1

05-0392 United States v. Matera

UNITED STATE S COURT OF APPEA LS 1 FOR THE SEC OND CIRC UIT 2 3 4 August Term, 2006 5 6 (Argued: November 8, 2006 Decided: May 30, 2007) 7 8 9 Docket Nos. 05-0392-cr(L ), 05-4259-cr(con), 05-4289-cr( con) 10 11 12

- - - - - - - - - - - - - - - - - - - - - - - - - - - -

- - - -X 13 14 UNITED STATES OF AMERICA, 15 16 Appellee , 17 -v.- 18 19 JOHN MATERA, THOMAS CARBONARO, 20 and PE TER GOT TI, 21 22 Defenda nt-Appel lants

. 23 24

- - - - - - - - - - - - - - - - - - - - - - - - - - - -

- - - X 25 26 Befor

e: FEINBERG, L

EVAL, and CABRANES, Circuit Judges

. 27 28 Defendants appeal from judgments of c onviction entered in the United States District 29 Court for the Southern District of New York (Richard C. Casey , Judge ). Affirmed. 30 31 JOHN A. CI RANDO, D .J. & J.A. Cira ndo, Esqs. 32 (Rebecca A. Crance, on the brief ), Syracuse , NY, 33 for Defendant-Appellant John Mate ra . 34 35 THOMAS H. NOOTER, Freeman Nooter & 36 Ginsberg, Esqs., New York, NY, for Defenda nt37 Appellant Thomas Carb onaro . 38 39 JOSEPH A. BONDY, Law Office s of Joseph A. 402 Bondy, Ne

w York, NY, for Defendant-Appellant 1 Peter Go tti

. 2 3 ELIE HONIG, Assistant United States Attorney for 4 the Southern District of New York (Victor L . Hou, 5 Karl Metzner, Assistant United States Attorney s, of 6 counsel ; M ic ha el J. Ga rc ia , U ni te d S ta te s A tt or ne y, 7 on the brief ), New York, NY, for Appellee

. 8 9 LEVAL , Circuit Judge : 10 Defendants John Matera, Thomas Carbonaro, and Peter Gotti appea l from judgments of 11 conviction entered against them in the United States District Court for the Southern District of 12 New York (Richard C. Casey, Judge ), convic ting the m of parti cipation

in an ente

rprise 13 constituting a Racketeer I nfluenced and Corrupt Organization (“RICO”) – the Gambino 14 Organized Crime Family . Carbonaro and Gotti were found guilty after jury trial of racketeering 15 and racketeering conspira cy, in violation of 18 U.S.C. § 1962(c) and ( d), and construction 16 industry extortion, in violation of 18 U.S.C. § 1951, as well as conspiracies under 18 U.S.C. § 17 1959(a) (5), in the case o f Gotti, to murder Sa

lvatore Gravano, and in the case o f Carbonaro, to 18 murder Frank Hy dell. Mate

ra was c onvicted

on his plea

of guilt y to an I nformati on charg

ing him 19 with racketeer

ing con spiracy

in violation of 18 U.S. C. § 1962(d ), includ ing as pr edicate acts 20 conspiring to murder Frank Hy dell and operating an illegal g ambling business. Gotti was 21 sentenc ed prima

rily to 25 y ears impr isonment, Carbona

ro to 70 y ears, a nd Mater a 20 y ears. 22 Defend

ants rais e numero

us argu ments on a

ppeal, in cluding challen ges to the rece ipt in 23 evidenc e of uncharged crimes, e xpert testi mony , and rec ordings

of jailhou se conve

rsations; 24 challenges to the constitutionality and reasonableness of their sentences; a nd challenges relating 25 to the ven

ue of the prosecu tions and t

o the eff ective a ssistance

of counse l. We find no merit in 263

their claims and affirm the judgments of conviction. 1 Background 2 The Government’s evidence included extensive proof of the nature and structure of the 3 Gambino Organized Crime Family , which had been headed by defendant Peter Gotti’s brother, 4 John Gotti Sr., until the latter was convicted and imprisoned in part through the testimony of the 5 former Family

Underboss Salvatore Gravano, who coopera ted with the Government. At the trial 6 of the appellants, members of the Gambino Family cooperated with the Government and testified 7 to the blood oath taken by all members to kill any member who violated the oa th of loyalty

. 8 They testified that af ter the conviction of John Gotti, the operations of the family were taken over 9 by a Ruling Panel, whic h included the defendant Peter Gotti, who assumed the rank of Ac ting 10 Boss. Thomas Carbonaro wa s a soldie r in the F amily . The evi dence, seen in the light mo st 11 favorable to the Government, see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), showed the 12 follo wing. 13 I. The Conspir acy to Mu rder Salv atore Gravano 14 When Peter Gotti visited John Gotti in prison in September 1996, John ranted against the 15 treachery

of Gravano and urged Peter to kill Gravano, saying , “that’s a bill that’s gotta be paid.” 16 Peter Go tti, then Acting B oss, char ged Fa mily members C arbonar

a and Edd ie Garafola to kil l 17 Gravano. Gravano, in the meantime, had moved to Arizona, wher e he had assumed a new 18 identity through the f ederal Witness Security Prog ram. His location, however, had been 19 disclosed by a new spaper article. The evidence showe d elaborate preparations made by 20 Carbonara and others to kill Gravano, including numerous trips to Arizona, assumption of 21 disguises, scouting of the locations where Gra vano was likely to be f

ound, and extensive 224

planning of the ma

nner in w hich the k illing wo uld be ca rried ou t. The pla

n was foil ed beca

use 1 Gravano was ar

rested f or drug dealing in Febru ary 2000. Acc ording t

o Carbona

ro, Peter Gotti, 2 who had financed the trip, complained that the plan to kill Gravano had c ost too much money 3 and wanted the equipment they had purchased, including a handg un. 4 II. The Conspir acy to Mu rder F rank Hydell 5 In e arly

1998, the re were rumors in t

he Famil y that Fran

k Hy dell was c ooperat

ing with 6 the Government and providing information about Matera a nd about Carbonaro’s nephews. 7 Carbona

ro told Mic

hael DiLeonardo , who was a Captain

in the Fa mily , that Hy

dell was “ a rat” 8 and had to be k il led . On Apr il 27, 199 8, M ate ra l ure d Hyd ell to a ni ght clu b on St ate n Isl and . In 9 the ear

ly morning ho

urs he wa s shot and k

illed as he

stepped o

utside the nightcl ub. I n early 10 2002, several years following Hy dell’s murder, Michael DiLe onardo heard that there might be an 11 arrest related to the Hy dell murder. DiLeonardo warned Carbonaro, who told him that he, 12 Carbonaro, was the driver “on that hit” and that Mater a brought Hy

dell to the strip club to “set 13 him up.” 14 III. The Construction Industry Extortion 15 The Gamb ino Famil y, w ith Peter Gotti as Acting Bo ss, used it s control of labor unions to 16 extort the construction industry. DiL eonardo estimated that the Gambino Family made “tens of 17 millions” of dollars extorting construction companies. In exchang e for money , the construction 18 companies were permitted to hire non-union workers without trouble fr om unions. If the 19 contractor or union official resisted, either he would be hurt or there would be a strike, or work 20

on a cons truction j ob would be stopped. I

n addition

to money, the construction c ompanies also 21 gave the Gambino Family “cushy no show/no work” jobs. Carbonaro’s nephew and Peter Gotti’s 225

son received such jobs. In a conversation Peter had in 1996 with his brother John in the Marion 1 prison, where John was serving his sentence, Peter told John that Peter’s son was a “shop 2 steward” and, although he wished his son could stay in the job forever, the “Government, . . . 3 they g ot a big thing, a big investigation.” Car bonaro participated in the Family ’s extortion of the 4 industry by

accompany

ing Eddie Garafola, a Gambino Soldier, to collect e xtortion-related 5 payments from contr actors and construction-industry officials. 6 Discussion 7 I. Evidentiary challenges 8 A. Prior uncharged crimes 9 Defendant Gotti, joined by Ca rbonaro, contends that the receipt of evidence of uncharged 10 murders committed by members of the Gambino Family was a prejudicial abuse of discretion. 11 We reject the contention. 12 Prior to the trial of Pe

ter Gotti a

nd Carbonaro, the

Government gave notice of intenti on to 13 offer e

vidence of crime s not spec ifically allege d in the ind

ictment. T

he Gover nment justi fied this 14 evidence as proof of the existence of the Gambino F amily as a cr iminal enterprise in which the 15 defendants participated, which was an esse ntial element of the various racketeering charges 16 under the RICO statutes. With the court’s approval, over the objections of the defendants, the 17 Government then i ntroduce d evidenc e of var ious crime s committe d by Gambino F amily 18 members, including the part icipation of John Gotti

in the murd

ers of Louie Milito , Loui e 19 DiBono, and Robert DiBernardo. The c ourt gave protective instructions to the effect that the jury 20 may not conclude tha t a defendant is guilty

of participating in criminal conduct merely from the 21 fact t hat he was as socia ted wi th ot her peo ple wh o were gu ilty of wr ongdoi ng. 226

The defendants contend that the receipt of this evidenc e violated Federal Rules of 1 Evidence 404(b) and 403. Rule 404(b), sometimes described as the “ other crimes” rule, 2 provides: “Evidence of other crimes, wrong s, or acts is not admissible to prove the character of a 3 person in order to show action in conformity therewith.” Fed. R. Evid. 404(b). The district court 4

correctly r

uled that this evide

nce did not violate R

ule 404(b ). The e

vidence was not of

fered t o 5 show any cha

racter trait of any

defendant or that a defendant acte d in accordance with such a 6 trait. It was offere d to prove an essential element of the RI CO crimes charged – the existence of 7 a criminal enterprise in which the defendants par ticipated. The court’s conclusion that there was 8 no violation of Rule 404(b) was consistent with numerous prior rulings of this court in which 9 criminal acts of non-defendants, including killings, wer e received to prove the existence of the 10 criminal RICO enterprise in which the de fendant participated. See United States v. Miller , 116 11 F.3d 641, 682 (2d Cir . 1997) (u ncharg ed acts a

dmissible t

o prove the existenc e of the RI CO 12 enterpr

ise alleged in the i

ndictmen t); United States v. Thai , 29 F.3d 785, 812-13 (2d Cir. 1994) 13 (uncharged acts admissible as evidenc e of “the existence and structure of the [RI CO] 14 enterprise”). 15 More pertinent is the defendants’ contention that the rece ipt of this evidence violated 16 Rule 403. Ru

le 403 bar

s the rec eipt of e

vidence which is un

duly prejudic ial in that

its capa city 17 for unfair prejudice outweighs its probative va lue. See Fed. R. E

vid. 403 (“

Althoug h releva nt, 18 evidence may

be excluded if its probative value is substantially outweig hed by the danger of 19 unfair prejudice, confusion of the issues, or misleading the jur y, or by considerations of undue 20 delay, wa ste of time, or needless presentation of cumulative evidence .”). Under this rule, the 21 mere fa

ct that ev idence i s releva

nt to an issu

e in disput

e does not ensure

its admissib ility , if its 227

capacity for unfair prejudice outweighs its probative va lue. 1 The district court did not abuse its discretion in finding that the probative value of the 2 evidence outweighed the potential for unfa ir prejudice. See United States v. Taubman , 297 F.3d 3 161, 164 (2d Cir. 200 2); United Sta tes v. Dh insa , 243 F.3d 635, 649 (2d Cir. 200 2); United 4 States v. Pipola , 83 F.3d 556, 566 (2d Cir. 1996). When a defendant enga ges in a criminal 5 enterprise which involves very serious crimes, there is a likelihood that evidence proving the 6 existence of the enterprise through its acts will involve a considera ble degree of prejudice. 7 Nonetheless, the evidence may be of important probative value in proving the enterpr ise. See 8 United States v. Coonan , 938 F.2d 1553, 1561 (2d Cir. 1991) (evidence of uncharged acts of 9 extreme violence by membe rs of a RICO enterprise “

was certainly

probative of the existence of 10 the charged enterprise”). The district court is commanded by Rule 403 to weigh the probative 11 value against the unfair prejudice. See United States v. Figueroa , 618 F.2d 934, 943 (2d Cir. 12 1980). We find no abuse of discretion in the court’s conclusion that the probative value was not 13 “substantially outweig hed by the danger of unfair prejudice.” 14 B. Expert t estim ony 15 Gotti alleges that the district court abused its discretion by admitting the expert testimony 16 of Kenneth J. McCabe regarding or ganized crime in the New York area . McCabe, who had 17 extensive experience investigating orga nized crime as a New York Police Department Dete ctive 18 and later as an Inve stigator for the United States Attorney ’s Office, testified about the 19 composition and structure of New York organized cr ime families. The court limited McCabe’s 20 testimony to “matters of organized crime families generally, not on facts specific to this case . . . 21 [such as] the membership or rank of the defendants.” United Sta tes v. Go tti , No. S8 02 CR 743, 228

2004 WL 2423799, at *2 (S.D.N.Y. Oct. 29, 2004). I mmediately after

McCabe’s testimony, the 1 district c ourt ga

ve a limitin

g instru ction abo ut the role

and purp oses of expert testi mony at trial, 2 stating that it should not “substitute for [the jury’s] own reason, judg ment and common sense.” 3 Gotti contends this evidence was received in violation of Fede ral Rule of Evidence 702, 4 which all ows exper t testimony

if it “will assist the trier of fact to u ndersta nd the evi dence or to 5 determine a fact in issue.” Gotti also argue d that the testimony should have been e xcluded under 6 Rule 403. He argues it was likely to mislead the jury, beca use “government experts often rece ive 7 unfounded credibility whe n testifying a

bout factual matters.” This circuit has approved the 8 admission of expert testimony in organized crime c ases “to help explain the operation, structure, 9 membership, and terminology of organized crime families.” United Sta tes v. Locascio , 6 F.3d 10 924, 936 (2d Cir. 199 3); see also U nited State

s v. Amuso , 21 F.3d 1251, 1263-64 (2d Cir. 1994); 11 United States v. Tutino , 883 F.2d 1125, 1134

(2d Cir. 19 89); United Sta tes v. Da ly , 842 F.2d 12 1380, 1388 (2d Cir. 19 88). Consi dering all perti nent factors, we f

ind no abu se of disc

retion in 13 the receipt of this evidence. 14 C. Marion recordings 15 Gotti contends the receipt of recordings of his c onversations with his brother John at the 16 Marion Federal Penitentiary (“the Marion recordings”) violate d the Confrontation Clause, as 17 interpreted in Crawford v. Washington , 541 U.S. 36 (2004). 18 In the Marion recor dings, John spoke of his hatred for Gravano, who had testified for the 19 Government at John’ s trial. John spoke of his desire for revenge ag ainst Gravano. Also on the 20 Marion recordings, Peter acknowle dged knowing several co- conspirators and spoke of his son’s 21 involvement with a construction union. The defense could not examine John 229

about the Marion recordings at trial beca use in the meantime John had died. 1 In Crawford , the Supreme Court held that the Confrontation Clause prohibits the 2 admission of hearsay statements of a testimonial nature unless the declarant is available for 3

cross -exam inati on. W e need n ot add ress w hethe r Joh n’s st ateme nts i n the M arion record ings 4 were “testimonial,” within the meaning of Crawford , becau se there

is no Confr

ontation Cl ause 5 violation for statements admitted “for purposes other than establishing the truth of the ma tter 6 asserted.” Crawford , 541 U.S. a

t 59 n.9; cf. United States v. Paulino , 445 F.3d 211, 216 (2d Cir. 7 2006) (“ It ha s long be en the ru le that ‘[s ]o long as

. . . state ments are not prese nted for the truth 8 of the matter asserted, but only to establish a context . . ., the defendant's Sixth Amendment 9 rights are not transgressed.’ Nothing in Crawford v. Washington is to the contrary.” (citation 10 omitted and alterations in original)). 11 The district court instructed the jury that the statements made by John Gotti in the Marion 12 recordings were not admitted for the truth of the matters asserted but rather to show the effe ct of 13 John’s statements on Peter. We find no error. 14 II. Sentencing Challenges 15 A. Constitutionality of sentences imposed on Gotti and Carbonaro 16 Gotti and Carbonaro claim the district court acted in violation of the ex post fa cto 17 principle of the Due Process Clause by retroactive application of United States v. Booker , 543 18 U.S. 220 (2005). 19 After the jury arrived at a verdict, the district court asked the jury to find whether the 20 Government had proven several sentencing Guidelines factors bey

ond a reasonable doubt. At the 21 time, Booker was on the Supreme Court calendar but had not y et been decided. The district court 2210

took this precaution in light of the uncertainties raised by the Supreme Court’s ruling in Blakeley 1 v. Washington , 542 U.S. 296 (2004). The Government noted that the necessity of the jury 2 findings would depend on how the Court decided Booker : “Once the Supre

me Court r

enders i ts 3 decision, it may be bac k in this Court’s province to make that [sentencing] determination . . . .” 4 The jury found none of the sentencing Guidelines factors prove n beyond a re asonable doubt. 5 By the time of se ntencing, the Supreme Court had decided Booker , which preserved the 6 authority of the sentenc ing judge to find facts associated with sentenc ing. In light of Booker , the 7 district court found several factors proven by a preponderance of the evidenc e and applied them 8 in calcu

lating the applic able Guid elines of fense le vels. Gott

i and Carb onaro cl aim this wa s a 9 violation of ex post facto principles. The defendants’ argume nts are foreclosed by

this court’s 10 holding i

nUnited States v. Fairclough , 439 F.3d 76 (2d Cir. 2006), that the application of Booker 11 to a defendant who had not y et been sentenced when Booker was announced does not violate the 12 ex post facto principle. See id. at 79 (“[T]here was no ex post facto problem . . . beca use 13 [defendant] had fair warning that his conduct was cr iminal, that enhancements or upward 14 departu

res coul d be appli ed to his se ntence u nder the Guideline s based on

judicial f act-fin dings, 15 and that he could be sentenced as high a s the statutory maximum . . . .”). 16 B. Reasonableness of Gotti’s sentence 17 Gotti cont ends that his sente nce was “grea ter than necessa ry to comply

with the pu

rposes” 18 of sentencing set forth in parag raph 2 of 18 U.S.C. § 3553(a) and therefore illegal. He argues 19 that the district court should have weighed more heavily his age, health, and undischarge d 20 sentence remaining from a prior c onviction for shipping industry extortion. 21 A sentencing determination is reviewed for reasonableness. The reviewing court does not 2211

substitute its judgment for that of the sentencing judge, but ra ther considers “whether the 1 sentencing judge ‘exceede d the bounds of allowable discretion[,] . . . committed an error of law 2 in the course of exercising discretion, or made a c learly er roneous finding of fact.’” United 3 States v. Fernandez , 443 F .3d 19 , 27 (2 d Cir . 2006 ) (quo ting United States v. Crosby , 397 F.3d 4 103, 114 (2d Cir. 2005) (alterations in original)). 5 The district court imposed a sentence within the Guidelines rang e after noting that “[t]he 6 facts relevant under Section 3553(a) strongly support a leng thy sentence.”

The court considered 7 Gotti’s a

ge and health, n oting tha t “defe ndant’s c ontention

that he is n

o longe r a thre at to socie

ty 8 because of his age and medica l conditions is belied by the trial testimony establishing that he, 9 like the other leaders of the Gambino family, need only to direct subordinates to commit the 10 criminal acts from which he profited.” As for Gotti’s undischar ged sentence, the district court 11 ruled that “Section 3553(a), especially the goals of punishment and deterrence, f avor a lengthy 12 sentence. . . . The defendant’s conduct a s part of the shipping industry extortion was distinct 13 from his construction industry activities and the pla n to murder Gravano.” We find nothing 14 unreasonable in the sentence. 15 C. Reasonableness of Carbonaro’s sentence 16 Carbonaro argues that the district court ac ted unreasonably

when it imposed consecutive 17 sentences in accordance with the “sta cking” provision required under the Guidelines. See 18 U.S.S.G. § 5G1.2(d) (“[T]he sentence imposed on one or more of the other counts shall run 19 consecutively, but only to the extent necessary to pr oduce a combined sentence equal to the total 20 punishment.”). 21 Carbonaro argues that the district court should have e xercised its discretion under Booker 2212

to impose a lower sentence because the individual sentenc es were for similar conduct and thus 1 should not have run consecutively . The district court considered the § 3553(a) fac tors, finding 2 that “[t]he defendant has repeatedly shown his willingness to murder other human beings as part 3 of his membership in an ongoing and widesprea d criminal enterprise, and his criminal history 4 unmistakably demonstrates that he is unlikely to lead a law-abiding life if relea sed from custody. 5 Only

the maximum p enalty

that the la

w permits is suffic ient in this

case.” The distr

ict cour t did 6 not act unreasonably in imposing a sentence within the Guidelines range. See Fernandez , 443 7 F.3d at 27 (ci ting Crosby , 397 F.3d at 114). 8 D. Reasonableness of Matera’s sentence 9 Matera argues that the district court abuse d its discretion in declining to make his federal 10 sentence concurrent with a previously imposed sentence that he was then still serving. Matera 11 argued at his sentencing proc eeding that the court should consider that since g oing to jail on the 12 previous sentence he had made an ef fort to change his life. 13 At the time of his sen

tencing hearing , Matera

had 16 mon

ths remai ning fr om a prev iously 14 imposed se

ntence i n the East ern Distr ict of Ne w York. T

he distric t court ha d discretion to 15 impose a concurrent, partially concurrent, or consecutive sentence

. See 18 U.S.C. § 3 584(a) ( “if 16 a term of imprisonment is imposed on a defendant who is already subject to an undischarged 17 term of imprisonment, the terms may run c oncurrently or consecutively” ); U.S.S.G. § 5G1.3(c) 18 (“ th e s en te nc e f

or th e i ns ta nt of

fe ns e m ay b e i mp os ed to ru n c on cu rr en tl y, p ar ti al ly c on cu rr en tl y, 19

or conse cutively

to the prior undisch

arged term of im

prisonme nt to achi eve a re asonable 20 punishment for the instant offense”). The district court found that despite Mater a’s claim of 21 good conduct while in prison, a consecutive sentence best reflected the seriousness of his crime. 221 In view of our conclusion that there was no abuse of discretion, we need not rule on the Government’s contention that in his ple a agre ement Ma tera wa ived the r ight to r aise this c laim on appeal. 13 Matera A850

. 1 “[A] district court's sentencing decisions under § 5G1.3(c) will not be overturned absent 2 an abuse of discretion.” United Sta tes v. Liv orsi , 180 F.3d

76, 82 (2d

Cir. 1999) ; see also United 3 States v. Maria , 186 F.3d 65, 71 (2d Cir. 1999) (noting that section 5G1.3(c) vests “broa d 4 discretion” in the sentencing court to fashion an appr opriate sentence). I

n determining whether 5 to impose a concurrent sentence, the sentencing court “shall consider, as to each offense for 6 which a term of imprisonment is being imposed, the factors set forth in section 3553(a ).” 18 7 U.S.C. § 3584(b). We find no abuse of discretion. 1 8 III. Other challenges 9 A. Venue 10 Carbonaro argues that the Gover nment failed to establish venue in the Southern District 11 of New Y ork for Co unt Three , the cons

piracy to murder

Frank H yde ll. “Both

the Sixth 12 Amendment and Federal Rule of Criminal Procedure 18 r equire that defendants be tried in the 13 district where their crime was ‘committed.’” United States v. Ramirez , 420 F.3d 134, 138 (2d 14 Cir. 2005). Carbonaro argues that beca use Hydell was murde

red in Staten Island and discussions 15 before and after the murder took plac e in Brooklyn, the crime was not “committed” in the 16 Southern District of New York. Carbonaro, however, f ailed to object to venue at any point 17 during the district court proceedings. We held in United Sta tes v. Bal a , 236 F.3d 87, 96 (2d Cir. 18 2000), that a defendant’s objections to venue are waived unless specifically articulated. 19 Carbonaro therefore failed to pre serve his objections to venue. 2014

B. Ineffective assistance of counsel 1 Matera argues that the district court er red in failing to make an inquiry as to any potential 2 conflict of interest between Matera and his then- counsel who subsequently r epresented another 3 person who was suspected of participating in the c onspiracy to murder Hydell. 4 On June 15, 2004, Jeffrey L ichtman, Esq. replaced Matera’s prior counse l and 5 represented Matera when he ple d guilty on Aug ust 31, 2004, and at his sentencing on October 29, 6 2004. On September 20, 2004, after Matera had pled g uilty but before his sentenc ing, Lichtman 7 was appo inted by

the Unite d States Di strict Cou rt for the Eastern District o f New York to 8 represent one Thomas Dono in criminal proceeding s. Lichtman then represente d Dono in a 9 RICO conspiracy

charge unrelated to the conspira cy to murder H

ydell. 10 Matera argues that the district court er red in failing to make an inquiry as to any potential 11 conflict of inter

est. The j udge, h

owever , had no notice of the appoint ment of Ma

tera’s c ounsel in 12 another

court to r eprese nt Dono, mu

ch less of the fact that Dono

was suspe cted of c omplicity in 13 the Hydell murder . “Unless the trial court knows or reasonably should know that a particular 14 conflict exists, the court need not initiate an inquiry.” Cuyler v. Sullivan , 446 U.S. 335, 347 15 (1980). T

he court had no re ason to ma

ke such a n inquiry . Furthe

rmore, to overtur n his 16 conviction on the basis of his attorney’ s conflict of interest resulting in ineffective assistance of 17 counsel, Matera must at the very least show some possibility of prejudice he suf fered by reason 18 of the conflict. See Unite d States v . Kliti , 156 F.3d

150, 157 (2d Cir. 199 8); Tate v. Wood , 963 19 F.2d 20, 26 (2d Cir. 1992). Matera cannot. Matera ha d already pleaded guilty

before the 20 potential conflict arose and in his plea agree ment he had already

stipulated that he would receive 21 a sentence of twenty years imprisonment, which was the sentence he received. Ma tera has shown 2215

no real possibility that any conflict of his counsel might have adversely affected the 1 representation. 2 Conclusion 3 We have considered defendant-appe llants’ other arguments and find them to be without 4 merit. We a

ffirm the judgmen ts of the d istrict c ourt. 5