Tuesday, February 1st, 2005

Court Reverses Habeas Denial Based Upon New Evidence that Gotti Threatened to Kill Co-Defendant’s Counsel If He Abandoned Joint Defense

Frank Locascio v. United States of America, Docket No. 03-2485 (2d Cir. Jan. 12, 2005) (Walker, Winter, and Jacobs) (Op. by Winter)

Facts: In October 2000, Frank Locacio filed a Section 2255 petition, alleging that he was not afforded the effective assistance of counsel at his 1992 trial with co-defendant John Gotti. The petition was based on counsel’s alleged failure to pursue certain lines of cross-examination in order to protect Gotti.

Two years later, while the petition was still pending, Locacio filed a motion to amend the petition based on new allegations contained in an affidavit from habeas counsel, who claimed that Locacio’s trial counsel, Anthony Carnivale, had revealed that Gotti had threatened to kill him if he “individualized the interest of Locacio at Gotti’s expense.” As a result of the threat, the affidavit alleged that Carnivale was, among other things, (1) prevented from (1) cross-examining the Government’s main snitch, Salvatore Gravano, concerning Locacio’s lack of involvement in the murder of Louis DiBono; (2) threatened to be “taken care of” by Gotti for asking questions specific to Locacio; (3) forced by Gotti to cross-examine witnesses about facts and charges that related only to Gotti; and (4) forced by Gotti to concentrate the second part of his summation on the case against Gotti, rather than the case against Locacio. The affidavit further claimed that Gotti threatened to harm Carnivale if he ever met alone with Locacio without Gotti being present.

Defense counsel contended in the motion to amend the petition that these hearsay allegations constituted “new evidence” because Carnivale had never revealed this information to anyone out of fear for his safety. Carnivale only came forward after John Gotti died, which reduced the risk to his safety. Although Carnivale allegedly refused to submit a declaration of his own because of his continuing fear of reprisals, he allegedly told the affiant that he would testify in accordance with the affidavit if he were subpoenaed to testify at a hearing.

The district court denied the motion to amend the petition as time-barred and, in the alternative, found the underlying ineffectiveness claim to be without merit. With respect to its finding that the petition was time-barred, the district court found that the “new evidence” was not new, that Gotti’s insistence on controlling the attorneys appearing for his co-defendants was well known to Locacio (indeed, it had been captured on tape) long before trial began.

Held: The Second Circuit reversed and remanded, ordering an evidentiary hearing to examine “both the alleged conflict created by the death threat and any resultant lapse in representation reflected by the alleged change in Carnivale’s conduct of Locacio’s defense.” The Court first addressed the district court’s conclusion that Locacio’s ineffectiveness claim based on the new affidavit was time-barred. Noting that it was a “close call,” the Court nonetheless concluded that while it was well known that Gotti was insistent on controlling attorneys involved in representing members of his organinzed crime family, the claim here went beyond Gotti’s general practice. The new allegation was that Gotti, without Locacio’s knowledge, interceded directly with his trial counsel (who, unlike prior counsel, was not on Gotti’s payroll), and gained control of trial counsel by threatening to kill him and preventing him from meeting alone with Carnivale. The Court further noted that the facts as alleged could not have been discovered through due dilligence, because Carnivale purportedly only disclosed the threat after Gotti died in 2002.

With respect to the merits, the Panel concluded — not surprisingly — that a death threat from a co-defendant ordering a lawyer to sacrifice a client’s interest (assuming it happened) constitutes an actual conflict of interest. Thus, so long as the defendant can show that the conflict adversely affected his counsel’s performance, prejudice would be presumed. United States v. Schwarz, 283 F.3d 76, 90-91 (2d Cir. 2002). The Court further concluded that a hearing was required to determine (1) whether, in fact, the conflict resulting from the death threat existed and (2) whether such conflict caused counsel to forgo alternative, potentially viable stratagies.

The Court expressed concern that the allegations regarding Gotti’s alleged death threat consisted entirely of hearsay statements in habeas counsel’s affidavit, creating a verification problem that was exacerbated by the fact that the new allegations were made many years after the alleged events. The Court indicated that the case was a close one, and that ordinarily a hearing would not be warranted in such circumstances. The Court concluded: “However, the allegations here, if credited, involve an attempt to subvert the adversary process in a fundamental and criminal matter, and we are assured by an officer of the court that trial counsel has made the statements claimed and will provide testimonial evidence in support. We believe, albeit by a narrow margin, that an evidentiary hearing would best clarify whether the subversion was attempted and succeeded.”

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