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UNITED STATES v. SCARFO

October 14, 1997

UNITED STATES OF AMERICA
v.
NICODEMO SCARFO



The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 October 14, 1997

 I. INTRODUCTION

 We have before us Defendant's Application for a Certificate of Appealability. On November 19, 1988 Nicodemo Scarfo, the former boss of the Philadelphia La Cosa Nostra Family, was convicted by a jury in a major mafia trial of RICO and RICO Conspiracy, Illegal Gambling Business, and two counts of Unlawful Distribution of Methamphetamine, 18 U.S.C. §§ 1962(c) and (d), 1963, 1955, and 841. The jury specifically found him guilty of thirty-two RICO predicate acts including eight murders, four attempted murders, two distributions of methamphetamine, one extortionate collection of credit, fourteen extortions, one Hobbs Act extortion and one illegal sports bookmaking operation. Post verdict motions were denied, United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989), and Mr. Scarfo was sentenced to a 55-year term of imprisonment on May 11, 1989. Mr. Scarfo appealed his conviction. It was affirmed by the Third Circuit and his petition for certiorari was denied. United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990), cert. denied, 500 U.S. 915 (1991).

 On April 22, 1997, Mr. Scarfo filed a petition for relief under 28 U.S.C. § 2255. He made three claims: (1) that the consecutive sentences that he received for RICO and RICO Conspiracy violated the Fifth Amendment's prohibition against double jeopardy; (2) that his sentence was based upon his conviction in an earlier state case in which he was later given a new trial and acquitted; and (3) that his trial lawyer, Mr. Robert Simone, provided ineffective assistance of counsel because he was burdened by conflicts of interest that were either unwaivable, or insufficiently waived. We issued an Opinion and Order dismissing these claims and denying the former mob boss's petition on July 9, 1997. See United States v. Scarfo, 970 F. Supp. 426 (E.D. Pa. 1997).

 Mr. Scarfo now applies to this court asking us to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b), so that he may appeal our denial of his habeas corpus petition to the Third Circuit. Mr. Scarfo argues that two of the issues raised in his § 2255 motion, his alleged conflicts with attorney Simone and his consecutive sentences for RICO and RICO Conspiracy, are "substantial 'and debatable among jurists,'" and thus must be heard on appeal. Appellant's Memorandum in Support of His Application for a Certificate of Appealability ("Appellant's Memorandum ") at 1. We disagree and will deny the Applicant's motion and refuse to issue a certificate of appealability since Mr. Scarfo fails to make a "substantial showing of the denial of a constitutional right," as required by 28 U.S.C. § 2253(c)(2).

 II. DISCUSSION

 A. Standard for Issuing a Certificate of Appealability

 Though the language of 28 U.S.C. § 2253(c) is less than clear, the Third Circuit has determined that Congress intended to give district courts the power to grant certificates of appealability. United States v. Eyer, 113 F.3d 470, 473 (3d Cir. 1997). Mr. Scarfo has followed proper procedure by applying to this court for such a certificate.

 The Applicant, however, misstates the standard for when a certificate of appealability may issue. A certificate should not issue, as the Applicant suggests, when the issues raised through habeas corpus are "substantial and 'debatable among jurists.'" Appellant's Memorandum at 1. Instead, this court may only issue a certificate of appealability if Mr. Scarfo's habeas corpus petition makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Eyer, 113 F.3d at 474; United States v. Robinson, 1997 U.S. Dist. LEXIS 11330, 1997 WL 438829 (E.D. Pa. July 23, 1997), *1. It is our job to determine whether Mr. Scarfo's arguments regarding his alleged conflicts of interest with his trial attorney and his consecutive sentences for RICO and RICO Conspiracy make a substantial showing of a denial of a constitutional right. We find that they do not.

 B. Conflict of Interest Arguments

 On September 9, 1988, during a motions hearing, the government told the court that Mr. Simone was alleged by the two cooperating defendants to have participated in the extortion of Mr. William Rouse. This extortion, which involved several other of the defendants, was included in the indictment, and testimony was expected from the cooperating witnesses which implicated Mr. Simone. The prosecution further stated that a number of the photographs expected to be introduced by the government included Mr. Simone with the defendants, and that a cooperating witness was expected to testify regarding Mr. Simone's prese-47. Mr. Scarfo argues that his attorney's involvement in the Rouse extortion, appearance in surveillance photographs, and presence at the murder discussion created a conflict of interest.

 Mr. Scarfo raised two conflict of interest arguments in his habeas corpus motion and he raises them for a second time in the instant Application. Mr. Scarfo asserts (1) that any conflicts that he had with his attorney, Mr. Simone, were unwaivable, and (2) that even if his conflicts were waivable, Applicant did not make a knowing and intelligent waiver. Appellant's Memorandum at 2-3. We disagree and will discuss each of these arguments in turn.

 
1. Mr. Scarfo's Conflicts with Attorney Simone were Waivable

 In his failed § 2255 motion, Mr. Scarfo argued that his trial lawyer provided ineffective assistance of counsel because Mr. Simone had an unwaivable conflict of interest with Mr. Scarfo. See Scarfo, 979 F. Supp. at 431-32. We rejected Mr. Scarfo's argument that his trial attorney's arguments were unwaivable per se, adhering to the Third Circuit's precedent in United States v. Moscony, 927 F.2d 742, 749-50 (3d Cir.), cert. denied, 501 U.S. 1211, 115 L. Ed. 2d 984, 111 S. Ct. 2812 (1991)(holding that a district court may permit the waiver of conflict-free counsel when a conflict has been made known to the client), and Pungitore, 910 F.2d at 1143 (holding, on the direct appeal of Mr. Scarfo's conviction, that the district court may permit an attorney-client conflict to be waived knowingly and intelligently so as to safeguard the defendant's rights). Scarfo, 979 F. Supp. at 432. Following the Supreme Court's decision in Cuyler v. Sullivan, 446 U.S. 335, 348-50, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), and the Third Circuit's opinion in Pungitore, 910 F.2d at 1141, we considered whether Mr. Simone had an actual conflict of interest with his client that prejudiced Mr. Scarfo's case. Scarfo, 979 F. Supp. at 431. After considering Mr. Simone's conduct throughout the entire trial, we found that "Mr. Simone was not actively representing conflicting interests; indeed, he was determined that his interests were subsumed to those of his client." Id. at 431-32. We further found that Mr. Scarfo had "presented no evidence, absent his conviction, that his attorney's performance was adversely affected by this conflict, or that they held divergent interests." Id. at 432.

 Applicant now tries to skirt around our denial of his habeas petition, as well as the case law of the Supreme Court and Third Circuit, by arguing, for the first time, that the Third Circuit should reconsider its opinion in Pungitore in light of the Second Circuit's decision in United States v. Fulton, 5 F.3d 605 (2d Cir. 1993). Mr. Scarfo argues that the Second Circuit, in Fulton, "has unequivocally held that where trial counsel is alleged to have participated in the crime charged with his client there is an actual conflict of interest that cannot be waived, and adheres to a per se rule of reversal." Appellant's Memorandum at 4.

 Mr. Scarfo, however, fails to make a "substantial showing of the denial of a constitutional right," that is necessary to certify his appeal. 28 U.S.C. § 2253(c)(2); see also Eyer, 113 F.3d at 474. With regard to conflict of interest issues, the Third Circuit has followed and continues to follow the standard enunciated by the Supreme Court in Cuyler, which requires Mr. Scarfo to show both that an actual conflict existed between him and his trial counsel and that the conflict actually prejudiced Mr. Scarfo's case. Fulton's per se rule is not constitutionally mandated, is contrary to Supreme Court precedent, and is not now and has never been the law of the Third Circuit.

 In Cuyler the Supreme Court established the standard for reversible error in cases involving an attorney's conflict of interest to be actual conflict and adverse effect. 446 U.S. at 350. The Third Circuit adopted this standard in Government of the Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984). The Supreme Court reaffirmed the concept that dies, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). In Wheat, the High Court held that "where a court justifiably finds an actual conflict of interests [between client and attorney], there can be know doubt that it may decline a proffer of waiver . . . The district court must be allowed substantial latitude in refusing waivers of conflicts of interest[.]" 486 U.S. at 162-63 (emphasis added). The Supreme Court's use of the word "may" illustrates that while a defendant's Sixth Amendment right to counsel of choice is not absolute, a district court's authority to disqualify conflict-ridden counsel is permissive, not mandatory. Since Wheat, the Third Circuit has once again affirmed the conflict of interest standard set in Cuyler and Zepp on the direct appeal of Mr. Scarfo's case. See Pungitore, 910 F.2d at 1141.

 The Second Circuit's holding in Fulton, which requires reversal upon the showing of an actual conflict of interest, without any adverse effect requirement, is at odds with the standard enunciated by the Supreme Court in Cuyler and followed by this circuit. Applicant has not made a substantial showing that his constitutional rights have been violated by citing to a case from a foreign circuit that is at odds with the conflict of interest doctrine established by the Supreme Court and followed by the Third Circuit for the past thirteen years.

 In Fulton, on the other hand, there was no invited error. The issue of the defense attorney's conflict only came to light in the middle of trial, taking the trial court and the defendant by surprise. The trial court conducted a colloquy with Fulton in an effort to bring the allegations of his counsel's criminality to his attention. While Fulton expressed a desire to continue with his chosen counsel, he, unlike Mr. Scarfo, did not aggressively demand to be represented by his attorney as his Sixth Amendment right in the face of a motion to disqualify. Thus, defendant Fulton did not invite error, and the Second Circuit had no reason to discuss the possible application of the invited error doctrine to that case. However at least one court in the Second Circuit has stated that the invited error doctrine trumps Fulton 's per se rule that otherwise applies in that circuit. See United States v. Gehl, 852 F. Supp. 1135, 1145-46 n.14 (N.D.N.Y. 1994). In Gehl, the district court accepted the defendants' waivers of their attorneys' conflicts. The court forewarned the defendants, citing the law of the Third Circuit,

 
that 'it would be a rare case in which a defendant, after convincing the trial court not to disqualify his attorney of choice, should be able to obtain a reversal of his conviction on the basis of a conflict of interests.' See United States v. Pungitore, 910 F.2d 1084, 1143 n. 84 (3rd Cir.1990), cert. denied, 500 U.S. 915, 111 S. Ct. 2009, 114 L. Ed. 2d 98 (1991); see also United States v. Moscony, 927 F.2d 742, 749 n. 10 (3rd Cir.), cert. denied, 501 U.S. 1211, 111 S. Ct. 2812, 115 L. Ed. 2d 984 (1991)(citation omitted)('This is certainly not to imply that if the district court accepts the waiver the defendant may later successfully complain about a conflict of interest.'). Thus, defendants' waivers here may well be at a high price in terms of future appeals, if any.

 Gehl, 852 F. Supp. at 1145-46.

 Therefore, even if the Fulton rule applied to Mr. Scarfo's case, it would not help the Applicant to make a substantial showing of a violation of his constitutional rights. Yet, in any case, since Fulton is not the law of the Third Circuit and is at odds with the Supreme Court's conflict of interest precedent, we refuse to certify Mr. Scarfo's appeal so that he may ask the Third Circuit to overrule Pungitore and hold that an actual conflict of interest, absent any showing of prejudice, requires reversal, per se.

 
2. Mr. Scarfo Knowingly and Intelligently Waived Any Conflicts with His Attorney

 Applicant next claims that even if Mr. Simone's conflicts were waivable, Mr. Scarfo did not knowingly and intelligently waive any alleged conflicts with his attorney. Mr. Scarfo asserts that: (1) the court's colloquy was legally insufficient to allow the Applicant to make a knowing and intelligent waiver, (2) the colloquy did not reveal the full nature and extent of Mr. Simone's alleged conflicts, and (3) the court's charge to the jury regarding accomplice testimony prejudiced Mr. Scarfo's case so severely that a new trial is necessary.

 While Mr. Scarfo did argue in his § 2255 motion that he did not knowingly and intelligently waive his right to conflict-free counsel, he never once raised any of these three issues. The Court of Appeals has repeatedly emphasized that "'absent exceptional circumstances, an issue not raised in the district court will not be heard on appeal.'" Altman v. Altman, 653 F.2d 755, 758 (3d Cir. 1981), quoting Franki Foundation Co. V. Alger-Rau & Associates, Inc., 513 F.2d 581, 586 (3d Cir. 1975). Exceptional circumstances, such as that the public interest requires the issue to be heard, or that a manifest injustice would result from not hearing the new issue, see id., do not exist in the instant case. Therefore, the Court of Appeals should not even consider the Applicant's three new arguments. However, even if these arguments were open to consideration, they are frivolous and would fail on the merits.

 
a. Insufficient Colloquy

 We agree with defense counsel that in order to make a knowing and intelligent waiver, "the accused must know what he is doing so that 'his choice is made with eyes open.'" Appellant's Memorandum at 13, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 87 L. Ed. 268, 63 S. Ct. 236 (1942). We have found and continue to find, however, that Mr. Scarfo's eyes were wide open when he decided to keep Robert Simone as his lawyer in this matter.

 Applicant argues that he is entitled to a new trial because the court's colloquy was insufficient in that it: (1) failed to give Mr. Scarfo enough time to consider whether to retain a new lawyer,(2) failed to tell Mr. Scarfo that he could consult with another lawyer regarding Mr. Simone's conflicts, and (3) failed to inform Mr. Scarfo that he would be entitled to a continuance if he desired new counsel. Applicant, however, cites no Third Circuit case holding that a conviction must be reversed when these three points are not present in a conflicts colloquy. Instead, Mr. Scarfo relies upon a Second Circuit opinion that reversed the district court, not for allowing the defendants' representation by conflict-ridden counsel, but for disqualifying the defendants' counsel of choice. See United States v. Curcio, 680 F.2d 881 (2d Cir. 1982).

 In Curcio, two brothers wished to retain the same lawyer at a criminal trial where they were being charged as co-defendants. The government moved to remove the brothers' attorney, which the district court did after holding that neither defendant had made a knowing and intelligent waiver of their right to be represented by conflict free counsel. Id. at 882-84. The Second Circuit reversed, stating that they "[saw] no reason why either [defendant] could not make a knowing and intelligent election to be represented by [their attorney] despite the existence of a conflict of interest." Id. at 885.

 After deciding that the defendants had a right to waive any conflicts they might have with their attorney, the Second Circuit then discussed what it means to effectuate a knowing and intelligent waiver. The court found that whether a defendant has made a knowing and intelligent waiver "depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, expertise, and conduct of the accused.'" Id. at 888, quoting Edwards v. Arizona, 451 U.S. 477, 482, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981)(internal quotation omitted). The court stated that "the first task of the trial court is to alert the defendants to the substance of the dangers of representation by an attorney having divided loyalties in as much detail as the court's experience and its knowledge of the case will permit." Id. If a defendant "persists in his request for joint representation, the court must assess whether the request is . . . knowing and intelligent." Id. This does not mean that a defendant's decision must be "what an objective observer would deem sensible, prudent, or wise," since the "Supreme Court 'consistently has rejected any paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case.'" Id., quoting Edwards, 451 U.S. at 490-91 (Powell, J. concurring)(internal quotation omitted). Thus,

 
if the defendant reveals that he is aware of and understands the various risks and pitfalls, and that he has the rational capacity to make a decision on the basis of this information, and if he states clearly and unequivocally . . . that he nevertheless chooses to hazard those dangers, we would regard his waiver as knowing and intelligent and allow his choice to be honored out of "that respect for the individual which is the lifeblood of the law."

 680 F.2d at 888-89, quoting Faretta v. California, 422 U.S. 806, 834, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975)(internal quotation omitted).

 The Second Circuit noted that "in assessing the level of each defendant's comprehension of the dangers, the court may perhaps devise a variety of methods for gaining the necessary insights." 680 F.2d at 889. The court suggested using questions designed to elicit narrative answers, allowing the defendant to have a reasonable amount of time to "digest and contemplate the risk posed," and encouraging the defendant to confer with his chosen counsel and to seek advice from independent counsel. Id. at 889-90. On remand, the appellate court suggested that the district court follow the prescribed catechism with respect to the defendants' desire to be represented by the same counsel. Id. at 890. *fn1" Yet, Mr. Scarfo argues that we must grant him a new trial because this court did not follow Curcio's "prescribed catechism."

 We reject this argument for two reasons. First of all, Curcio is not the law of the Third Circuit. In fact, in the fifteen years since it was decided, it has not been cited once by any court in this circuit. Second, even if this case were controlling in this jurisdiction, it would not mandate the result that the former mob boss suggests.

 The catchesim that the Second Circuit describes is advisory, not mandatory: "On remand . . . we suggest that the district court conduct the prescribed catechism[.]" Id. (emphasis added). Indeed, later cases emphasize that whether a defendant's waiver is knowing and intelligent "depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, expertise, and conduct of the accused.'" Id. at 888, quoting Edwards, 451 U.S. at 482 (internal quotation omitted).

 In United States v. Friedman, 854 F.2d 535 (2d Cir. 1988), cert. denied, 490 U.S. 1004 (1989), the defendant, a former attorney, claimed on appeal that his lawyer was ineffective because of a serious conflict of interest, despite the fact that he, like Mr. Scarfo, "vigorously opposed the government's" motion to disqualify his attorney. Id. at 572. The defendant argued that he did not "validly waive any conflict of interest," since "his waiver did not meet the standards set forth by . . . Curcio[.]" Id. at 573. The district court rejected this argument. Friedman recognized that though Curcio prescribed a catchesim, courts should look to the particular circumstances of a case when deciding whether or not a defendant knowingly and intelligently waived his conflicts. The court decided that since the defendant was himself a lawyer, who had sufficient time to consider his attorney's conflicts and had been alerted to the dangers of representation by a conflict-ridden attorney, the departures from Curcio were justified.

 Though Mr. Scarfo is not himself an attorney, a departure from Curcio would certainly have been warranted, when taking into account the "particular facts and circumstances surrounding that case, including the background, expertise, and conduct of the accused.'" Curcio at 888, quoting Edwards, 451 U.S. at 482 (internal quotation omitted). In addition to the extensive colloquy concerning conflicts conducted by the court, Mr. Scarfo's background and experience with both Mr. Simone and the criminal justice system convince us that the Applicant knowingly and intelligently waived any conflicts of interest with his attorney.

 Mr. Scarfo insisted that he be represented by Mr. Simone in the instant case. This was certainly no surprise considering that Mr. Simone had represented Mr. Scarfo in numerous other proceedings. Mr. Simone represented Mr. Scarfo in United States v. Scarfo, 1987 U.S. Dist. LEXIS 6698, E.D. Pa. Criminal Number 86-453, before Chief Judge Fullam, where Mr. Scarfo was convicted of the extortion of William Rouse. Mr. Simone also represented Scarfo in United States v. Scarfo, E.D. Pa. Criminal Number 87-258, where the Applicant was acquitted of various drug trafficking charges. Mr. Simone further represented Mr. Scarfo in Commonwealth of Pennsylvania v. Scarfo, et. al., 833 F.2d 303, where the Applicant was acquitted of the execution of Salvatore Testa in May of 1988. Attorney Simone also represented Scarfo in State of New Jersey v. Scarfo, et. al., a state RICO prosecution indicted in 1987 that proceeded at roughly the same time as the federal RICO prosecution at issue in this case.

 
I am writing to you to let you know I was dissappointed [sic] in my attorney at my bail hearing. Oscar Gaskins is a good lawyer. But he wasn't prepared properly . . . . I do not want him as my lawyer. I would like Robert Simone. I think it is unfair for me not to have the lawyer of my choice. The Government is very unfair. They keep trying to involve Mr. Simone in wrong doing in this case, and in the past. He has been admitted in my Rico [sic] case in New Jersey. He has represented me before. I have all the complete confidence in him. I know he will be fully prepared on my behalf. If Mr. Simone was a surgeon, and I needed a life or death operation. I would make Mr. Simone operate on me [sic]. He also is familiar with the case and the case in New Jersey. Which the Govt. and New Jersey have the same witnesses [sic]. Mr. Simones [sic] fee is also not a problem for me to raise. I would like to point out to you, that at the end of my first bail hearing in front of Magistrate Judge Mathans, both he and Ron Cole agreed that Mr. Simone represented me completely, and effectively. It is not fair for me to be deprived of the lawyer of my choice. Just because the informants lie about him, as well as me [sic]. Mr. Simone has stated to me that as a result of what he heard and read about this case that he could and would represent me. I thank you for considering this request. I am willing to waive my right to have a lawyer other than Mr. Simone, and I waive my right to have him as my witness. I believe he will be more important in my case as my lawyer. Please answer this letter as soon as possible.
 
Respectfully Yours
 
Nicodemo Scarfo.

 Letter from Mr. Scarfo to Chief Judge Fullam, Filed 2/20/87.

 Approximately one week after receiving this letter, Chief Judge Fullam held a hearing where he considered whether or not to disqualify Mr. Simone as Mr. Scarfo's attorney. At the hearing the government argued that Mr. Simone was an unindicted co-conspirator in that case and should therefore be disqualified. Tr. 2/26/87 at 5. Chief Judge Fullam fully questioned Mr. Scarfo about his desire to have Mr. Simone represent him despite Mr. Simone's alleged involvement in the Rouse extortion:

 
Q. Okay, now you understand in this indictment that you are charged with various criminal offenses, do you not?
 
A. Yes, Your Honor.
 
Q. And you understand that the Government charges and will have witnesses who will testify to the effect that Mr. Simone was also involved in the alleged crime. Do you understand that?
 
A. Yes, yes.
 
Q. Now, do you understand that regardless of whether those charges against Mr. Simone are true or false that establishes Mr. Simone has personal knowledge about the crimes which would be on trial? Do you understand that?
 
A. Yes, Your Honor.
 
Q. And that, therefore, he would be in a position where his testimony might be helpful to one side or the other. For example, it would be helpful to you in the defense of your case to have Mr. Simone available to testify that what the Government witnesses say is not true. Do you understand that?
 
A. Yes, Your Honor.
 
Q. Do you also understand that if Mr. Simone should be permitted to act as your lawyer in the trial of the case that he would not be able to testify for you or against you or in any other way?
 
A. Yes, Your Honor.
 
Q. Do you also understand that his ability to cross-examine the government might very well be curtailed. And he might be less able to do an effective job of cross-examination of witnesses because of his personal involvement. Do you understand that?
 
Q. That if you were represented by a lawyer who did not have that personal involvement or other conflicts of interest that you would be able to conduct your own defense purely in your own interest, not in Mr. Simone's interest, not in other defendants' ...

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