85 F.

3d 9

UNITED STATES of America, Appellee,

v.
Orazio STANTINI, also known as Ozzie, and Robert Bisaccia,
Defendants-Appellants.
Nos. 1159, 1160, Dockets 95-1355, 95-1375.

United States Court of Appeals,

Second Circuit.
Argued March 15, 1996.
Decided May 14, 1996.

Alan S. Futerfas, New York City, (Ellen B. Resnick, of Counsel), for

Defendant-Appellant Stantini.
David A. Lewis, New York City, The Legal Aid Society, Federal
Defender Division, Appeals Bureau, for Defendant-Appellant Bisaccia.
Geoffrey S. Mearns, Brooklyn, NY, Special Assistant United States
Attorney for the Eastern District of New York (Zachary W. Carter, United
States Attorney for the Eastern District of New York, James Orenstein,
Assistant United States Attorney, of Counsel), for Appellee.
Before: FEINBERG, WALKER and PARKER, Circuit Judges.
FEINBERG, Circuit Judge:

Orazio Stantini and Robert Bisaccia appeal their convictions for both
conspiracy to murder and murder following a jury trial in the United States
District Court for the Eastern District of New York (I. Leo Glasser, J.). Each
claims primarily that he did not receive a fair trial because Stantini's trial
counsel was laboring under a conflict of interest due to his representation of a
defendant being prosecuted for participation in the same murder in the United
States District Court for the Southern District of New York at about the same
time. For the reasons stated below, we affirm.

I. Background

In April 1993, Stantini and Bisaccia were indicted and charged with conspiring
to murder and murdering Francesco Oliveri in May 1988 for the purpose of
maintaining or increasing their position in the Gambino organized crime family
(the Gambino family) in violation of 18 U.S.C. 1952B(a)(5) and 1952B(a)
(1), respectively.1 The indictment resulted from the ongoing cooperation with
federal authorities of Salvatore Gravano, the alleged underboss of the Gambino
family. The indictment identified John Gotti, Gravano, Lorenzo Mannino, John
Gambino and Joseph Gambino as unindicted co-conspirators.

At trial and during all of the relevant pre-trial proceedings, Stantini was
represented by Charles Carnesi and Bisaccia was represented principally by
Joel Winograd. The trial took place in November 1993, and the jury found
Stantini and Bisaccia guilty of conspiracy as well as the substantive murder
charges.

Also pertinent to this appeal is the roughly contemporaneous progress of

United States v. John Gambino, 88 Cr. 919 (PKL) (S.D.N.Y.) in the Southern
District of New York (the Southern District case). The initial indictment in that
case, filed over three years before the instant indictment of Stantini and
Bisaccia, charged Lorenzo Mannino, John Gambino and Joseph Gambino,
among others, with a single narcotics conspiracy. Subsequent superseding
indictments added charges of additional racketeering activity. In an eighth
superseding indictment returned in August 1992, the Oliveri murder was added
as one of 28 predicate acts in a charge of racketeering conspiracy. Counts of
conspiracy to murder and the murder of Oliveri were also added. Carnesi, who
was Stantini's trial counsel, represented Mannino throughout the entire
Southern District proceedings. The first trial in that case began in January 1993
and ended in a mistrial in June 1993, due to a hung jury.

The retrial in the Southern District case was originally scheduled to begin in
November 1993, and after postponement (due in part to Carnesi's scheduling
conflict with the Stantini trial), began in December 1993. In January 1994,
before the trial concluded, Mannino and John and Joseph Gambino pled guilty.
Plea negotiations with Mannino had been going on since at least September
1993. In exchange for a recommendation of a 15-year sentence, Mannino pled
guilty to the racketeering conspiracy and admitted, among other things, his
participation in the Oliveri murder. Mannino's plea agreement contained a
provision that his plea allocution could not be used as evidence in any other
criminal trial.

At the trial of Stantini and Bisaccia in the Eastern District, the bulk of the
government's evidence was Gravano's testimony regarding the motivation for,

as well as the planning and implementation of, the murder. Gravano testified
that the murder was retaliation against Oliveri for his involvement in the
murder of Giuseppe Gambino, a member of John Gambino's "crew." John
Gotti, the alleged boss of the Gambino family, approved the murder of Oliveri
and put Gravano in charge of supervising it. The team was made up of
Gravano, Joseph Gambino, Mannino, Bisaccia (brought in at the suggestion of
Gotti and designated by him as the shooter) and Stantini (brought in at the
suggestion of Gravano). After a dry run to reconnoiter the area, a date for an
attempt was set. The night before this attempt, all of the participants met at the
Ravenite Social Club in Manhattan to go over the details of the plan. Mannino
and Joseph Gambino were responsible for securing guns and walkie-talkies as
well as stolen and legitimate cars for use in the murder. The attempt went ahead
as planned, but the team arrived too late to confront Oliveri outside his
apartment building. The participants agreed to try again one week later. The
night before the second attempt Gravano, Joseph Gambino and Bisaccia met at
the Ravenite Club and briefly discussed the murder preparations.
7

Gravano testified that on the day of the murder he and Mannino arrived at the
scene in one car and Bisaccia, Joseph Gambino and Stantini were in another
car. Stantini's role was the back-up shooter. After Oliveri was spotted outside
his building, Bisaccia approached Oliveri and shot him a number of times. The
participants then fled the scene.

Gravano testified that after their participation in the Oliveri murder, Stantini
became a "made" member of the Gambino family and Bisaccia became a
"captain" of the New Jersey faction of the family.

Gravano's testimony was corroborated primarily by (1) a videotape of a

meeting of the entire murder team on April 25, 1988, the night before the failed
attempt, outside the Ravenite Club; (2) a videotape of Gotti, Gravano, Joseph
Gambino and Bisaccia outside the Ravenite Club on May 2, 1988, the night
before the murder; (3) audiotapes containing a conversation between Joseph
Gambino and Mannino in which they discussed plans for obtaining cars to be
used in the murder; and (4) phone records of Mannino's car phone indicating a
call to Safe Auto Sales just prior to when the intercepted conversation noted
above took place.

10

Gravano also testified that when he was initially debriefed by federal agents in
November 1991 regarding the Oliveri murder, he had forgotten Stantini's
involvement and made no mention of him. At some point in 1992, he received a
call from FBI Special Agent Thomas Petrouskie who was investigating the
murder. Petrouskie asked Gravano if Stantini had been involved in the murder.

Gravano immediately remembered that Stantini had taken part in both the
planning and the execution of the murder. Thereafter, Gravano called John
Gleeson of the United States Attorney's Office and informed him that Stantini
was involved.
11

As already indicated, Stantini and Bisaccia were found guilty in November

1993 in the Eastern District trial presided over by Judge Glasser. In April 1994
Stantini, now represented by Alan S. Futerfas, moved for a new trial based on
Fed.R.Crim.P. 33 and 18 U.S.C. 2255. Stantini claimed that his Sixth
Amendment right to counsel had been violated because Carnesi's simultaneous
representation of Mannino in the Southern District case created an actual
conflict of interest that adversely affected Carnesi's representation of Stantini in
the Eastern District trial with respect to both plea negotiations and the defense
strategy selected at trial. Bisaccia, still represented by Winograd, joined
Stantini's new trial motion claiming that Carnesi's conflict of interest "severely
prejudiced" Bisaccia.

12

Following oral argument, but without holding an evidentiary hearing, Judge

Glasser denied the motion. The judge ruled that (1) insofar as the motion
sought relief under Criminal Rule 33, it was untimely; and (2) insofar as the
motion sought relief under 2255, "[t]he submissions in support of [the
motion] are facially insufficient" and therefore "a hearing is not warranted." In
support of the latter conclusion, the judge held that Stantini did not establish
that, with respect to plea negotiations, Carnesi was laboring under an actual
conflict of interest and that Carnesi's alleged concerns about the effect of a
Stantini guilty plea on Mannino in the Southern District case were realistic.
Further, Stantini had failed to demonstrate that a plausible alternative defense
strategy or tactic had not been pursued at trial because of Carnesi's
representation of Mannino. Finally, Bisaccia's joinder of Stantini's motion was
"patently frivolous."

13

Stantini and Bisaccia were both sentenced in June 1995. Primarily, Stantini was
sentenced to 324 months in prison and Bisaccia to life in prison. This appeal
followed.

II. Discussion
14

On appeal, Stantini again claims that Carnesi's concurrent representation

resulted in an actual conflict of interest that adversely affected his
representation. He further claims that the district court improperly ruled on this
issue without an evidentiary hearing. In addition, Stantini claims for the first
time that automatic reversal of his conviction is required because the district

court should have been aware of Carnesi's conflicting interests and failed to
inquire into them. Bisaccia claims that Carnesi's conflict and the district court's
failure to inquire into it prejudiced him to an extent that requires a reversal as
well. Furthermore, he argues that his trial counsel's failure to address
affirmatively Carnesi's conflict and the adoption of a joint defense strategy with
Carnesi resulted in ineffective assistance of counsel. Finally, both argue that the
jury instruction given at trial on the elements of the murder conspiracy charge
was legally insufficient.
A. Conflict of Interest
1. The Government's Role
15

As an initial matter, the government stated in its affidavit filed in opposition to

Stantini's motion for a new trial in the district court that it was aware of
Carnesi's dual representation of Mannino and Stantini from the time of
Stantini's arraignment. The central issue in this appeal could thus have been
easily disposed of prior to trial had the government brought this fact to Judge
Glasser's attention. The judge at that time could have conducted an inquiry and,
if it was required, taken further action. Thus, if it was appropriate to do so, he
could have obtained on the record Stantini's waiver of conflict-free counsel
under the procedures outlined in United States v. Curcio, 680 F.2d 881, 888-90
(2d Cir.1982).2 Convictions are placed in jeopardy and scarce judicial resources
are wasted when possible conflicts are not addressed as early as possible. We
therefore reiterate our admonition to the government in earlier cases to bring
potential conflicts to the attention of trial judges.3

16

2. The Trial Court's Obligation to Inquire About a Conflict of Interest

17

The trial court has an obligation to inquire into the facts and circumstances of
an attorney's interests either in response to a timely conflict of interest
objection, Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1180-81,
55 L.Ed.2d 426 (1978), or "when it knows or reasonably should know of the
possibility of a conflict of interest." Strouse v. Leonardo, 928 F.2d 548, 555 (2d
Cir.1991); see also Levy, 25 F.3d at 153. Failure to engage in such an inquiry,
when it is required, results in an automatic reversal. Wood v. Georgia, 450 U.S.
261, 272 n. 18, 101 S.Ct. 1097, 1103-04 n. 18, 67 L.Ed.2d 220 (1981); Levy,
25 F.3d at 153-54. An inquiry allows the trial judge to determine the precise
nature of the conflict and how to proceed, i.e. whether to disqualify counsel,
obtain a waiver from the defendant pursuant to Curcio, or take no action. See
Malpiedi, 62 F.3d at 468 n. 2.

18

Stantini argues that Judge Glasser's inquiry obligation attached no later than
when Agent Petrouskie testified on the day before the trial ended. On redirect
examination, Petrouskie testified about a pre-trial meeting in the United States
Attorney's Office in the Southern District case with one Jerry Farrell, a witness
to the scene of the Oliveri murder. Petrouskie testified that Carnesi was present
at that meeting, during which Farrell stated that he had lied to Agent Petrouskie
when he told him during a prior interview that he saw two men standing over
the dead body and had identified those two men as Gravano and Mannino. At
that point, Carnesi approached the bench and informed Judge Glasser that he
had a "big problem" with Agent Petrouskie mentioning his name in connection
with the Southern District case. Carnesi confirmed that he was at the meeting,
but recalled Farrell saying that he did not remember anything about the murder
or about any statements or interviews with law enforcement officials.

19

According to Stantini, given that Judge Glasser was aware from pre-trial
conferences in the instant case that Carnesi was also involved in the Southern
District case, Carnesi's "problem" with Agent Petrouskie's testimony should
have alerted the Judge to the possibility of a conflict of interest. The "problem"
included the fact that Carnesi was a potential witness to what Farrell did or did
not say at the meeting and therefore may not have been able to fully crossexamine Agent Petrouskie on this point.

20

Judge Glasser's failure to make a timely inquiry into Carnesi's potential conflict
of interest was not raised in the motion for a new trial in the district court, and
has been raised by both Stantini and Bisaccia for the first time on appeal. We
therefore review it as a matter of plain error. See United States v. Yu-Leung, 51
F.3d 1116, 1121 (2d Cir.1995).

21

Up to the moment of Agent Petrouskie's testimony, no one had informed Judge

Glasser, either informally or in the form of an objection, of Carnesi's concurrent
representation of Stantini and Mannino or of any problems that might stem
from it. Indeed, neither Stantini nor Bisaccia argues that Judge Glasser actually
knew about the "conflict" until the motion for a new trial. They argue only that
the judge should have been aware of the potential conflict and therefore should
have conducted an inquiry.

22

We note initially that the exchange between Judge Glasser and Carnesi
regarding Agent Petrouskie's testimony took place toward the end of a busy
trial and during testimony that was not clearly relevant to this case. Under these
circumstances and on the record before us, the most that Judge Glasser could
reasonably be charged with knowing was that Carnesi represented another

defendant in the Southern District case and that in some way the Oliveri murder
was an issue in that case, although not necessarily even part of the indictment.
At that point in the trial it was not clear that Farrell had at one time identified
Mannino as being present at the scene of the murder.4 Even more important,
there was no indication that Carnesi was representing Mannino in the Gambino
case or at the Farrell meeting. The only issues raised by Carnesi were the
mention of his presence at the meeting and his possible inability to crossexamine Agent Petrouskie about what had transpired. These were issues that,
given how far afield the questioning of Petrouskie had gone, Judge Glasser
apparently and reasonably felt were irrelevant. Also, Farrell had not testified,
but Judge Glasser was made aware of the defense's efforts to get him to do so.5
23

Dual representation in separate but related proceedings, without more, does not
trigger the inquiry obligation.6 There must be, in addition, a reasonable
awareness of a potential conflict of interest. In Ciak, the case on which Stantini
primarily relies, the defendant was charged with possession of two guns that
were found under the seat of a car that he was driving. 59 F.3d at 298-99. The
defense presented at trial, supported by a witness, was that the guns were
placed in the car by the defendant's sister and her then-fiance Reed. Id. at 299.
Attorney Wieselman represented the defendant at trial but also represented the
sister and Reed (who were the joint owners of the car) in their ultimately
successful effort to prevent forfeiture of the car under state law. Id. Reed was
called by the government as a rebuttal witness to the claim that the guns were
placed in the car by the defendant's sister. Id. At this point the sister and Reed
had broken up and he had apparently made off with the car. Id. Wieselman,
who was depending on the sale of the car to pay for his fee in representing the
defendant, spent "fully sixteen pages of the trial transcript" aggressively
questioning Reed in an attempt to get him to disclose the location of the car. Id.
During this testimony it was disclosed that Wieselman represented Reed and
the defendant's sister during the forfeiture proceedings. Id. at 300. The trial
judge failed to inquire any further into the circumstances of the dual
representation. Id.

24

This court reversed the defendant's conviction and remanded for a new trial.
We determined that the judge had a duty to inquire into Wieselman's interests
because he should have been aware of two potential conflicts. First, during
Reed's testimony Wieselman became an unsworn witness to prior statements by
Reed, statements made during the course of representing him in the forfeiture
proceeding. Id. at 304-05. This in and of itself can form a suitable basis for the
attorney's disqualification. See Iorizzo, 786 F.2d at 57; United States v.
McKeon, 738 F.2d 26, 34-35 (2d Cir.1984). Second, the trial judge was aware
of Wieselman's joint representation of defendant at trial and of Reed and the

defendant's sister in the forfeiture proceeding. Along with this the judge knew
that the defense theory at trial was that the guns belonged to Reed and the
sister. It was obvious that this defense was directly in conflict with the position
that Wieselman would have had to advocate in the forfeiture proceeding. Ciak,
59 F.3d at 305-06.
25

This case differs significantly from Ciak with respect to both potential conflicts.
Carnesi was not a potential unsworn witness to something a former client had
said; at most, he was a possible witness to a prior statement by a possible
witness who did not even testify in either proceeding. Second, even if Judge
Glasser should have known that Carnesi was representing an unidentified
person in the Southern District case, it was not reasonably apparent how that
knowledge would indicate any obvious divergence of interest with respect to
defense strategies, much less the diametrically opposed positions that the
attorney had to take in Ciak.

26

Under the circumstances, Judge Glasser's failure to hold an inquiry was not
clear error. See Cuyler v. Sullivan, 446 U.S. 335, 346-48, 100 S.Ct. 1708, 171718, 64 L.Ed.2d 333 (1980) (multiple representation at separate trials where
there appeared to be no conflicting defense strategies did not give rise to duty to
inquire); Aiello, 814 F.2d at 113 (no duty to inquire attached when trial judge
was aware of dual representation in separate proceedings and there was no
indication of divergent interests or defenses). The failure of Stantini's new
counsel to argue to Judge Glasser in the motion for a new trial that the judge
had not fulfilled his inquiry obligation further persuades us that any error by the
district judge to fail to recognize that obligation in the last day or two of a busy
trial was not so obvious as to constitute plain error.

27

3. The Alleged Conflict Problems, Apart from the Duty to Inquire

a. The Legal Standard

28
29

A claim that counsel is conflicted is in essence a claim of ineffective assistance

of counsel. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464-65, 86
L.Ed. 680 (1942). Generally, a defendant who claims ineffective assistance
must show prejudice to prevail. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). However, when counsel is
burdened with an actual, as opposed to a potential, conflict of interest, a "fairly
rigid" presumption of prejudice applies. Id. at 692, 104 S.Ct. at 2067.
Nevertheless, "[p]rejudice is presumed only if the defendant demonstrates that
counsel 'actively represented conflicting interests' and that 'an actual conflict of
interest adversely affected his lawyer's performance.' " Id. (quoting Cuyler, 446

U.S. at 348, 350, 100 S.Ct. at 1718, 1719). "In the multiple representation
context, an attorney has an actual, as opposed to a potential, conflict of interest
when 'during the course of the representation, the defendants' interests ...
diverge with respect to a material factual or legal issue or to a course of action.'
" United States v. Fulton, 5 F.3d 605, 609 (2d Cir.1993) (quoting Cuyler, 446
U.S. at 356 n. 3, 100 S.Ct. at 1722 n. 3). Once a defendant has established that
there is an actual conflict, he must show that " 'a lapse of representation' ...
resulted from the conflict." Iorizzo, 786 F.2d at 58 (quoting Cuyler, 446 U.S. at
349, 100 S.Ct. at 1718-19). To prove a lapse of representation, a defendant
must "demonstrate that some plausible alternative defense strategy or tactic
might have been pursued" but was not and that "the alternative defense was
inherently in conflict with or not undertaken due to the attorney's other loyalties
or interests." Winkler v. Keane, 7 F.3d 304, 309 (2d Cir.1993) (quoting and
adopting the test of United States v. Gambino, 864 F.2d 1064, 1071 (3d
Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 566
(1989)), cert. denied, --- U.S. ----, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994).
30

Finally, "[w]hether a defendant's representation was constitutionally inadequate

is a mixed question of law and fact and thus we exercise de novo review."
Winkler, 7 F.3d at 308. See also Cuyler, 446 U.S. at 342, 100 S.Ct. at 1714-15.

31

Stantini claims that an actual conflict of interest resulted from Carnesi's dual
representation of Stantini and Mannino, and that a lapse in representation
resulted from this conflict in the context of both plea negotiations and the
defense strategy adopted by Carnesi at trial. He argues that the district court
ruled incorrectly on both of these claims, and did so improperly without the
benefit of an evidentiary hearing.

b. Plea Negotiations
32
33

In response to a request by Bisaccia's trial counsel during jury selection, the

government offered to accept a guilty plea for the murder conspiracy charge,
which carried a maximum ten-year sentence, in satisfaction of the pending
charges. The offer was conditioned, however, on acceptance by both Bisaccia
and Stantini. Bisaccia was interested in a plea, but Stantini's counsel (Carnesi)
told the government that Stantini had rejected the plea offer, and that Stantini
was not interested in pleading guilty "under any circumstances."

34

In Stantini's motion for a new trial, his new counsel (Futerfas) submitted an
affidavit along with his reply brief. Futerfas's affidavit stated:

If called to testify at a hearing, Mr. Carnesi would say that he felt somewhat relieved
35

by Mr. Stantini's initial negative reaction to the plea offer. Mr. Carnesi would say
that the reason for such "relief" was his concern about the impact such a plea would
have on Lorenzo Mannino. Mr. Carnesi would say he was concerned about publicity
adverse to Lorenzo Mannino, and concerned about Lorenzo Mannino's reaction to
the plea. Finally, Mr. Carnesi was concerned that, despite best efforts during jury
selection, jurors could be picked who were aware that Orazio Stantini had plead
guilty to the same crime.
36

Stantini argues that Carnesi's admission demonstrates that he did not fully
represent Stantini's interests in plea negotiations because of his fears of the
effect a Stantini guilty plea would have on Mannino in the Southern District
case.

37

The Futerfas affidavit was conspicuously silent in several respects: It offered

Judge Glasser no assertion that (1) Carnesi did not make the statement to the
government that Stantini was not interested in pleading guilty, (2) Carnesi
misrepresented Stantini's position when he informed the government that
Stantini was not interested in pleading guilty under any circumstances, (3)
Carnesi in any way counseled Stantini inadequately with respect to the
advantages or disadvantages of a plea or (4) Stantini was, or could have been,
interested in accepting a plea under any set of circumstances. Either Stantini or
Carnesi, or both, were in a position to make these assertions if they were true,
but they failed to do so. Therefore, putting aside the issue of whether Carnesi
labored under an actual conflict of interest, Stantini has not shown any lapse in
representation. Although in theory pleading guilty was a plausible defense
strategy that was not undertaken, Stantini has offered no evidence whatsoever
that this strategy was not undertaken for any reason other than his own desire
not to so plead. He has not indicated that there is any evidence that the strategy
was forgone because of any conflicting interest of Carnesi. This is so regardless
of what Carnesi's personal reaction may have been to Stantini's own position.

38

Likewise, regardless of Carnesi's articulated concerns, there was nothing about

a Stantini guilty plea that was "inherently in conflict with" Carnesi's
representation of Mannino. As he did in connection with Mannino's guilty plea
in the Southern District case, Carnesi could have insisted that any Stantini plea
include a provision that the government could not use the plea as evidence in
another trial. Careful jury selection procedures would have insured that jurors
in the subsequent Mannino trial would not be aware that a co-conspirator had
pled guilty to the murder.

39

In Winkler, a claim was made that trial counsel in defendant's state court
murder trial failed to initiate or engage in plea discussions because counsel

stood to obtain a significantly higher fee if the defendant was acquitted. 7 F.3d
at 307-08. This court, in review of the district court's denial of the defendant's
habeas corpus petition, relied on the state habeas court's findings that defendant
advised trial counsel that he was innocent and was not interested in pleading
guilty. Id. at 309. Although we determined that pursuit of plea negotiations was
a plausible defense strategy, we deferred to the state court's determination that
"trial counsel did not pursue a plea bargain because Winkler rejected this path,
not because of trial counsel's [conflicting interests]." Id. Given the paucity of
Stantini's papers in the district court on the similar issue before us, we see no
reason not to reach the same result here.
40

With regard to Stantini's claim that the district court should have held an
evidentiary hearing on this issue, the standard for sufficiency of a pleading in
order to obtain an evidentiary hearing on a motion for a new trial is well
known. See Dalli v. United States, 491 F.2d 758, 760-61 (2d Cir.1974). "Not
every application that is supported by a set of facially meritorious allegations
will survive a motion to deny the [application]. To warrant plenary presentation
of evidence, the application must contain assertions of fact that a petitioner is in
a position to establish by competent evidence." Aiello, 814 F.2d at 113.
"Whether there is a genuine issue of material fact depends upon the sufficiency
of those factual allegations. Airy generalities, conclusory assertions and hearsay
statements will not suffice because none of these would be admissible evidence
at a hearing." Id. at 113-14.

41

The gist of Stantini's position on this phase of the case is that Carnesi did not
pursue plea negotiations on his behalf because Carnesi was concerned about
the effect a Stantini guilty plea would have on Mannino in the Southern District
case. But, as stated above, on the motion for a new trial Stantini offered Judge
Glasser no evidence that he had been the slightest bit interested in a guilty plea,
although he obviously could have done so if it were so. Judge Glasser had
before him the affidavit of the Assistant United States Attorney trying the case,
which stated that Carnesi had said that Stantini was not interested in pleading
guilty "under any circumstances." On the basis of the record before it, the
district court did not abuse its discretion by refusing to grant an evidentiary
hearing. See Newfield v. United States, 565 F.2d 203, 207 (2d Cir.1977)
(unless 2255 motion is supported by sufficient affidavit, the decision whether
to hold evidentiary hearing is left to the discretion of the district court).

c. Trial Strategy
42
43

Stantini next claims that Carnesi refused to adopt any argument or defense
strategy at trial that would be inconsistent with Mannino's innocence. In other

words, Carnesi avoided any argument that emphasized the evidence of

Mannino's participation in the murder. To this end, Carnesi argued that
Gravano's entire story was a fabrication, including the account of Mannino's
role. This argument required, according to Stantini, unnecessary refutation of all
of the substantial corroborating evidence supporting Gravano's testimony,
including the independent evidence regarding Mannino.
44

By pursuing such a defense strategy, the argument continues, Carnesi did not
use a number of arguments that would have been more closely tailored to
Stantini's position. For instance, Carnesi could have focused on impeaching
Gravano's testimony only regarding Stantini's participation and the lack of
independent corroboration of Stantini's involvement. Carnesi could have made
better use of the evidence regarding Farrell, had he not been so concerned with
Farrell's identification of Mannino at the scene, by arguing that Gravano's
testimony was designed to reduce his own role in the murder. Stantini further
contends in his brief that "[u]nburdened counsel could then have argued that if
Gravano was willing to put himself in the car when, in fact, he actually shot
Oliveri, then Gravano would be willing to put Mr. Stantini at the scene when he
knew that Mr. Stantini was not there." Finally, Carnesi could have conceded
that the subject of the April 25, 1988 meeting portrayed on videotape was the
murder preparations, but argued that Stantini later pulled out of the plan. This
could also have explained why Gravano did not remember Stantini's
involvement, because he was not involved in the actual murder.

45

These arguments regarding defense strategy allegedly forgone are not

persuasive. To a large extent Carnesi actually pursued the defense strategy that
Stantini argues Carnesi ignored because of his loyalty to Mannino. Carnesi
argued vigorously that Gravano fabricated Stantini's involvement in the Oliveri
murder, after being invited to do so by Agent Petrouskie, in order to secure
another conviction. Carnesi highlighted the lack of corroboration of Stantini's
involvement, and introduced evidence that the subject of the April 25, 1988
meeting captured on videotape (arguably the only piece of corroborating
evidence of Stantini's participation) was not the Oliveri murder, but
construction projects in which the participants of the meeting had an interest.7
Carnesi subpoenaed Farrell and even though Farrell did not testify, Carnesi
managed to get Farrell's identification of Gravano standing over the victim's
body before the jury, even though Farrell apparently later recanted that
statement. Carnesi's summation asked the jury to compare Farrell's statement
with Gravano's account of his own participation.

46

Stantini's claim is, at bottom, that his interests and Carnesi's (and by extension
Mannino's) diverged with respect to any concession of Mannino's participation

in the murder, and that Carnesi declined to make such a concession at trial
because of his conflicting loyalty to Mannino. We disagree on both counts.
47

To demonstrate a divergence of interests, Stantini must show that he had an

interest in highlighting Mannino's participation in the murder or in placing
Mannino at the scene. But it is not apparent how Stantini's case would have
been materially advanced had Carnesi highlighted or conceded Mannino's guilt.
See United States v. McCaskey, 9 F.3d 368, 381 (5th Cir.1993) ("An actual
conflict of interest exists whenever one defendant stands to gain significantly
by advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing."), cert. denied, --- U.S. ----, 114
S.Ct. 1565, 128 L.Ed.2d 211 (1994). A concession as to the participation of any
of the other co-conspirators would have served to support Gravano's account of
the murder. Nothing in that account or any of the other evidence presented
suggested that if Mannino participated in the murder (or specifically if he was
identified at the scene of the crime) then Stantini did not participate or that his
level of culpability was any less.8

48

Moreover, there is no evidence that the concession of Mannino's guilt in

Stantini's trial was forgone because of Carnesi's allegedly conflicted position.
Stantini concedes in his reply brief in this court that "[t]he only evidence in the
record regarding Mr. Carnesi's trial strategy is counsel's assertion [in Futerfas's
affidavit in the district court]." That assertion was "that an attorney who
pursues a defense that concedes the guilt of another client who has yet to stand
trial for the same crime would logically place a strain on counsel's relationship
with the client so affected." Neither Stantini nor Carnesi has alleged any facts
regarding the selection of defense strategy at trial. There is no persuasive
indication in the record before us that the refusal to concede the guilt of
Mannino was necessitated by anything other than a determination as to the best
possible defense to put on.

49

Stantini did not allege in the district court--and does not do so even now--that he
requested Carnesi to pursue such a strategy or that he would have approved
such a strategy had Carnesi suggested it. Cf. Aiello, 814 F.2d at 111, 114
(evidentiary hearing necessary when defendants asserted in their affidavits in
the district court that they asked their defense counsel to call a particular
witness and he refused to do so); Ciak, 59 F.3d at 301, 307 (evidentiary hearing
necessary when witness who defense counsel refused to call submitted an
affidavit of willingness to appear and present exculpatory testimony). Stantini
has not asserted that he was in a position to prove anything regarding the
selection of defense strategy other than what the record already reflects. Under
the circumstances, the district court did not err in denying an evidentiary

hearing.
4. Bisaccia's Claim of Direct Prejudice
50

Bisaccia argues on appeal, as he did in the district court by joining Stantini's

new trial motion, that he is entitled to a new trial because he was directly
prejudiced by Carnesi's conflict of interest. He claims that Carnesi did not
seriously explore a guilty plea for Stantini due to Carnesi's conflict of interest
and points out that the government conditioned any plea agreement on the
acceptance by both defendants. From this, Bisaccia argues that he would have
been able to take advantage of a guilty plea had Stantini been represented by
unconflicted counsel. Bisaccia also contends that he was prejudiced by the
adoption of a joint defense strategy that refused to emphasize Mannino's guilt
and that had his best defense been put forward, the outcome of the trial would
have been different.

51

Bisaccia's basic proposition is that if counsel for co-defendant A is burdened

with an actual conflict of interest, co-defendant B can take advantage of this
and obtain a new trial. However, there is no reason for us to consider the
validity of this theory, which Bisaccia's appellate counsel conceded was
"somewhat novel." We have determined that Stantini suffered no lapse of
representation in plea negotiations from any conflict that Carnesi may have
been laboring under, and that there was no divergence of interest between
Stantini and Mannino with respect to trial strategy. Under the circumstances,
Carnesi's conduct, regardless of any alleged conflict, could not have
prejudicially affected Bisaccia.

52

5. Bisaccia's Claim of Ineffectiveness of Counsel

53

Bisaccia also argues that his trial counsel, Winograd, rendered constitutionally
defective assistance of counsel. This ineffectiveness claim is governed by the
familiar standard set out by the Supreme Court in Strickland. In order to prove a
constitutional violation a defendant must show that (1) "counsel's
representation fell below an objective standard of reasonableness," 466 U.S. at
688, 104 S.Ct. at 2064, and (2) the deficient performance prejudiced the
defense. Id. at 687, 104 S.Ct. at 2064.

54

Bisaccia argues that Winograd's failure to recognize the conflict that Carnesi
was laboring under, his failure to bring the conflict to the attention of the
district court or affirmatively seek Carnesi's disqualification, and his decision to
adopt a joint defense strategy that catered to Carnesi's conflicted interests all

clearly fell below minimum standards of reasonable representation. Further,

essentially repeating his prejudice argument, Bisaccia asserts that had Winograd
not made these unreasonable mistakes, it was reasonably probable that the
outcome of plea negotiations or the trial would have been different. Bisaccia
also argues that because his ineffectiveness claim is plausible and would
benefit from further factual development, the case should be remanded to the
district court for an evidentiary hearing.
55

Although Bisaccia's ineffectiveness claim is raised for the first time on direct
appeal rather than in the district court, this court can decide the issue when "its
resolution is 'beyond any doubt' or to do so would be in the interest of justice."
United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990) (quoting United States v.
Aulet, 618 F.2d 182, 186 (2d Cir.1980).

56

Bisaccia has failed to demonstrate any deficient performance on Winograd's

part. There was virtually no reason to think that the dual representation would
give rise to a conflict of interest that would in any way affect Bisaccia's case.
Under these circumstances, Winograd's failure to move for Carnesi's
disqualification or to bring the possible conflict to Judge Glasser's attention was
not objectively unreasonable.

57

Moreover, there was no deficiency with respect to Winograd's performance in

plea negotiations or at trial. He had no control over the government's demand
that both defendants agree to plead guilty or over Stantini's reaction to the plea
offer. Moreover, it was not unreasonable to adopt the trial strategy that
Winograd did. Winograd attempted to impeach Gravano's credibility by calling
attention to his criminal past, his exhortations to associates to lie when
testifying under oath, and the benefits that Gravano stood to gain by helping
convict other members of the Gambino family. He argued that the
corroborating evidence against Bisaccia had no relationship to the murder. Most
significantly, to the extent that Bisaccia now argues that Winograd adopted a
defense strategy that refused to throw light on Mannino's guilt, Winograd
brought out on cross-examination of Agent Petrouskie that Farrell had
identified Mannino (rather than Bisaccia) as standing over the body at the
scene. He also highlighted corroborating evidence against Mannino in his
summation.

58

Because Bisaccia has failed to raise a plausible ineffectiveness claim, there is

no need for further factual development in the district court. See United States
v. Tarricone, 996 F.2d 1414, 1417-18 (2d Cir.1993).

B. Jury Instruction on Conspiracy

59

Both Stantini and Bisaccia argue that the district court improperly failed to
instruct the jury that it must find that each defendant had in mind the objective
alleged in the indictment, namely to maintain or increase his position in the
Gambino family by committing the Oliveri murder, in order to hold the
particular defendant guilty of the charged conspiracy. As the charge was not
objected to at trial, Stantini and Bisaccia must persuade us that the charge as
given was plain error.

60

We find no error in the charge. Judge Glasser instructed the jury that "the
government must prove beyond a reasonable doubt ... that a conspiracy existed,
that is, that two or more persons, one of whom being the defendant you are
considering, agreed to commit a crime, agreed to violate the federal law against
murder, for the purpose of maintaining or enhancing a position in an enterprise
engaged in racketeering activity " (emphasis added). Appellants concede that
this instruction covered all of the essential elements of the conspiracy charge.
They maintain, however, that the instruction was contained merely in a "brief
summary" at the end of the instructions on the conspiracy charge, and that it
left the jury confused as to the relationship between the summary and the
"main" portion of the instructions, which outlined each element of the crime but
did not refer to improving or enhancing a defendant's position in the
racketeering organization.

61

Appellants' claim essentially is that Judge Glasser did not use a sufficient
number of words in giving the allegedly overlooked instruction and that the
judge did not use the words early enough in the charge. However, viewing the
charge as a whole, as we must, United States v. Reese, 33 F.3d 166, 172 (2d
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 756, 130 L.Ed.2d 655 (1995), we
conclude that the jury was given a legally correct instruction. See United States
v. Imran, 964 F.2d 1313, 1317 (2d Cir.) (defendant only entitled to legally
correct charge, not any particular wording), cert. denied, 506 U.S. 1009, 113
S.Ct. 626, 121 L.Ed.2d 558 (1992). Appellants' reliance on United States v.
Gallerani, 68 F.3d 611 (2d Cir.1995) is misplaced because in that case the trial
judge made no mention in the jury charge of the objects of the conspiracy
alleged in the indictment. Id. at 618.

62

We affirm the judgments of conviction.

In November 1988, 1952B was renumbered as 1959. See Pub.L. No. 100690, 7053(b), 102 Stat. 4181, 4402 (1988). Because the murder took place in
May 1988, Stantini and Bisaccia were charged under the statute as previously

numbered
2

We express no opinion on whether Curcio would have required obtaining such

a waiver under the circumstances of this case

In at least three recent cases where a potential conflict of interest of a defense

attorney was an issue in a federal trial, we have noted the government's failure
or delay in bringing the potential conflict to the attention of the trial judge. See
United States v. Malpiedi, 62 F.3d 465, 467 (2d Cir.1995); Ciak v. United
States, 59 F.3d 296, 306 n. 8 (2d Cir.1995); United States v. Iorizzo, 786 F.2d
52, 59 (2d Cir.1986). Cf. United States v. Levy, 25 F.3d 146, 152 (2d Cir.1994)
(although government brought potential conflict to attention of original trial
judge, it failed to do so to judge to whom the case was transferred)

Agent Petrouskie's testimony as to that came later, as did his clarification of

what it was that Farrell had allegedly lied about

Farrell did not testify at either the instant trial or the Southern District case

This is not the rule for dual representation in the same proceeding.
Fed.R.Crim.P. 44(c) requires an inquiry whenever there is joint representation
of defendants that have been jointly charged or joined for trial. Rule 44(c) does
not apply to the representation of two defendants in two different forums. See
United States v. Aiello, 814 F.2d 109, 112-13 (2d Cir.1987)

We do not see how it would have been in Stantini's interest to admit that the
April 25 meeting concerned the murder

A conflict of interest can develop when counsel represents two defendants and
the available evidence points to significantly different levels of culpability in
the crimes charged. See Levy, 25 F.3d at 156; Camera v. Fogg, 658 F.2d 80, 87
(2d Cir.), cert. denied, 454 U.S. 1129, 102 S.Ct. 981, 71 L.Ed.2d 117 (1981);
Fitzpatrick v. McCormick, 869 F.2d 1247, 1252 (9th Cir.), cert. denied, 493
U.S. 872, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). But that is not the case here