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‐ 1782

Amato v. United States



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

“ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 27 th day of February, two thousand

nineteen.

PRESENT: DENNIS JACOBS,

RICHARD J. SULLIVAN,

Circuit Judges,

EDWARD R. KORMAN, *

District Judge.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

BALDASSARE AMATO,

Petitioner

‐ Appellant,

‐ v. ‐ 17

‐ 1782

* Judge Edward R. Korman, of the United States District Court for the Eastern

District of New York, sitting by designation.2 UNITED STATES OF AMERICA,

Respondent

‐ Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

FOR APPELLANT: David I. Schoen, Montgomery, AL.

FOR APPELLEE: Andrey Spektor, Assistant United

States Attorney (Susan Corkery,

Assistant United States Attorney, on

the brief), for Richard P. Donoghue,

United States Attorney for the

Eastern District of New York,

Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Garaufis, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court be

AFFIRMED

.

Petitioner

‐ Appellant Baldassare Amato appeals from the judgment of the

United States District Court for the Eastern District of New York (Garaufis, J.)

dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255

(the “petition”). Amato contends that his trial counsel was conflicted and

ineffective, and that the district court abused its discretion in failing to conduct a

hearing. We assume the parties’ familiarity with the underlying facts, the

procedural history, and the issues presented for review. For the reasons

explained below, we now affirm.

In January 2004, Amato was indicted along with 27 other individuals for

criminal activities of the Bonanno crime family. Amato was charged with three

counts related to illegal gambling enterprises and a single count of racketeering

conspiracy that was based on four predicate acts: the murder of Sebastiano3 DiFalco (and conspiracy to do so), the murder of Robert Perrino (and conspiracy

to do so), illegal gambling activities, and conspiracy to commit robbery.

Amato proceeded to trial in the Eastern District of New York (Garaufis, J.)

alongside two co

‐ defendants. He was initially represented by counsel

appointed under the Criminal Justice Act, but later privately retained Diarmuid

White, who represented him before and during the trial, at sentencing, and on

appeal. Together with his notice of appearance, White filed a letter notifying

the district court of a potential conflict of interest resulting from his previous

representation of Joseph Massino, a former “boss” of the Bonanno family.

White’s representation of Massino lasted approximately eight months and

involved providing support for Massino’s primary defense counsel in

preparation for Massino’s trial. White assured the court that he recalled no

material information, confidences, or secrets from his representation of Massino,

but nevertheless stated his intention to engage co

‐ counsel to cross

‐ examine

Massino if he were to testify against Amato at trial. White argued that there

was no “serious potential conflict” requiring his disqualification, “and likely no

potential conflict at all.” Special Appendix (“SA”) at 5. White further advised

that Amato was prepared to waive any potential conflict of interest at a Curcio

hearing.

In a second letter to the court, White stated that since Amato could not

afford to retain co

‐ counsel, White would cross

‐ examine Massino himself if

necessary, steering clear of any cross

‐ examination based on his privileged

communications with Massino. And since any potential conflict of interest

remained waivable, Amato remained “prepared to make all appropriate Curcio

waivers.” SA at 7.

The court did not hold a Curcio hearing, and during the six

‐ week trial,

Massino was not called as a witness. All three defendants were convicted by a

jury on all counts, with a specific jury finding that the government had proven

Amato guilty of the predicate acts listed in the racketeering conspiracy count.

Amato was sentenced principally to life imprisonment, and his conviction was

affirmed by this Court on direct appeal. United States v. Amato, 306 F. App’x

630, 634

‐ 35 (2d Cir. 2009) (summary order).4 The instant petition, filed in February 2011, asserts nine challenges to the

conviction and requests discovery and an evidentiary hearing. On April 5,

2017, the district court denied discovery and an evidentiary hearing, and

dismissed the petition in full. The court subsequently issued a certificate of

appealability as to Amato’s claim of ineffective assistance of counsel;

accordingly, only that claim is before this Court. See Fed. R. App. P. 22(b).

On appeal, Amato argues that he was denied his Sixth Amendment right to

effective assistance of counsel because White operated under an actual conflict of

interest that adversely affected his performance, and otherwise failed to provide

effective assistance at trial and on appeal. Amato additionally claims that the

district court erred in failing to hold an evidentiary hearing on his ineffective

assistance claims.

“In the § 2255 context, this Court reviews ‘factual findings for clear error’

and ‘questions of law de novo.’” Triana v. United States, 205 F.3d 36, 40 (2d Cir.

2000) (quoting Scanio v. United States, 37 F.3d 858, 859 (2d Cir. 1994)). “The

question of whether a defendant’s lawyer’s representation violates the Sixth

Amendment right to effective assistance of counsel is a mixed question of law and

fact that is reviewed de novo.” Id. (quoting United States v. Blau, 159 F.3d 68, 74

(2d Cir.1998)).

1. The Sixth Amendment right to counsel includes a right to

conflict

‐ free representation. See Wood v. Georgia, 450 U.S. 261, 271 (1981)

(citing Cuyler v. Sullivan, 446 U.S. 335 (1980) and Holloway v. Arkansas, 435 U.S.

475 (1978)). Nevertheless, the burden of proof rests on Amato to show a conflict

of interest by a preponderance of the evidence. Triana, 205 F.3d at 40 (citing

Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978)).

Amato first argues that he is entitled to automatic reversal of his

conviction because the district court failed to take the required measures when it

had notice of White’s potential conflict. Specifically, Amato argues that the

district court had an obligation to inquire further into the potential conflict;

ensure that Amato understood the potential risks of White’s representation; and

deal with the conflict by appointing independent counsel to advise Amato5 regarding the conflict, or protect Amato by other means.

However, a “trial court’s failure to inquire into a potential conflict of

interest on the part of the defendant’s attorney, about which the court knew or

reasonably should have known, does not automatically require reversal of the

conviction.” United States v. Blount, 291 F.3d 201, 211 (2d Cir.2002) (citing

Mickens v. Taylor, 535 U.S. 162, 172 (2002)). Instead, “[t]he constitutional

question must turn on whether trial counsel had a conflict of interest that

hampered the representation, not on whether the trial judge should have been

more assiduous in taking prophylactic measures.” Id. at 212 (quoting Mickens,

535 U.S. at 179 (Kennedy, J., concurring)). “As the Sixth Amendment

guarantees the defendant the assistance of counsel, the infringement of that right

must depend on a deficiency of the lawyer, not of the trial judge. There is no

reason to presume this guarantee unfulfilled when the purported conflict has

had no effect on the representation.” Id. (quoting Mickens, 535 U.S. at 179

(Kennedy, J., concurring)). A narrow exception requiring automatic reversal

exists “only where defense counsel is forced to represent codefendants over his

timely objection, unless the trial court has determined that there is no conflict.”

Mickens, 535 U.S. at 168 (citing Holloway, 435 U.S. at 488).

White certainly did not object to the representation. To the contrary, he

affirmatively argued that any potential conflict was waivable, and repeatedly

affirmed Amato’s willingness to waive. Moreover, White did not represent

Amato and Massino concurrently; his relatively brief representation of Massino

terminated more than two years before he was retained by Amato. Automatic

reversal is therefore unwarranted here. Mickens, 535 U.S. at 168.

Amato nevertheless argues that the writ should be granted because White

had an actual conflict of interest that adversely affected his performance as

counsel. A defendant claiming ineffective assistance of counsel on the basis of

an actual conflict of interest must demonstrate that the conflict “affected

counsel’s performance.” Id. at 171. In order to demonstrate that a conflict

adversely affected White’s representation, Amato must show that at least some

plausible defense strategy was forgone as a consequence of White’s conflict of

interest. United States v. Schwarz, 283 F.3d 76, 92 (2d Cir. 2002). And the6 plausibility of an alternative strategy must rise above mere speculation. See

Eisemann v. Herbert, 401 F.3d 102, 108 (2d Cir. 2005).

According to Amato, the main government witness against him was Sal

Vitale, an underboss of the Bonanno family, who testified about statements about

Amato made to Vitale by Massino

‐‐ Amato’s co

‐ conspirator. Amato argues that

White’s dual loyalties to Massino and Amato created the actual conflict, and that

the conflict prevented him from adequately challenging that testimony by, inter

alia, using allegedly exculpatory evidence

, calling Massino as a defense witness,

and otherwise employing defense strategies that could conflict with Massino’s

interests.

Although there is a “high probability of prejudice arising from multiple

concurrent representation[,]

. . . [n]ot all attorney conflicts present comparable

difficulties”; therefore, “the Federal Rules of Criminal Procedure treat concurrent

representation and prior representation differently.” Mickens, 535 U.S. at 175.

It is unclear under governing caselaw whether an actual conflict existed here

based on successive representation, particularly given White’s disclaimer of

memory of confidential information from his representation of Massino.

In any event, Amato has failed to show that White’s alleged conflict caused

him to forgo a plausible defense strategy. On the contrary, White vigorously

cross

‐ examined Vitale at trial, including by impeaching his testimony against

Amato with testimony he gave in Massino’s trial. White went on to emphasize

the inconsistencies in Vitale’s testimony during summation.

As to White’s decision to forgo calling Massino as a witness, it is

“speculation to suggest that his testimony would have been exculpatory.” See

Eisemann, 401 F.3d at 108. Indeed, given that Massino, the former boss of the

Bonanno family, had become a government cooperator by the time of Amato’s

trial, his testimony was much more likely to be damaging to Amato. And while

Amato makes much of Massino’s notations on FBI 302 reports (“302s”)

‐‐ which

included handwritten notes that Vitale’s statements were “all lies” and that

Massino knew “nothing about [Amato’s crimes]”

‐‐ there is absolutely no evidence

in the record to suggest that Massino

‐‐ who by the time of Amato’s trial had7 become a cooperating witness

‐‐ would testify in conformity with those

pre

‐ cooperation notes. Nor did White shy away from eliciting testimony at trial

regarding Massino’s crimes and general untrustworthiness.

While the district court assumed, without deciding, that Amato alleged

plausible, alternative strategies, we see nothing in the record to suggest that such

plausible alternative options existed. See Eisemann, 401 F.3d at 110 (dismissing

28 U.S.C. § 2254 petition where there was “nothing in the record to suggest that

[counsel’s] conflict caused him to forgo a plausible defense theory”).

2. Amato argues that White provided ineffective assistance of counsel

for additional reasons that are unrelated to the alleged conflict of interest.

When “assessing a claim that a lawyer’s representation did not meet the

constitutional minimum, we indulge a strong presumption that counsel’s

conduct fell within the wide range of professional assistance.” Lynch v. Dolce,

789 F.3d 303, 311 (2d Cir. 2015) (internal quotation marks and alterations

omitted). This strong presumption may be overcome only by establishing that:

(1) “counsel’s representation fell below an objective standard of reasonableness”;

and (2) “any deficiencies in counsel’s performance [were] prejudicial to the

defense.” Strickland v. Washington, 466 U.S. 668, 688, 692 (1984).

To demonstrate White’s allegedly ineffective assistance, Amato points to

the precluded testimony of three witnesses who Amato contends would have

testified about prior statements by Vitale that were inconsistent with his trial

testimony. While the district court precluded this testimony because White

failed to lay a proper foundation on cross

‐ examination for Vitale’s alleged prior

inconsistent statements, the district court acknowledged that White reasonably

expected the government to call these three witnesses in its case

‐ in

‐ chief. Given

this “good

‐ faith” expectation, White’s failure to lay a proper foundation for

Vitale’s inconsistent statements during cross

‐ examination did not fall below an

“objective standard of reasonableness.” Strickland, 466 U.S. at 688.

Additionally, Amato argues that White improperly failed to introduce

Massino’s handwritten notes on the 302s to defend against the murder charges.

But it was not objectively unreasonable for White not to call Massino, since8 calling him as a witness would have subjected Amato to the reasonable

likelihood that Massino

‐‐ by now a cooperator

‐‐ would corroborate, not

contradict, Vitale’s statements. See, e.g., Greiner v. Wells, 417 F.3d 305, 323 (2d

Cir. 2005) (“[D]eference is particularly apt where, as here, an attorney decides not

to call an unfriendly witness to the stand and has precious little means of

determining how the witness might testify.”).

The evidence that White allegedly failed to obtain and use is described in

Amato’s brief in the sketchiest of detail. In any event, the district court

evaluated it when considering Amato’s petition, and found that it was

cumulative, immaterial, or otherwise insufficient to show that White was

objectively unreasonable in failing to introduce it at trial. We identify no error

in the district court’s conclusions.

Therefore, because Amato has failed to show that his counsel’s

representation fell below an objective standard of reasonableness, his ineffective

assistance claim fails, and we need not evaluate the prejudice issue under

Strickland. 466 U.S. at 697.

3. Finally, Amato argues that the district court erred in denying an

evidentiary hearing with regard to his ineffective assistance claims. We review

a district court’s decision as to what kind of hearing, if any, is appropriate on a

§ 2255 motion for abuse of discretion. Gonzalez v. United States, 722 F.3d 118,

131 (2d Cir. 2013). “A court abuses its discretion when it takes an erroneous

view of the law, makes a clearly erroneous assessment of the facts, or renders a

decision that cannot be located within the range of permissible decisions.” Id.

“[W]hen the judge who tried the underlying proceedings also presides

over a § 2255 motion, a full

‐ blown evidentiary hearing may not be necessary,”

Raysor v. United States, 647 F.3d 491, 494 (2d Cir. 2011) (citing Puglisi v. United

States, 586 F.3d 209, 214

‐ 15 (2d Cir. 2009)), and our precedent “permits a ‘middle

road’ of deciding disputed facts on the basis of written submissions,” id.

(quoting Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003)).9 The district court determined that, given the existing record and White’s

sworn statement to the court addressing the petition’s claims, there was a

sufficient basis to find that Amato failed to assert a plausible claim for ineffective

assistance of counsel. In particular, White signed a sworn declaration stating

that he could not recall why he decided not to call Massino, minimizing any

potential benefits of holding an evidentiary hearing. The court therefore did

not abuse its discretion when it concluded that Amato failed to meet the required

showing for an evidentiary hearing.

We have considered Amato’s remaining arguments and conclude they are

without merit. Accordingly, the judgment of the district court is AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK