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September 17, 1997


The opinion of the court was delivered by: VAN ANTWERPEN


 Van Antwerpen, J.

 September 17, 1997


 On November 19, 1988, Phillip Narducci was convicted by a jury in a major mafia trial of RICO and RICO Conspiracy, 18 U.S.C. §§ 1962(c) and (d). The jury specifically found him guilty of five RICO predicate acts consisting of two murders, two attempted murders, and extortion. Post verdict motions were denied, United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989), and this court sentenced Mr. Narducci to two consecutive twenty year terms of imprisonment on May 4, 1989. This sentence was imposed consecutive to a life sentence levied by the Philadelphia County Court of Common Pleas for the first degree murder of Frank D'Alfonso. The Court of Appeals affirmed Mr. Narducci's RICO and RICO Conspiracy convictions and the Supreme Court denied certiorari. United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990), cert. denied, 500 U.S. 916 (1991). The state murder conviction, however, was subsequently reversed by the Pennsylvania Superior Court, Commonwealth v. Scarfo, 416 Pa. Super. 329, 611 A.2d 242 (1992). Mr. Narducci was retried on this charge in early 1997 and was acquitted.

 On April 23, 1997, one day before the new statute of limitations period expired pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, Mr. Narducci filed the instant motion for relief under 28 U.S.C. § 2255. Petitioner makes six claims: (1) that his consecutive sentences for RICO and RICO Conspiracy violates the Fifth Amendment's prohibition against double jeopardy; (2) that he was gulled by the government into pursuing a joint defense strategy with co-defendant Mr. Scarfo's attorney, Mr. Simone, and that a conflict of interest existed between Mr. Narducci and Mr. Simone which the Petitioner never waived; (3) that he was denied due process by being tried in a large trial with numerous co-defendants; (4) that his sentence was based on his conviction for the murder of Frank D'Alfonso, for which he was ultimately acquitted; (5) that he had ineffective assistance of counsel; and (6) that his pre-sentence report should be amended to reflect the fact that he was acquitted of first degree murder in the state action. Mr. Narducci also asks this court to allow him to join in any § 2255 motions filed by his co-defendants. 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. Double Jeopardy

 Mr. Narducci's first complaint stems from the recent Supreme Court decision of Rutledge v. United States, U.S. , 116 S. Ct. 1241 (1996). In Rutledge the Supreme Court held that conspiracy to distribute controlled substances (21 U.S.C. § 846) is a lesser included offense of the continuing criminal enterprise offense ("CCE") (21 U.S.C. § 848) and therefore convictions of both cannot amount to consecutive sentences.

 The question of whether the double jeopardy clause of the Fifth Amendment prohibits consecutive sentencing for RICO Conspiracy and substantive offenses (18 U.S.C. §§ 1962(c) & (d)) has already been litigated and decided on Mr. Narducci's direct appeal. See Pungitore, 910 F.2d at 1115-17. "Once a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255." United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981)(citing Kaufman v. United States, 394 U.S. 217, 227, n.8, 22 L. Ed. 2d 227, 89 S. Ct. 1068 (1969)); see also Reed v. Farley, 512 U.S. 339, 358, 129 L. Ed. 2d 277, 114 S. Ct. 2291 (1994)(J. Scalia, concurring)("claims will ordinarily not be entertained under § 2255 that have already been rejected on direct review."). There is a great interest in the finality of litigation; matters fully addressed and decided on direct appeal should not be reexamined lightly.

 In Mr. Narducci's direct appeal, the Court of Appeals discussed the issue of consecutive sentences for RICO and RICO conspiracy in detail. Specifically, they addressed the question in light of another Supreme Court decision, Jeffers v. United States, 432 U.S. 137, 53 L. Ed. 2d 168, 97 S. Ct. 2207 (1977), and held that the vast differences between §§ 1962 (c) & (d) and §§ 846 & 848 merited the conclusion that while consecutive sentences were not valid for the latter, they were for the former. Citing United States v. Marrone, 746 F.2d 957 (3d Cir. 1984), which in turn cited Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), the court further held that the statutory provisions in § 1962(c) and § 1962(d) defined different offenses under the law and as such cumulative punishment was presumptively valid. The court found no legislative intent to prevent consecutive sentencing, nor did it find anything within the CCE statute, or the cases which interpret them, that required otherwise. Pungitore, 910 F.2d at 1115-16. Given the depth of the appellate court's discussion, we see no need to revisit the issue.

 Petitioner claims that the Court of Appeals' decision in Pungitore is no longer valid after Rutledge. We disagree. Even if we were to reconsider the Court of Appeals' decision pursuant to Rutledge, there is nothing in that opinion which would give us pause. Contrary to Mr. Narducci's interpretation, the Supreme Court case is in line with the Third Circuit's assessment of §§ 846 and 848. The Rutledge court followed the logic in Jeffers, and, using the "same offense" test, held that consecutive sentences could not be imposed for CCE and CCE conspiracy because they are the same offense. The Supreme Court made no comparison or connection between the CCE and RICO statutes. In fact, it noted that its holding was not contrary to the holding in Garrett v. United States, 471 U.S. 773, 794-95, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985), that conspiracy and the substantive crime that is the object of the conspiracy are distinct offenses. Rutledge, 116 S. Ct. at 1247. As such, nothing in Rutledge undermines the ruling in Pungitore that RICO and RICO conspiracy are separate offenses because of the different elements of proof required; indeed, the rationale and holding of the cases are materially identical. We therefore decline to reevaluate the measured opinion of the Court of Appeals. See United States v. Pungitore, 965 F. Supp. 666, 683 (E.D. Pa. 1997).

 B. Joint Defense Claims

 Mr. Narducci seems to argue that he must receive a new trial because he, along with the 16 other defendants, pursued a joint defense strategy with Mr. Robert F. Simone, Nicodemo Scarfo's lawyer, as lead attorney. Though Mr. Narducci was represented by his own lawyer, Mr. Donald C. Marino, Petitioner claims that all of Mr. Marino's "actions had to be approved, in advance, by Simone," and that "Petitioner's attorney was not allowed to object, make a motion or argument or even ask a question of a witness without prior approval of Simone." Motion for a Writ of Habeas Corpus, New Trial, an Order Vacating Sentence, Correction of Pre-Sentence Report, an Order Compelling the Production of a Copy of the Petitioner's Pre-Sentence Report, and an Order Authorizing Petitioner to Join in Similar Motions Filed By Co-Defendants ("Motion") at 11-12.

 Mr. Narducci presents a list of conduct regarding Mr. Simone that he claims the government hid from him at trial. *fn1" Petitioner argues that the government had an obligation to inform him of these facts and that their failure to so inform him requires that he be granted a new trial. Mr. Narducci further argues that these undisclosed negative facts created a conflict of interest between the Petitioner and Mr. Simone that Mr. Narducci never had an opportunity to waive. Mr. Narducci also seems to argue that he deserves a new trial because Mr. Simone was house counsel to Mr. Scarfo's criminal enterprise and because if Mr. Simone "had loyalty to anyone other than himself, it was to Scarfo." Motion at 23. Unfortunately for Mr. Narducci, we cannot consider any of these arguments because he failed to raise them on appeal and thus they are procedurally defaulted. Yet, even if we could consider Mr. Narducci's demand for a new trial based upon Mr. Simone's "joint representation," we would dismiss each of his arguments.

 1. Mr. Narducci's Joint Defense Claims are Procedurally Defaulted.

 Mr. Narducci has failed to raise his joint defense claims on direct appeal. He is therefore procedurally barred from raising this claim for the first time in his instant § 2255 motion.

 The Supreme Court has held that if a § 2255 petitioner failes to properly raise an issue in trial or on direct appeal, he will be procedurally barred from raising the issue in a collateral attack unless he can show cause and actual prejudice. United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). To show "cause," a petitioner must demonstrate that the reason for failing to raise the issue is something that cannot be fairly attributable to him. To show "actual prejudice," a petitioner must establish that any errors worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension. Frady, 465 U.S. at 167-69.

 Mr. Narducci had no cause for failing to raise these issues on appeal. Indeed, Mr. Pungitore, one of Mr. Narducci's co-defendants, raised joint defense issues very similar to Mr. Narducci's on appeal to the Third Circuit. See Pungitore, 910 F.2d at 1139-41. Furthermore, Mr. Narducci suffered no actual prejudice from engaging in a joint defense with Mr. Simone. 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 if La Cosa Nostra, denying the defendants' participation in it, and attacking the credibility of the government's principal cooperating witnesses. This strategy, consciously chosen by the defendants, had proven successful in several prior trials involving the same defendants. Hence, since Mr. Narducci can show neither cause nor prejudice, he is prohibited from raising his joint defense arguments in the instant motion. Still, even if Mr. Narducci's joint defense claims were not barred, they would fail on the merits.

 2. Conflict of Interest

 Mr. Narducci asserts that a conflict of interest existed between him and Mr. Simone because Mr. Simone was allegedly involved in criminal activity with numerous individuals. Motion at 12-24. He argues that "Simone's dilemma in cross-examining Caramandi and DelGiorno and not getting into areas where his own criminality might be exposed, clearly required either his disqualification or a knowing, intelligent, and unequivocal waiver by Petitioner." Id. at 20. On September 9, 1988 the government raised the issue of a possible conflict of interest between Mr. Simone and his client, Mr. Nicodemo Scarfo. As discussed in open court on that day, Mr. Simone had been implicated by the cooperating witnesses in the extortion of Mr. William Rouse, a charged offense in the instant trial. In addition, the government disclosed that a number of the photographs that the prosecution planned to introduce as evidence included Mr. Simone, and that one of the cooperating witnesses would testify that Mr. Simone was present during the discussion of a RICO predicate act murder. Tr. 9/9/88 at 44-47. Following this discussion, and following an extensive colloquy, Mr. Scarfo waived these conflicts in open court.

 Mr. Narducci's argument that the Court should have provided him an opportunity to waive Mr. Simone's conflicts as well neglects one crucial point: Mr. Simone was not his attorney at any point relative to this trial. Rather, Attorney Donald Marino represented Mr. Narducci at trial. Mr. Marino participated fully at trial, cross-examining both of the government's key witnesses-- Mr. DelGiorno, Tr. 10/15/88 at 103-108, and Mr. Caramandi, Tr. 11/1/88 at 61-74,-- and presenting a closing argument tailored specifically toward Mr. Narducci, Tr. 11/16/88 at 62-74. Thus, Mr. Narducci had the extra guarantee that any questions that he wanted asked of either Mr. DelGiorno or Mr. Caramandi could be asked by Mr. Marino, Mr. Narducci's own, personal attorney.

 As the Third Circuit has held, it is inescapable that Mr. Narducci "cannot even assert a conflict of interest impeding Simone's representation of [him] because Simone represented only Scarfo. While Simone may have figure prominently in formulating and presenting the unified defense, that does not mean that he enjoyed an attorney-client relationship with very appellant in this case." Pungitore, 910 F.2d at 1143. Indeed, the employment of a joint defense strategy does not establish an attorney-client relationship between every defense attorney and every defendant in a case. Id. Regardless of the conflicts that Mr. Simone may or may not have had, Mr. Narducci was not in a position to waive them because he was not Mr. Simone's client. Id. Indeed, there is no evidence that Mr. Narducci ever employed Mr. Simone as his lawyer. Therefore, the question of whether or not Petitioner made a knowing, voluntary, and intelligent waiver in a manner consistent with the Sixth Amendment is moot.

 3. Government's Nondisclosure

 Mr. Narducci also argues that we must grant him a new trial because Mr. Simone "had been involved in criminal activity with numerous individuals," and the government "knew of this involvement and failed to fully disclose it to the other defendants and their attorneys . . . allowing the defendants to go forward with Simone acting on their behalf without knowing of his criminal activity." Motion at 7.

 Mr. Narducci 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. Indeed, Mr. Simone's alleged criminal conduct is not Brady or Jencks material. Rather, Mr. Narducci argues that he should have been given the material only because it would have put him in a better position to intelligently and knowingly waive any conflicts he might have with Mr. Simone. Motion at 16-24.

 However, Petitioner has not been able to present us with any caselaw, nor can we find ourselves, that suggests that the government had an on-going obligation to disclose all information suggesting Mr. Simone's criminality to even Scarfo, let alone to a person outside the attorney-client privilege like Mr. Narducci. Mr. Narducci simply argues that Mr. Simone's criminal activity created a conflict of interest with Mr. Narducci that the Petitioner could not effectively waive. Motion at 16-24. As discussed above, the fact that Mr. Simone was not Mr. Narducci'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. Narducci was not entitled to waive them. As a result, Mr. Narducci had no right to the evidence for the purposes he suggests. Without such a right to review this evidence, the government cannot be faulted for failing to provide it. *fn2"

 Therefore, Petitioner's argument that we must order a new trial because the government failed to disclose Mr. Simone's alleged criminal activity must fail.

 4. House Counsel

 Mr. Narducci tries to convince this court that he should be granted a new trial because Mr. Simone was house counsel to La Cosa Nostra and therefore should have been disqualified by the court. As previously discussed, Mr. Simone did not represent Mr. Narducci. Therefore, we find this argument unpersuasive.

 5. Mr. Simone's Loyalty to Scarfo

 Mr. Narducci claims that "Simone's conduct on behalf of the Petitioner suffered from another defect . . . if Simone had loyalty to anyone other than himself, it was to Scarfo." Motion at 23. Far from being a defect, we believe that Mr. Simone's loyalty was correctly directed toward his client. It is axiomatic that a lawyer's first responsibility is to his or her client. The seventh Cannon of the Model Code of Professional Conduct commands that "a lawyer should represent his client zealously within the bounds of the law." Indeed, "[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." ABA Model Rule of Professional Conduct 1.3 (1995 ed.). Thus, a "lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." Id. So, while Mr. Narducci's claim that Scarfo's lawyer was loyal to Scarfo is probably correct, it does not earn the Petitioner a new trial.

 C. Due Process

 Mr. Narducci also maintains that he was "forced to go to trial with 18 other defendants," *fn3" and that the size of his trial deprived him of due process. Motion at 24-26. Mr. Narducci did not ask for a severance during the trial, nor did he raise this issue on appeal. The instant petition is the first time that he has claimed that the size of his trial violated due process. This argument is therefore procedurally defaulted since Mr. Narducci has not demonstrated either cause or actual prejudice for failing to raise this claim on his direct appeal.

 Yet, even if we accepted Mr. Narducci's argument that the "failure of his attorney to move for severance was the direct result of petitioner's uninformed decision to proceed with a joint defense," Motion at 24, Mr. Narducci had the opportunity to raise his due process argument on direct appeal, but did not. Mr. Narducci has failed to show any cause for why he did not raise this issue with the Court of Appeals. Furthermore, for the reasons set out in Part E(2), supra, we do not accept Mr. Narducci's argument for why he failed to move for a severance at trial.

 Mr. Narducci has also failed to show actual prejudice from being tried with his co-defendants. Mr. Narducci, like each of his 16 co-defendants at trial, was charged with RICO predicate acts involving murder. Thus, Mr. Narducci cannot claim to be a non-violent member of a RICO conspiracy linked to his detriment to other violent members of the same conspiracy. Since Mr. Narducci cannot show either cause for or actual prejudice from failing to raise this issue on appeal, he is procedurally barred from raising the issue in the in this collateral attack.

 Even if this Court were to consider Mr. Narducci's due process claim, we would find it meritless. Petitioner cites United States v. Casamento, 887 F.2d 1141 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1043, 110 S. Ct. 1138 (1990), to stand for the proposition that "courts have looked with displeasure upon trial [sic] with a large number of defendants and charges." Motion at 25. Casamento, however, is advisory in the Second, not the Third, Circuit. And, the Petitioner himself admits that "the Third Circuit has never specifically held that such trials violate a defendant's right to Due Process." Motion at 25.

 Furthermore, even if Casamento were the law of the Third Circuit, it would not support Mr. Narducci's due process argument. The trial at issue in Casamento, known popularly as the "Pizza Connection Case," was a 17 month long drug trafficking and money laundering conspiracy mega-trial involving 21 defendants. 887 F.2d at 1147-49. In Casamento, the Court of Appeals rejected the appellants' argument that they had been denied due process by the district court's decision not to sever their trial. Id. at 1156. Mr. Narducci's trial, by contrast, involved fewer defendants and lasted only two months. Casamento upheld the district court's decision not to sever a case that was far larger than Mr. Narducci's.

 Casamento advises district courts to "oblige the prosecutor to present a reasoned basis to support a conclusion that the joint trial of all the defendants is more consistent with the interest of justice than some manageable division of the case into separate trials for groups of defendants," when the court estimates that the government's case in chief will last for longer than four months. Id. at 1152. The government, however, estimated that the entire trial against Mr. Narducci and his co-defendants would last less than three months. And, Mr. Narducci's trial, in fact, lasted less then two months. Thus, Casamento's benchmark would not have applied to Mr. Narducci's case, even if Casamento were controlling in the Third Circuit. Therefore, Mr. Narducci's due process argument would fail on its merits, even if it were not procedurally barred.

 D. Sentencing

 Mr. Narducci next argues that he is entitled to a resentencing because it is "clear that this Court considered Petitioner's conviction for the murder of Francis D'Alfonso when it imposed sentence on May 4, 1989." Motion at 9. Mr. Narducci apparently believes that, because his federal sentence was given consecutive to his state sentence in the D'Alfonso case, we were influenced in sentencing by that state conviction. Now that Mr. Narducci has been acquitted in the D'Alfonso case, he argues, we must resentence him without reference to the state matter. We do not agree.

 At Mr. Narducci's sentencing, we heard both Mr. Marino (Mr. Narducci's trial counsel) and the government on the issue of sentencing. We imposed our sentence by saying the following:

THE COURT: I have given individual consideration to the defendant. I've taken into account the trial evidence, his age, the pre-sentence report, the statements made today, the letter I received from the child he and his brother assisted in the time of need, the family support, history, and character and condition of the defendant. I look at the convictions and I find that there are five racketeering acts and that four of them involve murder; two attempted murders and two completed murders, and I would have to say that the picture I get is of a violent person.
Accordingly, I believe that the following sentence is appropriate. The defendant is hereby committed to the custody of the Attorney General of the United States of America, or his authorized representative, for a term of 40 years, on condition that the defendant be confined in a jail-type institution and the Court recommends institutional security level six. This sentence is composed of a sentence of 20 years on Count One and a sentence of 20 years on Count Two, They are consecutive; that is, one shall run after the other. The Court does impose the $ 100 assessment required by law, and that's $ 50 as to each count, and the Court does not impose a ...

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