To Be Argued By
Georgia J. Hinde
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________
Docket No. 96-1789
UNITED STATES OF AMERICA,
Appellee,
- against -
RICHARD MESSINA,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF AND APPENDIX FOR THE APPELLANT
GEORGIA J. HINDE
Attorney for Appellant
RICHARD MESSINA
220 Fifth Avenue, 7th Floor
New York, New York 10001
(212) 889-4570
TABLE OF AUTHORITIES ii
PRELIMINARY STATEMENT 1
JURISDICTIONAL STATEMENT 4
STATEMENT OF FACTS 4
A. The Alleged Offense Conduct 4
B. Defense Requests to Substitute Counsel 19
C. The Curtailed Defense Case 23
D. The Trial Court's Questioning of the Defendant 27
E. The Post-Trial Polygraph Examination 33
F. Sentencing 36
ARGUMENT 39
I. THE DEFENDANT WAS NOT AFFORDED A FAIR TRIAL 39
A. The Conflict of Unpaid Counsel 39
B. Improper Judicial Impeachment 51
II. UPWARD ADJUSTMENTS TO THE DEFENDANT'S GUIDELINE RANGE
WERE NOT SUFFICIENTLY SUPPORTED BY SPECIFIC EVIDENCE 56
A. Polygraph Evidence at Sentencing 58
B. Unsupported Adjustments Should Be Vacated 61
CONCLUSION 69
Docket Entries A.1
Superseding Indictment A.8
Pretrial Transcript (December 4, 1995) A.12
Trial Transcript Excerpts A.17
Sentencing Transcript (December 12, 1996) A.32
Judgment of Conviction A.77
Notice of Appeal A.81
Cases: Page
Bollenbach v. United States,
326 U.S. 607 (1946) 55
Camera v. Fogg,
658 F.2d 80 (2d Cir. 1981) 49
Cuyler v. Sullivan,
446 U.S. 335 (1980) 40, 42, 47, 49
Daubert v. Merrell Dow Pharmaceuticals Inc.,
509 U.S. 579 (1993) 58
Henry v. Scully,
78 F.3d 51 (2d Cir. 1996) 51
Holloway v. Arkansas,
435 U.S. 475 (1978) 41, 42, 45
Lopez v. Scully,
58 F.3d 38 (2d Cir. 1995) 49-51
McKee v. Harris,
649 F.2d 927 (2d Cir. 1981) 46
Meyers v. Arcudi,
947 F. Supp. 581 (D.Conn. 1996) 60
Morris v. Slappy,
461 U.S. 1 (1983) 44
Quercia v. United States,
289 U.S. 466 (1933) 53
Rivas v. Brattesani,
94 F.3d 802 (2d Cir. 1996) 54, 56, 57
Santa Maria v. Metro North,
81 F.3d 265 (2d Cir. 1996) 57
Starr v. United States,
153 U.S. 614 (1894) 55
Strickland v. Washington,
466 U.S. 668 (1984) 48
Strouse v. Leonardo,
928 F.2d 548 (2d Cir. 1991) 41
Ungar v. Sarafite,
376 U.S. 575 (1964) 44
United States v. A&S Council Oil Co.,
947 F.2d 1128 (4th Cir. 1991) 60
United States v. Aiello,
814 F.2d 109 (2d Cir. 1987) 41
United States v. Arnold,
106 F.3d 37 (3d Cir. 1997) 67
United States v. Bellomo,
944 F. Supp. 1160 (S.D.N.Y. 1996) 59, 60
United States v. Biaggi,
675 F.Supp. 790 (S.D.N.Y. 1987) 21
United States v. Bonds,
933 F.2d 152 (2d Cir. 1991) 66
United States v. Bortnovsky,
820 F.2d 572 (2d Cir. 1987) 21, 58
United States v. Calabro,
467 F.2d 973 (2d Cir. 1972) 46
United States v. Castillo,
924 F.2d 1227 (2d Cir. 1991) 62
United States v. Colletti,
984 F.2d 1339 (3d Cir. 1992) 68
United States v. Concepcion,
983 F.2d 369 (2d Cir. 1992) 62
United States v. Cronic,
466 U.S. 648 (1984) 45
United States v. Cunavelis,
969 F.2d 1419 (2d Cir. 1992) 67
United States v. Curcio,
279 F.2d 681 (2d Cir. 1960) 53
United States v. Curcio,
680 F.2d 881 (2d Cir. 1982) 42
United States v. Dominguez,
902 F. Supp. 737 (S.D. Texas 1995) 59
United States v. Dunnigan,
507 U.S. 87 (1993) 66
United States v. Ekwunoh,
12 F.3d 368 (2d Cir. 1993) 64
United States v. Eltayib,
88 F.3d 157 (2d Cir. 1996) 46
United States v. Fatico,
458 F. Supp. 388 (E.D.N.Y. 1978) 60
United States v. Filani,
74 F.3d 378 (2d Cir. 1996) 52-56
United States v. Fulton,
5 F.3d 605 (2d Cir. 1993) 41
United States v. Gigante,
94 F.3d 53 (2d Cir. 1996) 62
United States v. Grunberger,
431 F.2d 1062 (2d Cir. 1970) 56
United States v. Hernandez,
83 F.3d 582 (2d Cir. 1996) 66
United States v. Iorizzo,
786 F.2d 52 (2d Cir. 1986) 42, 49
United States v. Kwong,
69 F.3d 663 (2d Cir. 1995) 58
United States v. Lech,
895 F. Supp. 582 (S.D.N.Y. 1995) 60
United States v. Levy,
25 F.3d 146 (2d Cir. 1994) 41, 42, 46-51
United States v. Malpiedi,
62 F.3d 465 (2d Cir. 1995) 42, 47, 50
United States v. Manko,
979 F.2d 900 (2d Cir. 1992) 53
United States v. Mazzilli,
848 F.2d 384 (2d Cir. 1988) 52-54, 56
United States v. McBride,
786 F.2d 45 (2d Cir. 1986) 59
United States v. Miranda-Ortiz,
926 F.2d 172 (2d Cir. 1991) 64
United States v. Montague,
40 F.3d 1251 (D.C. Cir. 1994) 67
United States v. Nazzaro,
472 F.2d 302 (2d Cir. 1973) 52, 55
United States v. Negron,
967 F.2d 68 (2d Cir. 1992) 64
United States v. Onumonu,
967 F.2d 782 (2d Cir. 1992) 59
United States v. Onumonu,
999 F.2d 43 (2d Cir. 1993) 66-68
United States v. Patasnik,
89 F.3d 63 (2d Cir. 1996) 40
United States v. Perez,
904 F.2d 142 (2d Cir. 1990) 46
United States v. Perrone,
936 F.2d 1403 (2d Cir. 1991) 65
United States v. Piccinonna,
885 F.2d 1529 (11th Cir. 1989) 60
United States v. Pisani,
773 F.2d 397 (2d Cir. 1985) 52
United States v. Posado,
57 F.3d 428 (5th Cir. 1995) 59, 60
United States v. Rea,
958 F.2d 1206 (2d Cir. 1992) 58
United States v. Rivalta,
892 F.2d 223 (2d Cir. 1989) 63
United States v. Robinson,
635 F.2d 981 (2d Cir. 1980) 53
United States v. Santiago-Gonzalez,
66 F.3d 3 (1st Cir. 1995) 61
United States v. Schmidt,
105 F.3d 82 (2d Cir. 1997) 45, 46
United States v. Schwartz,
500 F.2d 1350 (2d Cir. 1974) 57
United States v. Scotti,
47 F.3d 1237 (2d Cir. 1995) 66
United States v. Shonubi,
103 F.3d 1085 (2d Cir. 1997) 62
United States v. Shonubi,
998 F.2d 84 (2d Cir. 1993) 62
United States v. Stantini,
85 F.3d 9 (2d Cir. 1996) 42, 48
United States v. Stevens,
985 F.2d 1175 (2d Cir. 1993) 63, 64
United States v. Studley,
47 F.3d 569 (2d Cir. 1995) 63
United States v. Tramunti,
513 F.2d 1087 (2d Cir. 1975) 44
United States v. Victoria,
837 F.2d 50 (2d Cir. 1988) 52, 54
United States v. Williams,
79 F.3d 334 (2d Cir. 1996) 66
United States v. Willis,
940 F.2d 1136 (8th Cir. 1991) 67
Wheat v. United States,
486 U.S. 153 (1988) 43
Winkler v. Keane,
7 F.3d 304 (2d Cir. 1993) 40, 47, 48, 50
Wood v. Georgia,
450 U.S. 261 (1981) 40
TABLE OF AUTHORITIES
Statutes, Rules and Guidelines: Page
18 U.S.C. § 2 1, 4
18 U.S.C. § 1621(1) 66
18 U.S.C. § 1951 1, 4, 36
18 U.S.C. § 3231 4
18 U.S.C. § 3553(c)(1) 39
18 U.S.C. § 3742 4
28 U.S.C. § 1291 4
28 U.S.C. § 2106 4
Local Rule 7, Southern District of New York's
Plan for Achieving Prompt Disposition of
Criminal Cases 45
Local Rule VI, Southern District of New York's
Plan for Furnishing Representation Pursuant
to Criminal Justice Act of 1964 43
Rule 4(b), Fed. R. App. P. 4
Rule 29, Fed. R. Cr. P. 35
Rule 33, Fed. R. Cr. P. 35
Rule 702, Fed. R. Evid. 58
Sentencing Guideline Policy Statement § 5H1.12 57
Sentencing Guideline Policy Statement § 6A1.3(a) 59
Sentencing Guideline § 1B1.3 63
Sentencing Guideline § 2B3.2 36
Sentencing Guideline § 3C1.1 65-67
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________
Docket No. 96-1789
UNITED STATES OF AMERICA,
Appellee,
- against -
RICHARD MESSINA,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF AND APPENDIX FOR THE APPELLANT
PRELIMINARY STATEMENT
Richard Messina appeals his conviction and Guideline sentence of 151 months, imposed on December 12, 1996, by the United States District Court for the Southern District of New York (Duffy, J.), following a jury trial on charges alleging that Mr. Messina had participated in an extortion conspiracy and aided and abetted an attempted extortion, in violation of 18 U.S.C. §§ 1951 and 2. The jury acquitted Mr. Messina of the conspiracy charge, but convicted him of aiding and abetting an attempted extortion. On February 5, 1997, this Court appointed present counsel pursuant to the Criminal Justice Act to represent Mr. Messina on appeal.
With this appeal, Mr. Messina seeks reversal of his single conviction because a combination of events deprived him of a fair trial. First, before his trial began, both the defendant and his former retained counsel apprised the district court of a potential conflict and already existing dissension within their attorney-client relationship, arising mainly from Mr. Messina's ongoing financial straits and his corresponding inability to pay more than a small fraction of his trial counsel's agreed fee. Without any inquiry into the severity of the conflict, and despite ample notice of the problem some five to six weeks before the scheduled date for this single-defendant trial, the district court repeatedly denied the defendant's and his attorney's requests to allow substitution of appointed counsel, citing the court's unsupported view that a defendant cannot qualify for appointed counsel once he appears with retained counsel.
With no other choice but to proceed with the handicap of a strained relationship, trial counsel's performance was commendably proficient. Indeed, the jury acquitted the defendant of one of the two charges against him. Still, in a case that stacked the self-serving accusations of three undependable cooperating witnesses against the testimony of a defendant who consistently maintained his innocence of any knowing role in either the alleged extortion or its precursor conspiracy, unconflicted counsel would likely have approached some identifiable decisions differently. In particular, counsel not only declined to call other neutral and available witnesses who could have confirmed material aspects of the defense related by Mr. Messina's trial testimony, but actually invited the trial court's preclusive ruling that other witnesses would be merely "collateral" and therefore should not be called.
Counsel thus may have served a plainly conflicting interest of reducing the time he was required to devote to his unintended pro bono representation of Mr. Messina, and adversely affected the defense case in the process by leaving it to stand or fall on the jury's evaluation of the defendant's testimony alone. Then, even the jury's measure of the defendant's credibility was unfairly undermined when the trial judge discredited the defendant with pointed and damaging inquiries that too plainly conveyed the trial court's distrust of Mr. Messina's sworn testimony. What was worse, as the judge discovered too late, was that part of this skeptical sua sponte interrogation of the defendant -- at the very close of weeks of evidence, when the impression it would make on the jury was the strongest -- was based on inaccurate information.
The reasons for reversal in this case are therefore instances of unfairness that were somewhat more discrete, but no less devastating than in any other case where a defendant due process and fair trial concerns have been flagrantly abused or abandoned. As the errors and omissions improperly fortified the government's case at the expense of fundamental guarantees and fairness, Mr. Messina should be afforded a new trial.
Mr. Messina also appeals his 151-month (12½ year) Guideline sentence, the last nine years of which are based on unwarranted upward adjustments pegged either to acquitted "relevant conduct" that no specific evidence proved this defendant to have known or foreseen, or upon an entirely inadequate determination by the district court that the defendant's testimony warranted an obstruction of justice enhancement. In applying these adjustments, moreover, the court rejected the defendant's proffer of post-trial polygraph results that should have sufficed, even under this Court's traditionally circumspect approach to polygraph evidence, at least to carry a defendant's sentencing burden of demonstrating why a Guideline adjustment should not have applied.
This Court should therefore afford some guidance on the admissibility of polygraph evidence in this limited sentencing context, and permit its use in this case if resentencing should be required after reversal of the defendant's conviction. At a minimum, the defendant's excessively severe sentence should be vacated because it depends on punitive adjustments that are unsupported by specific and reliable evidence.
JURISDICTIONAL STATEMENT
Subject matter jurisdiction in the district court was conferred by 18 U.S.C. § 3231, granting original and exclusive jurisdiction of all offenses against the United States, including those of which appellant was convicted, 18 U.S.C. §§ 1951 and 2. A notice of appeal was timely filed on December 12, 1996 (see Appendix ("A.") hereto at A.81), the same day that appellant was sentenced. Jurisdiction is invoked in this Court pursuant to 18 U.S.C. § 3742(a), 28 U.S.C. §§ 1291, 2106, and Rule 4(b), Federal Rules of Appellate Procedure.
STATEMENT OF FACTS
A. The Alleged Offense Conduct
The November 1994 extortion alleged in the indictment's charges had its genesis in a poor investment decision made in August 1994 by Richard Spence, whom the indictment (A.8-11) named as an unindicted co-conspirator and who appeared at this trial as the first of the government's three cooperating witnesses. Spence, a retired New York City fireman turned entrepreneur, was involved in diverse legitimate business concerns. In a sub rosa partnership with his attorney, Harvey Weinig,(1) and a host of other individuals, however, Spence had also directed an extensive money laundering conspiracy since 1993 (Tr. 102-03, 113-21, 163). By August 1994, Spence had done so well for himself that, though still a young man,(2) he was already planning for his semi-retirement in Florida (Tr. 156, 1358). Spence therefore developed an interest in the Biltmore Mortgage Company, not only because he wanted to run the company's Florida operation, but because it had been recommended as a good place to launder money (Tr. 140-42, 156).(3)
James Clooney was the President of the Biltmore Mortgage Company and the individual Spence entrusted with $200,000 as a loan secured by a 25 percent share of Biltmore's stock (Tr. 144, 428, 463-67). Before Spence's investment, however, Clooney had so badly mishandled Biltmore's escrow funds and committed a plethora of other related frauds that he had well-grounded concerns that a Biltmore's operating licenses would be revoked or that Clooney himself would face criminal charges (Tr. 144-47, 422-44, 452-53).(4) Still, Clooney hoped to forestall Biltmore's collapse with an infusion of new funds from Spence and others (Tr. 140-42, 444-46, 462-63). Clooney therefore gave Spence his personal assurance that his funds would be returned if Biltmore's investment prospects soured (Tr. 147-48, 467).
After Spence transferred his funds to Clooney, he asked appellant Richard Messina to conduct a due diligence inquiry into Biltmore and to determine the feasibility of Spence's involvement in Biltmore's Florida operations (Tr. 143, 311-12). During a taped telephone conversation (GX-50),(5) Spence also boasted to Mr. Messina that Spence had told Clooney he was "not a Wall Street person, [but] a street person, [and with a street person], people get hurt for five bucks" (Tr. 23, 150-57, 1360). Mr. Messina had heard the equivalent of such "tough" talk from Spence before but paid little attention to it (Tr. 1361).(6) Instead, as Spence asked, Mr. Messina simply began a prompt investigation into the financial stability and prospects of Biltmore (Tr. 161-62, 1364-66).
At the time he performed this due diligence inquiry on behalf of Spence, Mr. Messina's work was exclusively that of a business and financial consultant. As Spence knew, Mr. Messina had been an attorney for more than 20 years, but had lost his license to practice law in 1992, after borrowing funds from client escrow accounts and loaning the money, without the consent of its owners, to a failing business that eventually declared bankruptcy (Tr. 143, 162, 1338-41). In the years following this traumatic reversal, Mr. Messina sold his home to pay restitution and worked towards the day when he might resume some semblance of the life he had lost to his monumental error in judgment.(7) Fortunately, he still had his business expertise to draw on, and he therefore found work on behalf of a number of businessmen who valued Mr. Messina's experience and insights, as did Spence (Tr. 1344-47).(8)
After investigating Biltmore for almost two months, Mr. Messina was rightly concerned that there was much amiss with the company. First, while Mr. Messina was able to interview other Biltmore investors and creditors such as Clooney's uncle, Louis Alimena, and Biltmore's Chief Financial Officer, Daniel Madden, Clooney himself rarely returned Mr. Messina's calls from August through early October (Tr. 1365). Then, Mr. Messina's concerns intensified when he was unable to obtain such standard corporate documents as Biltmore's certified shareholders list, without which Spence would have no way of assuring that his investment had actually secured the promised 25 percent interest in Biltmore (Tr. 1366). Even more troubling was Mr. Messina's discovery that other Biltmore shareholders, such as Mr. Alimena and Jerome Yaeger, did not appear to own the shares they thought (Tr. 1366).
Based on these disturbing indications, Mr. Messina reported back to Spence that Biltmore was having a lot of problems, to say the least (Tr. 1367). Nonetheless, whether because Mr. Messina over-empathized with this young man's desperate position at the helm of a sinking business (as he admittedly did, Tr. 1473),(9) or just because it made sense at the time, Mr. Messina endorsed Clooney's mid-October plea for Spence to invest another $37,000 that Clooney said he needed to replenish the escrow account, save Biltmore, and preserve Spence's investment (Tr. 166, 472-74, 1370, 1502). In exchange, Clooney promised to repay $50,000 to Spence within a "couple of weeks" (Tr. 473, 1376) -- but Clooney's promise went unfulfilled.
To protect the Spence investment, therefore, Mr. Messina prudently began the process of demanding partial repayment and obtaining more tangible forms of security for Spence's loan and investment (Tr. 469-72, 483, 1367). Only at that point did Clooney personally surface and begin to admit the full scope of his business problems to Mr. Messina.(10)
Thus, Clooney disclosed that some of Biltmore's troubles stemmed from his ongoing inability to close a deal with another company that would have reinforced Biltmore's standing (Tr. 471-73, 481, 1367-68). In addition, Clooney admitted that there were shortfalls in Biltmore's escrow accounts that, if discovered by federal or state regulatory audits, would result in Biltmore's demise (Tr. 472-73, 477, 1369). On Mr. Messina's advice, Spence therefore agreed by the end of October 1994 that the only thing left to do was demand the return of the full $237,000 he had paid into Biltmore, while Mr. Messina turned his attentions to an attempt to preserve some value in Biltmore's stock (Tr. 168-69, 485, 1415).
Naturally, Clooney had far too little in the way of liquid assets to satisfy Spence's demand. Clooney therefore promised he would try to get the money from his uncle (Alimena), and would soon convey to Spence between $15,000-$50,000 in cash along with a variety of properties, including deeds to two houses Clooney owned and one or more original Peter Max paintings that belonged to Clooney's girlfriend, Linda Argilla (Tr. 166, 168-69, 358-59, 391, 479, 659-60). One problem with this arrangement was, however, that Clooney had also promised (but not delivered) many of these same assets to other unhappy Biltmore creditors and investors (Tr. 373, 483-84). The resulting vortex created by looming agency audits and investor pressures and demands -- including those Mr. Messina interposed on behalf of Spence, when he warned Clooney that his failure to refund Spence's investment would result in a report of Biltmore's wrongdoing to federal prosecutors -- soon overwhelmed Clooney, who by early November 1994 was forced to resigned as Biltmore's president (Tr. 484-86, 1392). Meanwhile, in the first weeks of November that followed, Mr. Messina met and worked with Spence's attorney, Harvey Weinig, and an associate in Weinig's firm, David Wechsler, on initiating civil and criminal litigation against Biltmore and Clooney, both to save Biltmore as an entity and to recoup the Spence investment through the value of the Biltmore stock (Tr. 170, 1400-03). At the core of Mr. Messina's strategy was an attempt to preserve Biltmore's only asset, its operating licenses, by demonstrating to mortgage banking authorities that Biltmore had cleaned its own house by pursuing the deposed Clooney's criminal prosecution (Tr. 1398-99, 1414-15, 1439-41, 1456, 1462, 1465-66, 1544). With the litigation placed in Weinig's hands -- because Spence had selected Weinig over another attorney Mr. Messina had recommended, and because Mr. Messina could not himself act as Spence's legal counsel -- Mr. Messina continued to assist Spence's attorneys by speaking to Biltmore creditors and investors, as well as bank representatives that had dealt with Biltmore, and collecting additional information about Biltmore's frauds (Tr. 1399, 1406-13). The only problem with Mr. Messina's approach, though he did not know it, was that neither Spence nor Weinig could afford to report Biltmore's fraud and thereby risk exposure of their own illegal money laundering activities (Tr. 173).(11) In the period after he referred the matter to Weinig, therefore, Mr. Messina often complained to Spence (as Spence admitted) about Weinig's sluggishness in initiating any proceedings (Tr. 341, 344).
Nevertheless, Spence and Weinig indulged Mr. Messina's belief that his investigative preparations would ultimately be useful in civil or criminal litigation commenced on behalf of Spence and other Biltmore investors. Mr. Messina therefore continued his work throughout November 1994 on salvaging Biltmore to preserve the value of its stock, as was confirmed at trial not only by Mr. Messina's testimony, but by the FBI case agent's analysis of Mr. Messina's files and telephone logs reflecting his numerous calls to Biltmore creditors and investors, banking principals, Spence, Weinig, Wechsler, Clooney himself and, as chief spokesman for Biltmore's investors and creditors, even a prospective purchaser for Biltmore (Tr. 1245-50, 1253, 1272-73, 1277-82, 1296, 1404-14, 1439-40, 1456). While Mr. Messina was thus absorbed, however, Spence had independently determined that a more direct approach was warranted.
Spence thus scheduled a meeting with Clooney on November 12, 1994, to "persuade" Clooney to return his money -- a term Spence conveniently defined at trial to mean "extort" (Tr. 174-75). Before their meeting, Spence spoke with Clooney's uncle, Louis Alimena,(12) during a conference call to which Mr. Messina was a party, and told the uncle -- in another of his typically "tough guy" routines -- that Spence wanted "my money or the kid" (meaning Clooney, even though he was actually about the same age as Spence) (Tr. 172, 419). As Mr. Messina also learned, Spence was thereafter scheduled to "deal with" Clooney by meeting him for dinner followed by an inspection of one of the houses Clooney had told Mr. Messina he would deed to Spence in partial repayment of Spence's Biltmore investment (Tr. 178, 1415-17). What Spence ultimately decided to do, however, even Spence did now know in advance.
Spence thus conferred with another associate, Gary Salerno,(13) before his dinner meeting with Clooney (Tr. 175). Spence had known Salerno for some time,(14) and testified that he participated with Salerno in some unrelated extortionate activities in April 1994,(15) after which Spence formed an opinion that, though he never saw Salerno carry a gun, Salerno was "always" armed (Tr. 135).(16) When Spence informed Salerno about his problem with Clooney, therefore, Salerno's most natural response was to propose to Spence what Salerno knew best: that they should kidnap or beat up Clooney to get Spence's money back (Tr. 175).(17) Spence therefore ultimately settled on a plan to kidnap Clooney and hold him until his family repaid Spence's investment.
Thus, on November 12th, on Spence's way to his dinner meeting with Clooney, he detoured to Salerno's house, where the kidnapping plan was first conceived (Tr. 178-79). There, Spence met William Daley, a "huge" 350-pound "gorilla" of a man who usually collected money for Salerno, but on this occasion also helped plan Clooney's kidnapping (Tr. 179-83). Salerno also called on his "partner in crime" Anthony Persichetti to follow Salerno and join in Clooney's abduction (Tr. 138, 183-84, 970). All of the men then convoyed to an area near Spence's dinner meeting with Clooney and rehearsed their newly hatched kidnapping plans before Spence drove off alone to meet Clooney (Tr. 185-86).
At dinner, Clooney again promised to convey property to Spence to satisfy his debt, and Spence asked Clooney to show him the nearby house that Clooney had promised as a part of the package (Tr. 186-87). As they left the restaurant for that purpose, Salerno, Daley and Persichetti waited in the parking lot for Spence's final signal that Clooney was indeed to be kidnapped -- but at that point, Spence and Clooney merely drove to Clooney's house, with Salerno and the others following at a discrete distance (Tr. 187).(18) Only after Spence and Clooney inspected the house and began driving back to Clooney's parked car did Spence finally give the prearranged signal, after which Spence drove down a secluded street, stopped the car, and permitted Salerno, Persichetti and Daley to abduct Clooney from Spence's car (Tr. 188-89, 833-66).
Guarded by some combination of Salerno, Persichetti and Daley, Clooney was thereafter shuttled from one hotel to another while his abduction lasted (Tr. 506-22).(19) During those few days, Clooney telephoned his parents, his uncle, Louis Alimena, and his girlfriend, Linda Argilla, in an effort to collect property and money that Spence demanded in exchange for Clooney's safe release (Tr. 192, 498, 511, 1026). Unfortunately for Mr. Messina, these new efforts by others to collect "ransom" very closely paralleled Mr. Messina's own ongoing endeavor to coordinate the conveyance of some of the same property that Clooney had promised all along as a means of repaying Spence's foundering investment in Biltmore. The government did not, however, rely on this coincidence alone to argue that Mr. Messina played some role in the extortion of Clooney. Instead, the government elicited testimony from each of its three cooperating witnesses(20) about some event by which Mr. Messina's alleged knowledge of or participation in the extortion scheme might be shown, if not before the fact, then at least during the course of the four days during which Clooney was held hostage.
In Spence's case -- apart from his above-noted inconsistent claims about whose idea it was to place Clooney under "house arrest" (Tr. 176, 372) -- he directly implicated Mr. Messina by claiming that, as soon as Clooney was kidnapped, Spence called Mr. Messina to tell him what had transpired (Tr. 194-95).(21) Further, Spence claimed that the next day, Spence asked Mr. Messina to deal directly with Salerno with respect to Mr. Messina's continuing efforts to get Spence's money refunded (Tr. 198, 201) -- or, as Spence more damningly put it, to "mak[e], I guess, ransom demands" (Tr. 201).(22)
Clooney's testimony also suggested Mr. Messina's involvement, although not until November 14, 1994 (two days after his initial abduction) (Tr. 702).(23) On that day, Clooney said that Salerno told him to direct his family's subsequent efforts to raise money for his release through Mr. Messina (Tr. 517-18).(24) The next day, November 15, 1994, Clooney was permitted to telephone Mr. Messina,(25) and told him -- much as they had discussed before Spence ever decided to kidnap Clooney -- that his family could provide deeds to his two houses, a deed to his parents' home,(26) four or five of his girlfriend's original paintings, and $10,000-$20,000 in cash in exchange for his release (Tr. 526, 677-78, 700, 702).
Mr. Messina next heard from Clooney on November 16, 1994, when Clooney called to report that he had been left alone and wanted to know if it was alright for him to leave (Tr. 537).(27) Clooney also testified that, from the time of his release on November 16th until Spence's arrest on November 30th(28) -- a period during which Clooney was supposed to be liquidating enough assets to repay Spence in cash instead of property (Tr. 550-51) -- Mr. Messina continued as before, urging Clooney to fulfill his outstanding obligations to Spence (Tr. 557-61).
The last of the government's cooperating witnesses, Anthony Persichetti, had the least in the way of personal knowledge about Mr. Messina's supposed role in extorting Clooney. Nonetheless, he managed to tailor his testimony to fit the needs of the case. While Persichetti had admittedly met Mr. Messina only once(29) -- when he accompanied Salerno to a meeting on November 15th that Persichetti, who was merely listening and not participating, described as a discussion about how to get money in exchange for Clooney's release (Tr. 862, 959, 997, 1002, 1005)(30) -- he listed Mr. Messina as among those involved in the extortion of Clooney largely because Salerno said so and because Mr. Messina "had to go pick up the money" (Tr. 825-26, 1012). As Persichetti also had to admit, however, when he had recently testified at another trial prior to his preparations to testify against Mr. Messina, he had listed only Spence, Salerno and Daley as the other participants in Clooney's kidnapping, and never once mentioned Mr. Messina (Tr. 1013-14).
Before the jury ultimately acquitted Mr. Messina of any role in the charged conspiracy to kidnap Clooney (Tr. 1852) -- a verdict that likely resulted from the jury's rejection of much of the testimony of Spence and Persichetti,(31) both of whom appear, even in the cold record, overeager to implicate Mr. Messina in their own wrongdoing from the start -- the trial court itself summed up the most that the government's evidence seemed to show: "that Richard Messina had absolutely nothing to do with the abduction or holding [of Clooney], except to collect the ransom", and that Mr. Messina thereby aided and abetted others' efforts to extort Clooney (Tr. 1575). When convicting Mr. Messina only of the aiding and abetting charge in Count Two (see A.10-11), the jury demonstrated its agreement with the court's analysis of this defendant's limited role.
B. Defense Requests to Substitute Counsel
Despite defense counsel's obviously capable work at trial, it became evident a number of weeks prior to trial that counsel had been required to proceed under an undispelled cloud caused by a possible conflict of interest. Thus, as explained at a pretrial appearance on December 4, 1995, after retained counsel had met with Mr. Messina a week before -- or about six weeks prior to the most recently scheduled trial date of January 8, 1996 -- counsel had conveyed to the trial court Mr. Messina's urgent request for substitution of appointed counsel in light of the defendant's ongoing inability to pay retained counsel's fee (A.12-13). Mr. Messina also confirmed at that same appearance that, because of his inability to pay his retained counsel (who will hereafter be more aptly referred to as "unpaid counsel"), the defendant felt "totally uncomfortable with the situation" of unpaid counsel continuing to represent him at trial, and therefore asked the trial court to appoint CJA counsel instead (A.15).
The trial court denied the defendant's request, citing what the court reported as its surprising "across the board" response to all such requests: that unpaid counsel would not be "let . . . out at this point", even if a defendant qualified for appointed counsel (A.13). The court then expressed its hope that the trial would not be too long, but the government's estimate of three weeks was apparently more than the court expected (A.13-14). Thus, as the court itself recognized, "Three weeks is still a long trial" and "a long period of time for a trial lawyer to be on trial without getting paid for it" (A.14). Yet the only remedy in the trial court's view was either to stipulate to as much evidence as possible and thereby shorten the trial, or (as counsel himself suggested) to allow unpaid counsel to find some competent counsel who could replace him in time to be ready for trial on January 8, 1996 (A.14-15).
When unpaid counsel could not produce a substitute by the scheduled trial date, Mr. Messina wrote to the trial court to renew his objections to proceeding with unpaid counsel, citing additional reasons why a remedy should be granted.(32) First, the government had apparently delivered to unpaid counsel's office, as recently as November 1995, a veritable mountain of discovery materials and tapes, most of which turned out to be related, not to Mr. Messina's case, but to the separate Weinig money laundering prosecution.(33) Then, Mr. Messina was alarmed to learn -- as late as December 26, 1995, when less than two weeks remained before the scheduled starting date for his trial -- that unpaid counsel's office had lost or misplaced all the important files containing copies of voluminous notes and documents critical to his case and defense.(34) Further, Mr. Messina expressed his concern that witnesses who were important or even critical to his defense had not yet been interviewed by unpaid counsel (the impact of which will be discussed in the next section). In light of these specifics, it was not unreasonable for Mr. Messina to conclude that his inability to pay counsel's fee had indeed resulted in serious "[i]rreconcilable differences" -- but the trial court again afforded neither a hearing nor a remedy before the trial began as scheduled.
After his trial ended, Mr. Messina renewed his request for new counsel, this time with unpaid counsel's more helpful concurrence to the effect that Mr. Messina's position had now "create[d] a conflict" between counsel and client -- although not, in unpaid counsel's asserted view, because of Mr. Messina's inability to pay his fee.(35) Mr. Messina countered that there had been "numerous conflicts", not merely since but before and during trial as well, and pointed in particular to unpaid counsel's erroneous identification of a proposed defense witnesses and misstatement of the purpose for calling other defense witnesses besides the defendant himself (as discussed further in the following section).
This time the trial court did not dismiss the defendant's complaints by invoking any "across the board" rule. Nor did the court reiterate its unsupported pretrial opinion that Mr. Messina probably did not qualify for appointed counsel, nor that even if he did, he would not be allowed to "end up going CJA" when he was not destitute in the first place (A.15-16). Instead, the trial court promptly granted unpaid counsel's application to withdraw and, recognizing that Mr. Messina qualified for appointed counsel after all (as this Court agreed when appointing present counsel), assigned an attorney from the district court's CJA Panel to represent Mr. Messina in connection with his post-verdict motions and sentencing.(36)
C. The Curtailed Defense Case
At the trial itself, the potential for conflict created by counsel's unpaid status was realized in at least one discernable respect. Thus, as the trial entered its third week, with the prosecution's case still some days from completion,(37) defense counsel made an application that effectively precluded any possibility of calling defense witnesses that counsel himself portrayed to the court as "collateral to the issues on trial" (A.17, Tr. 860). Though counsel went on to say that the witnesses could testify to "Mr. Messina's good faith efforts to try to straighten out the Biltmore situation", the court could not get past the visceral effect created by counsel's use of the word "collateral", and ruled on that basis that none of the witnesses Mr. Messina asked to call would be allowed to testify (A.17, Tr. 860).
The witnesses in question were Biltmore's Chief Financial Officer Daniel Madden, Biltmore investor and creditor Jerome Yaeger, and an attorney from Weinig's law firm, David Wechsler (the last of whom trial counsel misidentified as one "Osborne") (Tr. 860).(38) There was, moreover, a good reason for calling each of these witnesses -- not, as the trial court surmised, "to testify as to how screwed up Biltmore was" (Tr. 860), but to substantiate important aspects of the defendant's own trial testimony. Such a sound purpose should hardly have been thought,(39) much less labelled "collateral" by any defense counsel intent on the zealous representation of his client -- but the fact that it was showed that, even if unpaid counsel's conflict had been potential to this point, it had now become actual and created an identifiably adverse effect on the defense.
Though no adequate proffer was placed in the record about the specific testimony that these witnesses would have given, there are indications in other testimony from which a fair idea may be gleaned.(40) Daniel Madden, for example, was one of the first who discovered Biltmore's difficulties and threatened to report Clooney to the authorities, but Madden held off while Clooney attempted to raise funds to replace the shortfall (Tr. 443-44) -- much as Mr. Messina initially recommended giving Clooney a chance to repay Spence before taking the matter to the authorities. Then, when Clooney had not repaid Spence by the end of October 1995, Mr. Messina sent strong demand letters both to Clooney and Madden (Tr. 1392), which prompted Madden's offer to repay $25,000 of the sum Spence was owed (Tr. 1467).(41) Only if Madden testified, however, could the jury appreciate that Mr. Messina's unadorned testimony about Madden's offer of funds to Spence was far more credible than Spence's dramatized and unlikely claim: that Madden had paid $25,000 after Clooney's kidnapping because Spence threatened to kidnap Madden next if he did not (Tr. 212).
Jerome Yaeger -- a Biltmore creditor and investor who also had been defrauded by Clooney out of a significant sum of money and to whom Clooney offered the same pieces of artwork that he proffered to assuage every Biltmore investor that complained (Tr. 373)(42) -- was another witness who could have confirmed that Mr. Messina's conduct throughout and after the period that Clooney was kidnapped was not consistent with an extortionate state of mind. Yaeger, who had lost even more than Spence after investing between $300,000-$400,000 in Biltmore (Tr. 616-21), spoke to Mr. Messina a number of times during the critical November 12-16, 1994 period (Tr. 1245-53) -- the same few days when Mr. Messina was supposedly negotiating the delivery of "ransom" for Clooney's release. Only Yaeger's testimony could have given confirmatory content to Mr. Messina's descriptions of those legitimate calls and shown that, as Mr. Messina had testified (Tr. 1439-40, 1456),(43) his intent was to find methods of salvaging Biltmore for its investors and creditors -- the underlying strategy of which, again, depended on the criminal prosecution and not the extortion of its former president, Clooney.
Finally, attorney David Wechsler could have confirmed how insistent Mr. Messina had been -- up to and including the time of Spence's and Weinig's arrests on November 30, 1994 -- about following up his demand letters on Spence's behalf with an actual report about Biltmore and Clooney to law enforcement agencies, (Tr. 1277-80, 1406-13, 1435-36). Wechsler could have also confirmed that, after Spence's and Weinig's arrests, he had been the first person to alert Mr. Messina to his possible implication in a kidnapping (Tr. 1421) -- which in turn led Mr. Messina to seek the advice of counsel and to obtain a copy of the complaint detailing Spence's money laundering offenses, in the allegations of which, for the first time, Mr. Messina confronted the shocking realization that he may have played an unwitting role in Clooney's extortion.
The testimony of some or all of these witnesses thus could have added substantial weight to Mr. Messina's defense: that his only activities, as a financial and business consultant, had been directed to his lawful and good faith efforts to secure a refund of Spence's fraudulently induced investment; and that he had no idea when Spence and others impulsively abducted Clooney in order to more directly impress on him the need to repay. At the least, the testimony would not have been "collateral", and unpaid counsel's contrary declaration should not be excused as "strategy".
D. The Trial Court's Questioning of the Defendant
For the vast majority of this trial, the district judge presided with an evenhanded decorum with which no one should find fault. Preliminary and final jury instructions were thoughtful and protective of fundamental precepts like reasonable doubt (Tr. 1759-60); government proffers of extrinsic "bad act" evidence were excluded until defense counsel's questioning had "opened the door" (Tr. 285, 335); rulings on objections throughout the trial were fair and balanced; and the court's own occasional questions to the government's witnesses were impartial and plainly meant to clarify their testimony (Tr. 112, 391-95, 459, 461-62, 606, 894-95, 898, 932, 946, 1229-30, 1234-35).(44)
During Mr. Messina's testimony, however, the court's prior estimable composure was replaced by a few instances evidencing a startling lack of restraint and culminating in an inquisitorial and baseless attack on the defendant's credibility that could not have helped but convey to the jury that the judge did not believe Mr. Messina. First and least of the instances was occasioned by the defendant's erroneous direct testimony, in answer to defense counsel's somewhat muddled question ("Did there come a time, did you ever meet a fellow named -- you saw Anthony Persichetti testify here? . . . Did you ever meet him?"), that he had not met Persichetti ("No, sir") (A.18, Tr. 1362).
That Mr. Messina was hardly trying to conceal the fact that he had indeed once met "Tony" was obvious, however, when he later discussed their only meeting on November 15, 1994 (A.19-21, Tr. 1444-46). Still during his direct testimony, Mr. Messina thus related how Salerno had been "accompanied by this Mr. Persichetti, the fellow who testified last week", and that he had met them on the street after receiving a call attributed in Mr. Messina's telephone logs to "Tony", with whom he did not recall having a conversation (A.20, Tr. 1445). Asked whether "You did meet Tony?", Mr. Messina said simply "Yes, I did . . . He was inside the car" (id.). Only when asked if Mr. Messina had ever spoken to Persichetti before that meeting did the defendant respond, "Never" (A.21, Tr. 1446).
During cross-examination, Mr. Messina said the same: that he had met Persichetti on November 15th, but did not know his last name at that time; and that the man he met with Salerno was the same individual who testified at his trial (A.22, Tr. 1487). The court then surprisingly confronted Mr. Messina with his earlier and long since clarified inconsistency (A.22-23, Tr. 1487-88):
THE COURT: Did you have a conversation with him then, with this Tony at Muldoon's; did you talk to him?
THE WITNESS: Only in Italian at the beginning, as I stated.
THE COURT: Do you remember yesterday you were asked by the attorney, page 1362, line 9:
"Q. Did there come a time, did you ever meet a fellow named -- you saw Anthony Persichetti testify here?
A. Yes sir.
Q. Did you ever meet him?
A. No, sir."
When the court asked if Mr. Messina "remember[ed] giving that testimony yesterday?", Mr. Messina then expressed his understandable surprise and confusion at the contents of the record (A.23, Tr. 1488):
THE WITNESS: No, sir. No, sir. Obviously he was there at the Muldoon's meeting I never -- absolutely.
The court did not resume an active role in the defendant's cross-examination until the next day, just after the government concluded its own cross-examination and at the very close of all the evidence. Then, seizing on one detail in Mr. Messina's direct testimony that even the government had not challenged(45) -- Mr. Messina's passing mention, when describing his background and education, that he had been the Chairman of the Federal Bar Council for a year and a half in the early 1970's -- the court vented its obvious vexation with what it must have viewed as the defendant's blatant lie (A.24-25, Tr. 1562-63):
THE COURT: You said at one point I think you were involved with the Federal Bar Council, right?
THE WITNESS: Yes, sir.
THE COURT: Were you ever Chairman of the Federal Bar Council?
THE WITNESS: Yes, sir.
THE COURT: The entire coun[ci]l, right?
THE WITNESS: The one that Evelyn Gelman was the executive secretary of in the early 70's, Larry Vogel, Grant Herring and that group from Cadwalader, Wickersham & Taft.
THE COURT: The posted chairman is the combination of posted chair and president?
THE WITNESS: No, I don't think so. Was it, sir? I don't believe so.
THE COURT: It always has been.
THE WITNESS: In the early 1970's when I was chairman of the Federal Bar Council for one year, it was the year that the annual convention was held in St. Martin. It was sort of a political post among the Virginia Law School graduates, and Larry Vogel and Grant Herring had me appointed to that. Attorney General Levi was the guest speaker at our annual dinner that year, which I chaired.
Then, as if the word of the judge had not been almighty enough to impress on the jurors that the defendant's testimony was false, the court pulled out the resource on which it was relying to prove the defendant's supposed perjury (A.25, Tr. 1563):
THE COURT: There is a document called the Second Circuit Redbook put out every year by the Federal Bar Council. Do you know the book?
THE WITNESS: Yes, sir.
THE COURT: Does your name appear on that?
THE WITNESS: No, sir. I said I was chairman of the Federal Bar Council.
THE COURT: They don't have a chairman. They have one position, chairman and president. What were you chairman of, sir?
THE WITNESS: The Federal Bar Council, sir.
THE COURT: All right. Give it back to me.
No little rankled by its inability to budge the defendant off his testimony that he once chaired the Federal Bar Council, the court then moved immediately to another point in the defendant's testimony that also appeared to have caused irritation: Mr. Messina's admitted destruction of six pages of his own personal notes after reading the complaint alleging Spence's and Weinig's involvement in money laundering and a kidnapping. Though this subject matter had already been exhaustively canvassed during the defendant's direct testimony (Tr. 1420, 1428) and his cross-examination (Tr. 1546-51, 1553-54), the court added its own gratuitous spin (A.26, Tr. 1564):
[THE COURT:] One of the things, you indicated that you destroyed documents?
THE WITNESS: That I threw away six pages, yes, sir.
THE COURT: After you had seen criminal counsel?
THE WITNESS: Yes, sir.
THE COURT: It was not on advice of counsel?
THE WITNESS: No, sir. I take full responsibility for that act.
THE COURT: Now, the first time you mentioned it, you started off the answer by saying, "I was looking towards reinstatement to the Bar."
THE WITNESS: Yes, sir.
THE COURT: Is destroying documents the type things that you're supposed to do as a lawyer?
THE WITNESS: I would never have done that, sir, if I had been under subpoena or legal obligation.
THE COURT: I didn't say you were under subpoena or legal obligation.
THE WITNESS: No, sir, it isn't the sort of thing an attorney should do, you're right.
When the judge's interrogation ended, defense counsel made no attempt at rehabilitation but promptly rested his case (Tr. 1564-65). The jury was then discharged until summations the following Monday (Tr. 1567).
After lunch, counsel reconvened for a charge conference with the court, which opened with the judge's surprised disclosure of a telefax he had just received from the Federal Bar Council, indicating that "the chairman of the board for the period 1975 to 1976 was one Richard M. Messina" (A.27, Tr. 1570). The court promised to inform the jury when they returned on Monday, and proceeded with the charge conference (A.27, Tr. 1570). Before breaking for the day, the court again indicated its intention to tell the jury "first thing Monday" about the fact that Mr. Messina had been the chairman of the Federal Bar Council after all, and indicated it would do so (A.28-29, Tr. 1582-83):
. . . because I want them to realize something. I want them to realize one of the difficulties with wearing a judicial robe is that some portion of the American populace believes you are infallible. You and I know that's not true. I know it better than you do, but, it's not true.
I don't want to take a chance on letting the jury think that I was calling them in to my view as to Richard Messina's credibility by asking those questions. I was a little surprised and I still am surprised, but that's neither here nor there. If he was in fact chairman of the board, I fully intend to tell the jury that and tell them that I gave them the wrong impression, that I apologize. The problem was that I didn't research it, but I have been corrected. What is right is right; they should know what it is.
The following Monday, the judge delivered the promised correction. Introducing the matter as an offer of "proof positive . . . to show you I'm not infallible", the court delivered the following retraction (A.30-31, Tr. 1586-87):
The last time we met, I talked to the defendant about being the chairman of the Federal Bar Council, and I indicated to him that I had checked the Second Circuit Red Book and asked if he was, in fact, the chairman. I made the statement there is one position of the Federal Bar Council, and that is chairman and president. Well, that's true now, but after I came back from lunch on Friday I discovered that, in fact, in the past they did have the chairman of the board which was entirely separate from the position of president, and, in fact, for the year 1975-76, the chairman of the board was Richard M. Messina, which is the same person as the defendant. I should have checked it beforehand, but that shows you I am not infallible, the judge is not infallible, okay, and I admit this.
This statement adequately corrected the court's underlying factual error about Mr. Messina's personal history. Yet what the judge did not -- or more likely could not -- dispel was the unavoidable premise of the whole episode: that the only reason the judge had gone to the Red Book and challenged the defendant's testimony on an issue so irrelevant to the charges was that, even on little matters, the judge just did not believe Mr. Messina's testimony.(46) Coming as it did at the very close of weeks of trial evidence, the effect on the jury's deliberations had to have been substantial.
E. The Post-Trial Polygraph Examination
When the defendant's presentence report was issued a few months after his conviction, Mr. Messina was confronted with a profusion of additional Guideline adjustments (as discussed below) that had nothing to do with the limited contours of the arguable conduct of which he, personally, had been convicted. Worse, the government asked the court to tack on an additional "obstruction" adjustment based on Mr. Messina's trial testimony -- or, as it seems too often to be translated whenever the testifying defendant has been convicted of any charge, his "perjury". These serious sentencing matters -- coupled with the prospect of returning to a trial judge who had already demonstrated an unfair distrust of the defendant's truthful testimony -- led Mr. Messina to the unusual step of submitting to a post-trial polygraph examination to demonstrate good reasons why particular adjustments should not be applied against him at sentencing.(47)
Before the test was scheduled, Mr. Messina attempted to make the results as reliable as possible by agreeing to a number of conditions.(48) First, Mr. Messina asked that the government be invited to attend all phases of his testing.(49) Then, Mr. Messina agreed to be legally bound by the results of the test. Further, Mr. Messina agreed to be tested by an expert designated by the government.(50) Also, Mr. Messina agreed to submit to a pre-test physical examination to assure that he was not using any sedatives or drugs.(51) Finally, Mr. Messina agreed to answer any questions selected from the universe of all questions he had answered at his trial.
On October 3, 1996, Mr. Messina was actually tested and answered "no" to the following three questions that were relevant to his conviction and sentence (A.41, S.10):(52)
Did you know in advance that Clooney was to be kidnapped?
Were you aware that the $7900 you picked up was ransom money?
Did you have any reason to believe anyone would kidnap Clooney?
In addition to the examiner's own analysis and conclusion that Mr. Messina's "no" answers to the above questions were truthful, the test results were twice submitted to the Johns Hopkins University laboratory for computerized analyses as well (A.45, S.14). The first of these two analyses found that Mr. Messina's test results were inconclusive, but when the university ran the test a second time -- with additional factors it had neglected to consider before (as noted below)(53) -- it then reached the same conclusion that the examiner had: that "no deception was indicated" and that the probability of deception was no greater than six percent (A.45-46, S.14-15).
In presentence proceedings, Mr. Messina presented these results to the district court, along with his offer to take another polygraph examination under whatever conditions the court deemed appropriate.(54) The district court listened to the testimony of the polygraph examiner prior to sentencing Mr. Messina (A.34-57, S.3-26), but ultimately announced that the testimony had not changed the court's mind because the results are "clearly . . . no better than what a jury says" and "[a]dmittedly . . . from five to ten percent wrong" (A.58-59, S.27-28). The court also expressed its continuing agreement with "the rule of law which excludes polygraphs [a]s the right one" (A.59, S.28). Though the court's conclusion with respect to the jury's verdict concededly comports with this Circuit's general rule, that was no basis to dispense with any consideration of Mr. Messina's polygraph results in connection with sentencing adjustments -- but throughout the remainder of the sentencing proceedings, the court did just that.
F. Sentencing
The presentence report ("PSR") calculated Mr. Messina's guidelines range pursuant to § 2B3.2 (the section applicable to violations of § 1951) (PSR ¶ 67). Starting at a base offense level of 18, the report added 2 levels because the amount demanded in connection with the extortion was $237,000; another 5 levels because "a firearm was brandished, displayed or possessed"; and another 4 levels because "a person was abducted to facilitate the commission of the offense" (PSR ¶¶ 68-71). The resulting offense level of 29 corresponded to a Guidelines range of 97-121 months(55) unless the court acceded to the government's argument that another 2 levels should be added for obstruction of justice based on the defendant's trial testimony,(56) in which case the range increased to 121-151 months. Without the additional obstruction adjustment, the presentence report's recommendation was a sentence of 97 months, at the lowest end of the range (PSR at 32-33).
When ruling on defense objections to the presentence report, the court briskly rejected the defense request for a 2 or 4 level downward role adjustment, deeming there to have been "nothing minimal about the defendant's participation" (A.63, S.32). The court also concluded that no sort of discretionary reduction was warranted (A.63-65, S.32-34).(57)
Just as summarily accepted were each of the proposed upward adjustments. First, though there was absolutely no evidence that Mr. Messina had ever seen anyone with a gun, much less that he had any basis to know or foresee that a gun had ever been displayed or possessed in connection with Clooney's abduction or restraint (the minimal sum of the trial evidence of which is noted below),(58) the court added a five-level enhancement on the oversimplified ground that the adjustment must apply because a weapon was brandished or possessed by someone (A.64, S.33). Then, when counsel attempted to remind the court that it was not really that simple as the weapon had to be reasonably foreseeable to this particular defendant as well, the court obliged with a simple credo: "I believe it was reasonably foreseeable to the defendant. I believe he knew what was going on . . . yes; I believe it was reasonably foreseeable; no doubt in my mind at all about it" (A.65, S.34). Still, the court pointed to no evidence at all on which this belief was based.
In the same vein, the court added another four levels for Clooney's abduction -- despite evidence that established that Spence and Salerno had decided to kidnap Clooney on the fly, and that Mr. Messina, in the court's own words, "had absolutely nothing to do with the abduction or holding [of Clooney], except to collect the ransom" (Tr. 1575). Still, as the court framed the issue ("Was there an abduction?"), it was a simple matter to apply this adjustment as well (A.64, S.33) -- but this finding the court did not follow up with any similar statement of its belief about the "foreseeability" of Clooney's kidnapping to Mr. Messina.
Finally, the court considered the government's request that an obstruction enhancement should be added for Mr. Messina's trial perjury. Without specifying any particular testimony that the court deemed a lie -- much less assessing whether the defendant's alleged perjury had been knowing or material -- the court simply pronounced its opinion that another two points should be added because there was "no doubt in my mind whatsoever about that. The air was thick with untruths" (A.64, S.33).
When it was all over, the addition of these 11 extra levels of upward adjustments had more than tripled the defendant's Guideline's range from 37-46 months (for an offense level of 20) to 121-151 months (for an offense level of 31). Then, after ignoring the presentence report's recommendation for a sentence at the bottom of the range -- and without identifying a single legitimate sentencing purpose that could arguably be served by incarcerating a man approaching 60 years of age for such a long period of time -- the judge sentenced Mr. Messina to the 151-month sentence that was the most the Guidelines would allow (A.76, S.45).(59)
ARGUMENT
I. THE DEFENDANT WAS NOT AFFORDED A FAIR TRIAL
The law has recognized and chronicled an infinite variety of circumstances that may deprive a defendant of a fair trial. Each instance of unfairness had at its root one or more identifiable errors in the proceedings that, in the context of the entire record, so affected or impaired a defendant's substantial rights that the conviction could not be allowed to stand. In this case, two such categories of error,(60) each significant in its own right, so infected the proceedings that their effect, whether considered singly or in combination, should lead to a reversal and remand for a new and fair trial.
A. The Conflict of Unpaid Counsel
The first problem arose when the district judge was made aware of what was, at the pretrial stage, at least a potential conflict between the defendant and his retained counsel caused by the defendant's financial straits and his resulting inability to have paid more than an initial installment against the fee counsel required to represent Mr. Messina at trial. When a defendant's interests in effective representation are thus "pitted against trial counsel's monetary interest", this Court has agreed that the specter of conflict arises. Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993) (improper contingent fee arrangement in criminal case created actual conflict); id., quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n.3 (1980) ("An attorney has an actual, as opposed to a potential conflict of interest when, during the course of the representation, the attorney's and defendant's interests 'diverge with respect to a material factual or legal issue or to a course of action'"); compare United States v. Patasnik, 89 F.3d 63, 67-68 & n.1 (2d Cir. 1996) (retained counsel's refusal to represent defendant without payment did not create conflict where defendant had appointed counsel standing by in case of need, and interests of retained counsel and client were always aligned to extent that, "if [defendant] paid him, [counsel] would be his advocate; without payment, [counsel] would not").(61)
Once such a cloud of conflict looms on the horizon, a district court has certain compulsory responsibilities. First and least burdensome among them is the "duty of inquiry" imposed by Cuyler, supra, 446 U.S. at 347; see Wood v. Georgia, 450 U.S. 261, 272 n.18 (1981) (when district court knows or reasonably should know of particular conflict, failure to inquire requires reversal); Holloway v. Arkansas, 435 U.S. 475, 484 (1978) (when "probable risk of conflict" due to joint representation, trial court's duty is "either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel").
As helpfully analyzed by this Court, the duty of inquiry -- "which stem[s] from the Sixth Amendment, [and] arise[s] whenever there is the possibility that a criminal defendant's attorney suffers from any sort of conflict of interest" (emphasis added) -- directs a district court to "investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all." United States v. Levy, 25 F.3d 146, 152-53 & n.5 (2d Cir. 1994),(62) citing and quoting Strouse v. Leonardo, 928 F.2d 548, 555 (2d Cir. 1991) ("In order to protect a defendant's right to conflict-free counsel, the trial court must initiate an inquiry when it knows or reasonably should know of the possibility of a conflict of interest"); and United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987) (Sixth Amendment "imposes a duty upon a trial court to inquire"). If the initial inquiry establishes an actual or even a potential conflict, the district court must then either disqualify counsel if the risks of conflict are too severe, or obtain the defendant's waiver and agreement to proceed with counsel despite the potential conflict. Levy, supra, 25 F.3d at 152, citing United States v. Fulton, 5 F.3d 605, 612-14 (2d Cir. 1993) (counsel must be disqualified if conflict so severe that no rational defendant would knowingly and intelligently wish to continue with conflicted counsel); and United States v. Curcio, 680 F.2d 881, 888-90 (2d Cir. 1982) (specifying procedures for obtaining defendant's valid waiver of right to unconflicted counsel, as noted below);(63) see United States v. Malpiedi, 62 F.3d 465, 468-70 & n.2 (2d Cir. 1995) (reversing conviction where court did not obtain adequate waiver after inquiry that identified counsel's conflict). But if the "possible conflict has been entirely ignored, reversal is automatic." Levy, supra, 25 F.3d at 153-54 (citing Cuyler and Holloway); accord United States v. Stantini, 85 F.3d 9, 13-15 (2d Cir. 1996) (reversible error if trial court fails to inquire into conflict to determine how to proceed).
Here, the potential conflict was brought to the district court's attention some six weeks prior to the scheduled date for trial. Then, with five of those weeks still left to go -- and after such negligible inquiry into the underlying conflict (A.13-16) that this Court could reasonably conclude that reversal is warranted just because the trial court's duty of inquiry was insufficiently fulfilled -- the trial court summarily denied the application for appointed counsel despite the court's agreement that it would be a lot to ask of unpaid counsel to represent the defendant without pay for just the three-week period that the government estimated for its own case.
Further, the court denied new counsel in stated reliance on unspecified "rules" that supposedly prevent a defendant from obtaining the assistance of appointed counsel once he has appeared in a proceeding with retained counsel. As we show, however, none of these responses to the serious possibility of actual conflict presented by the defendant's application satisfied the trial court's "independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment." Wheat v. United States, 486 U.S. 153, 161 (1988).
In the first place, the rules that actually govern a defendant's eligibility for appointed counsel, as published within the "Plan for Furnishing Representation Pursuant to Criminal Justice Act of 1964" (pertinent portions of which are quoted below),(64) explicitly permit a district court both to redetermine a defendant's eligibility and to appoint counsel despite a defendant's earlier ability to retain counsel. Indeed, the district court did just that once the trial was over, when both the defendant and unpaid counsel renewed their earlier motions for substitution of counsel. Thus, when the district court instead suggested that other "rules" controlled prior to trial, it was just plain wrong.
Nor was there a "trial scheduling" interest implicated at this point that justified the court's peremptory decision to deny the defendant's application for appointed counsel.(65) While trial courts are properly afforded a "great deal of latitude" with respect to scheduling, it is also true that newly appointed counsel can often be up and running quickly enough that the trial schedule will not be affected. Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (where substitute counsel indicated readiness within six days of appointment, time for defense preparation was sufficient). Here, again, some five to six weeks remained before the scheduled trial date for this single defendant trial.(66) That is a period of time longer than many decisions, and the court's own local rule (noted below),(67) recognize as potentially sufficient defense preparation time. United States v. Cronic, 466 U.S. 648, 663-65 (1984) (25 days sufficient time for competent counsel to prepare for trial in case where historical facts were not in dispute and defense depended primarily on showing that defendant did not possess necessary intent); see Holloway v. Arkansas, supra, 435 U.S. at 477, 490 (jointly represented defendant requests for appointment of unconflicted counsel described as "timely" when made three weeks prior to trial date and renewed prior to jury selection).(68)
The time of Mr. Messina's application for appointed counsel therefore just did not warrant the trial court's abrupt denial of the defendant's request for unconflicted counsel as if another of those understandably disfavored "midtrial" or "eve-of-trial" requests. See, e.g., United States v. Schmidt, 105 F.3d 82 (2d Cir. 1997) (court justified in refusing to substitute a fourth appointed counsel on day before trial to begin); United States v. Perez, 904 F.2d 142, 151 (2d Cir. 1990) (request for new counsel two days before jury selection was too late); McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981) (midtrial request for new counsel must be supported by showing of good cause, such as counsel's conflict of interest); United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972) (no unbridled right to reject first assigned counsel and demand new counsel on eve or during middle of trial absent good cause such as conflict of interest).(69) The trial court's refusal to grant the defendant's timely and supported application was therefore all the more troubling.(70)
What was worse was that, without the defendant's consent and despite the court's own implicit recognition that counsel's unpaid status created at least the possibility of actual conflict if the trial went on too long, the court ignored its obligation to obtain at least a waiver from Mr. Messina of his right to be represented by unconflicted counsel. Levy, supra, 25 F.3d at 153-55 (as further discussed in the note below).(71) With the resulting record as incomplete as in Levy, therefore, this Court's similar analysis is required to determine, first, whether there was a divergence between attorney and client "with respect to a material factual or legal issue or to a course of action", id. at 155 (quoting Winkler and Cuyler); and if there was, whether counsel's conflicted decision had an adverse effect on his client, id. at 157 (again quoting Winkler).
Demonstration of an incident of "diverging interests" is important because that is the factor that transforms a potential conflict into an actual one. Winkler, supra, 7 F.3d at 307. In Levy, the Court found it "difficult to pinpoint if, or precisely when, the interests of [attorney and client] may have diverged, 25 F.3d at 155. Here, however, even assuming a trial that began without any actual conflict,(72) there was a striking point during the trial itself when it became plain that unpaid counsel's interests had diverged from those of Mr. Messina: when counsel single-handedly jettisoned any ability to call defense witnesses other than the defendant himself by presenting a proposed witness list to the court with the damning preface that these witnesses' testimony would be "collateral to the issues on trial" (A.17, Tr. 860).(73)
This was at the point, again, where the prosecution had just entered the third week of its own case and defense counsel could realistically expect that any defense case would necessarily extend the already overlong three-week period that counsel had been required to endure without pay. No matter how proficient the rest of unpaid counsel's performance at this trial, therefore, this was a plain "lapse in representation" created by counsel's understandable but conflicting interest in completing this trial as quickly as possible because it was in his monetary interest to do so. Cuyler v. Sullivan, supra, 446 U.S. at 336; see Lopez v. Scully, 58 F.3d 38, 41-43 (2d Cir. 1996) (despite court's fairly definite announcement that no sentence would be imposed lower than term stipulated as part of plea bargain,(74) counsel's failure to argue for leniency at sentencing was lapse in representation -- and worse, an unconstitutional "abdication of attorney's role as advocate" -- caused by conflict created when client accused counsel of coercing his guilty plea); United States v. Iorizzo, supra, 786 F.2d at 58 (lapse in representation when conflict led counsel to "abandon[] his cross-examination of the government's key witness as to prior testimony"); Camera v. Fogg, 658 F.2d 80, 88 (2d Cir. 1981) (lapse occurred in counsel's failure to explore plea bargains or raise particular defenses that would harm one of jointly represented defendants).
Having identified the point of diverging interests and the resulting lapse that constituted an actual conflict, the last question is whether the conflict "adversely affected" counsel's decisions. Levy, supra, 25 F.3d at 156.(75) If the defendant can suggest a "plausible alternative defense strategy or tactic [that] might have been pursued," and that the foregone alternative "was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests", id., quoting Winkler, 7 F.3d at 309, and adverse affect has been established -- even if the alternative was no better than "viable", Levy, 25 F.3d at 157-58 (quoting Winkler, 7 F.3d at 309), and even if it was "likely to be unsuccessful", Lopez v. Scully, supra, 58 F.3d at 42 (forsaken alternative course is sufficiently "viable" to show adverse affect of conflict if defendant "had much to gain and very little to lose had his attorney" made application); accord United States v. Malpiedi, supra, 62 F.3d at 469 ("This is not a test that requires a defendant to show that the alternative strategy or tactic not adopted by a conflicted counsel was reasonable, that the lapse in representation affected the outcome of the trial, or even that, but for the conflict, counsel's conduct of the trial would have been different").
Here, in a case where the jury had enough doubt about the defendant's knowing participation in the extortion scheme that it acquitted Mr. Messina of the conspiracy charge, it would have been more than "plausible" or "viable" for counsel to have presented additional witnesses who could testify about Mr. Messina's good faith efforts that were wholly inconsistent with any intent to aid and abet anyone's extortion (as noted below).(76) It would in fact have been desirable to present such additional neutral witnesses as a general matter to support the defendant's own testimony; and it became downright "advisable", no less than in Lopez, 58 F.3d at 42, once the defendant's own credibility was improperly undermined by no lesser figure that the trial judge himself (as discussed immediately below). That unpaid counsel instead chose not to do so and foreclosed the possibility by expressing his conflicted opinion that the witnesses were merely "collateral" for no conceivably justifiably reason or strategy should, as in Levy, 25 F.3d at 158, therefore be held both to sufficiently demonstrate the adverse effect of counsel's conflict of interest on Mr. Messina's representation, and to establish a Sixth Amendment violation warranting reversal.
B. Improper Judicial Impeachment
This brings us to the second of the substantial errors that prevented a fair trial here:(77) when the district judge abandoned his previously well-demonstrated impartiality and, as if a grand inquisitor, pointedly lit into the defendant, not only during but at the very conclusion of his testimony (A.22-26). As the face of this record shows all too well, this was another unfortunate instance when a trial judge has engaged in questioning that was fundamentally improper and prejudicial. In so conveying to the jury that the judge himself believed the defendant was lying and guilty, the court deprived the defendant of a fair trial. See United States v. Filani, 74 F.3d 378, 381, 385-87 (2d Cir. 1996) (though review limited to printed record, a judge's questions may "betray a tone of incredulity" or even "argumentative[ness]" that amount to inappropriate judicial "intru[sion] as an advocate during trial" creating "powerful impression" in jurors that the court agrees with the government that the defendant is guilty);(78) United States v. Mazzilli, 848 F.2d 384, 388 (2d Cir. 1988) (recognizing how "jury's impression that the court disbelieves [a defendant's] testimony surely affects its deliberations" and that a "jury cannot be regarded as having freely come to its own conclusions about the defendant's credibility when the court has already indicated, directly or indirectly, that it disbelieves his testimony"); United States v. Victoria, 837 F.2d 50, 55 (2d Cir. 1988) (where trial court's questions "clearly implied" judicial skepticism regarding defense of claimed lack of knowledge, trial unfair and reversal required); United States v. Nazzaro, 472 F.2d 302, 303 (2d Cir. 1973) (when "clear to the jury that the court believes the accused is guilty", conviction will be reversed).
Naturally, we would not here complain had the judge merely asked some questions -- as he temperately did of the government's witnesses -- to "clarify[] ambiguities, correct[] misstatements, or obtain[] information needed to make rulings." United States v. Pisani, 773 F.2d 397, 403 (2d Cir. 1985) ("a trial judge need not sit like 'a bump on a log' throughout the trial"). Likewise, in anticipation of the government's usual rejoinder, we fully agree that an imperfect trial (as all of them are to some degree) will often satisfy the requirements of due process and fairness. See, e.g., United States v. Manko, 979 F.2d 900, 905 (2d Cir. 1992); United States v. Robinson, 635 F.2d 981, 984 (2d Cir. 1980).
This Court has nevertheless properly drawn the line when a trial judge loses sight of his necessarily limited role in the proceedings. See Filani, 74 F.3d at 384 (discussing "inherent limitations" on judge's ability to comment: "a trial judge may not assume the role of a witness, add to or distort the evidence, or comment in a one-sided manner or, by a hostile remark, diminish an accused's privilege to testify in his own behalf", citing Quercia v. United States, 289 U.S. 466, 470 (1933)). Thus, a judge's active participation is permitted only "so long as it does not step across the line and become an advocate for one side":
Where the court takes over the role of the prosecutor and displays bias, reversal is required. . . . The point should never be reached where it appears to the jury that the judge believes the accused is guilty; this impression, once conveyed, deprives defendant of the fair trial to which he is entitled.
Filani, 74 F.3d at 385 (citations omitted); accord Mazzilli, 848 F.2d at 388 (impeachment is "not a proper function of the court"); United States v. Curcio, 279 F.2d 681, 682 (2d Cir. 1960) (judge not only "must not interfere for a merely partisan purpose", but must not "permit even the appearance of such an interference").
Here, the trial court's questioning of Mr. Messina broke all these rules. When attacking a superficial inconsistency at two points during Mr. Messina's direct testimony -- first that he had not met Anthony Persichetti, and later when he openly describing their only meeting -- the court pounced on an obvious misstatement by the defendant that even the government did not dignify during cross-examination.(79) Then, when challenging Mr. Messina's already impeached destruction of personal notes as an unethical activity in which no lawyer should engage, the court injected moralistic disapproval of the defendant on a topic that the government had already sufficiently confronted as a matter of evidence.
Had this been the extent of the court's improper impeachment efforts, the result would still have been troubling in a case where the "defense called no other witnesses [and the defendant]'s own testimony was obviously the key to his defense". Filani, supra, 74 F.3d at 381;(80) accord Mazzilli, supra, 848 F.2d at 388 (when defendant depends on own testimony "almost exclusively", his "credibility is crucial to his defense"); Victoria, supra, 837 F.2d at 55 ("where credibility of defendant-witness is key issue", court's questions that inject doubt and convey the judge's opinion that the defendant is unworthy of belief deprive defendant of a fair trial); cf. Rivas v. Brattesani, 94 F.3d 802, 805, 808 (2d Cir. 1996) (in civil trial, court's statements assumed more than usual importance and were potentially fatal to defendant's case when testimony of opposing witnesses "sharply divergent").
Here, however, when the judge went even farther -- actually introducing objectionable extrinsic evidence (the Second Circuit Red Book) to prove that Mr. Messina had supposedly lied about a matter that was "totally irrelevant to the case" (Mr. Messina's legitimate activities 20 years earlier) -- the result "could only have placed the defendant in an unfair light before the jury" and was therefore plainly unfair. Nazzaro, supra, 472 F.2d at 303. Even worse, in so impeaching the defendant's supposed "lie" about his past position as chair of the Federal Bar Council, the judge "was not even 'cursorily' accurate. He was simply wrong". Bollenbach v. United States, 326 U.S. 607, 613 (1946) (describing supplemental jury instruction). Finally, because the court's unfair assault on Mr. Messina's credibility came at the very close of all the trial evidence -- at a time when the "judge's last word is apt to be the decisive word", as is recognized in the context of supplemental jury instructions, id. at 612(81) -- there simply was no realistic prospect that the damage could be repaired.
The court did, of course, later admit its own (and the Red Book's) "fallibility" to the jury, albeit without any mention that warned the jury against adopting the judge's plainly negative view of the defendant's credibility. Even if the judge had focussed more on rehabilitating the damage done to the defendant, moreover, this was just one of those things no curative instruction could fix. Filani, supra, 74 F.3d at 386 ("Curative instructions to the jury, to the effect that they can decide what version to believe as sole judges of credibility, do not remove such an impression once it is created", citing United States v. Grunberger, 431 F.2d 1062, 1067-68 (2d Cir. 1970)); accord Mazzilli, supra, 848 F.3d at 389 (curative instruction was insufficient to mitigate harm caused by court's questioning); cf. Rivas v. Brattesani, supra, 94 F.3d at 803, 807-08 (in civil trial, same trial court's comments showed "distinctly negative opinion of defendants" and impaired trial fairness "in a way that no jury instruction could cure").
In sum, this was another regrettable instance when a trial judge allowed his human nature to infect the fairness of the proceedings. No less than in Filani, supra, 74 F.3d at 387, the result is that:
Reading this record in its entirety, we think it unmistakable that the district court inappropriately intruded as an advocate during trial and thereby prejudiced defendant. If the defendant was to have any chance of winning acquittal, he had to convince the jury of his own credibility and the plausibility of his story. The district court's questioning struck at the very heart of those efforts, denying [the defendant] the impartial verdict at the hands of the jury to which he was entitled.
This Court should therefore reverse Richard Messina's conviction and remand for a new trial with the assistance of unconflicted appointed counsel and before a different district court judge.
II. UPWARD ADJUSTMENTS TO THE DEFENDANT'S GUIDELINE RANGE
WERE NOT SUFFICIENTLY SUPPORTED BY SPECIFIC EVIDENCE
If the defendant's conviction is not reversed -- as it should be for all the substantial reasons detailed above -- this Court should at the least remand for resentencing in this case, again with a direction that the matter be reassigned to another judge (for the reasons noted below).(82) Resentencing is necessary because the district court neglected to make any of the requisite findings -- much less indicate on what arguable evidentiary support they might rest -- before enhancing the defendant's sentence three-fold: from a range of 37-46 months to the 151-month sentence imposed after the court's addition of upward "relevant conduct" and "obstruction" adjustments. Further, the court unreasonably refused to consider Mr. Messina's proffer of polygraph evidence that, while perhaps not yet a sufficient basis on which a court may rely to set aside a jury verdict, should still have been considered at sentencing in the resolution of disputed issues that depend on a lesser burden of proof.
A. Polygraph Evidence at Sentencing
In United States v. Kwong, 69 F.3d 663, 667-69 (2d Cir. 1995), this Court revisited the potential for the admission of polygraph evidence at trial in light of the liberalizing standards announced in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 589 (1993). The Kwong Court thus acknowledged that, contrary to its earlier suggestions in United States v. Rea, 958 F.2d 1206, 1224 (2d Cir. 1992), and United States v. Bortnovsky, 879 F.2d 30, 35 (2d Cir. 1989) -- on which district courts in this Circuit had traditionally relied to exclude all polygraph evidence whether or not there was any particular reason to believe it was unreliable(83) -- there was now at least a possibility that polygraph evidence could someday find its way before a jury under Rule 702 of the Federal Rules of Evidence. The possibility was not realized in Kwong, however, as the Court found the answered questions too "ambiguous" to satisfy Rule 702's basic requirement that the evidence "assist the trier of fact . . . to determine a fact in issue". The Court therefore concluded that the "record before us simply does not provide the proper opportunity to explore the validity of polygraph evidence under Rule 702." Kwong, 69 F.3d at 669.
This case presents a much better record for this Court's reconsideration of the admissibility of polygraph results in a far more limited sentencing context -- an area in which the Sentencing Commission itself envisions consideration of any information that is sufficiently reliable. See Policy Statement § 6A1.3(a) ("In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy"). Here, the lower court's rejection of Mr. Messina's polygraph evidence instead betrayed an oversimplified and outdated view of the matter: that regardless of the context, "the rule of law which excludes polygraphs is the right one" (A.59, S.28).
When a district court cannot specify any "legitimate basis for excluding the proffered evidence" of a defense expert on a matter important to the defense, this Court has held that the exclusion of evidence amounted to a reversible abuse of discretion. United States v. Onumonu, 967 F.2d 782, 786 (2d Cir. 1992) (expert on physical and economic viability of gem smuggling), quoting United States v. McBride, 786 F.2d 45, 51 (2d Cir. 1986) (expert psychiatric witness). It should so hold in this case as well.
After all, the defendant attempted to satisfy as many conditions as possible that caselaw has recognized as enhancing the reliability of polygraph results. See, e.g., United States v. Posado, 57 F.3d 428, 431, 435 (5th Cir. 1995) (reliability increased when defendant invited prosecution's participation in test and agreed to be bound by results; also when evidence will be submitted to judge and not jury, and results relevant to disputed testimony); United States v. Bellomo, 944 F. Supp. 1160 (S.D.N.Y. 1996) (stressing importance of choosing "unequivocally dispositive" wording in questions to avoid ambiguity); United States v. Dominguez, 902 F. Supp. 737, 740 (S.D. Texas 1995) (requiring test subject to be checked for sedatives or drugs immediately prior to examination); United States v. Lech, 895 F.Supp. 582, 584-86 (S.D.N.Y. 1995) (discussing importance of unambiguous questions posed by well qualified and experienced examiner using recognized methodology).(84) Indeed, Mr. Messina even offered to be reexamined after incorporating whatever additional reliability safeguards the district court required.
With all the defendant's efforts to assure the reliability of the polygraph evidence, the court's refusal to consider it in connection with disputed sentencing issues was suspect -- especially in light of the evolving acceptance of polygraph evidence in so many other contexts. See, e.g., Posado, supra, 57 F.3d at 431, 433-34 & nn.5-7 (recognizing the "tremendous advances" in polygraph instrumentation and technique with accuracy ratings of between 70-90%(85) when reversing court's summary refusal to consider polygraph results at pretrial hearing); United States v. Bellomo, supra, 944 F. Supp. 1160 (S.D.N.Y. 1996) (considering defendant's polygraph evidence on bail application "despite its long-established inadmissibility in criminal trials"); see also United States v. A&S Council Oil Co., 947 F.2d 1128, 1134 n.4 (4th Cir. 1991) (noting that courts that do not permit polygraph evidence for any purpose are in "decided minority"); United States v. Piccinonna, 885 F.2d 1529, 1532 (11th Cir. 1989) (acknowledging -- in a decision already almost a decade old today -- the "tremendous advances" in polygraph techniques and equipment that make results far more reliable, even to federal agencies like the FBI, Secret Service, and military intelligence).(86)
In this limited context, then, this Court should agree that the district court's refusal to consider the defendant's polygraph results was improper when the stated conditions of the examination were sufficient to assure the probable accuracy of the evidence and support the defendant's opposition to each of the unsustainable upward adjustments that were made to his Guideline sentencing range.
B. Unsupported Adjustments Should Be Vacated
Even before the jury acquitted Mr. Messina of participating in the Count One extortion conspiracy, the district court recognized that the government's evidence was more limited than the indictment's charges: again, as the court described it, the evidence showed "that Richard Messina had absolutely nothing to do with the abduction or holding [of Clooney], except to collect the ransom" (Tr. 1575). The government offered no additional evidence to the contrary prior to Mr. Messina's sentencing. Nevertheless, and despite the government's own presentence agreement that "Messina did not personally take part in physically abducting the victim or displaying a weapon",(87) the court added nine levels worth of upward adjustments for just that conduct, and without so much as a hint of its evidentiary basis for doing so.
These unsupported adjustments should be as summarily vacated as they were applied. As this Court has repeatedly held, a sentencing court must specifically find sufficient reliable evidence of every punishment-enhancing factor before a defendant's sentence may properly reflect additional punishment for uncharged conduct. See, e.g., United States v. Shonubi, 103 F.3d 1085, 1997 U.S. App. Lexis 347 at *11 (2d Cir. 1997) (reversing sentence improperly enhanced in reliance on relevant conduct insufficiently proved by specific evidence);(88) United States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir. 1993) (earlier Shonubi appeal in which Court analyzed the sort of "specific evidence" needed to support enhancement based on additional quantities of narcotics); see also United States v. Castillo, 924 F.2d 1227, 1236 (2d Cir. 1991) (insufficient to point to evidence that defendant may have believed a particular fact was "possible" to support, even by a preponderance standard, a finding of defendant's knowledge or reasonable cause to believe in a disputed fact); accord United States v. Rivalta, 892 F.2d 223, 230 (2d Cir. 1989) ("the government cannot meet its burden, even under the preponderance standard, with evidence that is speculative, unsupported, and unreliable").
When the conduct in question was not that of the defendant himself, moreover, the district court must further find specific evidence that demonstrates that the culpability-enhancing conduct of others was known or foreseen by the defendant, or was within the scope of his agreement. United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995) (requiring sentencing enhancements to be based on "particularized finding as to whether the activity [of others] was foreseeable to the defendant [as well as] . . . particularized finding of the scope of the criminal activity agreed upon by the defendant");(89) see United States v. Stevens, 985 F.2d 1175, 1188-89 (2d Cir. 1993) (where gun found in van occupied by defendant who had indicated an intention to take precautions in connection with drug dealing, it was reasonably foreseeable that co-conspirator would also possess gun in connection with charged transaction);(90) United States v. Negron, 967 F.2d 68, 72 (2d Cir. 1992) (defendant not liable for drug quantities that were not a reasonably foreseeable part of criminal activity defendant agreed to jointly undertake);(91) United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir. 1991) (late-comer defendant convicted of larger-scale narcotics conspiracy not accountable for any codefendant's conduct not proved known or foreseen by the defendant).
Here, as the record plainly shows, none of the necessary findings were made before the district court tacked on an additional four levels for Clooney's abduction and five levels for Salerno's or Persichetti's display of a weapon to Clooney. What is worse is that no findings could be made from the evidence presented at trial, which offered no reliable basis to infer that Mr. Messina knew or should have foreseen that Spence would suddenly turn to an episode of kidnapping and gun waving instead of awaiting the conclusion of Mr. Messina's ongoing lawful efforts -- which continued throughout and after the period of Clooney's abduction -- to secure Spence's investment. Certainly, Mr. Messina's background as an attorney and businessman would not have prepared him for such astonishing conduct on the part of Spence, whom he perceived, at worst, as just another businessman who sometimes assumed a rather laughable affectation of "toughness". At bottom, therefore, the only basis to conclude that Mr. Messina should share in Spence's and Salerno's specific culpability was impermissible speculation.
This Court has recognized before that extreme care must be taken to assure that speculation does not replace the reliable evidence that a defendant knew of or foresaw some sentence enhancing factor beyond those with which he was personally involved. See United States v. Perrone, 936 F.2d 1403, 1417, 1419 (2d Cir. 1991) ("speculation violates the commitment to due process where . . . differences in [drug] quantity have an enormous impact on the sentence to be imposed"). Here, the same sort of impermissible speculation -- not about drug quantities for a change, but about a defendant's utterly undemonstrated ability to know or foresee that others would independently decide to kidnap Clooney and frighten him by displaying a gun -- worked just as immense an impact on this defendant's sentence: the extra nine levels represented by unknown and unforeseen "relevant conduct" of others elevated his Guideline range from 37-46 months to 97-121 months. As nothing in this record even approaches the kind of specific reliable evidence that must be adduced in support of such adjustments, this Court should direct that both adjustments be vacated.
The other unsupported upward adjustment -- two levels for "obstruction of justice" under Guideline § 3C1.1, based on Mr. Messina's candid and plausible trial testimony that the trial judge inspecifically disbelieved -- should also be vacated.(92) Like the relevant conduct enhancements discussed above, the court's obstruction finding (as noted again below)(93) was grossly insufficient under controlling precedent. See, e.g., United States v. Hernandez, 83 F.3d 582, 585 (2d Cir. 1996) (adjustment will not apply absent judicial finding of defendant's "specific intent to obstruct justice. . . . [or that] defendant consciously acted with the purpose of obstructing justice"); United States v. Williams, 79 F.3d 334, 337 (2d Cir. 1996) (obstruction enhancement unsupported where court made no finding that defendant "knowingly made a false statement under oath" on material issue); United States v. Scotti, 47 F.3d 1237, 1251-52 (2d Cir. 1995) (reversing "summary disposition" on obstruction issue based on conclusion that jury's guilty verdict reflected finding that defendant committed perjury during trial testimony); United States v. Onumonu, 999 F.2d 43, 46 (2d Cir. 1993) (requiring district court to "review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same," as to each element of perjury, citing and quoting United States v. Dunnigan, 507 U.S. 87, 95 (1993) (defining perjury for purposes of § 3C1.1 using same elements as 18 U.S.C. § 1621(1): when a witness "gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory")); United States v. Cunavelis, 969 F.2d 1419, 1423 (2d Cir. 1992) (court may not automatically impose obstruction enhancement if jury rejects defendant's testimony with guilty verdict).
Even if the court had said more than it did, moreover, no obstruction adjustment should have applied in a case where the jury's verdict acquitting the defendant of one of the two charges against him showed that, in substantial respects, the jury found his testimony credible. Accord United States v. Willis, 940 F.2d 1136, 1140 (8th Cir. 1991) ("no enhancement should be imposed based on the defendant's testimony if a reasonable trier of fact could find the testimony true"). Further, the district court's finding of obstruction was made without any apparent compliance with § 3C1.1's commentary directing the evaluation of "alleged false testimony or statements by the defendant . . . in a light most favorable to the defendant". Neither did the court acknowledge the heightened burden of proof that the government must meet on this particular sentencing issue: obstruction must be proved, not merely by a preponderance of the evidence, but under a more demanding standard that this Court has described as "indistinguishable from a clear-and-convincing standard". Onumonu, supra, 999 F.2d at 45; accord United States v. Arnold, 106 F.3d 37 (3d Cir. 1997) (adopting clear and convincing standard for § 3C1.1 enhancements and vacating sentence where "there is no indication in the record that the district judge . . . placed the burden of proof upon the government and viewed the evidence in the light most favorable to [the defendant]"), citing and following United States v. Montague, 40 F.3d 1251, 1253-55 (D.C. Cir. 1994) (district court must give benefit of doubt to defendant and find perjury only on evidence of which judge is clearly convinced); Onumonu, supra, 999 F.2d at 45 (for its adoption of clear and convincing standard); and United States v. Colletti, 984 F.2d 1339, 1348 (3d Cir. 1992) (requiring that "the perjury of the defendant must not only be clearly established, and supported by evidence other than the jury's having disbelieved him, but also . . . sufficiently far-reaching as to impose some incremental burdens upon the government, either in investigation or proof, which would not have been necessary but for the perjury").
In sum, if the defendant's conviction were not itself too infirm to stand, this Court should at a minimum direct that the defendant's present sentence be vacated and the defendant resentenced within -- or below, if any mitigating adjustment or departure is permitted by another district judge -- the range of 37-46 months. That is the greatest range that remains after the deduction of nine levels worth of acquitted "relevant conduct" and two levels for the defendant's alleged but undemonstrated testimonial "obstruction of justice", which adjustments should be vacated because none was sufficiently supported by reliable evidence nor required to achieve a just sentence.
CONCLUSION
For the reasons stated, the Court should reverse appellant Richard Messina's conviction and remand for a new trial, or at least for resentencing, and direct the assignment of this matter to a different district court judge.
Dated: New York, New York
April 18, 1997
______________________________
GEORGIA J. HINDE
Attorney for Appellant
RICHARD MESSINA
220 Fifth Avenue, 7th Floor
New York, New York 10001
(212) 889-4570
1. 0 Weinig, Gary Salerno and William Daley were also named as defendants in the original indictment in this case, but none stood trial with Mr. Messina. Daley was the first to plead guilty in early 1995, but he has not yet been sentenced. Weinig, who was charged with unrelated money laundering and racketeering offenses in a separate matter (United States v. Weinig, 94 CR 981 (KTD)), apparently reached a global plea agreement before he was sentenced to concurrent terms of 135 months with respect to the charges in both indictments. Only Salerno, who also pleaded guilty to money laundering in the above Weinig prosecution, is apparently still awaiting trial in an unrelated RICO prosecution in the Eastern District of New York (United States v. Candela, 94 CR 1236 (RJD)), which also charged Salerno's "partner in crime" Anthony Persichetti (Tr. 138), who was named as an unindicted co-conspirator in this indictment and testified as another of the government's cooperating witnesses.
2. 0 Spence was 38 years old by the time he testified at Mr. Messina's trial in January 1996 (Tr. 102). Spence had pleaded guilty in separate proceedings (United States v. Spence, 95 CR 380, 95 CR 975 (KTD)) to money laundering, wire fraud, and extortion, and struck a cooperation agreement with the government in the hopes of reducing his maximum sentencing exposure of 75 years (Tr. 109-112). Spence's hopes were not disappointed: despite his prior convictions (Tr.104-08), he was sentenced at proceedings in December 1996 to concurrent terms totalling 36 months.
3. 0 The recommending individual, Donald Hayden, was also charged in the separate money laundering case noted above and, after pleading guilty, was sentenced to a term of probation.
4. 0 Clooney's fraudulent activities were the subject of a separate FBI investigation by November 1994 (Tr. 99, 1192-93). He later agreed to cooperate (Tr. 101), and ultimately pleaded guilty in another separate proceeding, United States v. Clooney, 95 CR 977 (LMM), to wire fraud charges that cumulatively exposed him to a maximum term of 30 years (Tr. 460-62). According to the docket sheets, Clooney has apparently not yet been sentenced -- perhaps because of the pendency of this appeal and the potential need, upon this Court's agreement that a retrial is warranted, for Clooney's hybrid testimony as both a cooperating witness and the victim of the charged extortion.
5. 0 The government had wiretapped Spence's business telephones during the course of its investigation of Spence's money laundering activities in 1994 (Tr. 23, 35-38).
6. 0 In light of Spence's later admission that he had never said anything of the sort to Clooney (Tr. 390), it was reasonable for Mr. Messina to adopt a policy of ignoring Spence's "tough guy" posturing.
7. 0 After Mr. Messina's disbarment, he pleaded guilty to grand larceny charges based on the same conversion of client funds (Tr. 1344). Thereafter, Mr. Messina's circumstances were so reduced that he accepted a friend's offer to live rent free in a vacant bedroom behind his friend's office (Tr. 1345). There, Mr. Messina kept all his business records and files with his detailed notes of telephone conversations, allocating half of the bed for sleeping and the other half for work (Tr. 1346-48).
8. 0 Unlike Spence, however, none of Mr. Messina's other business clients were ever, to his knowledge, involved in any criminal activity. Indeed, it would have been unlikely for Mr. Messina even to have met a character like Spence, but he had been introduced by Spence's wife, Marianne Spence, an investment banker with whom Mr. Messina had worked during the mid-1980's, and at whose behest Mr. Messina had assisted the couple in structuring their joint assets (Tr. 1349).
9. 0 Clooney himself acknowledged his awareness that Mr. Messina empathized with and even liked Clooney (Tr. 730).
10. 0 Mr. Messina met Clooney for the first time on October 26, 1994 (Tr. 474, 1380). At that meeting, Clooney claimed that Mr. Messina had duped Clooney into disclosing Biltmore's already obvious legal and financial difficulties by representing that, if Clooney paid $2,000 to "retain" Mr. Messina, anything Clooney told him would be protected by the attorney-client privilege (Tr. 475-77, 744-45). This odd claim was, however, shown all the more unlikely when the defense presented evidence that the $2,000 in question had actually been requested and wired to Mr. Messina days before he ever met Clooney, for use against the expenses of conducting a title search and recording a mortgage on Clooney's property that he was putting up as security for Spence's investment (Tr. 750-52, 1378-79). In any case, Clooney admittedly had his own counsel at the time and knew full well that Mr. Messina's visit to Biltmore was on behalf of Spence (Tr. 641, 743-45). It was therefore more likely that, as Mr. Messina described their conversation, he asked Clooney to level with him about Biltmore's present condition with the promise not to tell anyone other than Spence (Tr. 1389).
11. 0 The government was permitted to present evidence alleging Mr. Messina's supposed knowledge of and participation in Spence's money laundering as "background" to the extortion conspiracy charged in this indictment (Tr. 406-10). Mr. Messina was, however, neither named in the money laundering complaint, nor ever grouped among the 17 defendants arrested on that charge; indeed, his name never even came up during that investigation (Tr. 50-51, 56, 64, 1191, 1195). The most likely reason was, as Mr. Messina himself testified, that Spence simply never revealed his money laundering activities to Mr. Messina (Tr. 1475-76).
12. 0 Spence testified that he believed Clooney's uncle, a consultant to union pension funds, was somehow affiliated with "the underworld" and therefore thought it prudent to get permission before extorting his nephew (Tr. 177). As Mr. Messina's notes reflected, Spence later told Mr. Messina that Alimena had "okayed slamming" Clooney because there was "no make-good in sight" (Tr. 1294-95) -- but again, Spence's penchant for such tough talk would not be taken literally by anyone with Mr. Messina's background in legitimate business ventures.
13. 0 As noted above, Salerno was a named defendant in this indictment, and was convicted of unrelated extortion charges in the Eastern District after guilty pleas to participating in money laundering and extortion offenses with Spence, Weinig and others.
14. 0 Mr. Messina was introduced to Salerno and knew him to be a hospital administrator, who also seemed to fill a position as Spence's "gofer" (Tr. 1362, 1499, GX-300T at 12).
15. 0 Salerno was arrested for extortion in September 1994 (Tr. 135-36). While Spence told Mr. Messina that he posted bond after Salerno's arrest, Spence did not disclose to Mr. Messina for what offense Salerno had been arrested (Tr. 1501).
16. 0 Spence also testified that Salerno once gave Spence a gun to give to Weinig's law partner, Robert Hirsch (Tr. 386).
17. 0 Spence testified that he told Mr. Messina about his conversation with Salerno, and that Mr. Messina (who concededly has no background in such matters) supposedly advised that it would be better merely to keep Clooney under "house arrest" (Tr. 176) -- a suggestion that Spence later attributed to its more likely source, either Spence himself or Salerno (Tr. 372). Spence also testified that Mr. Messina reportedly told Spence that he wanted to come along to "throw Clooney a beating" (Tr. 178) -- though that was hardly a sentiment remotely consistent with Mr. Messina's utterly peaceful background, mature age (some 20 years older than Spence and Clooney), or any other evidence about this appellant.
18. 0 Salerno had lost his way following Spence to Clooney's house, and so telephoned Mr. Messina for directions (Tr. 194-95). As Spence had previously told Mr. Messina that he had arranged for Salerno to pick up Clooney's artwork that weekend, Mr. Messina was not surprised when Salerno called for directions to Clooney's house that Saturday evening (Tr. 1417).
19. 0 In addition to Clooney's own descriptions of this period (Tr. 496-507), the government presented the testimony of Anthony Persichetti, a man with a long and shocking history of criminal violence, who also testified pursuant to a cooperation agreement with the government (Tr. 775-825). As Persichetti only met Mr. Messina once, however, he had, as discussed below, little in the way of personal knowledge to communicate about Mr. Messina's alleged knowledge of or role in Clooney's kidnapping.
20. 0 In view of the requirement that evidence be construed on appeal in a light most favorable to the prosecution, the fact that any witness so implicated Mr. Messina as even a peripheral participant in the charged extortion is enough to defeat a sufficiency challenge. Nevertheless, when the testimony of cooperating witnesses appears as suspect as it did in this case -- a few examples of which are discussed in the following text -- the Court should weigh the marginal worth of the evidence as another factor supporting the conclusion that other errors undermined the overall fairness of the proceedings and warrant a new trial.
21. 0 During his own testimony, Mr. Messina said that Spence had merely told him that he had "laid it out to" Clooney and told Clooney he had to "come through", after which he left Clooney sitting in the restaurant reduced to tears (Tr. 1420).
22. 0 Apart from implicating Mr. Messina in the charged extortion, Spence was also the primary source of the government's evidence of Mr. Messina's alleged participation in uncharged offenses, including Spence's own money laundering activities (as discussed above), and Salerno's sideline of negotiating stolen checks (Tr. 406-08). Only Persichetti faintly echoed these claims when testifying that Mr. Messina was supposedly "Spence's partner" in money laundering (perhaps confusing Mr. Messina with Spence's actual partner, Weinig) and helped Salerno cash stolen checks (Tr. 988). Mr. Messina flatly denied both claims, though he candidly acknowledged that Salerno had presented some checks that Mr. Messina thought were somewhat suspicious and on that account promptly returned them to Salerno (1363-64, 1489-90). Even Spence had to concur, moreover, that it was with Weinig, not Mr. Messina, that Spence had discussed a check cashing business (Tr. 382).
23. 0 When Clooney prepared a written statement relating the story of his kidnapping soon after the fact, however, it had contained no mention of Mr. Messina at all (Tr. 711, GX-3502).
24. 0 Mr. Messina acknowledged that he received a call early on the morning of November 14th from Clooney's uncle, Alimena, who angrily reported that Spence must have kidnapped Clooney (Tr. 1433-34, 1521-22). Though he did not believe it himself -- because it seemed like the kind of thing Clooney might fake as a means of getting necessary funds from his family -- Mr. Messina called Spence and urged him to straighten out the misconception on the part of Clooney's uncle (Tr. 1435, 1523-24). Further, Mr. Messina contacted David Wechsler to again urge the law firm to move forward on reporting Biltmore to the authorities, as it now appeared that Clooney was trying to get the upper hand by smearing Spence with bogus reports of Clooney's kidnapping (Tr. 1435-36).
25. 0 Mr. Messina confirmed that he spoke with Clooney on November 15th at about 9:30 P.M., and that Clooney told him to expect a call from Linda Argilla about finalizing the transfer of some property (Tr. 1452). Although Clooney did not tell Mr. Messina he had been kidnapped, he had apparently said that to Ms. Argilla, who was very upset when she called Mr. Messina a short while after his conversation with Clooney (Tr. 1453, 1526-30). Still, because Mr. Messina had not heard of Clooney's supposed
kidnapping from anyone other than his uncle and, some 36 hours later, his girlfriend, both of whom had been reluctant to advance Clooney additional funds and property to escape his present financial troubles with Biltmore, Mr. Messina continued to believe that the whole "kidnapping" hysteria was just a ploy by Clooney and not a fact (Tr. 1531).
Indeed, even when Clooney began cooperating with authorities in January 1995 and surreptitiously taped conversations with Mr. Messina, Clooney's best efforts to elicit an inculpatory admission fell flat because Mr. Messina then told Clooney plainly that he had never believed Clooney's contemporaneous claim that he had been kidnapped (Tr. 713-14, quoting GX-300). Mr. Messina also expressed surprise at the crimes in which both Spence and hospital administrator Salerno had by then been implicated, and recounted to Clooney how, until their arrests, he had always discounted their "tough guy" affectations and sometimes even laughed when Spence or Salerno occasionally launched into their "George Raft" routines (Tr. 631-32, 1353, 1473, GX-300T at 11-13). On the same tape, Clooney concurred that neither Salerno nor Spence had "seem[ed] like that kind of guy" to him either (GX-300T at 13, 18).
26. 0 Clooney's father testified that the deed he provided to his son was returned to him (Tr. 1046-48). Mr. Clooney also testified that, when he met Mr. Messina on a single occasion in late November 1994, when he accompanied his son to cash in a $4,000 airline ticket (Tr. 1462-64), Mr. Clooney's impression of Mr. Messina was that he was "cordial" and "nice" (Tr. 1039, 1056), not threatening.
27. 0 By the time Clooney called with this unusual but true report -- occasioned by the coincidence that both Salerno and Persichetti had just been arrested on unrelated federal charges and Daley left the scene when neither of his colleagues returned (Tr. 55, 534-37) -- Mr. Messina already arranged for Clooney to contact Wechsler about the conveyance of Clooney's property to Spence. Clooney's delivery of deeds, artwork and cash was scheduled to take place at Weinig's law offices, where Mr. Messina had arranged for Clooney and Linda Argilla to meet with David Wechsler (Tr. 1459, 1534). When Clooney called from the hotel to ask if it was "safe" for him to leave, Mr. Messina therefore responded that "of course" it was, and provided details about the appointment he had arranged between Clooney and Wechsler (Tr. 1460). In the late afternoon of that same day, Spence, who was to attend a Biltmore shareholders meeting with Mr. Messina the next morning, asked Mr. Messina to go to Weinig's office to pick up any cash Clooney had delivered to Spence's attorneys (Tr. 1461).
28. 0 Like the arrests of Salerno and Persichetti, Spence's arrest had nothing to do with Clooney's abduction. Instead, it was the result of a long-term federal investigation of Spence's money laundering activities (Tr. 56, 109-10). There was, however, some mention of a kidnapping in the initial complaint, a copy of which Mr. Messina obtained from counsel (Tr. 1195, 1423-24). When he read the complaint, Mr. Messina had his first pangs of concern that Clooney had not after all made up a story about being kidnapped, and that Mr. Messina had played an unwitting role in the offense (Tr. 1552). That sudden awareness also led Mr. Messina to the ill-considered decision to throw out six pages of his personal notes about conversations during the period from November 12-16, 1994 -- not because they contained incriminating evidence, but merely because they were too incomplete and might cause problems on that account (Tr. 1546, 1553-54).
29. 0 Persichetti retreated from a claim that he had met Mr. Messina "a couple of times before the kidnapping" and settled on testimony that he had only met him once (Tr. 1002). Persichetti also claimed he once spoke to Mr. Messina when he called the hotel to speak to Salerno, and asked Persichetti how Clooney was doing (Tr. 852-53). Had that occurred, Persichetti would surely have viewed Mr. Messina as someone involved in or at least aware of Clooney's abduction from that point on. As discussed in the accompanying text, however, this was an accusation Persichetti had omitted entirely from prior trial testimony and uttered only after the government first prepared Persichetti to testify at Mr. Messina's trial.
30. 0 Mr. Messina confirmed that on November 15th, in the early evening, both Salerno and Persichetti joined him at a neighborhood pub while he had a bite to eat (Tr. 1445-46). Salerno had insisted on meeting Mr. Messina about getting bills of sale for Clooney's artwork, despite Mr. Messina's repeated advice to Salerno that Clooney's property transfers would all be handled by Weinig's law firm (Tr. 1444). On that single occasion, Mr. Messina also met Persichetti in Salerno's car and spoke a little Italian with him (a detail Persichetti did not manage to recall at trial) (Tr. 999, 1445, 1449). After their drive to a nearby restaurant for a sandwich and a drink, Salerno repeated his previous request that Mr. Messina prepare bills of sale for the artwork Clooney promised to deliver, but Mr. Messina again told Salerno that all the legal work had to be handled by Weinig's firm, to which Mr. Messina had already forwarded the necessary descriptions (Tr. 1450-51). After their brief meeting, Salerno and Persichetti left Mr. Messina, who later received a telephone call from Clooney, as recounted above (Tr. 1452).
31. 0 This conclusion is also suggested by the jury's requests during its three days of deliberations: first, the jury asked to hear Clooney's testimony about his conversation with Mr. Messina on November 15, 1994 (Tr. 1803-07), and later the portion of Persichetti's and Mr. Messina's testimony about the dinner meeting with Salerno on November 15, 1994 (Tr. 1821, 1831). In each case, the testimony had to do with Mr. Messina's ongoing efforts to coordinate a conveyance of Clooney's property to Spence -- which, again, was but the continuation of the defendant's identical conduct before Spence and Salerno ever decided to kidnap Clooney.
32. 0 Unpaid counsel had introduced Mr. Messina to an attorney who would have been willing to substitute, but could not begin Mr. Messina's trial until a later date, in part due to a previously scheduled proceeding before Judge Duffy himself. As reflected in the defendant's letter to the court dated December 29, 1995 (a copy of which is annexed as part of Exhibit A to the post-trial motion indexed as Document No. 32 in the record on appeal, and the substance of which is discussed further in the accompanying text), Mr. Messina would have "welcomed" this proposed substitute counsel in light of the "[i]rreconcilable differences" that had developed between the defendant and unpaid counsel, but the court had apparently denied that relief soon after receiving proposed counsel's letter dated December 22, 1995 (the chambers copy of which is now contained in but not docketed as part of the district court file).
33. 0 That unpaid counsel was not too focussed on trial preparation in this case may also be inferred from the fact that no complaint followed this delivery, despite ample authority prohibiting such unparticularized pretrial dumping by the prosecution. See United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987) (refusing to sanction government's tactic of "providing mountains of documents" to defense counsel instead of particulars); United States v. Biaggi, 675 F.Supp. 790, 810 (S.D.N.Y. 1987) (CBM) (ordering government to particularize response because "defendants may not be compelled to wade through thousands of documents in an effort to locate materials essential to their defense").
34. 0 Among these lost files were copies of the defendant's own extensive notes and correspondence that had been seized from Mr. Messina's home/office after his arrest. Mr. Messina had himself obtained from the government copies of pertinent parts of his files and delivered the copies to unpaid counsel's office as far back as April 1995, in order to assist with defense preparations (as discussed in his letter annexed as Exhibit A to Document No. 32 in the record on appeal).
35. 0 Again, relevant correspondence is contained as part of Exhibit A to the motion indexed as Document No. 32 in the record on appeal. Unpaid counsel also filed -- without any apparent notice to Mr. Messina, who independently made the same application a few days later -- a more formal application to be relieved (Document No. 26 in record on appeal, dated March 27, 1996), in which he cited his lack of compensation to date and the inability of unpaid counsel's firm "which consists of two partners, one associate and a legal secretary" to "afford to further represent" Mr. Messina "without compensation commensurate with the time anticipated to appeal his conviction". The trial judge granted this motion in a summary endorsement on its face dated April 1, 1996 (which was, again, the same date as Mr. Messina's first post-trial request for new counsel). The court never explained what had happened since the denial of the December 1995 applications that now entitled this defendant to appointed counsel.
36. 0 The defendant's post-trial motions (copies of which are indexed in the record on appeal as Document Nos. 32-34) again argued that, once the defendant and his attorney each asked the trial court for a pretrial substitution of counsel based on their escalating irreconcilable differences, the trial court should have granted the application. The trial court did not agree when it denied this and all other aspects of the post-trial motions at Mr. Messina's sentencing (A.59-63, Sentencing Tr. ("S.") 28-32).
37. 0 The prosecution did stick to its promised schedule when resting on January 31, 1996 (Tr. 1323), exactly three weeks from the date that the trial started.
38. 0 Mr. Messina mentioned Herbert Osborne as the principal of another mortgage company with whom he had worked in the past (Tr. 1470). When Clooney was so down on his luck by January 1995, Mr. Messina spoke to Mr. Osborne on his behalf, and Mr. Osborne offered Clooney a job as a "finder" with his company (Tr. 1463, 1472). As clarified in post-trial motions (Document Nos. 32, 34), however, it was not Mr. Messina's wish merely to confirm this good deed by calling Mr. Osborne as a witness.
39. 0 To be sure, we do not here impugn counsel's conscious thought processes in the least. Nevertheless, as with any other situation dogged by conflict, the problem here was how conflict may have dampened advocacy even while conflicted counsel did not consciously appreciate that it was happening. A trial attorney's unconscious interest in bringing unpaid representation to a conclusion as quickly as possible could certainly color how the attorney thinks about and decides that some additional work or witnesses are not critical and others even "collateral". When other objective indicia show that counsel's evaluation was tainted, however, the resulting adverse effect on the defense is plain.
40. 0 Not only did the defendant's post-trial motions (Document Nos. 32, 34) highlight the importance of this foregone testimony that trial counsel deemed "collateral", but the defendant's pretrial letter (Exhibit A to Document No. 32) itself cited as fair cause for concern that unpaid counsel had not even interviewed these "critical" defense witnesses.
41. 0 Madden was not without some responsibility for Clooney's wrongdoing because, as Spence and Clooney testified, he had falsified corporate records during the period while he awaiting Clooney's promise to replace the stolen funds (Tr. 212, 444).
42. 0 Both Madden and Yaeger were also interviewed by the FBI in May 1995 (Tr. 1223) -- a fact that itself suggests that those who knew the most about the case hardly viewed these witnesses as "collateral".
43. 0 Yaeger could also have confirmed that, when Mr. Messina asked Clooney to turn over his passport to David Wechsler the day after the Biltmore shareholders meeting on November 17, 1994 (Tr. 721-22), it had nothing to do with extortion, but was merely Mr. Messina's acquiescence to the requests of Biltmore shareholders like Yaeger who were concerned that Clooney would flee the country with their money (Tr. 1469).
44. 0 Indeed, towards the end of the trial, the court even instructed the government, without any defense request to do so, that it should obtain and review the FBI's investigative files on Biltmore with an eye to locating and disclosing any Brady material there contained (Tr. 1215).
45. 0 During summation, the government did capitalize on one aspect of the court's impeachment of Mr. Messina. Thus, during one of Clooney's taped conversations with Mr. Messina in January 1995, Clooney asked if Mr. Messina knew two of the men who held him hostage, and Mr. Messina said he did not, for the simple reason that he did not recognize either Daley's or Persichetti's names (Tr. 1488, 1562). The government combined that evidence with the court's above-quoted grilling of Mr. Messina's earlier misstatement to fuel its argument that Mr. Messina lied about meeting with Salerno and Persichetti on November 15th, and denied knowing Persichetti until he changed his story at trial (Tr. 1627-29, 1639).
46. 0 Even when the defendant was sentenced some ten months later, the judge could still recall that, when Mr. Messina had testified that he was the chairman of the Federal Bar Council, the judge was "completely shocked. Maybe I shouldn't have been, though I was" (A.63, S.32). Then, after underestimating the recognized influence that judicial opinion can have on a jury ("I don't have that much control over a jury"), the court concluded that it was "utter nonsense" to suggest that the court had undermined the fairness of Mr. Messina's trial (A.63, S.32).
47. 0 Mr. Messina also hoped to demonstrate his innocence, in support of his pending motions for acquittal or a new trial, as detailed in the defendant's submissions, including a supporting memorandum and Exhibits A-E (indexed in the record on appeal as Document No. 33).
48. 0 In a submission to his counsel in August 1996 (a copy of which is annexed as Exhibit D to Document No. 33), Mr. Messina specified the conditions discussed in the accompanying text, to which he wished to submit to assure his test would yield the most reliable possible result.
49. 0 Whatever the government's response may have been to this invitation is not reflected in the record, but the government definitely did not attend the actual testing (A.38, S.7).
50. 0 Again, lacking government input into the choice of an expert, Mr. Messina selected the most experienced expert he could find: Victor C. Kaufman, a veteran polygraph examiner since about 1955, with FBI and Naval Intelligence training, who presently uses a state of the art computerized polygraph, administers tests in accordance with current guidelines, and has conducted some 13,000 polygraph tests during his extensive career (A.34-40, A.43, S.3-9, S.12). Mr. Kaufman analyzes his own test results and also submits the results for computerized analysis to the Johns Hopkins University applied physics laboratory (A.45, S.14).
51. 0 As he was remanded after trial, Mr. Messina applied to Bureau of Prison's officials for such a pretest physical screening (Exhibit E to Document No. 33, discussed at A.57-58, S.26-27). His request was denied because it did not fall within the BOP's program statement that permits such tests only for inmates who are considered at high risk for drug use.
52. 0 These questions also appear as part of Exhibit A to Document No. 33, reflecting the certified opinion of the polygraph examiner that Mr. Messina's answers to these three relevant questions were truthful.
53. 0 As Mr. Kaufman explained, the first of the two Johns Hopkins University analyses came to an "inconclusive" result after measuring only thoracic breathing results. When the second analysis considered the additional factor of abdominal breathing, the university test results matched those Mr. Kaufman had also reached through his "military method" of numerically evaluating the test result charts (A.14, S.14).
54. 0 As noted above, the defendant's polygraph test results were also submitted to the district court in support of his Rule 29 motion for a judgment of acquittal and his Rule 33 motion for a new trial (see Document No. 33 at 11-12). The district court's decision respecting the defendant's post-verdict motions is not challenged with this appeal.
55. 0 As the offense conduct charged in this case occurred while Mr. Messina was serving the probationary part of his sentence for his state larceny conviction involving the conversion of escrow funds, Mr. Messina's resulting criminal history category was increased to level II (PSR ¶ 92).
56. 0 In a letter dated July 3, 1996, to the district judge (which was apparently neither filed nor docketed), the government specified the portions of Mr. Messina's trial testimony that, to the government, constituted evidence that Mr. Messina "repeatedly perjured himself in his trial testimony" when unfavorably compared with the government's contrary evidence. The sentencing court did not analyze or adopt any of the government's examples, however, as discussed in the text that follows.
57. 0 This appeal does not challenge either of the court's rulings, but does ask that, upon this Court's agreement that this matter should at least be remanded for resentencing before a different district court judge, the scope of the remand will include reconsideration of a downward role adjustment and grounds for a downward departure (as may be warranted, for example, if adjustments based on acquitted conduct force too great a sentencing enhancement) that another judge may well find should apply to the unusual facts of this case. The unfortunate fact in this case was that by the time of sentencing -- when the judge's irritation had become so acute that even normal challenges to Guideline adjustments were pronounced "just about a complete mocking of the entire justice system" (A.65, S.34) -- the court's discretionary departure powers were all but incapacitated by the judge's patent exasperation with a defendant who, in the judge's words, "had every break . . . and foul[ed] them up" (A.75-76, S.44-45).
58. 0 Even Spence, whose "belief" that Salerno "always carried a gun" could be traced to Spence's knowledge of Salerno's other extortions, had never actually seen Salerno's gun (Tr. 135). Moreover, the only gun Clooney mentioned was one that he first saw on November 14, 1994, when Persichetti put a gun under the mattress at the same time as Daley flipped a knife and Salerno arrived with a rope that Clooney "construed" to be a weapon (Tr.516-17). But again, none of this was remotely known by or foreseeable to Mr. Messina. Even Persichetti agreed that the only times when either he or Salerno had a gun visible were in Clooney's presence at the hotels where he was held (Tr. 867) -- not during any occasion when Mr. Messina might have seen or learned about it.
59. 0 In this as well, the court was too succinct, omitting the required statement of reasons for selecting a sentence within
any range exceeding 24 months, 18 U.S.C. § 3553(c)(1). Once the unsupported Guidelines enhancements are removed,
however, the resulting Guidelines range shrinks to a point that this error will no longer be in issue.
60. 0 Whether the underlying error is reviewed on appeal as plain or clear or even for an abuse of discretion, the overall
effect on the fairness of the proceedings should be considered by this Court de novo.
61. 0 As the situation in Patasnik, with appointed counsel standing by as a safety net, was not reproduced in this case, the
same "alignment" of interests did not occur. Simply, when Mr. Messina could not pay counsel, he had a right to be
concerned that counsel's unpaid advocacy would be impaired, and he should then have been afforded appointed counsel to
obviate the conflict.
62. 0 Levy also specified that in this Circuit, the "same basic doctrine" will be applied "in all conflict-of-interest situations",
whether the conflict arises from an attorney's joint representation of codefendants, or counsel's implication in the client's
offense, or any other sort of conflict. Id. at 153 & n.5.
63. 0 The Levy Court recited the Curcio procedures as summarized in United States v. Iorizzo, 786 F.2d 52, 58-59 (2d Cir.
1986), to require that the trial court: (i) advise the defendant of the dangers arising from the particular conflict; (ii) determine through questions that are likely to
be answered in narrative form whether the defendant understands those risks and freely chooses to run them; and (iii) give
the defendant time to digest and contemplate the risks after encouraging him or her to seek advice from independent
counsel.
64. 0 Part VI of the local rules respecting a defendant's "Financial Eligibility for Representation" thus permits appointment
of counsel in two circumstances where a defendant may have been able to retain counsel at the outset: B. Partial Eligibility. A person whose net financial resources and income are found to be in excess of the amount needed
to provide him . . . with the necessities of life, and to secure the person's release on bond, but are insufficient to pay fully
for retained counsel, shall be eligible for appointment of counsel pursuant to this Plan on the condition that he . . . pay the
available excess funds to the Clerk of the Court as directed by the judicial officer appointing counsel. * * * * * D. Redetermination of Eligibility. . . . 3. If, at any time during the course of a proceeding [for which the Sixth Amendment requires the appointment of
counsel], the presiding judicial officer shall find that a person for whom counsel has not been previously appointed under
this Plan is, in fact, financially unable to retain counsel or to pay counsel whom he or she has retained, the Court may
appoint counsel . . . .
65. 0 The trial court did not indicate that it had ever checked on the availability of substitute counsel from the Southern
District's CJA Panel before denying the defendant's application, so it is not plain that appointment of new counsel would
necessarily have required any continuance in this case. If some moderate delay had been required, the trial judge should
have accommodated it -- as it did not in United States v. Tramunti, 513 F.2d 1087, 1116-17 (2d Cir. 1975) (Judge Duffy's
refusal to grant two-day continuance to newly assigned counsel after midtrial death of former defense counsel), with the
result that this Court held that the defendant had been deprived of effective assistance when counsel was allowed too little
time to prepare. Accord Morris v. Slappy, supra, 461 U.S. at 11-12 (trial court's "unreasoning and arbitrary 'insistence on
expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel", quoting Ungar
v. Sarafite, 376 U.S. 575, 589 (1964) ("a myopic insistence upon expeditiousness . . . can render the right to defend with
counsel an empty formality").
66. 0 The fact that the court did not have to coordinate any slight adjournment against the schedules of multiple defense
counsel should also have been a factor affording more flexibility.
67. 0 The Southern District's "Plan for Achieving Prompt Disposition of Criminal Cases" provides, in relevant part: 7. Minimum Period for Defense Preparation. Unless the defendant consents in writing to the contrary, the trial shall not
commence earlier than 30 days from the date on which . . . counsel first enters an appearance or on which the defendant
expressly waives counsel and elects to proceed pro se. . . . The court will in all cases schedule trials so as to permit defense
counsel adequate preparation time in light of all the circumstances.
68. 0 As in Holloway, Mr. Messina also renewed his application to substitute appointed counsel in his letter dated December
29, 1995 (Exhibit A to Document No. 32), almost two weeks before jury selection actually began on January 10, 1996
(A.3). Mr. Messina also indicated that, in light of specific "irreconcilable differences" with unpaid counsel -- including
unpaid counsel's failure even to interview critical defense witnesses at that late stage, not to mention the outright loss of
voluminous defense preparation materials (discussed supra at pages 20-22 & nn. 32-34) -- he would "welcome" the
substitution of another attorney who had written to the judge a week earlier (December 22, 1995) offering to replace unpaid
counsel if the court would adjourn Mr. Messina's trial to accommodate the attorney's previous trial commitments. All of
these applications should have been considered timely under Holloway.
69. 0 Notably, these cases recognized that even belated applications for substitution of new counsel should be granted
whenever the problem is as serious as trial counsel's conflict of interest. Where such a serious problem has been raised
weeks before trial, as it was here, there was no good reason for the court not to grant the request and substitute counsel.
70. 0 We note one other factor that was not present in this case: any basis for the trial court to dismiss the defendant's
request as unsupported by authentic concerns, as occurred in United States v. Eltayib, 88 F.3d 157, 168 (2d Cir. 1996)
(after repeated hearings into defendant's various grounds for seeking new appointed counsel, facts showed defendant's
claims were either disingenuous, or defendant himself withdrew "spurious" charges alleging counsel improprieties; also, in
the end, defendant waived argument by agreeing to keep original assigned counsel); or United States v. Schmidt, supra, 105
F.3d 82 (1997 U.S. App. Lexis 705 at *18-19) (district court "after full hearing" found defendant's complaints against third
in series of appointed counsel baseless on "eve of trial"). Here, again, there was no dispute that trial counsel's fee had not
been paid, and the judge himself recognized that even three weeks "was a long period of time for a trial lawyer to be on trial
without getting paid for it" (A.14).
71. 0 Indeed, when the court suggested that three weeks was a long time for trial counsel to continue without payment,
unpaid counsel did not disagree but asked only if substitute counsel could stand in for him if one could be found (A.14-15).
In this as well, counsel thus acknowledged his conflicted status, even though he later denied that his representation had
been affected by it (see Exhibit A to Document No. 32). Thus, unpaid counsel's letter dated April 12, 1996 -- written in answer to Mr. Messina's renewed post-trial request for
appointment of new counsel, which in turn followed after counsel's own formal application to be relieved (Doc. No. 26),
apparently made, as noted above (footnote 35), without notice to Mr. Messina -- agreed that there was indeed a "conflict"
between the interests of attorney and client, but denied that money was at its root, asserting that Mr. Messina's "lack of
payment has never reduced my efforts on his behalf". While a district court may rely on such attorney representations -- at
least when they are made before the fact, as they were in Levy, supra, 25 F.3d at 154 (counsel "distorted the true nature of
his interests" when incorrectly assuring district court that he did not suffer from any conflicts); see United States v.
Malpiedi, supra, 62 F.3d at 470 (in assessing whether plausible trial strategy was not followed due to conflict,
"after-the-fact testimony by a lawyer who was precluded by a conflict of interest from pursuing a strategy or tactic is not
helpful [because] [e]ven the most candid persons may be able to convince themselves that they actually would not have
used that strategy or tactic anyway, when the alternative is a confession of ineffective assistance") -- they do not relieve a
court's obligation either to disqualify counsel or obtain the defendant's waiver because of the lingering potential for conflict
embedded in a particular set of facts. Levy, supra, 25 F.3d at 154-55 (district court "obligated at the very least to engage
the defendant personally in a colloquy to determine if he was willing to waive his right to a conflict-free lawyer").
72. 0 We do not doubt that it is possible for counsel to overcome the potential conflict created by an unpaid status. In such a
case (as both Levy, 25 F.3d at 155, and Winkler, 7 F.3d at 307, recognize), the interests of attorney and client will never
actually diverge, and the conflict will always remain but an unripened "potential". Then, prejudice will not be presumed as
it is whenever an actual conflict has been shown, but will have to be demonstrated as with any other claimed deprivation of
effective assistance of counsel assessed under Strickland v. Washington, 466 U.S. 668 (1984). Here, however, the point of diverging interests can be readily identified (as discussed in the text that follows). Therefore,
the alternative "adverse effect" test should instead be applied to the resulting "actual" conflict. See United States v.
Stantini, supra, 85 F.3d at 13-15 (what is essentially "claim of ineffective counsel" does not require showing of prejudice
under Strickland once court finds counsel burdened with actual conflict).
73. 0 Our attempt in the statement of facts (at pages 23-27) to demonstrate from other trial evidence how these defense
witnesses could have presented relevant and corroborative testimony is necessarily incomplete (as it would not have been
had unpaid but unconflicted counsel made a proffer on behalf of his client to show why the testimony should have been
allowed, instead of assuming the contrary posture and arguing that it was "collateral"). Still, from what the rest of the
record shows, much that these witnesses could have said would have been material to Mr. Messina's defense, and
corroborated his own unfairly impeached testimony in important respects. For counsel nonetheless to have summarily
labeled the witnesses as "collateral" was therefore, at best, no example of loyal advocacy on behalf of his client.
74. 0 As described in Lopez, id. at 42, the state "judge had colorfully indicated that he would not impose a lower sentence
even 'if Jesus Christ came and did a break dance on this desk'."
75. 0 In Levy, the Court considered and rejected one other issue not presented by this record: whether the defendant had
effectively waived his right to a non-conflicted lawyer, as the district court concluded after trial based on counsel's assertion
that he had informed his client of his various conflicts and his client asked him to continue anyway. Id., 25 F.3d 158-59.
Here, the district court made no similar finding of waiver when inspecifically rejecting Mr. Messina's challenge to counsel's
conflicted interest in post-trial motions -- which specifically argued that, in refusing to call "crucial defense witnesses to
testify", counsel had been "obviously influenced by a desire to shorten the length of the trial rather than mount the strongest
possible defense for his client" (Doc. No. 34 at 5). The court merely dismissed the defendant's argument as if no more than
a spurious "attack" against unpaid counsel because he had not spent enough time "hold[ing] his patient's hand" (A.60,
S.29).
76. 0 Again, anyone who is depending on extortion as a means of collecting a debt is not likely, as the government's
evidence showed about Mr. Messina, to work with shareholders to salvage a failing company during the very same days
that he is supposedly negotiating for a kidnapping victim's release; nor would he consistently urge shareholder victims of
the wrongdoing Biltmore principals to report the matter to law enforcement authorities.
77. 0 Again, each of these fundamental errors should support reversal in its own right, but the combination of both should
yield the same kind of "aggregate effect" that has persuaded this Court in other matters that reversal and a new trial are
required. See, e.g., Henry v. Scully, 78 F.3d 51, 53 (2d Cir. 1996) (counsel ineffective where errors and omissions
"incomprehensible as a defense strategy" and prejudicial to defendant).
78. 0 Conflicted defense counsel's failure to object to the judge's interrogation does not defeat this claim, which this Court
will review as "plain" or "clear" or "grave" error because of its "great impact on the fairness and public reputation of
judicial proceedings". Filani, supra, 74 F.3d at 387.
79. 0 Nor did defense counsel notice or correct the initial misstatement during his direct examination of Mr. Messina.
80. 0 Filani also observed, 74 F.3d at 385, that this Court "need not make any inferences concerning the district court's tone
to recognize [when] inquiries targeted the defendant's credibility and challenged his story more in the manner of a
prosecutor than an impartial judge. . . . [W]here 'such doubt is injected by the court in a case where credibility of a
defendant-witness is a key issue, there has been a deprivation of a fair jury trial'", quoting Victoria, supra, 837 F.2d at 55.
81. 0 While Bollenbach concerned a supplement jury instruction, its observations are equally applicable in this context: "The influence of the trial judge on the jury is necessarily and properly of great weight," and jurors are ever watchful of the
words that fall from him. Particularly in a criminal trial, the judge's last word is apt to be the decisive word, quoting Starr v.
United States, 153 U.S. 614, 626 (1894). For the district judge later to suggest that he does not "have that much control over a jury" or that his "complete[] shock" at
Mr. Messina's testimony was not fully communicated during this episode (A.63, S.32), is just not a realistic appraisal of
every trial judge's powers of persuasion as he sits in the courtroom as a personification of justice and fairness.
82. 0 This Court should direct reassignment to a different district court judge on remand for resentencing as well as retrial.
Reassignment was directed upon remand of two recently reversed civil matters, where the record, as here, suggested that
the same district judge had developed so great an aversion to a party's position that no fair proceeding was possible. See
Rivas v. Brattesani, 94 F.3d 802, 808 (2d Cir. 1996) ("Because the judge's impartiality has been seriously called into
question by his comments in front of the jury . . . plaintiffs are entitled to a new trial before a different judge"); Santa Maria
v. Metro North, 81 F.3d 265, 266, 274 (2d Cir. 1996) (remanding civil cause for new trial before different district court
judge where trial judge's attitude and "demonstrated antipathy" toward's appellant's case prevented fair trial). The same
direction should occur, moreover, in any case where it will serve, not only the defendant's substantial interests, but the
public's interests in and perception of the fair administration of justice. Accord United States v. Schwartz, 500 F.2d 1350
(2d Cir. 1974) (appropriate to remand matter to another judge "both for the judge's sake and the appearance of justice"). Here, fairness was lost at sentencing as well as trial upon Judge Duffy's summary acceptance of unsupportable upward
Guideline adjustments (as discussed further in the argument that follows); his equally swift and offended rejection of what
were, at the least, viable grounds for some downward modification of a resultingly excessive sentencing range (including
possible adjustments for a lesser role in the offense or a departure from an excessively increased Guideline range
admittedly based on acquitted relevant conduct); and the court's apparent and improper factoring of Mr. Messina's socio-economic background into the sentencing decision -- again, when suggesting Mr. Messina was more culpable because,
unlike other less fortunate defendants whom the court had sentenced, Mr. Messina had "had every break . . . and foul[ed]
them up" (A.75-76, S.44-45). Of course, a defendant's socio-economic status is one of the few specific offender
characteristics (along with race, sex, national origin, creed and religion) on which the Guidelines expressly forbid any
reliance when imposing sentence. See Policy Statement § 5H1.12. Under all these circumstances, therefore, the defendant
should be afforded resentencing as well as a new trial before a different district judge.
83. 0 Rea was at least willing to "assume" that polygraph "test results are not per se inadmissible", but nonetheless excluded
polygraph results that the Court could not conclude were sufficiently reliable or relevant. Id. at 1224.
84. 0 The ample qualifications, extensive experience and viable methodology of the examiner in this case, Victor Kaufman,
were recently examined by another district judge in Meyers v. Arcudi, 947 F.Supp. 581 (D.Conn. 1996). Although that
court ultimately excluded the polygraph evidence that had been offered for admission before a jury (in a civil sexual
harassment suit), it recognized many of the same reliability-enhancing factors discussed above (1996 U.S. Dist. Lexis
18457 at *24-25).
85. 0 The 70-90% accuracy rating is more than sufficient for sentencing, where evidence only needs to be more than 50%
probable. United States v. Fatico, 458 F. Supp. 388, 403 (E.D.N.Y. 1978).
86. 0 Research has also disclosed a number of unpublished summary opinions from the Fourth, Ninth and Tenth Circuits in
which the prosecution relied on a defendant's polygraph results to assure compliance with the terms of a cooperation
agreement. In one case, a defendant's unfavorable polygraph test result even earned the defendant an obstruction
enhancement. One published opinion, United States v. Santiago-Gonzalez, 66 F.3d 3, 5-6 (1st Cir. 1995), also reported the
government's contractual reliance on favorable polygraph results as a condition precedent to the defendant's entitlement to a
5K1 motion. None of these decisions disclose any basis to believe that unfavorable polygraph results are more reliable than
results that support a defendant's position, as here.
87. 0 The government's presentence letter of July 3, 1996 (at 1 n.1) also argued that Clooney's abduction and the display of a
weapon were somehow "reasonably foreseeable" to Mr. Messina, but offered no details or evidence in support of that
contention.
88. 0 As also important in this case -- because the government agreed that the "relevant conduct" underlying both the gun
and abduction enhancements was the conduct of others of which the jury had acquitted Mr. Messina with respect to the
Count One extortion conspiracy -- is Shonubi's recognition that, in cases of acquitted or unconvicted conduct, "a more
rigorous standard should be used in determining disputed aspects of relevant conduct where such conduct . . . will
significantly enhance a sentence." Id. at *11, citing United States v. Gigante, 94 F.3d 53, 56-57 (2d Cir. 1996) (on denial of
rehearing, recognizing that "the risk of factual error in a series of adjustments, each of which involves conduct proven by a
bare preponderance" is circumstance that may warrant downward departure); see United States v. Concepcion, 983 F.2d
369, 386 (2d Cir. 1992) (acquitted conduct may be factored into sentence, but when it substantially increases resulting
sentence, downward departure may be warranted). In this case, unfortunately, the trial court's "analysis" used to find alleged
relevant conduct was not even perceptible, much less the rigorous standard this Court has required.
89. 0 Studley was a telemarketing fraud case in which the Court reviewed applicable commentary to relevant conduct
Guideline § 1B1.3, to identify instances when a defendant may be accountable for conduct of others. What that
commentary confirms is that a defendant's mere "knowledge of another participant's criminal acts" is not enough; nor will a
defendant who becomes "aware of the scope of the overall operation" be accountable for any more than the role he agreed
to play. Id. at 575. In contrast, a defendant's greater accountability may be indicated if he participated with others to
"together . . . design and execute a scheme" to defraud, id. -- as concededly did not occur in this case, because the impulsive
scheme to kidnap and extort Clooney was one Spence and Salerno devised entirely on their own and on the spur of the
moment. Further, much the same as the defendant in Studley was not proved to have "worked in any way to further the
scheme outside of his sales efforts", id. at 576, Mr. Messina's only proven ongoing effort here was his work to secure
Spence's investment in Biltmore. Like Studley, therefore, this is another case where the defendant's accountability for the
conduct of others required more proof than the record conceivably affords.
90. 0 The Court applied a "clearly erroneous" standard of review to the question of reasonable foreseeability in Stevens, 985
F.2d at 1188-89. That standard has been questioned in United States v. Ekwunoh, 12 F.3d 368, 371-73 (2d Cir. 1993)
(Newman, C.J., concurring), because determining reasonableness in the context of specific facts involves legal standards
that should be reviewed on appeal as a question of law. In Mr. Messina's case, neither of these two standards was satisfied
by the trial evidence or the district court's inadequate findings.
91. 0 In Negron, the defendant was convicted of participating in a drug conspiracy, and the Court therefore placed the burden
on the defendant to establish that he neither knew nor foresaw the additional quantities for which the conspiracy was
accountable. Here, Mr. Messina was acquitted of conspiracy, so the burden remained with the government to prove that he
agreed to a scope of concerted misconduct that included Clooney's abduction as well as the abductors' display of a gun.
Neither of these specific offense characteristics were shown by the trial evidence, and both were actually negated by the
results of Mr. Messina's polygraph examination that the district court refused to consider.
92. 0 This Court reviews the application of an obstruction of justice enhancement (Guideline § 3C1.1) to particular facts as a
question of law subject to de novo review. United States v. Bonds, 933 F.2d 152, 154 (2d Cir. 1991).
93. 0 The court's entire analysis on this subject was, again, its inspecific sentencing recollection that "The air was thick with
untruths" (A.64, S.33). Given the court's own earlier misjudgment of the defendant's truthful testimony about his former
position with the Federal Bar Council, the district judge's ultimate conclusion here should not inspire much confidence.