the issue of waiver was unsound. 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. Furlong ineffective merely because we may have made a different choice. Moreover, 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.
In the case at hand, it is very clear that Mr. Scafidi had no attorney-client relationship with Mr. Simone, and therefore, there was nothing for him to waive. Indeed, the argument that Mr. Scafidi believes to be a "dead bang winner" is in fact completely without merit. Those of his co-defendants who did raise the issue to the appellate court were unsuccessful. See Pungitore, 910 F.2d at 1143. Therefore, it was not error for Mr. Furlong to decline to raise this issue on appeal.
As noted, it is also apparent from Mr. Scafidi's petition that he may be arguing that Mr. Furlong was in error by not making a motion for severance upon the discovery of Mr. Simone's conflicts of interest. However, this complaint is also without merit. Again, we note that whether to make a motion is clearly an "attorney decision." See Weatherwax II, 77 F.3d at 1435. Hence, Mr. Scafidi must overcome the presumption that his counsel's actions were within the objective standard of reasonableness by showing that the decision to not move for severance was not sound trial strategy. See Darden, 477 U.S. at 169.
In the instant case, good strategic reasons did exist for Mr. Furlong's decision to not move for severance. First, motions to sever are disfavored in complex cases. The instant case involved seventeen defendants, ten counts including forty racketeering acts, and lasted for fifty-three trial days. It was indeed the epitome of a very long and complex case. Mr. Scafidi'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).
Second, the seventeen defense counsel involved in this case had 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. A motion to sever would have been directly counter to such a strategy, which had proven successful in several prior trials involving the same defendants.
Finally, as the Third Circuit stated in a footnote in the direct appeal of this case, discussing the idea that failing to request a severance was not ineffective assistance under these facts, "given the strength of the government's case against the appellants, their attorneys might have had a difficult time convincing the trial court that the evidence implicating Simone would cause such severe prejudice as to require a severance." Pungitore, 910 F.2d at 1143 n.85. In light of this, Mr. Furlong's decision was not unreasonable; on the contrary, it was a deliberate tactical decision well within the bounds of reasonable professional assistance. As there is no evidence of deficient performance on the part of Mr. Furlong as to either of Mr. Scafidi's arguments, we need not discuss the question of prejudice.
C. Failure to Provide Evidence
Mr. Scafidi's final complaint reiterates his belief that Mr. Simone was under criminal investigation at the time of the instant trial, and that the government withheld evidence implicating Mr. Simone in crimes "directly related and intertwined with the charges defendant was facing and being tried for." Memorandum in Support of Petition II, ("Memorandum II"), at 3. This withholding of evidence, Mr. Scafidi argues, led him to make the uniformed waiver discussed above.
Mr. Scafidi's objection is thus limited to only the evidence of crimes for which Mr. Simone would eventually be indicted.
He does not contest that he had full disclosure of the government's evidence regarding Mr. Simone's involvement in the Rouse extortion, his presence at a meeting discussing a murder, and his presence in pictures with various defendants. Mr. Scafidi also does not say that he needed the evidence, if it in fact existed, because it exculpated him or because he needed to impeach Mr. Simone or another witness. Rather, he argues that he should have been given the material only because it would have put him in a better position to intelligently and knowingly decide whether or not to waive any conflicts of interest of Mr. Simone. Memorandum II, at 2-3.
However, Mr. Scafidi has not been able to present us with any caselaw, nor can we find ourselves, that suggests that he was entitled to that evidence for that reason. He points to Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995), for support, but this reliance is unavailing. Kyles dealt with the government's failure to disclose evidence that was exculpatory or would have been helpful in impeaching prosecution witnesses. The defendant in that case had a right to such evidence under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) and United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Kyles, 514 U.S. at 432-33. Mr. Scafidi, conversely, does not allege that the evidence he seeks was exculpatory in any way; only that it would have helped him waive conflicts. As such, Kyles is not only unhelpful in that it does not discuss the disclosure of evidence relevant to waiver of conflicts for co-defendant's counsel, it actually hinders Mr. Scafidi's argument in that it points out that for the disclosure requirement to be implicated without a request from the defendant, the evidence must be favorable to that defendant. Kyles, 514 U.S. at 433.
In addition, none of the remaining cases that Mr. Scafidi cites for support have any relevance to the case at hand. Rather they deal with: the ability to waive one's counsel and represent oneself ( Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938); Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975)); the waiver of constitutional rights when one pleads guilty ( McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969); Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); the waiver of the right to confrontation ( Douglas v. Alabama, 380 U.S. 415, 13 L. Ed. 2d 934, 85 S. Ct. 1074 (1965)); and the constitutionality of a statute prohibiting the use of contraceptives ( Poe v. Ullman, 367 U.S. 497, 6 L. Ed. 2d 989, 81 S. Ct. 1752 (1961)).
Moreover, as discussed above, the fact that Mr. Simone was not Mr. Scafidi's attorney, and therefore enjoyed no attorney-client relationship with him, makes the question of waiver of conflicts moot. This evidence could not possibly have impacted his "waiver" of Mr. Simone's conflicts, because Mr. Scafidi was not entitled to waive them. As a result, Mr. Scafidi was simply not entitled to the evidence for the purposes he suggests. Without such an entitlement or right to review this evidence, the government cannot be faulted for failing to provide it. Ergo, Mr. Scafidi's last request for relief must fail.
A thorough review of the record in this matter directs the conclusion that Mr. Scafidi is not entitled to relief. All three of his arguments in the instant petition are premised on the faulty notion that he had an attorney-client relationship with Mr. Simone such that his waiver of Mr. Simone's conflicts of interest was required. This is simply not true. Therefore, it was not ineffective assistance of counsel for his attorney to decline to present this issue on appeal, or move for severance at trial. Finally, as the government is not required to disclose investigative materials relating to possible criminal offenses of co-defendant's attorneys so that the co-defendants may properly waive any conflicts, Mr. Scafidi's last claim fails as well.
For the foregoing reasons, we will deny Mr. Scafidi's petition for relief pursuant to 28 U.S.C. § 2255.
An appropriate order follows.
AND NOW, this 30th day of July, 1997, upon consideration of defendant Salvatore Scafidi's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255, filed April 11 and supplement filed April 16, 1997, and the government's response thereto, filed July 18, 1997, it is hereby ordered that the same motion is DENIED.
BY THE COURT
Franklin S. Van Antwerpen
United States District Judge