from government motions pursuant to § 3553(e) and § 5K1.1.
Even assuming their attorneys would have acceded to requests for interviews, counsel's decision not to seek interviews of represented codefendants who agreed to cooperate against the remaining defendants was not unreasonable.
3. Failure to Raise or Properly Pursue Certain Issues
Petitioner contends that counsel should have obtained a voice exemplar from him to compare with the voices on intercepted conversations recorded by the government because his voice is similar to and might have been mistaken for that of his brother and codefendant, Anthony Gatto. Petitioner does not aver that he related this information to counsel at the time. Petitioner also contends that counsel should have analyzed the recordings of intercepted conversations in which his voice is heard for authenticity, editing or tampering.
Petitioner does not refute counsel's statements that he reviewed wiretap transcripts with petitioner, compared them to contemporaneous surveillance records and relied on petitioner's confirmation that they conformed with his recollection of the pertinent conversations. Petitioner suggests only that his recollection of how incriminating these conversations may have been differs from the assessment of counsel. This does not evince professionally deficient or unreasonable conduct.
Petitioner's speculation that his voice could have been confused with that of his brother in one or more of the intercepted conversations does not establish prejudice. There is no contention that in the face of other evidence, petitioner would not have pled guilty if attribution of some of the pertinent recorded statements could have been shifted to a codefendant who averred in his own plea colloquy that he received from, adulterated for and returned to petitioner quantities of methamphetamine during the period covered by the electronic and physical surveillance of the conspirators.
Similarly, there is no showing that a decision by counsel not to challenge the authenticity, accuracy or integrity of the recordings of petitioner's intercepted conversations was unreasonable or resulted in any prejudice. The government filed a motion to admit the recordings and averred that it could satisfy each of the so-called Starks factors. The court has observed many capable defense attorneys forego a Starks challenge upon such averments by the prosecuting attorney. Further, petitioner does not assert or make any showing that these averments were untrue and that any recording was faked, inaccurate or altered.
Petitioner also contends that counsel should have challenged the "necessity" finding for an extension of the wiretap. Petitioner does not, however, contend or show that the authorizing judge erred in finding necessity and it appears that the extension did help to substantiate the scope of the drug enterprise and the roles of various participants.
Petitioner also challenges counsel's failure to file a motion in limine to preclude evidence of other crimes on the ground that it was unduly prejudicial. Petitioner fails to note, however, that this issue was presented to the court by the government which filed a pretrial Notice of Intent to Introduce Evidence of Other Crimes. This evidence consisted of testimony of George Williams about the evolution of his relationship with petitioner which would reveal prior similar methamphetamine trafficking by each and references to sports betting in recorded conversations intertwined with discussion regarding drug activity. The court ruled that it would defer a decision on the admissibility of this evidence until the time of trial when it could be better evaluated in context. It was thus evident that petitioner's counsel would have an opportunity to argue any objection he wished before any such evidence would be admitted. At his plea hearing, petitioner acknowledged his understanding of-his right to object to evidence offered by the government against him and to challenge the manner in which evidence was obtained.
In any event, counsel would not have been unreasonable in concluding that the proffered evidence was admissible consistent with Fed. R. Evid. 404(b) and 403. Moreover, petitioner does not and without straining credulity could not assert that if assured the testimony of Mr. Williams would encompass only the multi-kilogram quantities of pure methamphetamine manufactured for petitioner during the period of the conspiracy charged in the indictment and that references to sports betting could be excised from drug related conversations, petitioner would have elected to proceed to trial.
Petitioner further contends that counsel did not properly argue his motion to compel the government to produce for interview four persons in the witness protection program. The court denied this motion based on the statements of these individuals that they had not related exculpatory information about petitioner as alleged and "do not consent to be interviewed by counsel for the defendant." Petitioner now claims that counsel should have presented evidence from petitioner's mother that one of these persons indicated in two telephone conversations in April 1992 that the four were willing to testify on petitioner's behalf. There is no showing, however, that any of the four had consented to be interviewed or did in fact have relevant exculpatory testimony to give.
The transcripts of the two conversations of petitioner's mother with one of the protected witnesses on which petitioner relies show at most that these individuals were willing to testify that Nicholas D'Amato was the "kingpin" behind the drug operation. This, of course, is not inconsistent with petitioner being an organizer, manager or supervisor.
"A given network may have many persons in authority. Thus, the defendant need not be the dominant organizer or manager of the enterprise; he need only occupy some managerial position with respect to five or more persons." United States v. Jenkins, 904 F.2d 549, 553 (10th Cir. 1990). Such persons need not be "under the direct and immediate control or supervision of defendant." United States v. Ricks, 882 F.2d 885, 891 (4th Cir. 1989). A defendant need only exercise "some type of influence" over such persons. United States v. Rogers, 89 F.3d 1326, 1334-35 (7th Cir. 1996). Moreover, a defendant's relationship with five others need not exist at the same time and may be separate and distinct. United States v. English, 925 F.2d 154, 157 (6th Cir. 1991). A principal in a criminal enterprise cannot avert CCE liability by exercising authority or influence through a partner or lieutenant or otherwise by limiting his direct contact to fewer than five participants. Ricks, 882 F.2d at 891. Having others store, cut or transport drugs can satisfy the managerial requirement. United States v. Chalkias, 971 F.2d 1206, 1214 (6th Cir.), cert. denied, 113 S. Ct. 351 (1992); English, 925 F.2d at 157.
Another of these individuals in the witness protection program confirms that they did not agree to be interviewed by petitioner's counsel because "at that time none of us thought we could possibly help you . . . we did not even think of coercion until you brought it to our attention." It thus appears that at some point petitioner thought these individuals might support a claim of duress and coercion by Mr. D'Amato. As noted, however, petitioner's allegations in this regard do not remotely establish a duress and coercion defense.
There is absolutely no showing that the four protected witnesses had any pertinent admissible exculpatory testimony to give or that petitioner was prejudiced by any failure of counsel to push more aggressively for their pretrial production. At his plea hearing, petitioner acknowledged that he understood his right to have any witnesses subpoenaed for trial and also stated under oath that he was satisfied with his attorney's representation and advice.
4. Failure to Provide Case File
Petitioner finally asserts that he has been prejudiced in pursuing collateral relief by counsel's refusal to release his case file to petitioner "as there might be other issues or documentation he could discover to support a claim of ineffective assistance of counsel."
Petitioner, however, also submits correspondence from counsel which shows that he offered to permit anyone petitioner designated to review the file and copy any portion of it. It appears that counsel believed the original file should be preserved in tact in his possession because it "may become relevant to a future court proceeding," and that he could not absorb the expense of copying all of the thousands of pages comprising the file. Counsel's position was not unreasonable.
In any event, as the government contends, such action cannot constitute ineffective assistance for purposes of this action. The conduct of which petitioner complains took place after his plea and could not have affected his decision to plead guilty.
Even assuming petitioner's claim that his guilty plea was involuntary is cognizable in this action, he not shown that it was. Petitioner has not shown that he received ineffective assistance of counsel. Petitioner has not made a showing of duress and coercion necessary to qualify for a downward departure pursuant to § 5K2.12 and, in the absence of a § 3552(e) motion of the government, the court is powerless to consider such a sentencing departure.
Petitioner and persons writing at his behest have asked for "leniency." Petitioner makes a meaningful showing of "repentance for his actions" and "rehabilitation." Such request and showing, however, are misdirected. As petitioner acknowledged, Congress has mandated the sentence he received. The court imposed the minimum prison term allowed by law. If the law permitted resentencing for post-conviction rehabilitation or to grant leniency despite a statutory required sentence, the court would be more than willing to consider such action in this case as well as others. Courts, however, may not indulge themselves. They must follow and apply the law.
The court has given petitioner an opportunity to amplify and expand his submissions. The court has carefully reviewed those submissions and various pertinent court records. Petitioner has simply not made a showing which would entitle him to the legal relief he requests.
Accordingly, petitioner's § 2255 petition will be denied. An appropriate order will be entered.
AND NOW, this 11th day of August, 1997, upon consideration of petitioner's petition to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, and the government's response thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said petition is DENIED and the above action is DISMISSED.
BY THE COURT:
JAY C. WALDMAN, J.