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UNITED STATES v. SCAFIDI

July 30, 1997

UNITED STATES OF AMERICA
v.
SALVATORE SCAFIDI



The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 July 30, 1997

 I. INTRODUCTION

 On November 19, 1988 Salvatore Scafidi was convicted by a jury in a major mafia trial of RICO, RICO Conspiracy and illegal gambling business pertaining to lotteries (numbers), 18 U.S.C. §§ 1962(c), (d) and 1955. The jury specifically found him guilty of eleven RICO predicate acts consisting of one murder, one attempted murder, seven extortions, and running two illegal gambling businesses. Post verdict motions were denied. United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989). Subsequently, Mr. Scafidi was sentenced to a forty year term of imprisonment on May 3, 1989. Mr. Scafidi 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 April 11 and 16, 1997, eight days before the new statute of limitations period expired pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, Mr. Scafidi filed the instant petition for habeas corpus relief under 28 U.S.C. § 2255. He claims error in that (1) he did not knowingly, voluntarily and intelligently waive the conflicts of Attorney Robert Simone; (2) his attorney, Christopher Furlong, provided ineffective assistance by not raising this issue on appeal or at the time; and (3) the government failed to disclose "favorable and inculpatory evidence" that implicated Mr. Simone in criminal activity." We do not agree. 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.

 II. DISCUSSION

 A. Waiver of Conflict

 Mr. Scafidi's first argument is that "his waiver of a potential conflict of interest regarding the lead Counsel, Mr. Simone, was not knowingly, voluntarily, or intelligently made." Memorandum in Support of Petition I ("Memorandum I"), at 3. He states his belief that the government was pursuing an indictment against Mr. Simone at the time of his trial, and he should have been advised of this conflict. Further, the conflict was so severe that he could not possibly have waived it in a manner consistent with the Sixth Amendment. Id. at 3-4.

 Unfortunately, Mr. Scafidi's argument neglects one crucial point: Mr. Simone was not his attorney at any point relative to this trial. Rather, Attorney David Chesnoff represented Mr. Scafidi briefly on the matter of bail. On September 8, 1988, during pre-trial motions, it became apparent that Mr. Scafidi lacked the means to continue employing Mr. Chesnoff as his attorney. He therefore asked the court to appoint Attorney Christopher Furlong to represent him. We then colloquied him in open court as follows:

 
THE COURT: I'll ask if Mr. Scafidi would come forward at this time with his proposed new attorney. Good afternoon, sir. You're asking that I appoint this gentleman who's standing next to you to represent you in this trial. Is this correct?
 
MR. SCAFIDI: That's correct.
 
THE COURT: All right. Has anybody threatened you in any way to get you to do this?
 
MR. SCAFIDI: No, sir.
 
THE COURT: Or promised you anything to get you to do it?
 
MR. SCAFIDI: No, sir.
 
THE COURT: You're doing this of your own ...

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