The opinion of the court was delivered by: POLLAK
The Government has moved for reconsideration of my Memorandum and Order of July 11, 1989. I there sustained the Report and Recommendation of Magistrate Hall that Mr. DiSalvo's supplemental motion pursuant to section 2255 be granted, that his conviction be vacated, and that he be accorded a new trial. The basis for Magistrate Hall's Report and Recommendation, and for my Memorandum and Order, was Magistrate Hall's determination that (1) notwithstanding Mr. DiSalvo's expressed desire to testify, his attorney did not call him as a witness, and (2) Mr. DiSalvo's inability to exercise his right to testify on his own behalf was not harmless error.
The Government's motion for reconsideration rests on United States v. Martinez, 883 F.2d 750 (9th Cir. 1989), a case decided by the Ninth Circuit some weeks after the entry of my Memorandum and Order. In Martinez, the court of appeals affirmed the district court's denial of a motion for a new trial. There, as here, a defendant who told his lawyer that he wanted to testify was not called to the stand.
The Martinez court was unanimous in its acceptance of the proposition that the defendant's right to testify is one of constitutional dimension. However, the court was divided on how that constitutional right is to be vindicated. In the view of the majority, speaking through Judge Noonan, the trial court "has no duty to advise the defendant of his right to testify, nor is the court required to insure that an on-the-record waiver has occurred. The defendant's conduct provides a sufficient basis from which to infer that the right to testify has been waived." 883 F.2d at 760. Judge Reinhardt, in dissent, took a more spacious view of the trial judge's obligation to insure a defendant's understanding of his right to testify. Further, on the record presented by the particular case before the court, Judge Reinhardt disagreed with his colleagues on whether waiver could properly be inferred from the "defendant's conduct."
The factual record which, in the majority's view, warranted an inference of waiver was summarized by Judge Noonan at the outset of his extended and very thoughtful opinion. The closing paragraphs of Judge Noonan's summary are as follows:
The decision not to call Martinez was not based on the belief on Weight's part that Martinez would have perjured himself on the stand. Martinez wanted to offer exculpatory testimony that would have contradicted other testimony but in Weight's view did not constitute perjury. Weight did not discuss with Martinez the option of Martinez approaching the trial judge and saying that he was having a problem taking the stand because Weight was holding him back. In Weight's opinion, Weight had made "the strategic and tactical decision that he should not testify, notwithstanding his request to do so."
At the close of his opinion, Judge Noonan explicated the finding that Martinez had waived his right to testify:
That he knew that the right existed, i.e., that he knew the state could not bar him from being a witness, is plain from his colloquies with his lawyer. Educated by television and past courtroom experience of his own, Martinez had seen criminal defendants take the stand. He knew he had a right to be heard if he chose. His lawyer did not deny that he did. The defendant's knowledge of his right led him to insist. Respect for his lawyer's judgment eventually led him not to persist.
. . . Based on his limited recall of the events relevant to this issue and Mr. DiSalvo's unequivocal testimony, I conclude that Simone did not advise DiSalvo of his right to testify despite DiSalvo's having told him that he wanted to testify. Further, I conclude that Simone did not provide him with relevant information that would have enabled him to make a meaningful decision to testify or not to testify. Indeed, the evidence supports a conclusion that DiSalvo did not make the decision not to testify but that Simone made that decision in electing instead to "play it by ear" or by limiting the defense to an attack on the government's interpretation of the word "wet" allegedly used as a code word in the telephone conversation between DiSalvo and Maleno by introducing a weather report and by attempting to show an unlawful prosecution motive by the testimony of the FBI Agent. (Report and Recommendation at page 16, footnote omitted).
I agree with Magistrate Hall and the Ninth Circuit that a defendant's entitlement to testify is a constitutional right. See, in addition to the majority and dissenting opinions in Martinez, Judge Godbold's powerful dissent in Wright v. Estelle, 572 F.2d 1071, 1074 (5th Cir. 1978). On the facts presented in Martinez, the majority found waiver. On the different facts presented in the case at bar, Magistrate Hall found no waiver and I have endorsed and continue to endorse that finding. To the extent that the two cases are fact-specific, the Martinez finding of waiver does not dictate a different result in the present case. To the extent that the majority in Martinez is to be understood as holding that a defense attorney's decision not to call the defendant to the stand conclusively establishes client-waiver, I disagree for the reasons developed at length by Judge Reinhardt in his careful dissenting opinion.
Accordingly, in an accompanying Order the Government's motion for reconsideration will be denied.
For the reasons stated in the accompanying Memorandum, the Government's motion for reconsideration of the Order of July 11, 1989 approving Magistrate Hall's Report and Recommendation is DENIED.
REPORT AND RECOMMENDATION
WILLIAM F. HALL, JR. UNITED STATES MAGISTRATE
1. On February 8, 1983 the defendant was indicted by a Federal Grand Jury on charges of conspiracy to distribute methamphetamine and unlawful use of a communications facility
2. Simone entered his appearance for DiSalvo on February 14, 1983 and represented DiSalvo until after he was sentenced on September 30, 1983.
3. A non jury trial before the Honorable Louis H. Pollak commenced on July 8, 1983 and ended on July 15, 1983 with the verdict of guilty on Count 1, conspiracy to distribute methamphetamine and Counts 32, 34 & 36, unlawful use of a communication facility.
4. On September 30, 1983 DiSalvo was sentenced to eleven (11) years imprisonment and four (4) years of probation to follow his release from prison.
5. The evidence against DiSalvo at trial consisted of three (3) intercepted telephone conversations between DiSalvo and Joseph Maleno (Maleno) on June 29th & 30th, 1982, the government's interpretation of the meaning of those conversations, several other intercepted telephone conversations between Maleno and other co-conspirators and DiSalvo's possession of a laboratory equipment catalog in August, 1982 which included the type of lab equipment that could be used to manufacture methamphetamine.
6. The three (3) intercepted telephone calls between DiSalvo and Maleno were innocuous on their face.
7. The first intercepted conversation took place at 2:26 p.m. on June 29, 1982 when Joseph Maleno called the DiSalvo. The following exchange took place:
MALENO: "You were right, it's extremely wet."
MALENO: "All right, pal."
DiSALVO: "All right listen, when can I talk to you?"
MALENO: "Let me call you in the morning. I may call you tonight."
DiSALVO: "Yeah because I told you that other guy's coming in tomorrow morning too, then other two guys."
8. At approximately 11:00 a.m. on June 30, 1982 Maleno called DiSalvo again and this dialogue took place:
MALENO: "Are you going to that other number?"
DiSALVO: "Yeah, that's what I was going to tell you but I . . ."
DiSALVO: "Yeah, I am going to see those other guys."
MALENO: "All right. All right. Could I say this? Can't we do this tomorrow? I . . . I don't care."
DiSALVO: "Well, what's the difference?"
MALENO: "All right, well, because . . . then I get ...