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

PETITION FOR REHEARING

WITH SUGGESTION OF REHEARING EN BANC

GEORGIA J. HINDE

Attorney for Appellant

Richard Messina

220 Fifth Avenue, 7th Floor

New York, New York 10001

(212) 889-4570

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

REASONS FOR REHEARING:

I. A DEFENDANT'S INABILITY TO PAY ATTORNEY FEES CREATES A POTENTIAL CONFLICT OF INTEREST THAT SHOULD REQUIRE THE TRIAL COURT TO APPOINT COUNSEL TO AVOID THE RISK THAT A DEFENDANT'S REPRESENTATION WILL BE ADVERSELY AFFECTED 3

II. THE TRIAL COURT'S QUESTIONING OF THE DEFENDANT UNFAIRLY CONVEYED THE JUDGE'S PLAIN DISBELIEF OF THE DEFENDANT'S TESTIMONY IN WAYS THE COURT COULD NOT CURE AND DID NOT ADDRESS IN THE COURT'S SUBSEQUENT CURATIVE INSTRUCTION 9

III. THE DEFENDANT'S SENTENCE IS UNSUPPORTED 12

CONCLUSION 15

Addendum: Slip opinion in United States v. Richard Messina,

No. 96-1789 (2d Cir. October 16, 1997)

TABLE OF AUTHORITIES

Cases: Page

Bartone v. United States,

375 U.S. 52 (1963) 9

Bollenbach v. United States,

326 U.S. 607 (1946) 11

Cuyler v. Sullivan,

446 U.S. 335 (1981) 9

Gayle v. Scully,

779 F.2d 802 (2d Cir. 1985) 11

Lopez v. Scully,

58 F.3d 38 (2d Cir. 1996) 7

United States v. Allen, No. 96-1305,

1997 U.S. App. Lexis 27761 (2d Cir. Oct. 8, 1997) 8

United States v. Dunnigan,

507 U.S. 87 (1993) 12

United States v. Filani,

74 F.3d 378 (2d Cir. 1996) 11

United States v. Hernandez,

83 F.3d 582 (2d Cir. 1996) 12

United States v. Jacobs,

955 F.2d 7 (2d Cir. 1992) 13

United States v. Levy,

25 F.3d 146 (2d Cir. 1993) 3, 6, 8

United States v. Mazzilli,

848 F.2d 384 (2d Cir. 1988) 11

United States v. Mickens,

926 F.2d 1323 (2d Cir. 1991) 13

United States v. Nazzaro,

472 F.2d 302 (1973) 11

United States v. Nersesian,

824 F.2d 1294 (2d Cir. 1987) 7

United States v. O'Neil,

118 F.3d 65 (2d Cir. 1997) 3-6

United States v. Onumonu,

999 F.2d 43 (2d Cir. 1993) 12

United States v. Victoria,

837 F.2d 50 (2d Cir. 1988) 11

Winkler v. Keane,

7 F.3d 304 (2d Cir. 1993) 3

Statutes, Rules and Guidelines:

28 U.S.C. § 2106 9

Rule 2, Fed. R. App. P. 8

Rule 28(j), Fed. R. App. P. 4

U.S.S.G. § 2B3.2 14

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

PETITION FOR REHEARING

WITH SUGGESTION OF REHEARING EN BANC

PRELIMINARY STATEMENT

Appellant Richard Messina seeks rehearing of a decision rendered on October 16, 1997, by a panel of this Court (Circuit Judges Oakes, Meskill and Calabresi), affirming appellant's extortion conviction and sentence. The panel's decision condoned the district court's unjustified refusal to grant this financially eligible defendant's timely pretrial application to appoint substitute counsel to represent him, despite the genuine and realized risk that unpaid counsel's economic interests and obligations would undermine his judgment about the defendant's best interests, no less than other circumstances that may cause the interests of an attorney and his client to diverge. The panel also excused the trial judge's skeptical examination of the defendant's testimony, finding that the instances of judicial questioning were not persistent enough to amount to plain error, even in a case where the defendant's credibility, as the only defense witness, was crucial to his defense. Finally, the panel approved of substantial enhancements to the defendant's sentence that were imposed, not only without any specific or adequate findings by the trial court, but without any underlying evidence that would have allowed such findings had the court attempted to make them.

The panel should reconsider and rescind this decision's disturbing imprimatur upon the abridgments of such fundamental guarantees. Even if the panel ultimately adheres to its conclusion that the errors did not, on this record, deprive the defendant either of a fair trial or counsel's undivided loyalty, the panel should still reverse in an exercise of its broader supervisory powers and thereby protect important institutional interests in a fair adversarial system that were seriously disserved by the proceedings below. At the very least, the panel should reconsider and reverse the unsupported sentence because no defendant -- not even a disbarred attorney -- deserves to spend nine additional years in prison for the conduct of others that no evidence showed to have been either within the scope of any jointly undertaken activity or foreseeable.

Also, because parts of the panel's decision appear inconsistent with this Court's established precedent on issues of exceptional importance, appellant respectfully suggests that these issues ought to be considered by the Court en banc.

REASONS FOR REHEARING

When briefs were filed in this appeal last spring, no decision of this Court squarely addressed a district court's obligation to appoint counsel to assure that a defendant who is financially unable to retain counsel will not be disadvantaged by that status. Since then, rejecting entirely independent challenges that suggest a disturbing trend rather than isolated error, two panels of this Court have upheld the refusals of district courts to appoint counsel, despite controlling precedent that both acknowledges how a potential conflict of interest arises whenever a defendant's substantial interests in effective representation are "pitted against trial counsel's monetary interests", Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993), and requires district courts to take remedial action to prevent the possibility that a potential conflict will blossom into an actual one that adversely affects a defendant's representation. United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1993).

The first decision to reach this surprising result was United States v. O'Neil, 118 F.3d 65 (2d Cir. 1997). This case, relying on O'Neil, is the second. Based on the facts reported in O'Neil, however, this is a very different case and should have reached an entirely different result.

The panel's opinion here thus relied on O'Neil as authority for the proposition that a district court has "no duty to conduct an inquiry into the possibility of a conflict of interest when prior to trial it is presented with the simple request for the appointment of counsel" (slip op. 96). With due respect for whatever facts may have motivated the O'Neil panel to decide that case as it did, the district court here was presented with an entirely distinct situation and should, in fairness, have approved of the joint request of this appellant and his unpaid counsel to substitute appointed counsel prior to trial.⁽¹⁾

First, the defendant in O'Neil did not join his unpaid counsel's pretrial request to be relieved, but indicated his satisfaction with unpaid counsel's representation. In contrast, the record here showed that this appellant promptly seconded his unpaid counsel's request to substitute appointed counsel, and earnestly renewed the request upon learning not only that counsel had never interviewed potential defense witnesses when less than two weeks remained before trial was to begin, but that counsel's office had also lost files that would be critical to the defense (as detailed in Appellant's Brief at 20-22). The suggestion of "cut corners" that the panel thought absent in this case (slip op. 96) was therefore apparent here even before the trial began.

Next, in O'Neil, the request for appointed counsel was properly denied on the basis of evidence and the defendant's own admission that he could afford to retain counsel -- a fact also demonstrated in O'Neil by the fact that the defendant substituted newly retained counsel after his conviction. Here, however, there was no similar question that this defendant financially qualified for appointed counsel prior to trial. Indeed, from the time of his earliest court appearances, the government itself acknowledged that this defendant had "no assets to speak of" (Government's Supplemental Appendix ("SA") at SA-21). And months later, when trial counsel asked the district court to appoint counsel to replace him, it was likewise because the defendant was "unable" to pay counsel's fee (Appellant's Appendix ("A.") at A.13), not because he was unwilling to do so.

Moreover, when the district court denied unpaid counsel's timely application to substitute appointed counsel in this case, neither the judge nor the government suggested that this defendant had any supposed source of funds that he could use to retain or pay counsel. Instead, the court simply expressed its erroneous view that any defendant who is not "destitute" at the start of federal proceedings is not entitled to appointed counsel later (A.15-16) -- a position that the district court inconsistently abandoned when appointing counsel in this case after the trial concluded, and that is in any case at odds with Criminal Justice Act rules that explicitly permit courts to redetermine a defendant's eligibility in just such cases (as quoted and discussed in Appellant's Brief at 43-44 & n.64), even when a defendant hoped at the outset to be able to retain counsel of his own choosing.

Given the significant financial eligibility differences between this case and O'Neil, the panel should at least correct its characterization of this defendant's Sixth Amendment problem as rooted in a mere "dispute" over "non-payment" of legal fees (slip op. 90, 95). A "dispute" after all suggests that a defendant had some funds to argue about, and not that he was financially incapable of paying legal fees. When the premise is corrected to reflect this defendant's inability to pay legal fees, the conclusion in O'Neil -- declining to hold that a conflict of interest arises from a defendant's "failure to pay fees or an attorney's motion to withdraw for his client's failure to pay, without more" -- no longer has any fair application here. The panel should therefore grant rehearing and reconsider the issue in the actual context presented by this appeal.

Finally, as suggested at oral argument, O'Neil reportedly involved a mere failure to pay legal fees with a resulting strain on the attorney-client relationship, but nothing "more" of significance. Here, however, the record already shows "more", including the critical point for conflict analysis under United States v. Levy, 25 F.3d at 155: when the defendant's interests diverged from those of unpaid counsel in a way that may have adversely affected the defense.

The O'Neil panel found no such point merely in unpaid counsel's uncontested and "non-adversarial" civil suit against the defendant to obtain a protective judgment for fees the defendant concededly owed -- and indeed, as described, both attorney and client were in full accord on that matter. Nor had the interests of the defendant and his counsel diverged in O'Neil with respect to calling potential defense witnesses, because unpaid counsel in that case had interviewed each witness and, with the defendant's concurrence, determined that only one should be called because the testimony of the others would be harmful.

Counsel in this case acted in no similar harmony with his client. Thus, apart from the defendant's reported concerns about unpaid counsel's lack of pretrial preparations, counsel's unilateral decision not to call any defense witnesses besides the defendant himself was plainly one with which the defendant never agreed. Nor does this record suggest that counsel strategically chose not to call additional witnesses because they could have been harmful. Instead, counsel himself acknowledged -- at the same time as he invited the district court to preclude the witnesses as "collateral" (A.17) -- that the defendant wished to call these witnesses to support his "good faith" defense: a defense, again, that asked the jury to find reasonable doubt in evidence that any knowing participant in the alleged "ransom negotiations" would not have been at all likely to simultaneously pursue entirely legitimate efforts to rescue a failing corporation and press for the criminal prosecution of the kidnapped corporate principal. If a simple failure to argue for leniency prior to a court's imposition of an agreed sentence can represent an "abdication of an attorney's role as advocate" caused by conflict, Lopez v. Scully, 58 F.3d 38, 41-43 (2d Cir. 1996), certainly counsel's failure to call any viable defense witnesses did the same here.

The panel rejected this event as one suggested point of diverging interests, citing United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987), and concluding that "competent" counsel may have decided that the testimony of the additional defense witnesses "was indeed collateral and unnecessary to the defense" (slip op. 96). In a standard ineffective assistance inquiry, when counsel's competence is in issue, the panel is undoubtedly correct -- at least in cases like Nersesian, when the defendant has "not identified any witnesses that his counsel should have called who would have been helpful".

Here, however, the issue was not whether counsel made a "competent" tactical decision when refusing to call any of three identified defense witnesses (see Appellant's Brief at 23-27) whose testimony could have supported the defense. Rather, with this appeal, we have asked that the Court decide whether an attorney acting solely on his client's behalf and not motivated by conflicting interests would ever apply to preclude any defense witness as "collateral", or did the application instead symbolize one point when counsel's interests diverged from those of his client in a way that demonstrates that actual conflict had evolved under Levy to a point that counsel not only "cut corners" on the defense case, but sought to shield his decision with a court's preclusive ruling.

In one other respect as well, the panel should reconsider whether a point of diverging interests has already been established in this record -- as it should because, under the protectively broad parameters established in Levy, the Court can find actual conflict even when it cannot pinpoint an exact point of diverging interests. 25 F.3d at 155. Thus, as suggested at oral argument (and in Appellant's Reply Brief at 19 n.22), when counsel failed to object to the trial judge's improper questioning at the close of the defendant's testimony, it may have been another instance when advocacy instincts were dulled by a conflicting reticence, conscious or not, that challenging the judge's conduct could risk prolonging counsel's entanglement in the proceedings if a mistrial were declared. Especially if this panel would have decided the judicial bias issue differently under a standard of review other than plain error, counsel's failure to object plainly had a substantially adverse affect on his client's interests, so this should be considered another instance when counsel's interests impermissibly diverged due to conflict.

The panel should therefore reconsider and agree that, under Levy, there were strong indications of actual conflict in this case -- or if this is not the most apt characterization of the problem, the Court should afford a course correction pursuant to Rule 2, Fed. R. App. P., as was recently afforded in United States v. Allen, No. 96-1305, 1997 U.S. App. Lexis 27761 at *9 (2d Cir. Oct. 8, 1997), to avoid an unjust result. Whether counsel fell into conflict or not, however, it remains that the troubles in this case would have been avoided from the start had the district court only afforded this defendant what as a society we have been taught to expect as a necessary safeguard of fundamental guarantees: a right to have counsel appointed if a defendant cannot afford to pay counsel's fees.

The panel or the Court en banc should therefore grant rehearing and reverse if for no other reason than to remind district courts of their obligation to appoint counsel to every financially qualified defendant. We request this remedy not only as a matter of law, but in an exercise of this Court's far broader supervisory powers over the fair administration of justice in federal courts. 28 U.S.C. § 2106;⁽²⁾ see Bartone v. United States, 375 U.S. 52, 54 (1963) (federal courts should use their broad supervisory powers because "[i]t is more appropriate, whenever possible, to correct errors reachable by the appeal rather than remit the parties to a new collateral proceeding").

The panel agreed that the district court's questioning of the defendant was not justified in one instance, and "more troubling" in another, but excused the overall effect -- to which counsel, again, neglected to take exception -- because it did not amount to plain error (slip op. 92-93). This appeal acknowledged from the start that the instances of improper judicial questioning were more limited than this Court has seen in other cases. Nevertheless, the panel should reconsider (or the Court should review en banc) whether this judge achieved the same impermissible effect with a few questions in the context presented here.

First, though the panel agreed that the court was not justified in questioning the defendant's testimony about his past position with the Federal Bar Council, the panel concluded that the later instruction -- specifically informing the jury that the judge "had made a mistake" and correcting "the portion" of the defendant's testimony it had called into doubt -- "went a long way" toward eliminating any damage to the defendant's credibility (slip op. 93-94). The panel should reconsider this conclusion. The jury instruction here -- not given, again, until after the impression that the judge did not trust much of anything the defendant said had sunk into the jurors' consciousness over the course of a weekend -- may have corrected the judge's error on an immaterial issue, but it did not even attempt to remove the subliminal message that the judge thought the defendant was unworthy of belief.

That improper impression could, moreover, only have been emphasized by the omission of any apology for or attempt to cure the trial court's other tandem "intervention" that the panel agreed was "more troubling" (slip op. 94): when unnecessarily inquiring about the defendant's destruction of some personal notes⁽³⁾ -- a line of questioning that, even on the cold record, prompted the panel's comment at oral argument that it may have made the defendant look "sleazy" to the jury. Nevertheless, the panel excused this error as well because "it lasted no more than a few minutes in the course of a full week of testimony by the defendant during a five-week trial" (slip op. 94).

The panel should grant rehearing and reconsider this conclusion. First, if it matters to the analysis, the defendant's testimony actually lasted only about two days, not a full week. More importantly, however, are decisions of this Court recognizing that, when a defendant depends "almost exclusively" on his own testimony, a court's questioning that conveys a judicial opinion that the defendant is unworthy of belief unfairly tilts the balance in a way that should result in reversal. United States v. Mazzilli, 848 F.2d 384, 388 (2d Cir. 1988); United States v. Victoria, 837 F.2d 50, 55 (2d Cir. 1988); accord United States v. Filani, 74 F.3d 378, 381 (2d Cir. 1996).

Coupled with the fact that these troubling events all occurred at the very close of all the evidence -- when the "judge's last word [wa]s apt to be the decisive word", Bollenbach v. United States, 326 U.S. 607, 613 (1946) -- the panel or the Court should agree that, even if judges have done worse, what happened here was bad enough to require reversal, either because the trial court's comments left the defendant "in an unfair light before the jury", United States v. Nazzaro, 472 F.2d 302, 303 (1973), or at the least, because institutional considerations are sufficiently implicated here to elicit this Court's exercise of its supervisory powers and require a new trial. Gayle v. Scully, 779 F.2d 802, 813 (2d Cir. 1985) (suggesting that a supervisory remedy might apply in case where a federal judge's improper questioning did not reach level of constitutional error).

III. THE DEFENDANT'S SENTENCE IS UNSUPPORTED

Sentencing arguments tend to be placed at the end of briefs seeking reversal because they seek an alternative form of relief. Nevertheless, had the trial court granted the application for appointed counsel prior to trial in this case and checked its impulse to ask improper questions that undermined the credibility of the defendant as the sole witness on his own behalf, its imposition of sentencing enhancements that are not supported by any evidence should still require vacatur and remand for a substantial reduction in this defendant's sentence.

With due respect, the panel characterization of the problem -- simply that the lower court's factual findings were "less specific than might be desirable" (slip op. 99) -- missed the fundamental defect entirely: we have not challenged the district court's mere technical omission of factual findings that were there for the making,⁽⁴⁾ but the lack of evidence in this record to support this defendant's culpability with respect to any necessary finding the court should have attempted to make in answer to the defendant's sufficiently interposed objections.

Indeed, even in the single instance that the panel recited as a "finding" -- when the district court, in terse response to counsel's reminder, merely reported a conclusion that "I believe it was reasonably foreseeable" and nothing more⁽⁵⁾ -- the court pointed to no evidence to support its belief. What was missing at this sentencing was not therefore the "timely objections" that the panel thought might have led the court to make "more particularized findings" (slip op. 99), but any attempt by the court to support the severe sentencing enhancements -- amounting again to an extra nine years overall beyond the range of 37-46 months that should otherwise have applied -- that depended solely on the conduct of others that was not reasonably foreseeable to this defendant.

When sentencing enhancements are thus based on rank supposition about a defendant's requisite knowledge about the undisclosed actions of his codefendants, this Court has not hesitated to reverse the "unsupportable" result, United States v. Mickens, 926 F.2d 1323, 1331-33 (2d Cir. 1991) -- not even when a lower court's "belief" is so strong that it makes the same "unsupportable" error on remand, United States v. Jacobs, 955 F.2d 7, 9 (2d Cir. 1992). Here, the district court's attribution of substantial sentence enhancing factors to this defendant was just as unsupportable and should be as quickly reversed.

Moreover, the district court itself expressed the same conclusion when the trial evidence was freshly before it: again, that the defendant "had absolutely nothing to do with the abduction or holding [of Clooney], except to collect the ransom" (Tr. 1575). This was an accurate summary of the testimony of the three cooperating witnesses who were the backbone of the government's case, none of whom gave any hint of a basis to hold this defendant responsible either for a part in abducting Clooney to "facilitate" his extortion, U.S.S.G. § 2B3.2(5)(A), nor for knowing or foreseeing that any of the actual kidnappers would, while the victim was in their custody, possess or brandish a gun, U.S.S.G. § 2B3.2(b)(3)(iii). Therefore, unless the panel's de novo review of the application of these adjustments leads to a conclusion that, as a matter of law, even a "latecomer" defendant should be held accountable after-the-fact for an extortion victim's unforeseeable abduction by others who possessed guns -- and that is the most that the district court ever found and the government has ever argued in support of these sentencing enhancements (see Gov. Br. 81-85; Appellant's Reply Br. 22-24 & nn.25-26) -- the panel should agree that the district court's basis for imposing these severe adjustments was grossly unsupported and should be set aside.

Therefore, if the panel grants rehearing for no other reason, it should do so at the very least to correct its mistaken conclusion (slip op. 99-100) that the "district court's factual determinations, together with the evidence offered", were sufficient to support these sentencing enhancements. They were not, and this defendant should accordingly not be punished for these aggravating specific offense characteristics that were unforeseeably committed by others.

CONCLUSION

For these reasons, either the panel, or the Court en banc, should grant rehearing and reverse the defendant's conviction. At a minimum, the Court should agree that substantial portions of the defendant's sentence are unsupported and should be vacated because they exceed any fair measure of "sufficient" punishment.

Dated: New York, New York

October 30, 1997

___________________________

GEORGIA J. HINDE

Attorney for Appellant

RICHARD MESSINA

220 Fifth Avenue, 7th Floor

New York, New York 10001

(212) 889-4570

1. ⁰ The distinctions discussed here were previously suggested in appellant's letter dated July 7, 1997, for distribution to the panel pursuant to Rule 28(j), Fed. R. App. P., addressing O'Neil as pertinent authority to an issue raised in appellant's then fully briefed appeal.

2. ⁰ This appeal previously invoked an exercise of this Court's supervisory powers over the issues presented. See Appellant's Brief at 4 (citing 28 U.S.C. § 2106); Reply Brief at 11 n.12 (requesting Court's supervisory guidance on conditions under which district courts should appoint counsel to substitute for retained counsel). Moreover, in the context of identifying and preventing attorney conflicts of interest, the Supreme Court views the exercise of such supervisory powers as a "desirable practice". Cuyler v. Sullivan, 446 U.S. 335, 347 (1981).

3. ⁰ We respectfully request that the panel correct the portion of its opinion that suggests that the defendant's testimony established that the notes were "potentially incriminating" (slip op. 92). The defendant admitted discarding the notes, but denied that they had contained "potentially incriminating" information (Tr. 1553).

4. ⁰ Only with respect to the obstruction adjustment has the Supreme Court, United States v. Dunnigan, 507 U.S. 87, 95 (1993), and this Court, see, e.g., United States v. Hernandez, 83 F.3d 582, 585 (2d Cir. 1996); United States v. Onumonu, 999 F.2d 43, 46 (2d Cir. 1993), consistently required more detailed factual finding, to assure both that the district court applies a standard of proof that is higher than the sentencing norm, and that the court has viewed the evidence in the light most favorable to the defendant. For the panel to instead have accepted this district court's mere pronouncement that "the air was thick with untruths" paves the way for sentencing courts to penalize any defendant who testifies. The panel should therefore reconsider this adjustment as well as the two discussed in the accompanying text.

5. ⁰ The court's response was not only insufficient, but would have tended to dissuade any attorney from pressing for similarly empty "findings" in those critical moments just before sentence is imposed, when the last thing any attorney wants to do is irritate the judge by repeating arguments and objections that are already a matter of record and are therefore ripe for review and reversal on appeal.