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UNITED STATES v. CIANCAGLINI

November 13, 1996

UNITED STATES OF AMERICA
v.
JOSEPH CIANCAGLINI



The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 November 13, 1996

 I. INTRODUCTION

 On November 19, 1988 Joseph Ciancaglini was convicted by a jury in a major mafia trial of RICO, RICO Conspiracy, and Unlawful Distribution of Methamphetamine. Post trial motions were denied and he was sentenced to a forty-five year term of imprisonment on May 10, 1989. United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989). Mr. Ciancaglini appealed his conviction, United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990); it was affirmed and his petition for certiorari was denied. 500 U.S. 915, 114 L. Ed. 2d 98, 111 S. Ct. 2009, 111 S. Ct. 2010, 111 S. Ct. 2011 (1991).

 Mr. Ciancaglini now petitions this court for habeas corpus relief pursuant to 28 U.S.C. § 2255. He claims that his trial counsel, Nicholas Nastasi, Esq., afforded him ineffective assistance of counsel. Specifically, Mr. Ciancaglini claims that Mr. Nastasi failed to move for severance at trial, failed to prepare for trial, failed to make a motion in limine to keep out evidence regarding John Ciancaglini, failed to make an effective opening argument, failed to object to the use of perjured testimony by the prosecutor, failed to cross-examine Thomas DelGiorno with prior inconsistent statements, failed to call John Santilli as a witness, failed to object to the prosecutor's improper vouching during closing arguments, and failed to make an effective closing argument. We held a hearing on Mr. Ciancaglini's motion on September 16, 1996; however, he elected not to testify or present any evidence beyond certain stipulations of record. Mr. Ciancaglini was represented by counsel at the hearing. We will address each of Mr. Ciancaglini's claims in turn.

 II. DISCUSSION

 A. Standard

 Mr. Ciancaglini has based his habeas corpus petition on his alleged lack of effective assistance of counsel at trial. To obtain relief on this ground, the Supreme Court has set out a two-prong test wherein the petitioner must prove both prongs; a finding against the petitioner in either area is sufficient to find for the government. A petitioner must show both that: (1) his counsel's conduct was deficient, and "fell outside the wide range of professionally competent assistance" and (2) the petitioner was prejudiced as a result of that deficient conduct. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993), cert. denied, 128 L. Ed. 2d 196, 114 S. Ct. 1544 (1994).

 To satisfy the first prong, a petitioner must show that his counsel's conduct fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. In evaluating such a claim, we "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689. We may not use the benefit of hindsight to second-guess tactical decisions made by an attorney unless they are unreasonable. See Id. at 690; Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987) ("An attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial. Consequently, judicial scrutiny of an attorney's competence is highly deferential."), cert. denied, 485 U.S. 979, 99 L. Ed. 2d 488, 108 S. Ct. 1277 (1988). Moreover, the mere fact that a tactic has been unsuccessful does not necessarily indicate that it was unreasonable. Strickland, 466 U.S. at 689.

 To guide us in determining the reasonableness of the attorney's performance, the Supreme Court in Strickland noted that the American Bar Association Standards may be referred to as a guideline. Strickland, 466 U.S. at 688; See also, Government of the Virgin Islands v. Weatherwax ("Weatherwax I"), 20 F.3d 572. 579 (3d Cir. 1994), rev'd on other grounds, Government of the Virgin Islands v. Weatherwax ("Weatherwax II"), 33 V.I. 399, 77 F.3d 1425, 1435 (3d Cir. 1996).

 One of the most relevant standards in this context is ABA Standard for Criminal Justice § 4-5.2 (3d ed. 1993), "Control and Direction of the Case." This section dictates which decisions are ultimately to be made by the defendant, and which are to be made by the defense counsel. Specifically, strategic and tactical decisions such as which witnesses to call, whether to conduct cross-examination, and what trial motions to make are within the province of the attorney after consultation with the client. ABA Standard 4-5.2(b). The Commentary thereto states that when the attorney in question makes such strategic or tactical decisions, "only when [his] behavior revealed ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles [will these] actions amount to ineffective assistance of counsel." Weatherwax I, 20 F.3d at 579, citing Commentary at 4.67-68. Therefore, if a decision falls within the realm of "strategic decisions" to be made by the attorney, we will find whatever decision that attorney made to be sufficiently deficient only if he either failed completely to consult with his client, or if the decision was itself inept or incapable of interpretation as sound.

 If the first prong is proven, a petitioner must also prove the second prong, prejudice. A petitioner must show that there is a reasonable probability that there would have been a different outcome; that the deficient performance "deprived the defendant of a trial whose result is reliable." DeRewal, 10 F.3d at 104, citing Strickland, 466 U.S. at 690. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. We must examine the trial with our focus not on the outcome, but on whether the error so affected the adversarial balance that the trial was rendered unfair and the verdict rendered suspect. Lockhart v. Fretwell, 506 U.S. 364, 369, 122 L. Ed. 2d 180, 113 S. Ct. 838 (1993).

 B. Failure to Move for Severance

 Mr. Ciancaglini first claims that Mr. Nastasi was ineffective by failing to move for severance at any point before or during the trial. He states that there was a conflict of interest between his defense and lead defense counsel, Robert Simone, in that Mr. Simone was at various points referred to by government witnesses as being involved in the criminal activity of the defendants. Because Mr. Simone was "inextricably tied" to him, Mr. Ciancaglini argues that the failure to move for severance amounts to ineffective assistance of counsel. See Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 ("Petition"), at 3.

 The decision of whether to make a motion falls clearly within the realm of "attorney decisions." See Weatherwax II, 77 F.3d at 1435. To overcome the presumption that his counsel's actions were within the objective standard of reasonableness, Mr. Ciancaglini must show that Mr. Nastasi's decision not to move for severance was not sound trial strategy. See Darden v. Wainwright, 477 U.S. 168, 169, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (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 ...


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