and to have invested his profits in legitimate businesses.

Because Martorano pled guilty, these allegations have not been tested by a trial. However, the government's proof offers included 106 tape-recorded conversations and the physical evidence that the government had seized -- $130,000, 3,000 pounds of marijuana, two kilograms of heroin, and 300,000 fake quaaludes. At his plea hearing, after consulting with his counsel, Martorano agreed that the prosecutor's summary of the facts was accurate, Joint Appendix ("Jt. App.") at 136. It was read into the record as the factual basis for his plea. Jt. App. 127-134. At the first sentencing proceeding, Martorano only contested three of the facts in the government's sentencing memorandum that went to the defendant's guilt: (1) whether Martorano was a career criminal, (2) whether the street value of the drugs allegedly sold yearly by the enterprise was $75,000,000 (as the government alleged) or some lesser number of millions, and (3) whether the government, rather than Martorano, had supplied the heroin used in the sting operation that led to Martorano's arrest. Jt. App. at 158-160.

Martorano makes one additional factual allegation before us: his counsel contends that Martorano is of such subnormal intelligence that he could not have committed the acts charged. This contention has already been rejected by a panel of this Court, United States v. Martorano, 782 F.2d 1029 (3d Cir., 1986) at 6, and so is not properly before us now. Therefore, what is chiefly before us in this case is whether the sentence imposed for these crimes violated either the Eighth Amendment or the Due Process Clause of the Fifth Amendment, or whether the district court's denial of motions to recuse invalidated the resentencing process.

Because it bears on the validity of the denial of the recusal motions, we will examine the procedural history of this case in some detail. Martorano retained Robert Simone, Esquire ("Simone") as his trial counsel. Prior to the date set for Martorano's trial, Simone was indicted in the Eastern District of Pennsylvania on tax evasion charges. As a result of Simone's indictment, the district judge held a hearing on March 15, 1984 at which he advised Martorano that his counsel had been indicted and that consequently a conflict of interest might arise between Martorano and Simone during the course of Martorano's trial. Judge Hannum asked Martorano thirteen questions which explored virtually every aspect of a conflict of interest. See Jt App. at 20-22. In response to these questions, Martorano indicated that he understood the risks inherent in continued representation by Simone, but stated that he wished for Simone to continue to represent him, thus waiving the question of a conflict of interest.

On June 4, 1984, Martorano pled guilty to all counts of the indictment. At this time, the prosecutor advised Martorano that he faced a maximum possible sentence of life imprisonment without possibility of parole, and that the mandatory minimum sentence for the offenses in question was ten years' imprisonment without possibility of parole. Jt. App. at 122-123. Judge Hannum asked Martorano if he understood that the maximum possible penalty was life imprisonment without possibility of parole and the forfeiture of drug profits, and Martorano replied that he did. Jt. App. at 123. The district court then accepted Martorano's guilty plea. Because Martorano had not also been advised that a fine could be imposed, he was brought back into court on June 19, 1984, and advised that his sentence could include a fine. Martorano was then given an opportunity to withdraw his guilty plea, but declined to do so.

In July 1984, one month after the plea hearing, but before sentencing, Judge Hannum testified pursuant to a subpoena in Simone's tax evasion case. Judge Hannum gave only mild and general character testimony on Simone's behalf. United States v. Simone, 627 F. Supp. 1264, Transcript of proceeding (E.D.Pa., 1986). Simone was acquitted of the charges. At the time of Simone's trial, the Daily News, a Philadelphia newspaper, criticized Hannum's testimony as "highly unusual" due to Simone's counsel's failure to comply with Rule 9 of the Rules of Civil Procedure for the Eastern District of Pennsylvania. Rule 9 requires that a party who wishes to subpoena a federal judge to give character testimony submit a request for a subpoena to the Eastern District, which must be approved by the chief judge of the Eastern District and of two other district judges before a subpoena should issue. After Martorano's sentencing, the Philadelphia Magazine reported federal prosecutors' critical comments that federal judges should not give character testimony. See Jt. App. at 56.

A few weeks later, on September 20, 1984, Judge Hannum sentenced Martorano to a nonparolable life sentence. Both Martorano and his counsel argued at the sentencing proceeding that mitigating factors were present, and Martorano's counsel argued that the defendant should receive the minimum sentence. Martorano's counsel also put on evidence concerning Martorano's alleged mental problems. His counsel did not argue, however, that the presentence report contained factual inaccuracies. See Jt. App. at 158-63 (defense presentations of mitigating evidence). Nor did ...


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