Friday, February 25, 2005

The Circuit Weighs In -- Again -- on the Plain Error Question in Booker/Fanfan Cases

United States v. Williams, Dkt. No. 04-2882-cr (2d Cir. February 23, 2005)

In Williams the Circuit, with Judge Newman writing, has added further comment on its plain error approach in Booker/Fanfan cases, as set out in United States v. Crosby, noted here. The Court reiterated the two types of errors in Booker and Fanfan -- mandatorily enhancing a sentence based on facts not found by the jury and, as in Fanfan, "mandatorily imposing a Guidelines sentence even though it is based only on facts found by the jury." And it once again held that the proper response to such errors was to remand to the district court, not for resentencing, but to determine whether a materially different sentence would initially have been imposed under Booker and Fanfan, and if so, to conduct a resentencing.

The major portion of the opinion consists of the Court's response to different plain error approaches taken in other circuits and an explanation of why it adheres to the limited remand adopted in Crosby. Initially, however, the Court makes an interesting historical argument noting the origins of the plain error rule in two concerns, protecting the legal rights of the parties below on the one hand, and avoiding the costs of multiple jury trials on the other. The balance between these two concerns, the Court noted, was different in the sentencing context for two reasons. First, after a jury trial, the "first jury is no longer available to advise as to what it would have done in the absence of error," but in the sentencing context, the district judge is available and well-equipped to answer the question whether its error was prejudicial. And second, a resentencing, unlike a new trial, is a "brief event," with relatively small attendant costs.

In canvassing the approaches of other circuits, the Court disagreed with the Eleventh Circuit that the "consequence of uncertainty" about the existence of prejudice "must be that the defendant necessarily loses." Its disagreement was rooted in the distinction between the application of plain error at sentencing and at trial; the Court could "see no reason to risk leaving in place a sentence that might be materially lower or higher than the one that would have been imposed without error." On the other hand, the Court departed from the views of other circuits that a full resentencing would usually be required if error were found, because of additional risks and burdens that approach created. The disposition set out in Crosby, it concluded "avoids the risk that leniency or harshness resulting from legal error will remain uncorrected, yet it also avoids what might turn out to be the needless burdens and risks of automatic resentencing."

Thursday, February 24, 2005

The Attorney Client Privilege Extends to Communications Between Government Officials and Their Government Lawyers

In re Grand Jury Investigation (United States v. John Doe), Dkt. No. 04-2287-cv (2d Cir. February 22, 2005)

Creating a circuit split, but in a case that may not be reviewable in the Supreme Court, the Circuit holds that the attorney-client privilege operates with respect to government officials and their government lawyers to the same extent that it applies in the private sphere. The opinion, written by Chief Judge Walker, and joined by Judges Leval and Jacobs, is a resounding reaffirmation of the "public interest" served by the privilege.

In the investigation of former Governor John G. Rowland of Connecticut, the government had subpoened the former chief legal counel to the Office of the Governor to testify to communications concerning the receipt of gifts by officials and the "meaning of related state ethics laws." The Office of the Governor (both before and after Governor Rowland's resignation) asserted the privilege, but the district court held that the privilege did not apply "because the interests served by the grand jury's fact-finding process clearly outweigh the interest served by the privilege," and that the "governmental" attorney-client privilege differed from the private privilege because the government lawyer's duty did not lie solely with the agency, but also with the public.

The Circuit rejected this reasoning in all respects. It showed that there had long been assumed to be a governmental privilege of some scope, and it squarely rejected the argument that in a criminal case the "public interest" in having all relevant evidence of crime outweighed that privilege. One could as easily conclude, the Court stated, "that the protections afforded by the privilege ultimately promote the public interest, even when they might impede the search for truth in a particular criminal investigation." Indeed, the Court thought the rationale for the privilege had "special force" in the governmental situation because of the "crucial" need for officials "to receive fully informed legal advice."

The Circuit further rejected arguments that the privilege did not function in the same manner in the public as in the private context or that there should be some kind of balancing test for determining the applicability of the privilege on a case-by-case basis.

The Court noted that its decision was in conflict with a decision of the Seventh Circuit and in "sharp tension" with decisions of the Eighth and District of Columbia Circuits. It is unlikely that this case will lead to the Supreme Court, however, since, following issuance of the Court's order of reversal in August, 2004, Governor Rowland pled guilty, rendering further substantive proceedings in the case moot, in all likelihood. The Court noted that issuing an opinion justifying its August order was not prevented by the mootness doctrine, but it seems likely that a further government appeal would be.

Friday, February 18, 2005

Circuit Finds Pre-Blakely Use of Mandatory Guidelines Harmeless Where Mandatory Minimum Exceeded Guidelines Range

United States v. Sharpley, No. 04-2934 (2d Cir. Feb. 16, 2005): In Sharpley, after quickly disposing of two merits-based challenges to the defendant's convictions for sexually exploiting a child for production of visual material (18 U.S.C. section 2251) and for being a felon in possession of a firearm (18 U.S.C. section 922(g)(1)), the Court rejected an appeal of a 180-month sentence, where the length of the sentence was driven entirely by a statutorily-imposed mandatory minimum, rather than the Sentencing Guidelines. Mr. Sharpley's applicable sentencing range would have been 108 to 135 months but for the 15-year mandatory minimum, which effectively turned the "range" into a "point". The Court held that this "is the rare case where we can determine without remand that the district court's use of the Guidelines as a mandatory regime was harmless error," because Sharply could not obtain any improvement in his sentence in resentencing. Indeed, the Court noted that the district court's use of a mandatory Guidelines scheme was "not necessarily harmless as to the government," which could have sought a sentence up the statutory maximum of 30 years. But since the government had not appealed or cross-appealed Sharpley's sentence (or, responded to the Panel's apparent invitation to request resentencing), there was no reason for the Court to send the case back.

Despite the relatively straightforward nature of the decision in Sharpley, the case has made some noise in the blogosphere by weighing in (albeit only in a footnote) on one of the many post-Booker debates that has been highlighted by Professor Berman. As Professor Berman has previously discussed on his blog there remains some uncertainty as to the continuing force of 18 U.S.C. section 3553(b)(2), a creation of the Protect Act which had provided for an even more rigid standard -- i.e., one which could never be met -- for granting downward departures for certain child crimes and sex offenses, and specifically required judges to follow the Guidelines in such cases. Unsurprisingly, the provision did nothing to restrict the availability of upward departures in such cases. In Booker, the Supreme Court never even mentioned section 3553(b)(2), let alone exised it, raising the possibility that it continues to remain in force. In Sharpley, the Second Circuit noted that there were "no unique features of the Guidelines sentences for child crimes and sexual offenses that would prevent them from violating the Sixth Amendment in the same manner as Guidelines setences for other crimes." As a result, the Panel opined that the Supreme Court's failure to exise section 3553(b)(2) "was simply an oversight."

This provoked a rather heated comment from criminal defense lawyer and frequent blog contributor, Peter Goldberger, who argues that "the Supreme Court did not "fail" to excise 3553(b)(2), or overlook it. The Supreme Court is a *court*, not a legislature or a law professor. Bound, like all federal courts, by Article III of the Constitution, it decides only "cases and [actual] controversies," not abstract disputes about issues. Section 3553(b)(2) was in no way implicated by Mr. Booker's or Mr. Fanfan's case. Hence, the Supreme Court did not address it."

While Mr. Goldberger does a good job providing a principled defense of the Supreme Court's non-mention of section 3553(b)(2), his argument gives the Court too much credit. It is next to impossible to believe that the Court knew it was leaving in place such an obvious logical discrepancy but chose to remain entirely silent on the issue. While Goldberger is correct in noting that the precise issue was not before the Court (since neither Booker nor Fanfan involved child crimes or sex offenses), the majority could have simply noted that section 3553(b)(2) was not implicated by the case and that it therefore did not need to be addressed. More likely, however, it was, as the Sharpley Panel opined, simply an oversight.

Wednesday, February 16, 2005

Get Yer Crosby Remands Here! Get Yer Crosby Remands Here ... !

Readers should rest assured that we continue to monitor the Second Circuit each day for new criminal and habeas (and sometimes immigration) decisions. There have been no new posts on this Blog simply because the Court has not issued any published decisions in these areas in the last week and a half.

On the Booker / Crosby front, the only news to report is that the U.S. Attorney's Offices for both the Southern and Eastern Districts of New York are complying with Crosby for cases pending on appeal and are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker. The only exception to this policy, apparently, are cases involving plea agreements with appellate waivers. The Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against the defendant / appellant.

Given that there is already a circuit split on the post-Booker plain error question (the 11th Circuit, e.g., has specifically rejected Crosby), and given the possibility that DOJ may seek rehearing on Crosby (or even file cert. if rehearing is denied), it seems wise for counsel to seek such remands as soon as possible. After all, once a district judge, at the "threshold" remand proceeding to determine "whether to re-sentence the defendant", has announced that s/he would indeed have imposed a materially different sentence under the post-Booker regime, an appellate court would be hard pressed to say, even if Crosby is eventually undermined, that there was no plain error in that case. In short, get going while the going's good: Get your Crosby remands as soon as possible.

Finally, just a reminder to all -- please post comments whenever you wish via this Blog, and please e-mail us if you have any questions or comments.

Sunday, February 06, 2005

Circuit Upholds Pre-Blakely Appeal Waiver in Unpublished Opinion

United States v. Fleischer, No. 04-3911 (2d Cir. Feb. 3, 2005) (UNPUBLISHED SUMMARY ORDER): In a little noticed unpublished summary order, a panel of the Circuit upheld an appeal waiver, contained in a plea agreement entered before the Supreme Court's Blakely decision, and dismissed an appeal in which the defendant challenged his Guidelines-imposed sentence. In resolving this complicated question, the panel simply pointed to the Court's earlier decision in United States v. Morgan, 386 F.3d 376 (2d Cir. 2004), as dispositive: Appellant's argument that "the waiver provision in his plea agreement is inoperative because it was entered before the Supreme Court clarified the Sixth Amendment's application" in Blakely and Booker "is clearly foreclosed by our recent decision in United States v. Morgan." (Summary Order at 3).

Morgan, of course, says no such thing. Rather, Morgan involved an appeal raising a typical Apprendi challenge (to a sentence imposed under 21 U.S.C. § 841(a)) , and the appeal waiver was contained in a plea agreement entered into two years after the decision in Apprendi. 386 F.3d at 381 n.3. Indeed, Morgan explicitly reserved the question of whether a similar appeal waiver would be enforceable had it been entered before Apprendi was decided:

"We do not, of course, foreclose the possibility that an otherwise valid waiver might be deemed unenforceable against an Apprendi claim if a defendant can establish that he was unaware of his Apprendi rights at the time he entered into his plea agreement. However, it is not necessary to reach or to address that contingency here. Morgan, who entered his plea two years after Apprendi was decided, does not assert that at the time of the plea negotiations he was ignorant either of the Apprendi decision or of the alleged Apprendi error he urges here." Id.

In Fleischer, in contrast, the appeal waiver was entered into before Blakely was decided. Thus, Morgan did not in any way "clearly foreclose" appellant's argument that the waiver was unenforceable.

Thank goodness this result was reached only in a summary order and thus has no precedential value. The close and complicated question of whether a pre-Blakely appeal waiver is enforceable deserves much fuller analysis and treatment. Moreover, this summary order is clearly inconsistent with at least the spirit, if not the letter, of the Circuit's decision in Crosby. As discussed in previous posts, Crosby remands essentially all cases in which the sentencing occurred before Blakely, even where no 6th Amendment objection was raised, and even where the facts underlying the Guidelines sentence were admitted by the defendant or found by a jury.

Friday, February 04, 2005

Second Circuit Issues Blanket Order Permitting Remand in All Cases in which the Mandate Was Withheld Pending Booker

Just moments ago, the Second Circuit issued a blanket order addressing all previously decided criminal cases in which the mandate had been withheld pending the Supreme Court's decision in Booker, pursuant to Chief Judge Walker's August 6, 2004, order. Please see the Circuit's website for this blanket order (

As expected in light of Crosby (see below), the Court is permitting all appellants in those cases (listed in an Appendix attached to the court's blanket order) to have their cases remanded back to the district court for a determination of whether a resentencing is warranted. Any appellant desiring such a remand must simply complete a very basic form, attached to the Court's order, and return it to the Court (either by FAX or by mail). If an appellant does not wish to have his/her case remanded, s/he need do nothing.

No precise deadline is given for when the required form must be returned to the Court. The order states only that it must be "promptly" submitted.

Appeal of a Magistrate Judge's Detention Order Must Be Made to the District Court, Not to the Appellate Court

United States v. Harrison, Docket No. 04-4725 (2d Cir. Feb. 3, 2005) (per curiam). Not much more to add -- the title to this post says it all. Quite a mystery as to why the defendant did not simply appeal the magistrate's detention order to the district court, rather than directly to the Second Circuit, given that the law is (and has long been) so clear on this issue ...

The Little Case that Could -- U.S. v. Fleming

Some additional comments regarding Fleming (No. 04-1817-cr) to supplement David's excellent post below on the "Booker Trilogy" issued by the 2d Circuit on February 2nd.

Though Crosby is clearly the Big Daddy of the bunch, Fleming must not be overlooked because it answers two critical questions left somewhat unanswered in Crosby -- (1) what does it mean that judges have to "consider" the Guidelines range in imposing sentence, post-Booker? and (2) what does "reasonableness" mean on appellate review? Fleming (also by Judge Newman, and argued two days after Booker was decided -- the same day as Crosby) is, essentially, the first appeal of a post-Booker sentencing. This is because it involved the appeal of a sentence imposed upon revocation of supervised release, and the sentencing phase of a revocation proceeding, even in the pre-Booker world, was basically the same as a sentencing phase in the post-Booker world (in light of Breyer's remedial opinion) -- i.e., each required/s the judge to look to advisory Guidelines and 3553(a) factors in determining an appropriate sentence. Additionally, the same basic standard of review applied/s -- reasonableness (well, review of revocation sentences used to be on the "plainly unreasonable" standard, but what's the real difference?). Fleming thus contains a blueprint of sorts for both the post-Booker sentencing proceeding, and the post-Booker sentencing appeal.

And the decision is excellent in answering both questions above. FIRST, regarding the Booker / 3553(a) requirement that the sentencing court "consider" the Guideline range, Fleming holds that it will be sufficient if the court is simply aware of the range. There is no requirement that the court must "weigh heavily" or treat as presumptive that range -- as Judge Cassell concluded in Wilson.

Fleming specifically rejected the argument that to "consider" means to evaluate with "a measure of sustained reflection." Rather, given the background assumption that district judges understand the law, "no specific verbal formulations should be prescribed to demonstrate the adequate discharge of the duty to 'consider' matters relevant to sentencing." Indeed, so "long as the judge is aware" of the applicable range, and nothing in the record indicates misunderstanding on this score, "we will accept that the requisite consideration has occurred."

SECOND, regarding the standard of review of post-Booker sentences, Fleming explains that "reasonableness in the context of review of sentences is a flexible concept," and then adopts a posture of deference to district courts. As it states, "The appellate function in this context should exhibit restraint, not micromanagement." And while "the brevity or length of a sentence can exceed the bounds of 'reasonableness,' we anticipate encountering such circumstances infrequently."

This is a clear signal that the Second Circuit will not be examining all sentences outside the advisory Guidelines range (i.e., non-Guidelines sentences, in Crosby's lingo) with a fine-tooth comb on appellate review. Whether this is good news or bad news depends of course on the particular sentence imposed by the district judge in your case. I would guess, though, that in this Circuit, most non-Guidelines sentences will be lower than the Guideline range, and thus that a deferential stand of review will be favorable for the defense in most cases.

Wednesday, February 02, 2005

A Booker Trilogy

United States v. Crosby, No. 03-1675 (February 2, 2005)
United States v. Fleming, No. 04-1817-cr (February 2, 2005)
United States v. Green, No. 04-6564-cr (February 2, 2005)

In one remarkable opinion in Crosby and its two sidekicks, Fleming and Green, the Circuit discusses, if not settles, many of the issues involved in carrying out the Booker remedy. Crosby in particular is a must-read, since no summary can do it justice. It makes a fine addition to Judge Newman's long line of distinguished sentencing opinions. It considers the implications of Booker broadly, as well as with reference to the case at hand, and in doing so covers a broad swath of sentencing law.

In considering the application of Booker to future cases, one noteworthy theme of the Crosby opinion is that the Guidelines have not become merely "a body of casual advice." A somewhat contrasting theme, however, is that to comply with the law, a court must merely "consider" the Guidelines. And beyond the duty to ascertain -- in most cases -- the effective guideline range and any applicable departures, the opinion does not say what consideration requires, and in fact, a hefty portion of it is devoted to noting what "consideration" does not require.

Two aspects of "consideration" that the Court does note are significant. First, the Court states that sentencing courts need not always reach a firm decision as to what the correct guideline range is if they consider the possible ranges and determine instead to impose what the Court calls a "non-guidelines" sentence. This would be appropriate, the Court indicates, where the factual issues are difficult or the Guidelines too incomprehensible. Second, the Court declines to be drawn into the brewing warfare (see Judge Cassell's latest Wilson effort) over how much "weight" to assign the Guideline range in a court's sentencing decision, beyond requiring that it be considered.

The appellate ramifications of Crosby are by far its most immediately significant, however. The Court discusses the new "review for reasonableness" as consisting of two parts: review for "length" and review for "legal error," much preferring to deal with the latter. Significant space is expended dealing with potential legal errors that would render a sentence "unreasonable," but the most significant is this: it was error for a judge, pre-Booker, to treat the Guidelines as mandatory in sentencing a defendant. While doubtless correct, there is considerable irony here, since the Circuit directed its district judges in Mincey to commit just this error.

The conclusion that it was error to treat the Guidelines as mandatory leads the Court to the question whether it was "plain error" in Crosby's or other cases. And the answer is -- the Court doesn't know, but it knows how to find out. There would be plain error, the Court concludes, if the defendant was prejudiced by mandatory application of the Guidelines, a difficult question in many cases. The Court's solution is to grant a remand in such cases, but not for resentencing. Rather the remand is for the district judge to consider whether to resentence. Thus, the Court creates a widely available remedy of somewhat limited scope that, nonetheless, permits district courts to remedy any prejudice to defendants (or the Government) that may have occurred by determining that a "materially different" sentence would have been imposed under Booker.

The Court deals with "reasonableness" review in both Crosby and Fleming, the latter a case reviewing a sentence for revocation of supervised release. Although the Court states that there is reasonableness review of sentences for "length," there is little indication that the Court envisions review that has any real teeth. Indeed, it is perhaps unfortunate that the Court used Fleming as the vehicle for discussing reasonableness since it involved a sentence for a supervised release violation with a maximum of two years and the Court has never (so far as I am aware) reversed such a sentence as "unreasonable" absent actual legal error. Fleming explicitly suggests that this "hands-off" attitude will continue, but one must wonder whether, in the context of much heavier sentences, the Court will decide that length is, after all, important.

Finally, Green, the poor stepchild of the group, reaches the by now unremarkable conclusion that Booker is not retroactive on collateral review (until the Supeme Court says it is, anyway).

There are numerous other aspects of Crosby that are significant as well; go read it.

UPDATE: It has been suggested that I clarify that Green dealt with a second and successive habeas petition and that, clearly, Booker cannot be retroactive in that context until the Supreme Court declares that it is.

Tuesday, February 01, 2005

Second Circuit Interprets Hyde Amendment for First Time

United States v. Schneider, No. 03-1764 (January 14, 2005)


Jeffrey Schneider was an accountant at a company that funded residential loans, and was implicated in a fraudulent scheme on the part of some of the company's principals to skim funds from escrow accounts. There were several years of contententious pretrial proceedings, some of the highlights of which included: (1) a failed proffer session at which defense counsel balked at some of the terms of the agreement, which led the prosecutor to tell Schneider that his attorney was "making a very big mistake;" and, (2) a decision by different prosecutors more than a year later not to pursue criminal charges, even though an indictment had been filed.

Schneider went to trial and was acquitted. He then moved in the district court for attorney's fees under the Hyde Amendment, which has been codified as a statutory note to 18 U.S.C. § 3006A. In the district court Schneider made two arguments. First, he claimed that the prosecution against him was "vexatious, frivolous, and in bad faith," and also argued that the Hyde Amendment authorized the court to review in camera certain government-prepared memoranda relating to its decisionmaking processes. The district court held that Schneider had not established any entitlement to attorney's fees and that, although in some circumstances a district court could order the government to produce privileged documents for inspection, Schneider had not made a showing that he was likely to prevail, and hence no such order was appropriate.

The Circuit's Decision

The Court of Appeals first considered whether the prosecution was vexatious, etc., concluding that the mere fact that Schneider was acquitted could not lead to a successful Hyde Amendment claim. The court noted that government trial witnesses had directly implicated Schneider in the charged fraud, and rejected the notion that Hyde Amendment liability could be grounded on a claim that the government's witnesses were not credible. The Court also reviewed the eventful pretrial history of the case and determined that what the defendant viewed as bad faith was nothing more than "hard-fought bargaining" on the part of the government. The Court did fault the government's conduct in some respects, noting that a prosecutor had made two "probably inappropriate" statements directly to Schneider during an aborted proffer session. However, that conduct, whether done in good or bad faith, was "too insigificant" to be the basis for Hyde Amendment liability.

The second issue considered was whether the Hyde Amendment authorized the production of an internal government memorandum allegedly recommending that the prosecution be dropped. The Court did not decide this issue, although in dicta it indicated that it tended to agree with the view that there was nothing in the Hyde Amendment that authorized discovery. In the end, the Court merely agreed with the district court that Schneider had not raised even the likelihood of government liability, and that under those circumstances no disclosure was warranted.

District Court Erred in Considering "Ex Post Data" in Collateral Challenge to Deportation

In United States v. Scott, No. 04-937-cr (January 11, 2005), the Court considered several important questions relating to collateral challenges to the deportation underlying an illegal reentry prosecution.


Kevin Eric Scott had previously appealed the district court's denial of his motion to dismiss the indictment, and the Court had remanded the case to the district court to consider the effect of United States v. Perez, 330 F.3d 97 (2d Cir. 2003), which was decided while Scott's appeal was pending. On remand, the Scott again challenged his deportation, asserting that his immigration attorney's failure to seek 212(c) relief amounted to a due process voilation. The district court rejected this argument, and again denied the motion to dismiss.

The Court's Ruling

In this second appeal, the Court again held that, as in Perez, ineffective assistance of counsel at a deportation hearing could be the basis for a collateral challenge to the deportation. Here, as in Perez, counsel's poor performance -- he failed to file a 212(c) application after the immigraton judge ordrered him to do so -- amounted to a fundamental procedural error.

The Court then concluded that Scott was prejudiced by his attorney's ineffectiveness. First, and most significantly, the Court concluded that the district court had erred in considering "ex post data" -- a conviction that occurred after the deportation hearing -- in concluding that Scott would probably not have obtained 212(c) relief. After reviewing the relevant immigration and criminal precedents, the Court held that section "1326(d)'s prejudice inquiry does not extend byond the fairness of the deportation order itself. ... [I]n assessing whether the defendant-alien had a reasonable probability of not being deported .. the district court should reconstruct events as they existed at the time of the disputed deportatoin proceeding, without consideing future occurrences."

The Court concluded that, in the absence of the ex post data, Scott had a reasonable likelihood of receiving 212(c) relief in light of his family circumstances, employment history, long residence, and young age at arrival, factors that would have outweighed Scott's four prior convictions.

The Court accordingly reversed the judgment of the district court and vacated Scott's conviction.

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

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

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

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

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

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

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

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

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