(1986). If there exist good strategic reasons for his decision, we may not find Mr. Nastasi ineffective merely because we may have made a different choice.
In his uncontroverted affidavit, Mr. Nastasi states that he considered the possibility of moving for severance, and decided against it. He stated as his reasons the fact that it was improbable that the motion would be granted given the complexity of the case and co-defendant Joseph Pungitore's failure with the same motion, that a motion for dismissal on double jeopardy grounds was more likely to succeed, and that an overall unified defense strategy would be far more effective. Affidavit of Nicholas J. Nastasi ("Affidavit"), at 3-4. He stated that it was his experience that motions to sever were rarely successful, and that he "knew that within the year preceding the instant trial, the unified defense strategy had worked twice for the individuals identified in the charges as members of an enterprise charged as the Philadelphia LCN family." Id. at 4.
This circuit has repeatedly held that "effective assistance does not demand that every possible motion be filed, but only those having a solid foundation." United States v. Swinehart, 617 F.2d 336, 341 (3d Cir. 1980); United States v. Hines, 470 F.2d 225, 232 (3d Cir. 1972), cert. denied, 410 U.S. 968, 35 L. Ed. 2d 703, 93 S. Ct. 1452. Motions to sever are disfavored in complex cases. The instant case involved seventeen defendants, numerous charges, and lasted for fifty-three trial days. It was indeed the epitome of a very long and complex case. Mr. Ciancaglini's co-defendant Joseph Pungitore had already filed a pre-trial motion for severance which had been denied by the court. That denial was ultimately affirmed on post-verdict motions. United States v. Scarfo, 711 F. Supp. 1315, 1340-42 (E.D. Pa. 1989). aff'd, United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990). Most importantly, the seventeen defense counsel involved in this case elected to pursue an overall unified defense strategy which consisted primarily of denying the existence and criminal purpose of the La Cosa Nostra, denying the defendants' participation in it, and denying the credibility of the government's principal cooperating witnesses. In light of this, Mr. Nastasi's decision was not only not unreasonable; on the contrary, it was a deliberate tactical decision well within the bounds of reasonable professional assistance.
C. Failure to Properly Prepare for Trial
Mr. Ciancaglini next claims that Mr. Nastasi was ineffective in his preparation for trial. This claim seems to be a conglomeration of his other complaints in that Mr. Ciancaglini argues that Mr. Nastasi would never have done the other allegedly ineffective acts but for a lack of preparation. He further argues that Mr. Nastasi "never discussed trial strategy, a defense or went over any of the discovery with [him]." Petition at 5.
Despite Mr. Ciancaglini's all inclusive 'kitchen-sink' approach, we will give this charge our serious consideration. This Circuit noted in Weatherwax [II] that any decision by counsel to not prepare or investigate must be "directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to the counsel's judgements." Weatherwax II, 77 F.3d at 1432, citing Strickland 466 U.S. at 690-691.
In this case, however, Mr. Ciancaglini's claims are not supported in any way by the evidence. In his uncontroverted affidavit, Mr. Nastasi states that he fully discussed the charges, and possible witnesses with Mr. Ciancaglini and interviewed those witnesses that were identified as potentially helpful. Affidavit at 4. He found that most of these witnesses were unable to provide helpful testimony, but did find and prepare attorney Anna Durbin to testify. Id. Further, Mr. Nastasi was apparently in charge of discovery materials for the unified defense, a task which belies a lack of preparation. Mr. Ciancaglini has chosen to provide no evidence to the contrary, as he must do to prevail. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (Holding that the petitioner "cannot meet his burden to show that counsel made errors so serious that his representation fell below an objective standard of reasonableness based on vague and conclusory allegations..."), cert. denied, 502 U.S. 902, 116 L. Ed. 2d 232, 112 S. Ct. 280 (1991).
The cases cited by Mr. Ciancaglini are inapposite. Kimmelman v. Morris, 477 U.S. 365, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986), dealt with an attorney who completely failed to conduct pre-trial discovery and whose file pertaining to the case was devoid of any trial preparation. Baty v. Balkcom, 661 F.2d 391 (5th Cir. 1981) concerned an attorney who spent only thirty minutes with his client prior to trial, interviewed no witnesses, and conducted no investigation. These are simply not the facts of the instant matter; Mr. Ciancaglini provides no evidence to the contrary. Both of the above cases also noted that counsel's actions during trial are not dispositive of a failure to prepare sufficiently. Counsel's actions must instead be examined in the context of the evidence of the degree of before-trial preparation. Moreover, if evidence can be quickly gathered from other sources, such as other defense counsel in the matter, less personal investigation by counsel is not dispositive. See Kimmelman 477 U.S. at 387; Baty 661 F.2d at 395. In the case at hand, there is nothing to indicate that Mr. Nastasi was not fully and adequately prepared for trial. His actions were therefore well within the bounds of effective assistance.
D. Failure to File a Motion In Limine to Keep Out Evidence Regarding John Ciancaglini
Mr. Ciancaglini's third allegation of ineffective assistance stems from Mr. Nastasi's decision to not file a motion to keep out evidence pertaining to Mr. Ciancaglini's son, John Ciancaglini, and thereafter not objecting to the introduction of such evidence. John Ciancaglini was an unindicted co-conspirator whose name was mentioned infrequently during the trial; however, Mr. Ciancaglini argues that the testimony regarding his son was without probative value and confused the jury.
As noted previously, the decision to file a motion, such as a motion in limine to exclude evidence, is within the realm of decisions to be made by the attorney. ABA Model Rule 1.2. The decision is therefore examined to determine if it was a reasonable tactical choice under the circumstances. Certainly, "an attorney's judgment need not necessarily be right, so long as it is reasonable." Weatherwax II, 77 F.3d at 1435. The decision whether to object is similarly examined. An attorney is not required to bring meritless motions, and will not be found ineffective for refusing to do so.
In the instant case, Mr. Ciancaglini has not overcome the presumption that his attorney's actions in this area were based on sound trial strategy. Mr. Nastasi states in his affidavit that he did not bring the motion because he felt it would have been frivolous. Affidavit at 5. John Ciancaglini, while not a defendant, was an unindicted co-conspirator whose activities were directly relevant to the various racketeering acts charged within the RICO count of the indictment. In particular, there was evidence that when a dispute arose between John and others, John went to his father for advice and his father told him that he would have to follow Nicodemo Scarfo's orders. The evidence pertaining to John Ciancaglini was therefore highly relevant and in balance had a lesser degree of prejudicial value. Given the highly complex nature of the case and the amount of work involved, it is not surprising that Mr. Nastasi made the tactical decision to not spend time writing motions that would no doubt be denied. Moreover, even if Mr. Nastasi's decision were ineffective, we note that for the above reasons, the motion would have been denied; Mr. Ciancaglini has thusly suffered no prejudice.
Mr. Ciancaglini also argues that Mr. Nastasi should have objected to the mentioning of John Ciancaglini because it was confusing for the jury. However, we have performed an exhaustive search of the transcripts of this trial and note that during the two days where John Ciancaglini was mentioned the most, October 17 and 18, 1988, the government was very careful to differentiate between father and son. The prosecutor, Mr. Fritchey, repeatedly asked the witnesses for clarification when the witnesses referred to individuals solely by their last name. When John Ciancaglini was mentioned, Mr. Fritchey almost always distinguished him from his father. See, e.g., Transcript, October 17, 1988 at 112 ("Q: Alright, and he [John Ciancaglini] is a different person from the Joseph Ciancaqini [sic] whose [sic] a defendant on trial here; am I correct in saying that?" A:"That's correct."). John Ciancaglini was time and again distinguished from his father; the jurors were permitted to take notes, and there was very little if any possibility of confusion under the circumstances. Given this evidence, Mr. Nastasi's decision not to object was eminently reasonable. Indeed, to do otherwise would have been to draw further attention to his client; this would have been in direct conflict with his stated strategy.
E. Failure to Make an Effective Opening Argument
Mr. Ciancaglini next complains that Mr. Nastasi's opening argument was deficient because he delivered it subsequent to the closing of the government's case. He further states that the substance of the opening argument was insufficient because it did not individualize him. Petition at 14.
While courts have weighed heavily in favor of permitting them, there is no unfettered constitutional right to an opening statement. See United States v. Zielie, 734 F.2d 1447, 1455 (11th Cir. 1984) (citing Herring v. New York, 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550 (1974)), cert. denied, 469 U.S. 1189, 83 L. Ed. 2d 964, 105 S. Ct. 957 (1985); see also United States v. Salovitz, 701 F.2d 17, 20 (2nd Cir. 1983). Certainly, there is no requirement that the opening statement be made before the beginning of the government's case. It is a matter of trial strategy, and waiver or delay of such statements is purely a matter of professional judgement. See Salovitz, 701 F.2d at 21; United States v. Decoster, 199 U.S. App. D.C. 359, 624 F.2d 196, 213-14 (D.C. Cir.), cert. denied, 444 U.S. 944, 62 L. Ed. 2d 311, 100 S. Ct. 302 (1979). As such, the timing of the opening statement will rarely form the basis of a claim of ineffective assistance of counsel.
Mr. Nastasi did not waive his opening statement; rather, he made the decision to open after the government rested. Affidavit, at 6. This is not unusual under the circumstances. With seventeen defendants and a unified defense, it was simple logic for all counsel involved to cooperate. If each attorney had made a full opening statement without regard to what had already ben said by the others, it is clear that the jury might have quickly become bored. However, because counsel agreed to have six attorneys open at the beginning of the trial, and only Mr. Nastasi open at the close of the government's case, the defendants collectively received the best of both worlds. Ten of the defendants waived opening entirely. As Mr. Nastasi's unrefuted affidavit notes, the other attorneys collaborated on his and the other openings, to ensure that all major points were brought out. This type of planning and organization is well within the bounds of reasonable attorney behavior.
Mr. Ciancaglini also complains that Mr. Nastasi's opening was not individualized enough toward his client. However, as has already been shown, this was in line with Mr. Nastasi's overall strategy of not drawing attention to Mr. Ciancaglini. Compared to the overwhelming amount of evidence on tape against his co-defendants, there was less regarding Mr. Ciancaglini; Mr. Nastasi's strategy was one not foreign to multi-defendant criminal defense: "that [his client] would be lost in the shuffle of the evidence." Affidavit, at 6-7. We have reviewed Mr. Nastasi's opening argument in detail. He renewed arguments made fully at the beginning of the trial, and prepared the jury to note the differences in the types of witnesses that would be presenting evidence. We are satisfied that the tactical decisions made were competent and certainly fall within the objective standard of reasonableness.
F. Failure to Object to the Use of Perjured Testimony by the Prosecutor
Mr. Ciancaglini next argument is twofold. He argues first that the witness Thomas DelGiorno committed perjury when he testified on October 12, 1988 about a drug transaction that he brokered between John Santilli and Vinnie Perry. He then argues that it was ineffective assistance of counsel for Mr. Nastasi to fail to object to the aforementioned perjury. As such, this complaint necessarily rises and falls on the question of whether Mr. DelGiorno committed perjury.
We have extensively reviewed the transcripts of Mr. Delgiorno's testimony, and find no such perjury. On October 12, 1988 Mr. DelGiorno testified as follows:
Mr. Gordon (government): ... In approximately May of 1983 did you participate in a drug transaction involving John Santilli and Vinnie Perry?
Mr. DelGiorno: Yes.
Q: Would you describe what happened?