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

REPLY BRIEF 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 CONTENTS

Page

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

REPLY 2

A. UNPAID COUNSEL'S CONFLICT ADVERSELY AFFECTED THE DEFENSE 8

B. THE TRIAL COURT'S QUESTIONING WENT BEYOND PERMISSIBLE BOUNDS 17

C. APPELLANT'S SENTENCE SHOULD BE VACATED 21

CONCLUSION 25

TABLE OF AUTHORITIES

Cases: Page

Cuyler v. Sullivan,

446 U.S. 335 (1981) 12, 13

Daniels v. United States,

54 F.3d 290 (7th Cir. 1995) 11, 12

Gayle v. LeFevre,

613 F.2d 21 (2d Cir. 1980) 18

Gideon v. Wainwright,

372 U.S. 335 (1963) 10

Mason v. Scully,

16 F.3d 38 (2d Cir. 1994) 18

Nix v. Whiteside,

475 U.S. 157 (1986) 11

Rivas v. Brattesani,

94 F.3d 802 (2d Cir. 1996) 20

United States v. Aiello,

900 F.2d 528 (2d Cir. 1990) 14

United States v. Catano-Alzate,

62 F.3d 41 (2d Cir. 1995) 24

United States v. Cruz,

785 F.2d 399 (2d Cir. 1986) 14

United States v. Dunnigan,

507 U.S. 87 (1993) 25

United States v. Filani,

74 F.3d 378 (2d Cir. 1996) 19, 20

United States v. Leslie,

103 F.3d 1093 (2d Cir. 1997) 21

United States v. Levy,

25 F.3d 146 (2d Cir. 1994) 14

United States v. Malpiedi,

62 F.3d 465 (2d Cir. 1995) 17

United States v. Molina,

106 F.3d 1118 (2d Cir. 1997) 23

TABLE OF AUTHORITIES

Cases: Page

United States v. Nersesian,

824 F.2d 1294 (2d Cir. 1987) 14

United States v. Patasnik,

89 F.3d 63 (2d Cir. 1996) 11

United States v. Ramey,

559 F. Supp. 60 (E.D. Tenn. 1981) 13

United States v. Schmidt,

105 F.3d 82 (2d Cir. 1997) 14

United States v. Shonubi,

103 F.3d 1085 (2d Cir. 1997) 22

United States v. Williams,

79 F.3d 334 (2d Cir. 1996) 24

United States v. Wright,

845 F. Supp. 1041 (D.N.J. 1994) 12

United States v. Zagari,

111 F.3d 307 (2d Cir. 1997) 24

Winkler v. Keane,

7 F.3d 304 (2d Cir. 1993) 10

Statutes, Rules and Guidelines:

18 U.S.C. § 3006A 10

22 N.Y.C.R.R. § 1200.15 12

Local Rule VII(D),

Southern District of New York's

Plan for Furnishing Representation

Pursuant to Criminal Justice Act of 1964 10

Rule 44, Fed. R. Cr. P. 10

Rule 201, Fed. R. Evid. 19

Rule 608(b), Fed. R. Evid. 19

Sentencing Guideline Policy Statement § 6A1.3(a) 22

Sentencing Guideline § 2B3.2(b)(5) 22

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

REPLY BRIEF FOR THE APPELLANT

PRELIMINARY STATEMENT

This brief is respectfully submitted on behalf of appellant Richard Messina, in reply to the government's arguments in opposition to the issues on appeal. Despite its bulk, the government's presentation does not undercut the conclusion that Mr. Messina's conviction should be reversed because his right to a fair trial was impermissibly infringed by unpaid counsel's conflicted representation, or the trial court's crushing impeachment of the defendant's critical testimony, or a devastating combination of both. This Court should therefore remand for a new trial or, at a minimum, vacate the defendant's 12½-year sentence, at least three quarters of which is unsupported by the government's evidence.

REPLY

Every part of the government's response rests on a flawed premise: that this Court should not be unduly concerned with the challenged errors and substantial unfairness that infected both Mr. Messina's trial and sentencing because the evidence of the defendant's guilt was, in the government's characteristic view, "overwhelming" (see, e.g., Gov. Br. 2, 44-45, 66-68, 78, 81). Apart from the jury's disagreement with the government's inflated assessment of the evidence in this case -- as it demonstrated by acquitting Mr. Messina of the overriding conspiracy charge and convicting him only of aiding and abetting the alleged extortion efforts of others -- this Court should not be swayed by the government's self-serving description of its case because it paints the evidence as far stronger than it was, and even reports some inferences and arguments that are not supported by a fair reading of the record.

A few examples demonstrate how the government's interpretations of the facts in the record have an unfortunate tendency to distort actual testimony and evidence. Thus, the government repeatedly details James Clooney's testimony about his first meeting with Mr. Messina, during which Clooney claimed that Mr. Messina elicited Clooney's confidential disclosures about Biltmore by misrepresenting himself as an attorney, demanding a $2,000 "retainer", and ostensibly assuring Clooney that anything he said would be protected by attorney-client privilege (Gov. Br. 6, 16, 71, 77).⁽¹⁾ Yet the government's own evidence (GX-60),⁽²⁾ and defense exhibits as well (DX-C, DX-E),⁽³⁾ showed that Clooney had wired this same $2,000 to Mr. Messina (to be applied against expenses related to the securing of Clooney's debt) days before they ever met. This made Clooney's "retainer" claim impossible in light of Clooney's consistent admission that he had never discussed any alleged attorney-client relationship with Mr. Messina prior to their first face-to-face meeting on October 26, 1994 (see Tr. 475-76, 744-45, 748-51).

The government's brief nonetheless reports that "at that meeting [on October 26th], Messina . . . accepted a retainer of $2,000" (Gov. Br. 71) -- and worse, that Mr. Messina's contrary testimony disputing Clooney's claim should be deemed "perjury" just because it differed from Clooney's at best mistaken testimony on this collateral subject (Gov. Br. 77). The record supports no such conclusion, as this Court can see for itself.

The same holds true for another instance when a slight shift in the order of events made the government's case seem more substantial than it actually was. Thus, in its narrative on appeal, the government twice altered a critical sequence of events on November 15, 1994 -- the day before Clooney's release and the first time during the entire four-day period of Clooney's abduction by Spence, Salerno and Persichetti when Mr. Messina spoke to Clooney. As the government repeatedly tells it, Mr. Messina arranged with Clooney for the transfer of Clooney's "ransom" -- that is, the identical property that two weeks before, Clooney had already promised Mr. Messina would be supplied to secure Clooney's debt to Spence -- prior to the time (shortly after 7:00 P.M.)⁽⁴⁾ of Mr. Messina's brief meeting with Salerno and Persichetti at Muldoon's bar. There, according only to the uncorroborated and untrustworthy recollections of government witness Persichetti,⁽⁵⁾ Mr. Messina reportedly told Salerno and Persichetti "about the plan to pick up the deeds, paintings and cash in Long Island" as Mr. Messina had supposedly already arranged with Clooney for the next day (Gov. Br. 11, 80-81).

Both Mr. Messina's own contemporaneous telephone logs and indices (GX-101A, GX- 102E) and telephone records from the hotel where Clooney was held hostage (GX-212C) show, however, that the first call from Clooney to Mr. Messina in fact took place later that evening, after the meeting at Muldoon's.⁽⁶⁾ Telephone records also show that it was after his first conversation with Clooney that Mr. Messina first heard (shortly after 10:00 P.M., GX-101A, GX-102E; GX-405T at 5) from Linda Argilla, Clooney's girlfriend. Only then did Mr. Messina make tentative arrangements to meet in Long Island (see Tr. 1452-53, 1526-31). Again, the government's contrary and more damning implication -- that Mr. Messina met in a bar with "accomplices" Salerno and Persichetti and there disclosed a supposed "plan" to pick up "ransom" the next morning -- is not supported by a careful review of the record facts.

We have discussed these two examples, and briefly touch on a few others in the note below,⁽⁷⁾ simply because they show good reason why this Court should review the cited portions of the record to confirm what is, and is not, there contained before accepting the government's arguments on appeal. Naturally, the Court must at this stage view the evidence in a light favorable to the government, and draw all reasonable inferences in the government's favor as well. It cannot do so, however, unless the underlying facts that led the government to its argued conclusion are fairly presented. Only then can the verity of the government's views be meaningfully tested and appraised both for harmless error analysis, and to assure the essential protections of our adversary system of justice against unjust and faulty verdicts: a fair trial at which a defendant is represented by single-minded counsel before an unbiased judge. As we next discuss, the defendant in this case was deprived of both to a degree that should not be excused as harmless error in a case where the evidence was far less than "overwhelming".

A. UNPAID COUNSEL'S CONFLICT ADVERSELY AFFECTED THE DEFENSE

The government acknowledges that, some seven weeks prior to the scheduled trial date of January 8, 1996, defense counsel asked, with Mr. Messina's concurrence, to be relieved as counsel because of Mr. Messina's ongoing inability to pay his fee (Gov. Br. 21).⁽⁸⁾ Further, the government admits that Judge Duffy denied this request while more than a month still remained before the scheduled trial date, and that the court declined to appoint CJA counsel "whether or not Messina qualified for the appointment of counsel" (Gov. Br. 21). Then, despite the lack of any record evidence that appointment of substitute counsel would in fact have required any adjournment of the scheduled trial date,⁽⁹⁾ the government asks this Court to find no error under the rubric of a trial court's broad discretionary powers to deny continuances (Gov. Br. 30-33).

In the context here presented, the government's arguments are not supported by reason or law. First, no matter how often the government chants the magic words "eve of trial" (Gov. Br. 32, SA-89), the timing of the application here was sufficiently early -- under the many decisions discussed in appellant's brief (at 44-46 & nn. 65-69),⁽¹⁰⁾ as well as the district court's own local rule -- to have allowed new counsel to step in and represent the defendant effectively. Indeed, apart from the above-noted demonstration at the bail hearing that new counsel could grasp the significant details of the government's case within a month after first entering the case, the district court itself recognized that new counsel could have gone forward in the time remaining before trial when the court allowed for the possibility of substitute counsel standing in for unpaid counsel if anyone "competent" could be located (A.14-15).

This solution improperly overlooked both the district court's basic obligation to appoint counsel when a defendant cannot afford to retain counsel on his own, Gideon v. Wainwright, 372 U.S. 335 (1963); 18 U.S.C. § 3006A; Rule 44, Fed. R. Cr. P.; and the substantial potential for a divisive and harmful conflict between a defendant and his representative that this Court has recognized may arise -- and should be addressed and avoided when it does -- when counsel's monetary interest is juxtaposed against his responsibilities to a client.⁽¹¹⁾ Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993). Attorneys may also have a professional obligation to continue representing clients zealously regardless of a client's refusal or inability to pay an agreed upon fee -- at least in a context not presented here, where a midtrial substitution of new counsel could actually work to a client's detriment or achieve an unfair advantage if it resulted in the need to declare a mistrial, see, e.g., Nix v. Whiteside, 475 U.S. 157, 170 (1986). That does not, however, relieve a district court, "experienced" or otherwise,⁽¹²⁾ of its duty to assure that an indigent defendant who qualifies for appointed counsel is provided with that assistance and not required either to continue with unpaid counsel or to come up with a substitute on his own. Accord United States v. Patasnik, 89 F.3d 63, 67-68 & n.1 (2d Cir. 1996) (approving district court's appointment of stand-by counsel as method of avoiding conflict in event unpaid counsel ceased to act as defendant's advocate); Daniels v. United States, 54 F.3d 290, 293-94 & nn.7, 9 (7th Cir. 1995) (noting that, in case where attorney conflict was not brought to trial court's attention until after entry of guilty plea defendant alleged was induced by his inability to pay retained counsel to take the matter to trial, there was no issue whether defendant could afford to hire substitute counsel when he "could have petitioned court to appoint counsel" if he was without funds);⁽¹³⁾ see In re Grand Jury Subpoena, 605 F. Supp. 839, 848 (S.D.N.Y. 1985) (after reciting maxim that defense counsel must continue zealous representation regardless of defendant's inability to pay fee,⁽¹⁴⁾ court promised to substitute new counsel if unpaid counsel ceased effective representation of defendant interests).⁽¹⁵⁾

Here, the district court's summary rejection of Mr. Messina's timely application for substitution of appointed counsel was error. And while we agree (as already acknowledged in appellant's brief at 48 n.72) that unpaid counsel may and often do avoid realizing the potential conflict created by a client's lack of payment, the problem here was that unpaid counsel was not able to dodge that point of diverging interests that is the hallmark of actual conflict, Cuyler v. Sullivan, 446 U.S. 335, 356 n.3 (1980), nor the resulting "lapse in representation" that adversely effected Mr. Messina's defense and should require reversal. Id. at 336.

One identifiable point, again, was when unpaid counsel chose to elicit the trial court's preclusive ruling that certain defense witnesses could not be called because their testimony would be "collateral" (Tr. 860). The government unpersuasively defends unpaid counsel's maneuver as if some sort of commendable "extra step" undertaken to "protect" his client's interests better than if counsel had unilaterally decided this "ordinary strategic disagreement between attorney and client" on his own (Gov. Br. 39-40). Of course, the reality was that, in so bringing the matter to the trial judge's attention as he did -- not as an advocate placing a full and fair proffer of the testimony in the record and arguing for its admission,⁽¹⁶⁾ but in terms that invited the trial court's ultimate ruling so persuasively that the government did not have to add a thing -- counsel merely disguised his own interests in bringing the trial to a close by cloaking them in a judicial ruling.

The decisions on which the government relies (Gov. Br. 40) for the uncontested proposition that defense counsel's tactical decisions not to call particular witnesses will not be second guessed, e.g., United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987), are beside the point. In none of the decisions was there any question whether defense counsel acted, not from "strategic" considerations, but from an actual conflict of interest. Nor did any defense counsel attempt to shift responsibility for his strategic decision to the presiding judge by characterizing the uncalled witnesses as "collateral".⁽¹⁷⁾ Thus, while it is certainly true that defense counsel's decision not to call specific witnesses "is not ordinarily viewed as a lapse in professional judgment", United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997), in the type of extraordinary case here, where counsel's powers to act in his client's best interests were clouded by a conflict of interest, the failure to call any defense witnesses besides the defendant himself shows both a "lapse" and a "point of diverging interests" in terms that should result in reversal.

One last element is, of course, required: a showing that, because of his conflict, counsel did not undertake a viable or plausible alternative defense strategy. Levy, supra, 25 F.3d at 157; Winkler, supra, 7 F.3d at 309. What that showing does not require -- much as the government obviously wishes otherwise (see, e.g., Gov. Br. 38, 44-45) -- is that defense counsel's lapse have affected the outcome of the trial in the same way as if counsel's representation was ineffective across-the-board. To the contrary, defense counsel's representation may be "professionally correct and . . . as skillful as any attorney's conduct of the defense could have been", and the adverse affect of the attorney's conflict will still require reversal. Levy, supra, 25 F.3d at 157, 160.

The foregone alternative in this case -- to call defense witnesses who could have confirmed disputed elements of the defendant's testimony, particularly with respect to his conduct, both during and after the period of Clooney's abduction, that was entirely inconsistent with the testimony of the government's cooperating witnesses offered to show Mr. Messina's alleged knowledge of and participation in that offense⁽¹⁸⁾ -- was plainly plausible and viable, and there was no "strategic" reason against it (as detailed in the note below).⁽¹⁹⁾ At the least, "it might have been helpful" for these additional witnesses to have testified at trial because it is "possible the jury would have accepted [the defendant's] defense had this evidence been presented". Schmidt, 105 F.3d at 90. While Schmidt required a stronger showing to support that defendant's claim of counsel's overall ineffective assistance, here, the mere fact that the witnesses' testimony could have been helpful is enough. It shows that, on the basis of counsel's conflict, a "viable" alternative defense strategy was omitted, with a resulting "adverse effect" under Cuyler's and Levy's conflict analysis. Accord United States v. Malpiedi, 62 F.3d 465, 469-70 (2d Cir. 1995). Reversal of Mr. Messina's conviction is therefore warranted.

B. THE TRIAL COURT'S QUESTIONING WENT BEYOND PERMISSIBLE BOUNDS

Compounding the unfairness at Mr. Messina's trial was the judge's own inexplicably confrontational questioning of the defendant, the worst of which came at the very end of this testimony by the only witness for the defense, when it was likely to have done the most harm and left the most lasting impression on the jury. The government pretends that there was "nothing improper" about the court's questions, supposedly posed merely for "clarification" (Gov. Br. 45) -- but again, the record speaks for itself.⁽²⁰⁾ What it shows is that, even when a judge has avoided "excessive" intrusions to the point of being "all over [a] case like a tent", Gayle v. LeFevre, 613 F.2d 21, 25, 27 (2d Cir. 1980) (Oakes, J., dissenting), it is entirely possible, with a few well chosen lines of questions, to convey a judge's own distrust of the defendant and thereby irredeemably undermine the defendant's credibility and his right to a fair trial. Cf. Mason v. Scully, 16 F.3d 38, 45 (2d Cir. 1994) (trial counsel's single error in failing to recognize and object to hearsay testimony that violated defendant's confrontation rights sufficient basis to hold counsel's assistance ineffective).⁽²¹⁾

Here, as unpaid counsel's conflict of interest left the entire defense to stand or fall on the jury's assessment of Mr. Messina's credibility,⁽²²⁾ it was of crucial importance for the court to assure that the defendant's credibility was not unfairly undermined. Instead, the court too plainly demonstrated its distrust of the defendant, most egregiously when the judge improperly and mistakenly confronted Mr. Messina with supposed evidence that he had lied about his previous position with the Federal Bar Council.⁽²³⁾

While the judge eventually informed the jury that "the judge is not infallible" (Tr. 1586-87), it was not the judge's credibility that needed resurrecting, but rather the profound damage to Mr. Messina's credibility as the sole witness on his own behalf. Assuming any curative instruction could have made a difference after a judge so plainly pierced the heart of the defense -- the defendant's credibility -- with the judge's self-confessed "surprise" and "shock" at the defendant's background achievements (Tr. 1582-83; A.63, S.32), that instruction would at a minimum have to have informed the jury in no uncertain terms that it should not construe the judge's error against the defendant. Instead, the "curative" instructions given by Judge Duffy below never mentioned a word that suggested, much less plainly stated, that the jury should not consider any of the judge's questions as a sign that the judge did not trust or believe Mr. Messina (see Gov. Br. 52-53, 64-65). The instructions therefore just did not "cure", if there was any cure to be had in these severe circumstances. See Rivas v. Brattesani, 94 F.3d 802, 803, 807-08 (2d Cir. 1996) (Judge Duffy's comments impaired civil trial fairness "in a way that no jury instruction could cure"); accord Filani, supra, 74 F.3d at 386 (once judge's questioning suggests partisan attitude, no curative instruction will restore trial fairness).

The government nevertheless argues that, far from eviscerating the defendant's credibility, the "net effect of this incident was to enhance Messina's credibility, by providing a concrete instance where Messina was demonstrably telling the truth. . . . [and thereby conveying to the jury] a renewed sense that Messina's testimony should be given more credence, . . . and should not be disregarded without the most careful scrutiny" (Gov. Br. 62). Apparently, even the government appreciates that this valiant attempt to put a positive spin on a plain and prejudicial error is nonsense: in its very next sentence, the government at last concedes that "some of the [trial court's] questions may have crossed the line", while urging this Court's agreement that "overall", Mr. Messina's trial was still fair enough (Gov. Br. 62).

Under all the decisions discussed in appellant's brief (at 52-56), however, this Court should conclude otherwise. This is not a case like United States v. Leslie, 103 F.3d 1093, 1104 (2d Cir. 1997), in which Judge Duffy's questions of defense witnesses (and not of the defendant himself) indeed appeared evenhanded. This is, instead, an unfortunate case in which, for whatever reasons, the trial judge reacted with "shock" and "surprise" at the defendant's testimony, and thereby improperly conveyed his distrust to the jury with even greater force than this cold record can capture. When combined with the other serious deficiencies stemming from unpaid counsel's conflict, therefore, this Court should agree that Mr. Messina's single conviction should be reversed and the matter remanded for a new and fair trial.

C. APPELLANT'S SENTENCE SHOULD BE VACATED

Nowhere in its sentencing arguments (or anywhere else) does the government acknowledge the district court's assessment of the case at the close of all the evidence: "that Richard Messina had absolutely nothing to do with the abduction or holding [of Clooney], except to collect the ransom" (Tr. 1575). Had his sentence reflected the same limited appraisal of "real offense" conduct, Mr. Messina would now be serving a term within a range of 37-46 months. He instead serves a sentence exceeding 12 years, despite the government's persisting inability to justify such substantial additional punishment with any evidence that this defendant's conduct warrants it,⁽²⁴⁾ much less with the "specific evidence" the law requires. United States v. Shonubi, 103 F.3d 1085, 1088-90 (2d Cir. 1997).

Thus, to justify the 4-level enhancement applied when "any person was abducted to facilitate the commission of the offense", Sentencing Guideline § 2B3.2(b)(5), the government relies on the fact that the court "presided over a multi-week trial", the record of which "established an ample basis for [the court's] conclusion that Messina knew of [Clooney's] abduction" (Gov. Br. 81-82).⁽²⁵⁾ If that were so, the court would not have acknowledged "that Richard Messina had absolutely nothing to do with the abduction or holding [of Clooney]" (Tr. 1575). This Court should therefore agree that the trial court's initial assessment, when the evidence was most freshly before it, was the correct one. At the least, if it had any reasoned basis to reach an opposite conclusion at Mr. Messina's sentencing, the court had an obligation to explain it.

With respect to the 5-level gun enhancement, the government's recites evidence (Gov. Br. 9, 83-85) showing nothing more than Salerno's or Persichetti's possession or display of a gun in Clooney's presence during the time he was held hostage. From such a limited set of facts, the government cannot construct any arguably reasonable basis to infer Mr. Messina's knowledge of or ability to foresee this conduct of others⁽²⁶⁾ -- just as the district court could not articulate anything more on the subject of foreseeability than its abstract "belief" that use of a gun by someone had to have been foreseeable to this defendant⁽²⁷⁾ (Gov. Br. 72, quoting A.35). This adjustment should therefore also be rejected as entirely unsupported.

Last, the 2-level "obstruction" enhancement for Mr. Messina's supposedly "perjurious" trial testimony had no place at all in a case where the government admits that the defendant's testimony did not conflict with the government's evidence, as opposed to its arguments (Gov. Br. 16, 67).⁽²⁸⁾ It has even less place in a case where the government has neglected to assure that concededly required findings have been made on two of the essential elements that the government has the burden of demonstrating before an obstruction enhancement may be applied:⁽²⁹⁾ that is, both the materiality of particular "perjured" testimony, as well as the defendant's specific intent to obstruct justice with that "perjury". See United States v. Zagari, 111 F.3d 307, 1997 U.S. App. Lexis 7295 (at *63) (2d Cir. 1997) (when court "chooses to rely upon allegedly perjured testimony as a basis for application of the [obstruction] enhancement, it must make specific findings which indicate that the judge has considered all of the elements of perjury, including materiality, and has found that they have all been met"), citing United States v. Dunnigan, 507 U.S. 87, 92-95 (1993).

This Court should therefore agree that Mr. Messina's sentence has been excessively enhanced by eleven levels of unsupported adjustments, each constituting a reversible misapplication of the Guidelines.

CONCLUSION

The Court should reverse appellant Richard Messina's conviction because his right to a fair trial was thwarted when unpaid trial counsel abandoned available defense evidence due to what had by the time of trial become an actual conflict of interest, and by the trial court's improper impeachment of the only evidence counsel did present, the defendant's own testimony. At the least, the defendant's sentence should be vacated because it is the plainly excessive product of a misapplication of the Sentencing Guidelines.

Dated: New York, New York

June 24, 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 government details this testimony again and again, though Clooney's claim shows nothing about Mr. Messina's alleged participation in Clooney's later kidnapping and extortion by Spence. Indeed, the government itself has a hard time conceiving of an argument that makes this testimony "material" even for sentencing purposes. It ultimately settles on a peculiar sort of bootstrap argument: that Clooney's testimony was material simply because Mr. Messina disputed it, and it therefore influenced the jury's credibility determinations and "whether to believe Messina's defense of lack of knowledge" (Gov. Br. 77).

Whatever that might mean in another case (if anything), it is a nonsensical argument here because the event on which the alleged extortion was premised -- Clooney's kidnapping -- was not conceived or decided upon by its author, Spence, until weeks after Mr. Messina's first meeting with Clooney. The testimony therefore could not have properly influenced or affected the jury's decision on any material issue because Mr. Messina's clairvoyance -- that Spence would later decide to extort Clooney -- was never in issue.

2. ⁰ GX-60 was, again, Mr. Messina's fax sent on October 20, 1994, advising Clooney where to wire $2,000. Clooney eventually admitted at trial that he received these faxed instructions a number of days before his first face-to-face meeting with Mr. Messina on October 26, 1994 (Tr. 751), but inconsistently insisted that the money had been sent to "retain" Mr. Messina, even though Clooney confirmed that he had first supposedly discussed this topic with Mr. Messina only at their later October 26th meeting, after Mr. Messina had already received the funds (see Tr. 475-76, 744-45, 748-51).

3. ⁰ Portions of Mr. Messina's own contemporaneous handwritten notes, on some of which the government relied at trial -- and on appeal, inflating their stature by describing them as "physical evidence" of some sort (Gov. Br. 3, 67) -- were also offered in undifferentiated batches as defense exhibits. One such batch (designated as Defense Exhibit E at 38) reflects Mr. Messina's record that he had spoken to Clooney about wiring $2,000 on October 20, 1994, the same date as Mr. Messina's confirming fax instructing Clooney where to wire the funds (GX-60). Then, on October 24, 1994 (DX-E at 41), Mr. Messina's notes indicate a follow-up conversation with Clooney confirming that the funds had been wired. None of these notes suggest that Mr. Messina had elicited these funds from Clooney as any sort of "retainer", and his own testimony on the subject (some details of which were grudgingly confirmed by Clooney, Tr. 749-50) in fact made more sense: that he had requested the funds to apply against the expenses of conducting a title search and recording a mortgage on Clooney's property that Clooney was putting up as security for the money he owed to Spence (Tr. 1378-79).

4. ⁰ This time estimate was confirmed by two one-minute telephone calls from Salerno's cellular telephone to Mr. Messina's telephone (itemized in GX-400-T at 10-11). The calls are consistent with testimony that Salerno telephoned Mr. Messina from Salerno's car shortly before arriving outside of Mr. Messina's apartment building on November 15, 1994, after which Salerno drove Mr. Messina and Persichetti to Muldoon's (Tr. 854, 1444-45).

5. ⁰ Persichetti, again, was the cooperating witness who testified at another trial a few months prior to Mr. Messina's trial, but did not then mention Mr. Messina as having played any supposed role in Clooney's kidnapping: the only participants, according to Persichetti's earlier testimony, were Spence, Salerno, Daley and himself (Tr. 1013-14). Though mentioned in appellant's brief (at 19), the government still offers no explanation, lame or otherwise, for Persichetti's shifting testimony.

6. ⁰ When reciting testimony in support of this disputed claim, the government was unable to choose between (or acknowledge) the conflicting evidence of two of its witnesses. Thus, Clooney testified that his first call to Mr. Messina had been placed, not from a hotel telephone but from a cellular telephone, and that someone else had dialed Mr. Messina's number for him (Tr. 526). On the other hand, Persichetti repeatedly claimed that Mr. Messina called the hotel and asked how Clooney was doing (Tr. 852, 1021). While records show two two-minute calls placed shortly after noon on November 15th from Salerno's cellular telephone to Mr. Messina's telephone number (GX-400T at 7-8) -- as is consistent with Mr. Messina's testimony that Salerno telephoned him a number of times on November 15th (Tr. 1441), and logs showing two calls from Salerno at that same time (GX-101A) -- there is no telephone record of any call from Mr. Messina (see GX-407-10T) to Salerno's cellular telephone number or to any hotel in which Clooney was held hostage by Salerno and Persichetti after his abduction on the evening of November 12th and prior to the call placed by Clooney on the evening of November 15th (as confirmed by the case agent's testimony, Tr. 1262-64, agreeing that records showed that, after his abduction, Clooney's first and brief contact with Mr. Messina was not until 9:30 P.M. on November 15, 1994).

7. ⁰ We cannot here respond to every troubling distortion in the government's brief, and so we rest on the record itself along with the synopsis of pertinent facts contained in appellant's main brief. Before leaving this subject, however, we note a few other complaints about the government's appellate narrative -- not for the sake of nitpicking but to alert this Court to the need to take precautions in this case against some of the government's rhetorical devices.

First, worse than the misplaced emphasis in the opening and closing pages of the government's brief (Gov. Br. 3-4, 18 n.*, 84) where the government has devoted such prominent attention to uncharged conduct -- again, that Mr. Messina was previously convicted of grand larceny and disbarred (as discussed in more accurate detail in appellant's brief at 7 & n.7); that Spence alleged Mr. Messina's knowledge of and willingness to participate in Spence's money laundering offense; and that Spence and Persichetti implicated Mr. Messina in Salerno's efforts to cash stolen checks (as discussed in appellant's brief at 10 n.11 and 15 n.22) -- is the government's unsupported attempt to embellish the strength of uncorroborated and disputed allegations of its cooperating witnesses. The government thus claims that "compelling evidence" contradicted Mr. Messina's testimony that he knew nothing about Spence's independent money laundering business nor the reason why Salerno and Persichetti were arrested in September 1994 (Gov. Br. 18 n.*) (Apparently, even the government recognizes that evidence of Mr. Messina's knowledge of Salerno's alleged stolen check business was far less than compelling.)

The government cites nothing other than Spence's direct and redirect testimony to "compel" the conclusion that Mr. Messina knew of Spence's money laundering (Gov. Br. 3-4). Nor does it acknowledge the testimony (noted in appellant's brief at 10 n.11) of two FBI agents who investigated the offense for months prior to Spence's November 1994 arrest: that Mr. Messina was not only never charged or named in the resulting money laundering complaint, but his name never came up during that entire investigation (Tr. 50-51, 56, 64, 1191, 1195). Then, contrary to the repeated argument that Mr. Messina had to have known of Clooney's abduction because he knew that Salerno and Persichetti extorted someone before (Gov. Br. 4, 84-85), Spence did not testify that he ever disclosed to Mr. Messina the reason for Salerno's earlier arrest as opposed to the fact of it (as noted in appellant's main brief at 12 n.15, and as the record confirms), nor did he mention Persichetti in this or any other context. Instead, as the case agent interpreted Mr. Messina's contemporaneous notes (GX-103B-1, Tr. 1119-20), Spence merely disclosed that Salerno had been arrested and arraigned on unspecified charges in August 1994, and that Spence had posted bond on Salerno's behalf.

Another noteworthy distortion is the government's claim (Gov. Br. 12 n.*) that "Messina's central role in negotiating for the ransom is apparent from Messina's handwritten telephone logs" showing his "constant contact" with Spence, Linda Argilla, Clooney, Salerno and "Tony" on the two final days of Clooney's ordeal as Spence's hostage, November 15-16, 1994. While the case agent did not analyze these records for evidence of Mr. Messina's numerous other legitimate calls to Biltmore principals, investors and creditors -- such as a substantial number of calls to Jerome Yaeger, who was one of the witnesses conflicted defense counsel did not call, and James Hinkeldey, the successor Biltmore president after Clooney was asked to resign -- the agent did acknowledge that these same logs (GX-101A, Tr. 1320-21) evidenced, not only the supposed "ransom" negotiations that are so "apparent" to the government, but numerous calls to individuals not alleged to have played any role in Clooney's extortion (Tr. 1245-59). As Mr. Messina testified (Tr. 1404-14, 1439-40, 1456), these calls were all for the purpose of salvaging Biltmore and pressing for Clooney's criminal prosecution -- an endeavor that no knowing participant in alleged "ransom negotiations" would be at all likely to simultaneously pursue.

Finally, the government misleadingly asserts that Mr. Messina "admitted at trial" that he destroyed his own personal notes "detailing the substance of numerous telephone conversations involving [Clooney's] extortion" (Gov. Br. 15-16, 49 & n.*). Mr. Messina certainly admitted that he destroyed notes covering the period from November 12-16, 1994 (Tr. 1420, 1428-29, as discussed in appellant's brief at 17 n.28, 30-31). He never "admitted", however, that those notes "involv[ed] the extortion" or any "kidnapping" or "ransom", as the government wrongly suggests (Tr. 1546, 1553-54).

8. ⁰ Elsewhere, the government acknowledges that the trial court could have relieved unpaid counsel "without the necessity for a further adjournment" if Mr. Messina's inability to pay counsel's fee had been brought to Judge Duffy's attention "at any time prior to December 4" (Gov. Br. 31). Of course, the trial court merely denied counsel's earlier request on December 4th, so this record does show a situation when, even under the government's restrictive view, counsel could have been relieved and new counsel appointed without further adjournment.

As for the government's complaint that "Messina fails to explain why neither he nor Rubenstein brought Messina's inability to pay to the attention of the Court" any earlier (Gov. Br. 31), there is a likely explanation in the record. Thus, Mr. Messina explained that, by September 1995, he realized his efforts to arrange financing to pay counsel's fees would not be successful and so advised counsel (SA 80-81, SA-133, SA-135). At the time, however, counsel was engaged in another trial that apparently lasted through or past the middle of October 1995 (SA 46-47). By the time counsel again focused on this matter, therefore -- and perhaps appreciated for the first time as well that there would be no disposition short of a trial in Mr. Messina's case -- it would already have been November 1995, when the difficulty was brought to the district court's attention.

9. ⁰ As evidence of his "substantial efforts to preparing this case", the government recites unpaid counsel's "detailed bail presentation" (SA 1-27) and "extensive pre-trial motions" (SA 29-45, which essentially boiled down to nothing more complicated or case-specific than a severance motion and pretrial requests for discovery and a bill of particulars) (Gov. Br. 21). Further, the government adopts unpaid counsel's claim, in his post-trial motion to be relieved, that he and an associate reviewed the government's voluminous discovery materials (SA 51). This summary of counsel's "substantial efforts" does not, of course, include any mention of Mr. Messina's most distressing pretrial discoveries: not only that unpaid counsel had left his young associate to the task of reviewing a mountain of discovery materials that were not even pertinent to this case, but that counsel's office had -- with only two weeks left before the trial -- misplaced or lost an entire file filled with hundreds of pages of exculpatory documents that were highly pertinent to Mr. Messina's defense (SA 79-81).

Of these indicia of counsel's pretrial preparations, only the bail application (SA 1-27) is significant -- but not for the purpose that the government thinks. What it demonstrates is that, in less than a month after he was retained by Mr. Messina, counsel had already grasped the substance and many details of the government's case. If counsel could absorb and argue as he did between his first appearance on March 2, 1995 (see A.1) and the eventual bail application on March 27, 1995 (SA-1), there was no reason why newly appointed counsel could not have done the same in the time between December 4, 1995 and January 8, 1996 -- and particularly so after Mr. Messina himself already isolated and organized the most pertinent discovery materials that could have been provided to new counsel as easily as Mr. Messina replaced the same files lost or misplaced by unpaid counsel's office during this same period (SA-80).

10. ⁰ The government offers no basis to distinguish any of the cited authority. Its response merely recites the local rule granting district courts broad discretion to deny requests for continuances, and cases upholding the exercise of such discretion (Gov. Br. 30-33) -- a principle that is not challenged with this appeal.

11. ⁰ The government's inapt "floodgate" argument (Gov. Br. 36-37) reveals a shocking insensitivity to indigence, which disadvantages a defendant no differently if he has been so for months or years or a lifetime. The government thus argues that defendants will supposedly be able to wrest "control" of trial court schedules and the defendant's legal representation merely by alleging a conflict created by their own willful "failure" or "refus[al]" to pay the balance of their legal fees. There is, of course, a big difference between a defendant who refuses to pay counsel and one who is unable to do so. Moreover, upon a district court's prompt and proper inquiry after timely disclosure of such a problem, there will doubtless be many cases in which either counsel or the defendant or both will indicate their ready willingness to continue in spite of the defendant's financial shortfall. Further, if the district court is concerned that proceedings may extend to a point that will become a hardship on unpaid counsel, counsel can be (and often is) appointed pursuant to Criminal Justice Act provisions permit such appointments "in special circumstances" (see, e.g., Local Rule VII(D), Southern District of New York's Plan for Furnishing Representation Pursuant to Criminal Justice Act of 1964). Only in cases where both the defendant and unpaid counsel join in a timely application to appoint counsel because of the defendant's inability to pay retained counsel -- the situation in this case -- will a court need to address the potential for a monetary conflict of interest situation with a simple solution: if the defendant is qualified for appointment of counsel as Mr. Messina was here, the court should afford that relief, as most probably do.

12. ⁰ The government protests that Judge Duffy is an "experienced trial judge . . . obviously well aware that he had the authority to appoint counsel for Messina under the Criminal Justice Act if Messina became financially eligible for CJA counsel while the case was pending" (Gov. Br. 32). If anything, the fact that a trial judge with Judge Duffy's conceded years of experience refused to appoint counsel -- despite a joint request by unpaid counsel and his client at a point in time when no continuance would necessarily have been required and when no one disputed the defendant's qualifications for appointed counsel that was eventually supplied after trial -- signals a pressing need for this Court's supervisory guidance on an issue to which remarkably little appellate attention has been devoted.

13. ⁰ The government attempts to distinguish Daniels as a case in which the defendant's claim was that his counsel was constitutionally ineffective in advising the defendant to plead guilty (Gov. Br. 36 n.*). While the defendant may have also raised a traditional ineffective assistance claim, the remand in the Daniels case was not for that purpose but to determine if the defendant's failure to pay all of counsel's fee (having paid only $2,000 of the $10,000 sum agreed upon) created an "actual conflict . . . that adversely affected [counsel's] performance" under Cuyler v. Sullivan, 446 U.S. 335, 348 (1981). The same claim is raised in this appeal, based on Mr. Messina's conceded inability to pay more than $10,000 of a fee that, after a five week trial, would have totalled some $160,000 at the agreed rate (see SA-50, SA-80). Certainly, if actual conflict was a possibility in Daniels after the defendant paid 20% of counsel's fee, unpaid counsel in this case had as or more cause to act from conflicting interests when only 6% of his fee was paid, and it was not just counsel himself but the staff of his entire small firm that depended on this income (SA-50).

14. ⁰ The disciplinary rule in New York (DR 2-110(c)(1)(vi), 22 N.Y.C.R.R. § 1200.15) in fact permits counsel to withdraw, with a court's permission where required and "if withdrawal can be accomplished without material adverse effect on the interests of the client", whenever a client "deliberately disregards an agreement or obligation to the lawyer as to expenses or fees". Plainly, this provision was not intended for defendants who are unable to pay attorney fees because of indigency, and no trial court should apply it in that situation, particularly when both the defendant and his unpaid counsel agree that it is time for a change.

15. ⁰ The cited case concerned the potential conflict created by an "ever present threat that [counsel's] attorney fees will eventually be forfeited", id. at 848, and was one of a trident of lower court decisions hoisted by the government (Gov. Br. 34-36) as support for Judge Duffy's refusal to appoint counsel upon learning that Mr. Messina was, not merely potentially, but in fact unable to pay previously retained counsel. The other two cited decisions do not make the apparently intended point any more persuasively. Thus, in United States v. Wright, 845 F. Supp. 1041, 1073 n.35 (D.N.J. 1994), the footnote cited by the government reported merely that the defendant had "alleged conflict as a result of [his] nonpayment of legal fees". Though the defendant also complained that counsel's assistance had been ineffective, id. at 1070-73, he did not allege that counsel's interests ever diverged in fact from those of his client on account of his failure to pay counsel's fees. As for United States v. Ramey, 559 F. Supp. 60, 62-63 (E.D. Tenn. 1981), that case did not involve a defendant's inability to pay counsel at all, but his stated "eve of trial" desire "to employ substitute counsel".

16. ⁰ The government now faults Mr. Messina on the one hand for his failure to "make any further proffer at trial of what [the proposed witnesses] testimony would have been" (Gov. Br. 23), and on the other hand for his description of the same evidence in his motion to set aside his conviction (Gov. Br. 25-26; see SA 137, 140-41). The complaint was not, as the government is apparently attempting to suggest, one that was simply "concocted" after trial: as shown in his pretrial renewal of his request for appointed counsel, another of Mr. Messina's very reasonable concerns about proceeding with unpaid counsel was his discovery that unpaid counsel had not merely lost his file, but had not interviewed any of the witnesses "critical" to the defense either (SA-80).

In any case, there is no requirement that a defendant act on his own behalf to preserve a claim that counsel's interests diverged on the basis of conflict. All that has to be shown is that there was a point of divergence that adversely affected the defense. See, e.g., United States v. Levy, 25 F.3d 146, 155 (2d Cir. 1994) (concluding that there had been point of divergence creating actual conflict, even though Court was unable to pinpoint it). Unpaid counsel's mid-trial defection from a position of undivided loyalty was such a point.

17. ⁰ As two of the cited decisions show, other defense counsel did not rely on conclusory "buzzwords" like "collateral", but were able to identify objective factors that showed why their decisions not to call particular witnesses were reasonable. See, e.g., United States v. Aiello, 900 F.2d 528, 533 (2d Cir. 1990) (witnesses made prior inconsistent statements); United States v. Cruz, 785 F.2d 399, 406 (2d Cir. 1986) (witness' criminal activity).

18. ⁰ The government argues that Mr. Messina's legitimate and good faith efforts to restore Biltmore's standing as a valuable investment and to press for Clooney's criminal prosecution -- conduct that continued during and after period when Spence held Clooney hostage -- says nothing about "whether Messina was at the same time also participating in the extortion" (Gov. Br. 43). It may well say nothing to the government, but that is not the point: the evidence could have raised further doubt in the jury's mind about Mr. Messina's knowledge and intent, and unpaid counsel's failure to present it therefore adversely affected the defense.

For that matter, apart from the content of their testimony, each of these three witnesses would have been a welcome change from the parade of thugs that the government presented as if such individuals constituted the universe of Mr. Messina's usual associates. Both Yaeger and Wechsler were blameless citizens, and even Madden was less culpable than Clooney in the misappropriation of Biltmore's assets. Thus, even if the content of their testimony turned out less substantial than expected, these witnesses could have done much to counteract the government's portrayal of Mr. Messina as some sort of desperate disbarred derelict who would do anything with anyone for a buck. Instead, with some insight into his legitimate activities in the period, the jury may well have better appreciated that, even though he made a major mistake once -- and lost much on account of it -- his work on Spence's behalf was not aimed at making a worse mistake again.

19. ⁰ The government's attempts (Gov. Br. 42-43) to construct some reasonable basis for unpaid counsel's failure to call the defense witnesses are lame. As to Yaeger, the government summarily dismisses his testimony as "irrelevant", even though the jury would plainly have had a basis for reasonable doubt upon hearing from a legitimate Biltmore investor that, throughout the time that Mr. Messina was supposedly participating in Clooney's extortion, Mr. Messina spent a substantial amount of time pressing for Clooney's criminal prosecution and attempting to resurrect Biltmore -- meaningless goals to anyone privy to Clooney's abduction had Spence thereby managed to wring repayment from Clooney by threat of force.

As to Wechsler, the government posits that his testimony would not have been "helpful", and suggests that it would even have been "very damaging" if Wechsler confirmed the undisputed fact that Mr. Messina signed a receipt as Spence's agent (GX-66) before Wechsler released the $7900 cash sum that Clooney brought to Wechsler's law firm after his release. How "damaging" that could be -- when Clooney and Mr. Messina both said the same -- is none too clear. Moreover, while the government now speculates that Wechsler would have confirmed Clooney's testimony that he had turned over his passport upon Mr. Messina's supposedly unilateral demand (Gov. Br. 43-44), it is just as likely -- or more so, as it was Mr. Messina, not the government, who wanted to call this witness -- that Wechsler would have confirmed Mr. Messina's testimony instead: that Clooney's passport had been requested to assuage the concerns of Biltmore's investors (Tr. 1469). Also, Wechsler would have been an important witness who could confirm, not only how actively Mr. Messina had pursued Clooney's criminal prosecution throughout the relevant period, but that Mr. Messina's efforts were in sharp contrast to Wechsler's employer, Weinig, who did not press for Clooney's prosecution at all -- as one might expect of anyone engaged in unlawful conduct, as Weinig was at that time. Surely, Wechsler's evidence on this point would have been far more compelling evidence of Mr. Messina's lack of criminal involvement than, for example, the case agent's lukewarm testimony that he was "aware" that Mr. Messina had spoken to Weinig and Wechsler and others about taking the Biltmore matter to the authorities, even during the period of Clooney's abduction (Tr. 1277, 1280-81, GX-102D, E).

Finally, the government argues that the testimony of Biltmore officer Madden would have been "cumulative" to the extent that Spence and Clooney had already testified about Mr. Messina's lawful efforts on Biltmore's behalf (Gov. Br. 42). Further, the government assumes that, as Madden paid Spence $25,000 shortly after Spence threatened him in mid-November 1994, Madden would testify that Spence's threat was his motivation, not Mr. Messina's earlier legitimate demand letter, as Mr. Messina testified (id. n.*). No evidence suggested, however, that Mr. Messina was aware of Spence's threat. Madden therefore could have confirmed how Mr. Messina had pursued lawful negotiations with Biltmore officers at the same time as Spence independently engaged in the sorts of extortion to which Clooney and Madden were apparently exposed.

20. ⁰ For example, the government asserts that the trial court's questioning about Mr. Messina's destruction of personal notes was merely to "clarify" that he had not destroyed his notes on the advice of counsel (Gov. Br. 60-61). There was no such implication in the testimony. To the contrary, Mr. Messina repeatedly stated just the opposite, in his direct testimony that he "t[oo]k full responsibility for it, I just made a decision to throw away those six pages" (Tr. 1427-28), and on cross-examination, when he confirmed that "I threw those notes away . . . I just made a judgment call that, although not incriminating . . . [the notes] weren't complete enough and could cause me a problem" (Tr. 1553-54). Thus, when the trial court petulantly questioned Mr. Messina about his destruction of a few pages of notes after his apparent refusal to submit to the "authority" of the Federal Bar Council Red Book (Tr. 1564), it was plainly not to "clarify" any "ambiguity". Nor did the judge ever convey an impression that "in essence" Mr. Messina's answers were "correct", as the government strains to suggest (Gov. Br. 61).

Likewise, the court's questioning about whether or not Mr. Messina met Persichetti should have been left to the government, which now claims it was on the point of impeaching Mr. Messina's earlier testimony when it was "interrupted" by the judge doing it instead (Gov. Br. 46-47). As Mr. Messina had already corrected what was at worst a misstatement both in his direct testimony (Tr. 1449) and on cross-examination (Tr. 1487), the court's interruption simply served no proper purpose. Moreover, the government made a point of cashing in on the court's "assist" when arguing in summation that Mr. Messina supposedly lied at trial about knowing Persichetti (Tr. 1627-28).

21. ⁰ In Mason, this Court recognized that the jury found the case a "close" one, as evidenced by the jury's initial inability to reach a verdict. Id. at 45. Here too, there is a strong inference from Mr. Messina's acquittal on the closely related conspiracy count that his jury similarly viewed the evidence against Mr. Messina as "close".

22. ⁰ The government also correctly points out that counsel never even objected to the trial court's intrusions (Gov. Br. 58). This may represent but another adverse effect from counsel's conflict: that he was loath even to suggest the possibility of a mistrial lest he should have to spend more time stuck in a case without pay. Indeed, counsel did not even spend a few extra moments in an attempt to rehabilitate Mr. Messina's testimony after the trial judge's impeachment (Tr. 1564). In any case, as noted in appellant's brief (at 52 n.78), such issues should be reviewed with or without objection, as this Court did in United States v. Filani, 74 F.3d 378, 387 (2d Cir. 1996).

23. ⁰ The government notes its objection to our objection to the trial court's reliance on "objectionable extrinsic evidence" when consulting -- not to mention displaying to the jury in a manner that merely enhanced the prejudice -- the Federal Bar Council Red Book (Gov. Br. 61 n.*). Such proof is prohibited, however, under Rule 608(b) of the Federal Rules of Evidence. Nor does Rule 201, Fed. R. Evid., save the Red Book as the government suggests: a court may only take judicial notice of facts "generally known" from "sources whose accuracy cannot reasonably be questioned". Clearly, the historical hierarchy of the Federal Bar Council is not "generally known", and the Red Book was demonstrably wrong on the subject, so its accuracy can be questioned.

24. ⁰ Indeed, Mr. Messina's present sentence sharply conflicts with the results of his polygraph test, had the lower court considered that evidence. The government now contends that, by permitting a witness to testify about his methods before concluding that "the rule of law which excludes polygraphs is the right one" (A.28), the trial court did consider the evidence and there is no reason for this Court to review the issue of polygraph test result admissibility at sentencing (Gov. Br. 85-86, 90). Nevertheless, in a case where the defendant attempted to assure that the test results were reliable by adopting and submitting to a variety of recognized safeguards, the trial court should not have so facilely concluded that exclusion of the test results was "right". We rest on the arguments in appellant's main brief (at 58-61), but respectfully suggest again that this Court should afford some guidance to the lower courts on the permissibility of polygraph evidence at sentencing under the broad provisions of Policy Statement § 6A1.3(a).

25. ⁰ Even the government's present statement of its evidence does not assert more than Mr. Messina's after-the-fact knowledge of Clooney's abduction (Gov. Br. 78, 85). As the enhancement only applies if the act of abduction is undertaken to "facilitate the offense", any defendant who only becomes aware of a completed abduction cannot be sensibly construed to have intended to advance the accomplishment of some other offense with an act in which he did not even participate or know about beforehand.

26. ⁰ In the government's bravado view, Mr. Messina's knowledge or ability to foresee that Salerno or Persichetti would brandish a gun "is virtually compelled" by its inaccurate statement of facts (Gov. Br. 85). Again, Spence did not testify that he ever told Mr. Messina that Salerno and Persichetti were arrested for extortion, but merely about the fact of Salerno's arrest (Tr. 136-38). Indeed, Salerno's prior extortion offense did not even reportedly involve anyone's use of a gun.

This is therefore not a case like United States v. Molina, 106 F.3d 1118 (2d Cir. 1997), on which the government inaptly relies (Gov. Br. 83 & n.*). In Molina, the defendant knew that his coconspirator robbers were armed because he agreed in advance on which of the robbers would serve as gunmen, and he carried two loaded weapons to the site of the robbery. He also had a reasonable basis to foresee or know that the "armed" guard at a check cashing store was one of the "people carrying sidearms" that the robbers would likely confront. He even understood that an exchange of gunfire between the guards and the robbers was "probable". Under those circumstances (having nothing to do with the fact that the offense was a "single armed robbery", as the government suggests), the defendant could reasonably foresee that someone could be injured by an exchange of shots. No remotely similar evidence showed a basis for Mr. Messina to know of or foresee anyone's display of a gun.

27. ⁰ Blind faith is not, of course, a tool on which Guideline sentencing should depend. Instead, as this Court recently described the process in a civil appeal, "reasonable" inferences are only those derived "from proven facts because . . . experience, or history, or science ha[s] demonstrated that there is a likely correlation between those facts and the conclusion", making the inference "reasonable" when the "correlation is sufficiently compelling". Goldhirsh Group v. Alpert, 107 F.3d 105, 108 (2d Cir. 1997). When the necessary correlation is weak or absent, as it was here, "the link between the facts and the conclusion becomes so tenuous that we call it 'speculation'". Id. Such "speculation" should not be permitted to support Guideline adjustments that so substantially impact on the degree of punishment imposed.

28. ⁰ Even in cases where a defendant's testimony is "so inherently untruthful that the factual prerequisites to a perjury enhancement are obvious", that "cannot relieve the district court of the burden of making its own independent findings". United States v. Williams, 79 F.3d 334, 337-38 (2d Cir. 1996); United States v. Catano-Alzate, 62 F.3d 41, 42-43 (2d Cir. 1995). Those findings are all the more critical in a case like this, where the defendant's testimony was so plausible that the jury acquitted him of a conspiracy charge, thereby evidencing its rejection of some part of the testimony of the government's witnesses.

29. ⁰ The government acknowledges this Court's consistent line of authority requiring a district court's specific findings on each of these elements, but argues that the court's omission in this case should be excused "because the defendant did not request that these findings be made" and because it is supposedly a "defendant's burden to press for fact-findings to which he was entitled under the caselaw" (Gov. Br. 73-75). This crafty attempt at burden shifting should be rejected where the defendant did object to the enhancement prior to sentencing (SA-150), citing authority that directs a district court's independent findings on the issue after evaluating the challenged testimony in a light most favorable to the defendant (SA-153).