The opinion of the court was delivered by: VAN ANTWERPEN
On November 19, 1988 Anthony Pungitore, Jr. was convicted by a jury in a major mafia trial of RICO and RICO Conspiracy, 18 U.S.C. §§ 1962(c), 1963. The jury specifically found him guilty of ten RICO predicate acts including one murder, two attempted murders, and three conspiracies to commit those murders. Post verdict motions were denied, and he was sentenced to a thirty year term of imprisonment on May 1, 1989. United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989). Mr. Pungitore 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 (1991).
On November 21, 1994, Mr. Pungitore filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. We dismissed this motion with a memorandum and order on December 28, 1994. An appeal was taken and the Third Circuit Court of Appeals vacated the dismissal and allowed Mr. Pungitore to amend and refile his petition raising new issues on September 21, 1995. No action was taken for more than a year and Mr. Pungitore finally filed a petition with this court for habeas corpus relief pursuant to 28 U.S.C. § 2255 on November 26, 1996. He filed a memorandum of law in support on January 18, 1997. The government responded via two memoranda, filed on January 6, 1997 and April 30, 1997. Due to the seriousness of his complaints and the factual conflicts inherent therein, we held a hearing with oral testimony on this matter on May 7, 1997 rather than relying solely on the affidavits. 28 U.S.C. § 2246.
Mr. Pungitore claims in his November 26, 1996 petition that his trial counsel, Mr. Joseph Capone, esq., provided him with ineffective assistance of counsel by refusing to permit him to testify, by refusing to present certain character witnesses, by refusing to cross-examine a witness with a prior inconsistent statement, by failing to move for a severance, and by failing to move for a mistrial; that there was a conflict of interest because of Mr. Capone's association with another lawyer that resulted in ineffective assistance of counsel; that there was insufficient evidence to justify his conviction; that the jury was improperly instructed; and that the consecutive sentences that he received for RICO and RICO Conspiracy violated the double jeopardy prohibition within the Fifth Amendment. We disagree. As the facts of this case have been much discussed by this court previously, see Scarfo, 711 F. Supp. 1315, we will not repeat ourselves.
A. Ineffective Assistance of Counsel
The right to have the assistance of counsel is provided for in the Sixth Amendment of the United States Constitution. This right has been deemed fundamental by the Supreme Court; it cannot be denied to the defendant absent intentional and actual waiver. Johnson v. Zerbst, 304 U.S. 458, 462, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). The Supreme Court has set out a two-prong test to establish a claim of ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). 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, 466 U.S. at 687; United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993), cert. denied, 511 U.S. 1033, 128 L. Ed. 2d 196, 114 S. Ct. 1544 (1994).
To satisfy the first prong, deficiency, 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." Id. 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), cert. denied, 136 L. Ed. 2d 423, U.S. , 117 S. Ct. 538 (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. To show 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).
Mr. Pungitore first claims that Mr. Capone was ineffective by failing to properly advise Mr. Pungitore regarding his right to testify and by refusing to permit Mr. Pungitore to testify on his own behalf. See Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 ("Petition Addendum"), at 1.
The decision whether or not to testify is extremely important, and thus one left entirely to the defendant. ABA Standards for Criminal Justice, Standard 4-5.2; ABA Model Rule 1.2. While the defendant may and should receive advice from his attorney, this fundamental right cannot be contravened by an attorney even if the defendant's decision causes strategic damage. See United States v. Teague, 953 F.2d 1525 (11th Cir.), cert. denied, 506 U.S. 842, 121 L. Ed. 2d 82, 113 S. Ct. 127 (1992).
However, Mr. Capone did not refuse to allow Mr. Pungitore to testify; rather, it was a decision that Mr. Pungitore voluntarily made himself. As Mr. Capone testified before us at the May 7, 1997 hearing, he and Mr. Pungitore discussed at length the decision to testify. He informed Mr. Pungitore of the risks involved with cross-examination and of setting himself apart from the unified defense strategy, and in the end, Mr. Pungitore himself decided not to testify. Mr. Capone also testified that had Mr. Pungitore insisted upon testifying, he would have called him to the stand; we credit this testimony.
Had Mr. Pungitore testified, he would have been faced with lengthy cross-examination by the government regarding his membership in La Cosa Nostra, his involvement in several murders, and an overwhelming amount of evidence against him. In a telling fashion, when presented again with the opportunity to testify before this court for the purposes of evaluating prejudice, in conjunction with the necessity of a thorough cross-examination, Mr. Pungitore again refused to take the stand. Mr. Capone's advice not to testify was reasonable given the facts; Mr. Pungitore's instant complaint is therefore meritless.
With that, your Honor, we would move into evidence the exhibits that have been marked during the government's case, as well as those few that have been marked during the defense case, and I believe, if anybody disagrees with me raise their hand, I believe all of the defendants would rest, is that correct?
Transcript, November 9, 1988 at 110-11. We looked about the courtroom and as the record reflects, there was no response from anybody. The meaning of the question was clear and any defendant who wanted to testify could have so indicated at that time. As such, Mr. Pungitore's instant claim is completely without merit.
3. Failure to Present Character Witnesses
Mr. Pungitore next argues that Mr. Capone was ineffective by refusing to present certain character witnesses on Mr. Pungitore's behalf. Petition Addendum at 1. Specifically, Mr. Pungitore points to Father William Harrison, Dr. Alfred Iezzi, Mr. George Cirillo, and Mr. William Schultz as character witnesses who would have testified.
The decisions of which witnesses to call to testify are strategic and therefore left to counsel. See ABA Standards of Criminal Justice, Standard 4-5.2; Diggs, 833 F.2d at 446. Attorneys are not required to call every witness suggested to them; their expertise leads them to choose only the witnesses likely to assist the case. United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990); see also United States v. Griffin, 1993 U.S. Dist. LEXIS 1231, 1993 WL 34927 (E.D. Pa.) (Feb. 9, 1993), aff'd, 16 F.3d 406 (3d Cir. 1993). Indeed, this is precisely the type of strategic decision which the Court in Strickland held to be protected from second-guessing. See Sanders v. Trickey, 875 F.2d 205, 212 (8th Cir.), cert. denied, 493 U.S. 898, 107 L. Ed. 2d 201, 110 S. Ct. 252 (1989). "Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation." United States v. Vincent, 758 F.2d 379, 382 (9th Cir.), cert. denied, 474 U.S. 838, 88 L. Ed. 2d 95, 106 S. Ct. 116 (1985).
Nevertheless, Mr. Capone testified at the May 7, 1997 hearing that Mr. Pungitore himself, after being presented with the realities of presenting certain witnesses and the advice of counsel that evidence which distinguished certain defendants would weaken the overall unified defense strategy and therefore lessen the chances for an acquittal, decided not to present those witnesses. transcript, 5/7/97 at 17-18. He stated that had Mr. Pungitore insisted, despite the fact that it was a strategic decision, he would have called those witnesses. We credit this testimony in the absence of evidence to the contrary above and beyond Mr. Pungitore's affidavit. Mr. Pungitore has therefore not shown error on the part of Mr. Capone, and we need not address ourselves to prejudice.
4. Failure to Cross-Examine Thomas DelGiorno with Prior Inconsistent Statements
Mr. Pungitore's next argument is twofold. He alleges first that government witness Thomas Delgiorno made statements on the witness stand which were inconsistent to statements he made during his initial debriefing. He then argues that it was ineffective assistance of counsel for Mr. Capone to fail to cross-examine Mr. DelGiorno regarding the aforementioned statements. Petition Addendum at 1. As such, this ...