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GATTO v. UNITED STATES

August 11, 1997

JOHN GATTO
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: WALDMAN

 WALDMAN, J.

 August 11, 1997

 I. BACKGROUND

 Petitioner was charged in eight counts of a 116 count indictment against multiple defendants with the manufacture and distribution of multi-kilogram quantities of methamphetamine and conspiring to do so over a two-year period. The indictment charges that petitioner and codefendant Lawrence Pirollo were partners and organizers, supervisors or managers in a substantial drug trafficking operation. Pursuant to an agreement with the government, petitioner pled guilty on November 4, 1992 to one count charging that he engaged in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848. The government agreed to a dismissal of all other charges against petitioner and not to prosecute him further for any offenses related to the CCE activity prior to the agreement except any murder, attempted murder or crime of physical violence. Petitioner was sentenced to a period of 240 months of imprisonment, the minimum sentence mandated by statute, to be followed by five years of supervised release.

 Presently before the court is petitioner's petition to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner asserts that his retained trial counsel provided ineffective assistance, his guilty plea was involuntary and he is entitled to a downward departure pursuant to U.S.S.G. § 5K2.12.

 The court has reviewed the petition and accompanying submissions as well as petitioner's addenda of March 3 and March 20, 1997, the government's response of May 27, 1997, pertinent court records in the criminal case against petitioner and his codefendants and in the related case against George Williams. For the reasons that follow, the petition will be denied.

 II. DISCUSSION

 A. Voluntariness of Petitioner's Guilty Plea

 Petitioner states that he involuntarily pled guilty to a crime he had not committed. Petitioner contends that the government's willingness to enter into a plea agreement with him only on condition that codefendants Anthony Gatto and Lawrence Pirollo also plead guilty combined with a government promise of lenient treatment for his stepfather rendered petitioner's plea involuntary.

 The government acknowledges that its willingness to enter plea agreements with petitioner, Lawrence Pirollo and Anthony Gatto was contingent upon all three pleading guilty. One codefendant had absconded and the remaining 19 codefendants had all pled guilty. The government had fully prepared and was ready to proceed when on the proverbial eve of trial Messrs. Gatto and Pirollo decided to seek plea bargains. Petitioner's stepfather, Ronald Serchia, was a defendant in an unrelated drug case which petitioner claims the government promised to drop. On a similar claim by petitioner's brother Anthony, the court credited the testimony of the prosecuting attorneys in this case and found that the government had made so such promise. *fn1"

 1. Procedural Default

 The government contends that this claim is barred because petitioner failed to raise it on direct appeal and has failed to make the requisite showing of cause and actual prejudice. Petitioner asserts that his failure to raise this issue on appeal was not his "error" but the result of his appellate counsel's advice to pursue any challenge to the voluntariness of his plea in a § 2255 petition. Petitioner also states that he was told by subsequent appellate counsel that "an appeal after a guilty plea is very limited" and "the only claims that can be raised are those that are clear on the face of the record." Petitioner asserts that this advice constitutes an "external impediment" which prevented him from raising this issue on appeal.

 A petitioner seeking relief from an alleged error or defect in connection with his sentence which was not raised on direct appeal must satisfy the cause and prejudice standard articulated in United States v. Frady, 456 U.S. 152, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). *fn2" Ineffectiveness of counsel will constitute "cause" for a petitioner's failure to challenge the voluntariness of his guilty plea on direct appeal only if it is an independent constitutional violation. Oliver v. United States, 961 F.2d 1339, 1342 (7th Cir.), cert. denied, 506 U.S. 976, 113 S. Ct. 469, 121 L. Ed. 2d 376 (1992). "The mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for procedural default," however, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier, 477 U.S. 478, 486-87, 496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).

 Petitioner must also show that the alleged error resulted in actual prejudice, a showing even more stringent than that required to establish plain error on appeal. Frady, 456 U.S. at 166, 168. A petitioner must show more than "a possibility of prejudice," but rather must demonstrate that any error worked to his "actual and substantial disadvantage." Id. at 170 (emphasis in original).

 Petitioner has failed to demonstrate the existence of such an "objective factor." He has failed to establish cause for his failure to raise this claim on direct appeal or to make the requisite showing of prejudice.

 2. Merits

 To set aside a guilty plea under § 2255, a petitioner must show that the plea hearing was tainted by "'a fundamental defect which inherently results in a complete miscarriage of justice'" or "'an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Farley, 315 U.S. App. D.C. 240, 72 F.3d 158, 162 (D.C.Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962)). Collateral relief under § 2255 is not available merely for a failure to comply with the formal requirements of Fed. R. Crim. P. 11. United States v. Timmreck, 441 U.S. 780, 783-84, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979).

 The government contends that, even assuming petitioner's claim is not procedurally barred, its failure to inform the court that its willingness to enter into a plea bargain with petitioner was contingent upon the two remaining codefendants also pleading guilty is not jurisdictional or of constitutional magnitude. The government further contends that, even if its failure amounted to a violation of Rule 11, petitioner has not demonstrated that this resulted in "a complete miscarriage of justice" or that the guilty plea hearing was "inconsistent with the rudimentary demands of fair procedure." Petitioner contends that his counsel's advice to "admit to the facts that established guilt" amounted to a due process violation because counsel knew petitioner maintained his innocence.

 Petitioner has not demonstrated that his guilty plea was involuntary, that his plea hearing was fundamentally unfair or that any defect may have resulted in the conviction of an innocent person or a complete miscarriage of justice.

 Package plea bargains or the offer of lenient treatment for some third-party are not constitutionally impermissible. See United States v. Clements, 992 F.2d 417, 419 (2d Cir.), cert. denied, 510 U.S. 919, 126 L. Ed. 2d 262, 114 S. Ct. 316 (1993); United States v. Seligsohn, 981 F.2d 1418, 1426 (3d Cir. 1992); United States v. Pollard, 295 U.S. App. D.C. 7, 959 F.2d 1011, 1020-21 (D.C.Cir.), cert. denied, 506 U.S. 915, 121 L. Ed. 2d 242, 113 S. Ct. 322 (1992); United States v. Marquez, 909 F.2d 738, 741-42 (2d Cir. 1990), cert. denied, 498 U.S. 1084, 112 L. Ed. 2d 1045, 111 S. Ct. 957 (1991); Politte v. United States, 852 F.2d 924, 930-31 (7th Cir. 1988); United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir. 1987), aff'd, 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988). Where a handful of remaining defendants in a broad conspiracy case decide to explore the prospect of plea bargains only after the government has amassed all of its evidence and has fully prepared to proceed, it is not unreasonable for the government to eschew any arrangement which would not obviate the need for a trial.

 An offer to execute plea bargains on an "all or none" basis is not a "promise." Whether it is a "condition" of each plea agreement or merely a negotiating position and a condition precedent to an agreement may be fairly debated. In any event, the better practice is to alert the court to the package feature of a plea bargain. See Clements, 992 F.2d at 419 ("preferred practice" is to advise court of requirement that all defendants or none plead guilty). A failure to so notify the court, however, does not entitle a defendant at any subsequent time to withdraw his guilty plea. Rather, the ...


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