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UNITED STATES v. PUNGITORE

August 5, 1998

UNITED STATES OF AMERICA
v.
JOSEPH PUNGITORE



The opinion of the court was delivered by: VAN ANTWERPEN

OPINION AND ORDER

 Van Antwerpen, J.

 August 5, 1998

 I. INTRODUCTION

 Petitioner, following in the footsteps of his co-defendants Nicodemo Scarfo, Frank Narducci, Philip Narducci, Frances Iannarella, Jr., Ralph Staino, Salvatore Merlino and Anthony Pungitore, Jr., has filed a § 2255 Motion asking us to overturn his conviction and sentence for his crimes committed while a soldier in the Philadelphia mafia.

 Mr. Pungitore's motion first asks the court to recuse itself. Next, Petitioner argues that his conviction and sentence should be overturned under the Fifth Amendment since: (1) the government failed to turn over Brady material, (2) the court erred in instructing the jury on the issue of reasonable doubt, and (3) the court's consecutive sentences for RICO and RICO Conspiracy violate the Constitution's bar against double jeopardy. Finally, Petitioner asserts that his conviction and sentence should be overturned under the Sixth Amendment because: (1) Petitioner was constructively denied counsel due to threats leveled against both him and his attorney by the Petitioner's co-defendants; (2) Petitioner was denied effective assistance of counsel at trial; and (3) Petitioner was denied effective assistance of counsel in plea bargaining.

 Though some of the issues raised by Petitioner are more complicated than those raised by his fellow co-defendants, the end result is the same. Following a May 13, 1998 hearing in open court and for the reasons that follow, Petitioner's motion will be denied.

 II. FACTS AND PROCEDURAL HISTORY

 In January of 1988, Joseph Pungitore was indicted for RICO, RICO Conspiracy, Illegal Gambling Business, and Conspiracy to Distribute Methamphetamine. He was charged in this indictment with 18 other fully initiated members of the Philadelphia La Cosa Nostra family. The indictment was superseded in June, 1988.

 Petitioner was represented by attorney Stephen Robert LaCheen during the pretrial proceedings and at trial. On June 30, 1988 Joseph Pungitore, through Mr. LaCheen, filed a number of motions, including a motion to sever. His motion cited the following typical reasons for severance: (a) that various defendants might present materially different or mutually exclusive defenses, (b) that any defendant who chose to testify in a joint trial would become an unwitting government witness against his co-defendants, (c) that if any of his co-defendants chose to testify on their own behalf, he (Mr. Pungitore) might be forced to testify on his own behalf to refute accusations from the co-defendant, and (d) that he would be prevented from calling co-defendants as witnesses because of their Fifth Amendment rights.

 While other defendants joined in various motions of their co-defendants, no defendant joined Joseph Pungitore's severance motion. Consequently, on July 13, 1988, the court issued an order to the effect that each defendant would be deemed to have joined in every applicable motion filed by a co-defendant with the exception of Joseph Pungitore's June 30, 1988 motion to sever.

 The case was called for trial on September 8, 1988. At that time a number of pre-trial issues remained to be decided before the commencement of jury selection. One of these was the severance motion, which was argued on September 9, 1988. Mr. LaCheen declined to make any evidentiary presentation in support of the motion and argued only that severance into three or four separate trials might make it easier for the court to handle the case. The court pressed Mr. LaCheen by asking him: "you're not telling me, that if you were severed that there's somebody that would come and testify on your behalf or something?" Mr. LaCheen stated: "I'm not making a specific -- that's correct." The motion was denied. Tr. 9/9/88 at 20-21. The case proceeded to trial. Apparently content to be tried with his co-defendants, Mr. Pungitore never again raised the severance issue, and the case went to the jury.

 On November 19, 1988, the jury returned its verdict, finding Joseph Pungitore guilty of all charges against him: RICO, RICO Conspiracy, Conspiracy to Distribute Methamphetamine, and Operating an Illegal Sports Bookmaking Business. More specifically, with respect to RICO, the jury found the Petitioner guilty of all nine racketeering acts expressly charged against him in the indictment: *fn1"

 
(1) Racketeering Act # 5 -- both conspiracy to murder and the murder of Frank Narducci in which the evidence showed Mr. Pungitore to be one of the two shooters who pumped approximately ten bullets into Narducci virtually on the doorstep of his house as he was returning home from his federal court trial;
 
(2) Racketeering Act # 6 -- both conspiracy to murder and the attempted murder of Harry Riccobene in which the evidence showed that Pungitore was a Scarfo loyalist in the "Riccobene War", and in that capacity, he was part of a hit team that stalked Riccobene and plotted his murder; evidence showed that Petitioner and Salvatore Grande caught Riccobene in a phone booth and Grande shot at him and then fled in a car driven by Mr. Pungitore;
 
(3) Racketeering Act # 9 -- both conspiracy to murder and the attempted murder of Frank Martines, in which the evidence showed that Mr. Pungitore was part of a Scarfo loyalist hit team in the "Riccobene War", and in that capacity acted as a blocker when Martines was ambushed and shot in the head;
 
(4) Racketeering Act # 11 -- both conspiracy to murder and the murder of Robert Riccobene, in which the evidence showed that Mr. Pungitore was part of a Scarfo loyalist hit team in the "Riccobene War", and in that capacity drove the get away car after Francis Iannarella, Jr. shot and killed Riccobene;
 
(5) Racketeering Act # 12 -- both conspiracy to murder and the murder of Salvatore Testa, in which the evidence showed that Mr. Pungitore, on orders from Philadelphia La Cosa Nostra mob boss Nicodemo Scarfo, lured his best friend, Testa, into a fatal ambush;
 
(6) Racketeering Act # 18 -- operation of an illegal lottery business, in which Mr. Pungitore was the operational chief;
 
(7) Racketeering Act # 19 -- operation of an illegal sports bookmaking business, in which Mr. Pungitore was the operational chief and owned one-third of the business, in partnership with Scarfo and other high ranking mobsters;
 
(8) Racketeering Act # 20 -- conspiracy to distribute methamphetamine, where the evidence showed Mr. Pungitore, while assiduously avoiding personal contact with the actual drugs, financed drug trafficking, received commissions for sending drug buyers to drug suppliers and entered into a business partnership with a drug trafficker;
 
(9) Racketeering Act # 35 -- extortion of Michael Madgin, where the evidence showed that Mr. Pungitore shook down a known drug trafficker, loanshark and bookmaker on behalf of the Philadelphia mob and kept a split of the extortion proceeds for himself.

 Conviction of any two of these racketeering acts would have constituted a pattern of racketeering activity sufficient to justify Petitioner's RICO conviction. As the record reflects, Mr. Pungitore was convicted of all nine, and all of the component parts of those racketeering acts that had constituent parts. Additionally, Mr. Pungitore was found guilty of RICO by virtue of his participation in two different collection of unlawful debt schemes: (1) Collection of Unlawful Debt Scheme # 3 -- the collection of debts accrued through the operation of an unlawful sports bookmaking business; and (2) Collection of Unlawful Debt Scheme # 4 -- the collection of debt accrued through a usurious loan business. Each of these schemes, by itself, and independent of the racketeering acts, was sufficient to justify Mr. Pungitore's RICO conviction.

 Extensive testimony concerning the RICO enterprise [the Philadelphia La Cosa Nostra family] was presented at trial. The evidence established that La Cosa Nostra was a criminal organization structured in families throughout the United States. Each family had its own boss, and La Cosa Nostra, itself, was governed by an eleven member commission that consisted of the bosses of the five New York families and the bosses of six other families from elsewhere in the United States. The Philadelphia La Cosa Nostra family consisted of about sixty members and operated in Pennsylvania and New Jersey; its boss since the early 1980's was Nicodemo Scarfo. A La Cosa Nostra family was headed by a boss, who had the sole and absolute authority to "make", i.e., initiate members, promote and demote officers and order killings. All members owe a duty of absolute obedience to the boss. Other officers included the underboss, a consigliere (counselor), and capos. Fully initiated members held the rank of soldier. In order to be "made", one had to be a male of Italian descent who had participated in some way in a La Cosa Nostra sanctioned murder.

 La Cosa Nostra employed a ritual initiation ceremony. A proposed member would be brought to a meeting of the active membership over which the boss presided. He would be called into a room and asked if he wanted to join the group. A gun and a knife would be before him on a table. Once he agreed, he would be asked if he would use the gun and knife to help his comrades. Once he agreed again, his trigger finger would be pricked, and he would cup his hands to hold a holy card. The card would be burned in his cupped hands as he was told that he would burn like the picture of the saint if he betrayed his friends. He would then kiss everybody and shake everybody's hand. The boss would then assign him to the regime of a capo and explain La Cosa Nostra's rules, one of which was that there was a code of silence. The penalty for breaking the code of silence was death. La Cosa Nostra becomes the most important thing in a member's life, coming before his wife, children, parents, personal affairs, etc. Tr. 10/10/88 at 72-80, 123-26; Tr. 10/26/88 at 178-91 201. Evidence at trial established that Joseph Pungitore was "made" following his participation in the January, 1982 murder of Frank Narducci, Sr. Tr. 10/10/88 at 114-20, 125-26. At that time he was 25 years old.

 The evidence established that Petitioner's father, Anthony Pungitore, Sr. was "made" before him, and his brother and co-defendant Anthony Pungitore, Jr., was "made" after him. While Joseph Pungitore's shooting of Frank Narducci, Sr. qualified him to be "made", the murders he participated in thereafter were done in obedience to the rules of La Cosa Nostra and the orders of the boss, Nicodemo Scarfo.

 It is hardly surprising that Petitioner was convicted on all charges. A tidal wave of evidence was introduced against him. Four separate cooperating witnesses, Del Giorno, Caramandi, Norman Lit and Michael Madgin, all testified against him. Del Giorno and Caramandi were damning enough by themselves. *fn2" Furthermore, Lit and Madgin, both of whom were La Cosa Nostra associates of Pungitore, testified for nearly a week, and numerous wiretapped conversations involving Mr. Pungitore were introduced through and explained by them. Petitioner's own words were sufficient to convict him of RICO, RICO Conspiracy, Conspiracy to Distribute Methamphetamine and Illegal Gambling Business. There was probably more evidence introduced against Joseph Pungitore than against any other defendant in the case.

 Following denial of post-verdict motions, United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989), Joseph Pungitore was sentenced on May 5, 1989 to a term of 40 years imprisonment. Through the sentencing phase of the proceedings, Joseph Pungitore was represented by Mr. LaCheen. Peter F. Goldberger, Esq., represented the Petitioner on appeal. Mr. Pungitore appealed from judgment of sentence without success. United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990), cert. denied, 500 U.S. 915 (1991).

 In May, 1991, Joseph Pungitore wrote this court a letter in which he accepted responsibility for his criminal conduct, expressly characterized his prior life style as "parasitic," and acknowledged that by choosing to victimize others he subjected himself to whatever penalties resulted from that choice. He went on to express remorse for his past wrongs and hoped that he could go on to live a better and more moral life in the future. Thereafter, in the fall of 1991, Mr. Goldberger filed a motion to modify sentence pursuant to then Fed. R. Crim. P. 35(b). Mr. Pungitore's May 5, 1991 letter to this court was cited as a principal reason for reducing his sentence, inasmuch as it showed that he "freely acknowledged the immorality of the social code to which he formerly adhered," and demonstrated his growing insight and potential for rehabilitation. Relief was denied.

 Five more years passed, and, on April 24, 1997, Petitioner filed the instant motion for relief pursuant to 28 U.S.C. § 2255. We held a hearing on May 13, 1998.

 III. DISCUSSION

 A. Recusal

 Petitioner urges the court to recuse itself from this case, unless we plan to find in his favor: "The conviction and sentence should be vacated. If the Court is contemplating any other outcome, the case should be reassigned to another judge whose impartiality is not questionable." Supplemental Memorandum of Law in Support of Joseph Pungitore's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. 2255 (Petitioner's Supplemental Memorandum ") at 28.

 According to the recusal statute, a judge must "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). See also Liteky v. United States, 510 U.S. 540, 541, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994); United States v. Antar, 53 F.3d 568, 573 (3d Cir. 1995). Both the Supreme Court and the Third Circuit have made it clear that "generally beliefs or opinions which merit recusal must involve an extrajudicial factor." Antar, 53 F.3d at 574 (citing Liteky, 510 U.S. at 554).

 Still, the exceptional case can arise where opinions formed during the course of judicial proceedings may give rise to the duty to recuse. Id. However, "biases stemming from facts gleaned during judicial proceedings themselves must be particularly strong in order to merit recusal." Id. The mere fact that a judge who presides at trial may "be exceedingly ill disposed toward the defendant, who has been shown to be a thoroughly reprehensible person," does not thereby render him "recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings . . . ." Liteky, 510 U.S. at 550-51. Furthermore, the Supreme Court has recognized that opinions held by judges as a result of what they learned in earlier proceedings should "not be subject to deprecatory characterization as 'bias' or 'prejudice'." Id. at 551. A predisposition gained during the course of a trial may be considered a bias only when "it is so extreme as to display clear inability to render fair judgment." Antar, 53 F.3d at 574 (quoting Liteky, 510 U.S. at 551).

 Petitioner looks toward a number of rulings we made during the course of considering his § 2255 motion as reasons why a reasonable onlooker might question this court's impartiality. He points out that we allowed the government to file its initial response to Petitioner's § 2255 motion months after it was due, even though the government never applied for an enlargement of time. Petitioner contrasts this to our finding that certain motions which he made at the evidentiary hearing were untimely. Petitioner also states that this court's bias against him is demonstrated by the fact that we did not grant his discovery motion and that we allowed Assistant United States Attorney Fritchey to "testify" in response to the § 2255 motion in violation of the witness/advocate rule. Petitioner claims that our prejudice is further evidenced by the fact that we allowed Mr. Gordon, the First Assistant District Attorney of Philadelphia (and a former AUSA who was one of the government's lead attorney's on the Petitioner's 1989 trial), to act as counsel for the government absent "any tangible evidence that Mr. Gordon's appointment as a Special Assistant United States Attorney had not expired." Petitioner's Supplemental Memorandum at 28. Finally, Petitioner relies on his trial attorney's statement that he saw the court as having its own agenda to support his argument that the court is biased and should recuse itself. Memorandum of Law in Support of Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. 2255 ("Petitioner's Original Memorandum ") at 21. We believe that none of these rulings, either individually or together, are evidence from which a reasonable person could doubt this court's impartiality.

 Petitioner complains that this court "disregarded the Government' [sic] discourteous attitude toward the Court and counsel," when we allowed it to file its response to Petitioner's § 2255 motion in November of 1997, four months after the original July deadline imposed by this court. While we were unhappy with the government's delay, we realized that the government had to respond to the numerous petitions filed by Petitioner's co-defendants. Indeed, AUSA Fritchey has had to respond to no less than ten habeas corpus motions filed by the Scarfo defendants, not to mention eight additional requests for certificates of appealability. We are aware that though AUSA Fritchey originally tried this case with three other AUSA's, they have since then left the office and Mr. Fritchey has been required to handle the bulk of this work by himself. Furthermore, the government's delay in filing its response did not, in any way, prejudice the Petitioner. Petitioner still had almost six months to prepare for the May 1998 hearing in this case.

 On the other hand, we did criticize Petitioner's last minute discovery motion as untimely. Petitioner filed his discovery motion on Friday, May 8th-- less than a week before the hearing, even though almost six months had passed since the government had filed its response. We felt that the untimeliness of the motion did, in this case, unfairly prejudice the government. Yet, we still considered the merits of the discovery motion despite the fact that it was filed at the last minute. See Tr. 5/13/98 at 13-21. Therefore, we do not believe that our criticism of the Petitioner's attorney demonstrated a bias against Mr. Pungitore.

 Furthermore, we fail to see how our denial of certain portions of Petitioner's discovery motion can be construed as bias against the Petitioner. Indeed, as Petitioner recognizes, discovery with regard to a § 2255 motion is discretionary. Id. at 17. Some of Petitioner's requests, such as the security measures taken by the marshal service, were completely irrelevant to Petitioner's case and constituted nothing more than grasping at straws. Id. at 17-18. Other requests, such as the one for any documents made in connection with an alleged attempt to plea bargain with the Petitioner, were granted-- although no such documents existed. Id. at 18. In any case, we were wholly satisfied with the government's responses to Petitioner's discovery questions and are confident that the record of the hearing reflects that we based our discovery rulings on what we believed to be fair within the bounds of the law, and not on any bias or predisposition against the Petitioner. Id. at 17-21. Furthermore, as a matter of law, we do not believe that AUSA Fritchey's responses to Petitioner's discovery motion disqualified him to serve as the government's attorney under the witness-advocate rule.

 We also do not feel that any bias was shown by our decision to allow Mr. Gordon to serve as a government attorney without "any tangible evidence" that his appointment as a Special Assistant United States Attorney had not expired. Before we allowed Mr. Gordon to question any witnesses, we required that AUSA Fritchey check with his office to make sure that Mr. Gordon was still a Special AUSA. Mr. Fritchey called his office and represented to this court that Mr. Gordon's commission ran through October 1998. Petitioner presented no evidence that this was not the case, and we saw no reason not to take Mr. Fritchey at his word. Indeed, Mr. Fritchey has practiced before this court over the course of the last ten years and we have never found him to be dishonest.

 Finally, the statement of Petitioner's trial attorney, Mr. LaCheen, that this court was seen as "having its own agenda," is completely baseless. Petitioner's Original Memorandum, Ex. A. We had, and still have, only one agenda: making sure that Petitioner's case is dealt with fairly and under the full protection of the Constitution and laws of the United States.

 So while accepting the Petitioner's invitation to recuse ourselves would save this court a lot of time and effort, we cannot in good conscience do so. Mr. Pungitore has not stated a case for recusal. *fn3" Moreover, strong policy grounds exist to preclude the granting of recusals for the asking. *fn4" One cannot escape the conclusion that Petitioner wants a recusal because he fears that this court knows the case and the record well enough to more easily recognize the disingenuous and insubstantial nature of his § 2255 petition. The prospect of losing a motion is not a valid basis for a recusal.

 B. Fifth Amendment Claims

 Petitioner makes three claims under the Fifth Amendment: (1) that the prosecution failed to provide important Brady material; (2) that the court erred in instructing the jury on the meaning of reasonable doubt; and (3) that Petitioner's consecutive sentences for RICO and RICO Conspiracy violate the Constitution's prohibition against double jeopardy. Each of these arguments is meritless and none entitle the Petitioner to a new trial.

 1. Brady

 Based upon nothing more than a passage in a book entitled Breaking the Mob, by former Philadelphia Police Department Captain Frank Friel, Petitioner claims that the government suppressed Brady material. Petitioner's novel argument is completely without merit. "A valid Brady complaint contains three elements: (1) the prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense." United States v. Perdomo, 929 F.2d 967, 969 (3d Cir. 1991). Petitioner fails to prove any of these three essential elements.

 Captain Friel's book refers to seemingly positive, but actually false, leads in the investigation of the 1984 murder of Salvatore Testa from two different individuals that caused the police department to waste time trying to trace the movements of Testa after the time that he had actually died. *fn5" At trial the defense called the caretaker, Louis Palladino, in an attempt to show that Testa was alive after the cooperating government witnesses claimed he was dead. The caretaker testified as the defense expected, despite being damaged somewhat on cross-examination. On rebuttal, the government produced the nursemaid who completely contradicted the caretaker. Apparently, the jury found the nursemaid the more credible of the two witnesses. Petitioner complains that he could have corroborated the testimony of the caretaker if he had known about the police sergeant's alleged sighting of Testa on the evening of September 14, 1984. In his memorandum supporting his § 2255 motion, Mr. Pungitore identifies the officer as "Thomas Laciardello." Apparently, this is a reference to Thomas Liciardello, a retired Philadelphia Police Officer who states that he was interviewed by a person purporting to represent Mr. Pungitore or one of his co-defendants approximately one or two years ago.

 Needless to say, Mr. Pungitore could not have called a book to the witness stand during his 1988 trial, particularly a book that had not been published. *fn6" Instead, he would have needed testimony of a non-hearsay nature from a live witness, specifically, Thomas Liciardello. Despite having the burden of proof, Mr. Pungitore did not call Mr. Liciardello. The government, however, did call Mr. Liciardello as a witness at the § 2255 hearing. Mr. Liciardello testified that he did not see Testa on the evening of September 14, 1984, several hours after Petitioner led him to his death, or at any other time that day. Officer Liciardello knew when Testa's dead body was found and knew that he saw him alive a day or two before, not the evening that his discarded corpse was found lying in the dirt in New Jersey. Tr. 5/13/98 at 187-202. If certain individuals in the police department misunderstood when Mr. Liciardello said he saw Testa alive, this was the product of miscommunication that did not alter the facts. Had Officer Liciardello been called to testify at trial in this case, he would not have corroborated Mr. Palladino's testimony. On the contrary, he would have testified that he saw Testa one or two days before Palladino's claimed sighting, but not on the same evening Testa's dead body was found. Therefore, Mr. Liciardello's testimony would not have been helpful to the defense.

 There is no basis in fact for Petitioner to claim that but for the government's suppression of Brady material, he would have presented corroborative exculpatory evidence at his trial. If anything, calling Mr. Liciardello to the witness stand would have hurt Petitioner, because Liciardello's sighting of him with Testa within roughly forty-eight hours of Testa's death tends to corroborate the testimony of the cooperating government witnesses that Pungitore, in a Judas-like fashion, led his "best friend" to his death. Therefore, Petitioner has failed to show that the evidence the government allegedly suppressed was either exculpatory or material.

 Furthermore, Mr. Liciardello's testimony cannot be considered Brady material in the first place since Petitioner has provided no evidence that it was suppressed by the government. As Mr. Liciardello testified, he was not assigned to the investigation of the Testa murder and was not part of the prosecutive team of either the Testa murder case in state court or the RICO prosecution in federal court. Petitioner has presented no evidence that the information he believes he was entitled to was ever even under the government's control. The government cannot be held to have violated Brady by not providing information which it did not itself have.

 Petitioner has failed to show that the government suppressed evidence, that the alleged evidence was exculpatory, or that the alleged evidence was material. Petitioner's position is therefore without merit. *fn7"

 2. Reasonable Doubt Instruction

 We turn next to Petitioner's claim that the court erred in instructing the jury on the concept of reasonable doubt. Mr. Pungitore complains that the court gave an erroneous reasonable doubt instruction that deprived him of his right to due process under the Fifth Amendment. He claims that the court erred by telling the jury that "proof beyond a reasonable doubt is proof that leaves you firmly convinced of a defendant's guilt." Tr. 11/17/88 at 12.

 First, the court's reasonable doubt instruction was challenged on direct appeal and affirmed by the Third Circuit. Pungitore, 910 F.2d at 1144-45. Second, to the extent that Petitioner's argument varies from the reasonable doubt issue resolved on direct appeal, the issue has been procedurally defaulted since Petitioner has failed to show either cause for or prejudice from not raising this argument See United States v. ...


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