The opinion of the court was delivered by: VAN ANTWERPEN
On November 19, 1988, Salvatore Merlino was convicted by a jury in a major mafia trial of RICO and RICO Conspiracy in violation of 18 U.S.C. §§ 1962(c) & (d), Illegal Gambling Business, in violation of 18 U.S.C. § 1955, and two counts of Distribution of Methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). The jury specifically found him guilty of 27 RICO predicate acts. These acts included four murders, three attempted murders, six murder conspiracies, one gambling offense, two illegal debt schemes, two distributions of methamphetamine and 14 extortions.
Post verdict motions were denied, United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989), and this court sentenced Mr. Merlino to 45 years imprisonment on May 10, 1989.
Petitioner's sentence consisted of a 20 year term for RICO, a 20 year term for RICO Conspiracy, and a 5 year term for the Illegal Gambling Business. These sentences were all consecutive to each other. We also sentenced Mr. Merlino to five years imprisonment for each methamphetamine offense. The first methamphetamine sentence was consecutive to Count One and concurrent with Count Two. The second methamphetamine sentence was consecutive to the first and concurrent with Count Two. All of these federal sentences were consecutive to a life sentence imposed by the Philadelphia County Court of Common Pleas for the first-degree murder of Frankie "Flowers" D'Alfonso.
The Court of Appeals affirmed Mr. Merlino's federal convictions and the Supreme Court denied certiorari. United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990), cert. denied, 500 U.S. 915 (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. Merlino 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. Merlino filed the instant motion for relief under 28 U.S.C. § 2255. Petitioner makes six claims: (1) that his pre-sentence report must be amended to reflect Petitioner's subsequent acquittal of the murder of Frankie D'Alfonso; (2) that his sentence was based upon his conviction in the D'Alfonso state murder case in which he was later given a new trial and acquitted; (3) that his consecutive sentences for RICO and RICO Conspiracy violate the Fifth Amendment's prohibition against double jeopardy; (4) that he was denied due process by the size of his trial and the large number of co-defendants; (5) that his attorney, Mr. Edwin Jacobs, provided ineffective assistance of counsel; and (6) that his conviction should be vacated because Mr. Scarfo's attorney, Mr. Simone, had been engaged in illegal activities that the government never disclosed to Mr. Merlino.
The Petitioner also asks that we allow him to join 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. Amendment of Pre-Sentence Report
Petitioner asks this court to amend his pre-sentence report to reflect the fact that he has been acquitted in state court of the murder of Francis D'Alfonso. The government has not objected to this request from Mr. Merlino's co-defendants. See Government's Response to Phillip Narducci's 28 U.S.C. § 2255 Motion at 13-14. Accordingly, we will issue an order amending the pre-sentence report to remove the state murder conviction and ordering that Mr. Merlino be furnished with a copy of the report.
Mr. Merlino next argues that he is entitled to resentencing because "it is . . . clear that this Court considered petitioner's conviction for the murder of Francis D'Alfonso when it imposed sentence," a murder for which he was later acquitted. Motion at 8. Mr. Merlino 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. Merlino has been given a new trial and has been acquitted in the D'Alfonso case, he argues that we must resentence him without reference to the state matter. We do not agree.
At Mr. Merlino's sentencing, we offered both Mr. Merlino and his trial attorney, Mr. Edwin Jacobs, an opportunity to speak to the court concerning sentencing. They refused:
MR. JACOBS: Your Honor, I'II keep it very short, very simple. My client and I are aware of all the previous sentences imposed by this Court on all the circumstances. My client does not wish to exercise his right of elocution, nor do I have any further statement on his behalf.
THE COURT: Thank you, sir. All right. I'II just ask you on the record, you don't care to say anything, is that correct, sir?
We then heard from the government on sentencing. During the government's argument, they asked that the pre-sentence report be amended to include the state court conviction for the murder of Frankie D'Alfonso. Mr. Merlino's counsel did not object to this motion and we amended the pre-sentence report. Tr. 5/10/89 at 6-7. After careful consideration, we imposed our sentence:
THE COURT: All right. This Court is . . . prepared to impose sentence. The defendant will rise, and his counsel. I've given individual consideration to the defendant. I've taken into account the trial evidence, the defendant's age, the presentence report, statements made today, the history, character and condition of the defendant. I believe the number of racketeering acts speaks for itself. He also had a high position of leadership in the mob; that he was a former underboss.
Accordingly, the Court feels 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 imprisonment for a term of 45 years, on condition that the defendant be confined in a jail-type institution. This sentence is composed of a sentence of 20 years on Count One, followed by a sentence of 20 years on Count Two, followed by a sentence of five years on Count Four. They are all consecutive to each other. The Court imposes sentences of five years each on redacted Count Six, that would be superseding Count Ten, and on redacted Count Seven, that would be superseding Count Eleven. Count Six shall be consecutive to Count One and concurrent with Count Two, and Count Seven shall be consecutive to Count Six and concurrent to Count Two.
Upon release, the defendant shall serve a special parole term of ten years. I'm required to impose a special parole term, and I do. The Court imposes no fine, but does impose a $ 250 special assessment required by law. The Court recommends an institutional security level of five or more. These sentences will be consecutive with the defendant's State sentence; that is, they shall be in addition to that sentence. Now, sir, this is -- are there any additions or corrections to this sentence? It's a total of 45 years. All right.
The only manner in which the D'Alfonso case impacted our sentence is that we imposed our sentence consecutive to, and not concurrent with, the state sentence. The sentence itself was not influenced by this prior state conviction. Cf. United States v. Lyons, 227 U.S. App. D.C. 284, 706 F.2d 321, 335 n. 25 (D.C.Cir. 1983)(resentencing only necessary where it cannot be ascertained whether the district court's sentence was influenced by a conviction that was later overturned).
As we stated at sentencing, Mr. Merlino was convicted of RICO, RICO Conspiracy, Illegal Gambling Business, and Distribution of Methamphetamine, with 27 underlying Racketeering Acts, including four murders, three attempted murders, and six murder conspiracies. Mr. Merlino served as the underboss of the Philadelphia Mafia, second only to Scarfo. And, when Scarfo was imprisoned in a Texas federal prison between August of 1982 and January of 1984, Mr. Merlino acted as the functional boss of the Scarfo crime family. These facts alone justify the maximum penalty as set out by Congress, without any reliance on the state conviction. Yet, we did not even levy the harshest sentence that was within our power; we could have sentenced Mr. Merlino to 55 years imprisonment, but we allowed him to serve his methamphetamine sentences concurrent to his RICO sentence, thus trimming 10 years off the maximum amount of time he could have had to spend in prison. The fact that the state sentence has been vacated due to acquittal on re-trial does not impact and cause us to change the actual sentence we imposed. It only impacts when he will begin serving it. Resentencing is therefore not required. See United States v. Scarfo, 711 F. Supp. 1315, 1997 WL 381583, *1, *2-3 (E.D. Pa. 1997).
Mr. Merlino stated in the Summary of Argument section of his brief that the imposition of consecutive sentences for RICO and RICO Conspiracy violates the double jeopardy clause of the Fifth Amendment. He never, however, set forth a legal argument supporting his blanket assertion. This claim is therefore dismissed as not being properly raised.
This complaint, even had it been raised properly, would fail. We assume, considering the fact that the majority of Mr. Marrone's brief appears to have been copied directly from the Narducci brothers' Habeas Corpus motions which did actually argue this claim, that Mr. Merlino's complaint stems from the recent Supreme Court decision of Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (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 thus convictions of both cannot amount to consecutive sentences. Armed with Rutledge, Mr. Merlino might demand that we reconsider the Court of Appeals' decision in Pungitore, 910 F.2d at 1115-17, that the imposition of consecutive sentences for RICO and RICO Conspiracy does not violate the Fifth Amendment. We disagree.
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. Merlino's direct appeal. "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. Merlino'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 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) & (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 they find anything within the CCE statute, or the cases which interpret it, that required otherwise. Pungitore, 910 F.2d at 1115-1116. Given the depth of the Third Circuit's discussion, we see no need to revisit the issue.
We find, however, that 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 what we assume would be Mr. Merlino'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 would have declined to reevaluate the measured opinion of the Court of Appeals, even if Mr. Marrone's brief had argued the issue properly. See Scarfo, 711 F. Supp. 1315, 1997 WL 381583 at *1-2.
The Summary of the Argument section of Mr. Merlino's brief also asserts that "because of the size [of his trial] and the number of defendants, the petitioners [sic] were denied due process." Motion at 5. Again, Mr. Marrone did not set forth any legal or factual reasons supporting this claim. It is therefore denied as being improperly raised.
However, had Mr. Merlino raised this issue properly, it still would have been denied as being procedurally barred. Mr. Merlino 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.
The Supreme Court has held that if a § 2255 petitioner failed 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. Merlino has not demonstrated either cause or actual prejudice.
Even if we accepted Mr. Merlino'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, Mr. Merlino still had the opportunity to raise his due process claim on direct appeal, but did not. Mr. Merlino has failed to show any cause for why he did not raise this issue with the Court of Appeals.
Mr. Merlino has also failed to show actual prejudice from being tried with his co-defendants. Mr. Merlino, like each of his 16 co-defendants at trial, was charged with RICO predicate acts involving murder. Thus, Mr. Merlino 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. Merlino 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 this collateral attack.
Even if this Court were to consider Mr. Merlino's due process claim, we would find it meritless. Federal Rule of Criminal Procedure 8(b) provides that defendants may be charged together "if they are alleged to have participated in the same act or transactions constituting an offense or offenses." The Supreme Court has recognized that "there is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993). Joint trials "'play a vital role in our judicial system,'" by promoting efficiency and serving "'the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Id. (quoting Richardson v. Marsh, 481 U.S. 200, 209-10, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987)). Here, Mr. Merlino, like all of his co-defendants, was charged in the indictment with RICO and RICO Conspiracy. We do not believe that the size and length of his trial violated due process. Quite the contrary, it is our belief that Mr. Merlino's trial with his co-defendants served the interests of efficiency and justice.
Mr. Merlino 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. Merlino was represented by his own lawyer, Mr. Jacobs, Mr. Merlino claims that all of Mr. Jacobs'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 Mr. Simone." Motion at 9-10.
Mr. Merlino presents a parade of conduct regarding Mr. Simone that he claims the government hid from him at trial.
Mr. Merlino 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. Merlino further asserts that these undisclosed negative facts created a conflict of interest between the Petitioner and Mr. Simone that Mr. Merlino never had an opportunity to waive. Mr. Merlino 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 18. Unfortunately for Mr. Merlino, we cannot consider any of these arguments because the Petitioner failed to raise them on appeal and thus they are procedurally defaulted. Yet, even if we could consider Mr. Merlino's demand for a new trial based upon Mr. Simone's "joint representation," we would dismiss each of his claims.
1. Mr. Merlino's Joint Defense Claims are Procedurally Defaulted
Mr. Merlino has failed to raise his joint defense claims on direct appeal. He is therefore procedurally barred from raising these claims for the first time in his § 2255 motion. Mr. Merlino had no cause for failing to raise these issues on appeal. Indeed, Mr. Pungitore, one of Mr. Merlino's co-defendants, raised joint defense issues very similar to Mr. Merlino's on appeal to the Third Circuit. See Pungitore, 910 F.2d at 1139-41. Furthermore, Mr. Merlino suffered no actual prejudice from engaging in a joint defense with Mr. Simone. The seventeen defense counsel involved in this case elected to pursue an overall unified defense strategy which consisted primarily of denying the existence and criminal purpose of 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. Merlino can show neither cause nor prejudice, he is prohibited from raising his joint defense arguments in the instant motion. Still, even if Mr. Merlino's joint defense claims were not barred, they would fail on the merits.
Mr. Merlino asserts that a conflict of interest existed between Mr. Simone and Mr. Merlino because Mr. Simone was allegedly involved in criminal activity with numerous individuals. 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 15-16.
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 defendants were informed that a number of the photographs that the government 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 one of the RICO predicate act murders. Tr. 9/9/88 at 44-47. Following this discussion, and following an extensive colloquy, Mr. Scarfo waived these conflicts.
Mr. Merlino'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 during the fact-finding phase of the trial. Rather, Attorney Edwin Jacobs represented Mr. Merlino at trial.
Mr. Jacobs participated fully at trial, cross-examining both of the government's key witnesses-- Mr. DelGiorno, Tr. 10/14/88 at 142-202, and Mr. Caramandi, Tr. 11/2/88 at 121-211, and presented a closing argument tailored specifically toward Mr. Merlino, Tr. 11/14/88 at 9-127. Thus, Mr. Merlino had the extra guarantee that any questions that he wanted asked of either Mr. DelGiorno or Mr. Caramandi could be asked by Mr. Jacobs, Mr. Merlino's own, personal attorney.
Under the law of the Third Circuit, it is inescapable that Mr. Merlino "cannot even assert a conflict of interest impeding Simone's representation of [him] because Simone represented only Scarfo. While Simone may have figured prominently in formulating and presenting the unified defense, that does not mean that he enjoyed an attorney-client relationship with every appellant in this case." United States v. Pungitore, 910 F.2d 1084, 1143 (3d Cir. 1990). 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 during the fact-finding phase of trial, Mr. Merlino was not in a position to waive ...