Opinion
S1 02 Cr. 1237 (SWK), 89866
March 2, 2004
OPINION ORDER TO BE FILED UNDER SEAL
The Government has asked the Court to disqualify the law offices of Gary Greenwald, Esq., from representing defendant Angelo DiPietro due to a conflict of interest. According to the Government, the conflict arises from Mr. Greenwald's prior representation of John Doe in this matter. Government Letter, dated February 17, 2004 ("Gov't. Ltr."), at 1. Mr. Doe is a witness to at least two of the offenses charged in the above-referenced superceding indictment ("Indictment") and also allegedly participated, along with Defendant DiPietro, in at least two other offenses charged in the Indictment. Id. The Government believes that Mr. Greenwald cannot represent DiPietro without violating the ethical duties of loyalty and privilege that Mr. Greenwald owes to John Doe and that he would owe to DiPietro. Id.
Due to the nature of this case, Mr. Greenwald's prior client will be referred to as John Doe. In addition, despite having detailed knowledge of alleged relevant specific events, throughout the opinion the Court will refer to such events only in very general terms.
In response to the Government's request, Mr. Greenwald asserts that his prior representation of John Doe in this same matter does not create an actual conflict of interest at this time. Greenwald Letter, dated February 20, 2004 ("Def. Ltr."), at 1. Moreover, Mr. Greenwald contends that even if there were a conflict by virtue of his prior representation of Doe, both DiPietro and Doe have indicated their desire to waive such conflict. Id. at 2.
I. Factual Background
In Count One of the Indictment, Angelo DiPietro and others are charged with participating in a conspiracy to extort a victim ("Victim #1") with whom they had invested money. Gov't. Ltr. at 2. In Count Two of the Indictment, DiPietro and others are charged with attempting to extort Victim #1. Id. According to the Government, the evidence will show that, on more than one occasion, DiPietro and his co-conspirators kidnapped Victim #1 and used extreme threats of violence against Victim #1 in an effort to get Victim #1 to return money that DiPietro and his co-conspirators had invested with Victim #1. Id. The Government also contends that the evidence will show that, on one of those occasions, Victim #1 was with John Doe when Victim #1 was being pursued by DiPietro and his co-conspirators. Id. On that occasion, DiPietro's co-conspirators, who had been enlisted by DiPietro to threaten Victim #1, allegedly engaged in threatening physical conduct towards Doe. Id.
In Count Five of the Indictment, DiPietro is charged with participating in a conspiracy to extort a second victim ("Victim #2"). Id. In Count Six, DiPietro and others are charged with actually extorting Victim #2. Id. The Government alleges that the evidence will show that DiPietro and others collected debts from Victim #2 by means of threats of physical violence. Id. According to the Government, one of DiPietro's co-conspirators in these crimes was John Doe, who participated in the crime at the direction of DiPietro. Id. The Government also contends that it possesses tapes of conversations between DiPietro and Doe in which DiPietro directs Doe concerning the collection of a debt. Id. The tapes also reveal a conversation in which DiPietro informed another individual that Doe was subservient to DiPietro and that Doe did what DiPietro told him to do. Id.
In July 2003, Doe was served with a grand jury subpoena in this matter. Id. As a result of the subpoena, Doe retained Gary Greenwald, Esq. Id. Mr. Greenwald then arranged a meeting, on August 5, 2003, with two agents of the Federal Bureau of Investigation's field office in White Plains, New York.Id. Assistant United States Attorney Tim Treanor, the AUSA who filed this request for disqualification on behalf of the Government, was present for a portion of that meeting. Id. During the course of the meeting, Mr. Greenwald and Doe indicated to the Government that Doe was willing to cooperate with the Government's investigation by providing information to the Government. Id. Doe was asked questions about numerous individuals, including Angelo DiPietro. Id. at 3. In response, Doe provided information to the Government about DiPietro. Id. More specifically, Doe admitted that he had worked for DiPietro. Id. In addition, Doe provided information about the current business interests of DiPietro; however, Doe denied participating in any criminal activity with DiPietro. Id. At the conclusion of the meeting, Mr. Greenwald and Doe indicated that Doe was willing to provide any information that the Government requested, but was not willing to testify against anyone. Id. Because of Doe's desire not to testify, the Government indicated that it could not utilize Doe's cooperation.Id.
As of the date of this opinion, Doe has not been charged; however, the Government has indicated that it is currently reviewing the evidence against Doe and is considering whether to seek a superseding indictment charging Doe. Id. at 3.
After the August 5, 2003 meeting, Mr. Greenwald, on behalf of John Doe, maintained contact with the Government. By letter, Mr. Greenwald informed the Government that, "Based upon our conversations, it appears that any cooperation that you would like cannot take place for the reasons that I have advised you of over the phone." Gary Greenwald's Letter to FBI Special Agent Presutti, dated September 30, 2003.
On February 4, 2004, the Government arrested Angelo DiPietro for his alleged participation in the acts indicated in the Indictment. Gov't Ltr. at 3. On February 6, 2004, the Government was informed that members of DiPietro's family had retained Mr. Greenwald to represent DiPietro; as a result, the Government called Mr. Greenwald and informed him that it believed he had a conflict of interest, based on his current representation of Doe in the same matter. Id. Mr. Greenwald responded that he intended to represent both Doe and DiPietro.Id. In an apparent, albeit delayed, recognition of the impropriety of such dual representation, Mr. Greenwald changed his position on February 9, 2004, when he informed the Government that he was terminating his representation of Doe and continuing his representation of DiPietro. Id. Mr. Greenwald also informed the Government that Doe's position with respect to cooperating had not changed.Id.
II. Discussion
A defendant has a right under the Sixth Amendment to conflict-free legal representation. United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994). While the Sixth Amendment encompasses a defendant's right to be represented by the lawyer of his choice, the essential aim of the Sixth Amendment's right to counsel is to ensure an effective advocate for all criminal defendants. Wheat v. United States, 486 U.S. 153, 159 (1988). Thus, a defendant's right to the lawyer of his choice is not absolute, and the court is not required to accept a defendant's waiver of his lawyer's conflict of interest. United States v. Arrington, 867 F.2d 122, 128 (2d Cir. 1989).
When a district court has been informed of the possibility of a defense counsel's conflict of interest, it has a threshold obligation "to investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all." Levy, 25 F.3d at 153; see also Fed.R.Crim.P. 44(c) (duty to make inquiry in cases of joint representation). If the district court determines that the defense counsel has an actual or potential conflict, the court has a "disqualification/waiver obligation" to determine whether the conflict is so severe as to obligate the court to disqualify the attorney or a lesser conflict that can be waived in aCurcio hearing. United States v. Kliti, 156 F.3d 150, 153 (2d Cir. 1998).
A. Greenwald's Representation of DiPietro is an Actual Conflict
Although the line between an actual and potential conflict is not always clear, United States v. Cruz, 982 F. Supp. 946, 948 n. 6 (S.D.N.Y. 1997), an actual conflict exists when, "during the course of representation, the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action . . . or when the attorney's representation of the defendant is impaired by loyalty owed a former client." United States v. Blau, 159 F.3d 68, 74 (2d Cir. 1998) (internal quotation omitted).See also United States v. Locasio, 6 F.3d 924, 931 (2d Cir. 1993) ("There are many situations in which a district court can determine that disqualification of counsel is necessary. The most typical is where the district court finds a potential or actual conflict in the chosen attorney's representation of the accused, either in a multiple representation situation . . . or because of counsel's prior representation of a witness or co-defendant." (citations omitted). Put simply, "an actual conflict is one that is so serious that it impedes the attorney's ability to present a vigorous defense." Cruz, 982 F. Supp. at 948 n. 6.
There can be little doubt that Mr. Greenwald's representation of Angelo DiPietro creates an actual conflict and thereby precludes Greenwald from presenting a vigorous defense; indeed, it is incredibly hard to believe that Mr. Greenwald himself does not recognize this. From August 2003 until February 2004, Mr. Greenwald represented Doe in his dealings with the Government in this very matter. At those meetings, John Doe, presumably on the advice of counsel, admitted to a long-standing relationship with DiPietro, including a relationship during the time of the charged conduct. According to the Government, it is that relationship alone that helps to establish the conspiracy between Doe and DiPietro. Furthermore, Doe provided the Government with information regarding,inter alia, Angelo DiPietro's involvement with the acts charged in this Indictment. In other words, Greenwald's involvement with Doe was not only on the very same case in which he now wants to represent DiPietro, but Greenwald's representation of Doe actually involved Greenwald's facilitating Doe's cooperation against DiPietro.
Mr. Greenwald contends that, "I briefly represented John Doe this past fall, during which time I received no information from him relating to the charges against my current client, Mr. DiPietro. With the allegations the Government has made, I see no conflict of interest with my continuing obligations to my former client and my obligations to my present conflict [sic]." Def. Ltr. at 2.
The fact that Greenwald's involvement with DiPietro is on the very same matter as his involvement with Doe is what distinguishes this case from those relied upon by Greenwald. In support of the proposition that an attorney's prior representation of a co-defendant or government witness is not an actual conflict, the defense cites United States v. Lussier, 71 F.3d 456 (2d Cir. 1995);United States v. Leslie, 103 F.3d 1093 (2d Cir. 1997);United States v. Perez, 325 F.3d 115 (2d Cir. 2003) andUnited States v. Oberoi, 331 F.3d 44 (2d Cir. 2003). Def. Ltr. at 2. What the defense does not mention, however, is that in each of the aforementioned cases, defense counsel represented an adverse witness or co-defendant in connection with an entirely different matter.See Government Reply, dated February 26, 2004 ("Gov't Reply"), at 4.
Greenwald's prior representation of Doe is problematic for numerous reasons. First, if Doe were to become a co-defendant in this matter, Mr. Greenwald, consistent with his ethical duties of loyalty and privilege, would be unable to shift blame for crimes charged in the Indictment from DiPietro to Doe. Second, Greenwald would be unable to interpret recorded conversations between Doe and DiPietro in a light favorable to DiPietro but unfavorable to Doe. Third, even after trial Mr. Greenwald would be constrained from making sentencing arguments on behalf of DiPietro regarding matters that might implicate or increase the sentence of Doe. Fourth, if Doe were to become a government witness in this matter, Mr. Greenwald would be significantly limited in sharing information with DiPietro that was provided to him by Doe. Fifth, Mr. Greenwald would be unable to cross-examine Doe and would be unable to comment negatively in closing arguments about Doe's testimony. In sum, whether or not John Doe becomes a Government witness, and whether or not John Doe is ultimately indicted, Gary Greenwald's defense of Angelo DiPietro, by virtue of his prior representation of John Doe, is going to be significantly limited.
B. Actual Conflicts of Interest Cannot Be Waived
Where a conflict of interest is actual, the court is "obliged" to disqualify the attorney. Levy, 25 F.3d at 153. Further, if a court "justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that the defendants be separately represented." Wheat, 486 U.S. at 162. Nevertheless, Greenwald claims that Mr. Doe's waiver of attorney-client privilege conclusively establishes the propriety of Greenwald's representation of DiPietro. Mr. Greenwald is wrong. Pursuant to bothWheat and Levy, and in light of the Court's determination that Mr. Greenwald's conflict is so severe as to impede his ability to adequately represent DiPietro, Doe's "waiver" is irrelevant. Moreover, even if this were a waivable conflict, which it is not, the facts do not support a knowing and voluntary waiver; to the contrary, the facts explicitly undermine such a conclusion. The Government has demonstrated that John Doe worked for Angelo DiPietro. The Government has indicated that there are recorded conversations between DiPietro and a third party where DiPietro was heard to say that Doe did what he told him to do. Gov't Ltr. at 2. Most importantly, there is apparently evidence that associates of Angelo DiPietro, on DiPietro's order, physically intimidated John Doe. Having relied on DiPietro for his employment, having been victimized by DiPietro, and ultimately having been physically threatened by DiPietro's co-conspirators, it is little wonder that Doe deferred when he learned that DiPietro wanted the same lawyer Doe had already retained. Given the apparently coercive nature of the relationship between DiPietro and Doe, the Court is not satisfied that Doe's waiver was, or ever could be, voluntary.
C. Even if Gary Greenwald's Representation of Angelo DiPietro is Only a Potential Conflict, the Integrity of the Judicial Process is Best Served by Disqualifying Mr. Greenwald
The Court can conceive of no reason, other than feeling threatened, why anyone would knowingly waive a conflict that permitted his former attorney to shift criminal culpability to that person.
Because the Court does not believe that John Doe could ever voluntarily waive a conflict that involved Angelo DiPietro, a hearing on the waiver issue is unnecessary.
A potential conflict of interest is a "lesser" conflict.Wheat, 486 U.S. at 162. A potential conflict exists where a court finds that "a rational defendant could knowingly and intelligently desire the conflicted lawyer's representation . . ." Id. However, even where a defendant wants to waive a potential conflict, a district court still has "substantial latitude in refusing waivers of conflicts of interest." Id. at 163.
It should also be noted that a defendant's Sixth Amendment right to counsel is not the only interest at issue when a potential conflict arises. The trial court also has an independent duty to preserve the integrity of the judicial process and to ensure that "criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id. at 163. Accordingly, a district court should decline to permit a defendant to be represented by the counsel of his choice if that representation would undermine the integrity of the judicial process. Id.
Although the Court is aware that "disqualification is a harsh remedy that should be invoked infrequently," United States v. Gotti, 9 F. Supp.2d 320, 323 (S.D.N.Y. 1998), it is unquestionably appropriate here. Permitting Mr. Greenwald to drop John Doe in favor of Angelo DiPietro would seriously handicap Mr. DiPietro's defense, would unduly prejudice the legal rights of Mr. Doe, and would ultimately cast doubt on the integrity of the judicial process. Thus, pursuant to bothWheat and Levy, and in the interests of justice, the Court hereby disqualifies the Law Offices of Gary Greenwald, Esq. from representing Angelo DiPietro.
The Court received an additional letter from Gary Greenwald, dated February 27, 2004. The letter, apparently prepared in great haste, was not permitted under the briefing schedule set by the Court on February 11, 2004. Nevertheless, the Court has considered the letter and finds that it provides no basis upon which to alter this opinion.
SO ORDERED.