Opinion
Criminal Action No. 00-30036-MAP, 01-30024-FHF.
April 4, 2002
The Government has moved to disqualify Vincent A. Bongiorni ("Bongiorni") as attorney for Carmine and Giuseppe Manzi ("the Manzis") in Criminal Action No. 01-30024-FHF ("01-30024") and for Anthony Delevo ("Delevo") and the Manzis in Criminal Action No. 00-30036-MAP ("00-30036"). The motion arises out of the expected testimony in both cases of a government witness, Richard Christopher Berte ("Berte"), who was represented by Bongiorni in a relatively recent state criminal matter. Although Berte's case was ultimately tried by another attorney, Bong iorni's involvement, the Government claims, necessitates his disqualification in the cases at bar. For the reasons which follow, the court agrees and will allow the Government's motion.
I. BACKGROUND
For purposes of this motion, there is no dispute to the following facts which are provided through pleadings, trial and hearing transcripts, affidavits and other sworn testimony. Delevo and the Manzis (collectively "Defendants") are among sixteen defendants named in 00-30036. They are charged, inter alia, with conspiring to participate in the affairs of an enterprise — the "Springfield crew" of the Genovese family of La Cosa Nostra — through a pattern of racketeering activity and collection of unlawful debt. The Manzis, along with another defendant, are also charged in 01-30024 with conspiracy to distribute maruuana.
It is clear that Berte will be an essential witness for the Government in both cases. Berte, the Government avers, was an active participant in the Manzis' illegal gambling business and had a number of bettors for whom he was responsible. Two of the bettors, Mark Sullivan and Daniel Ryan, allegedly ran up a gambling debt in excess of $50,000 to Berte and the Manzis. Both Berte and Giuseppe Manzi, the Government continues, unsuccessfully pressed Ryan and Sullivan to pay their debt. Thereafter, Berte and Sullivan, among others, participated in a scheme motivated in part to pay Sullivan and Ryan's debt. Specifically, they planned to invade a home in Amherst in which the victims were expected to have cash on hand for an anticipated drug deal. The invasion was executed by Sullivan and a coconspirator on May 3, 1999.
On May 6, 1999, Berte's apartment was searched by detectives from the Amherst Police Department pursuant to a search warrant. That same day, Berte first consulted with Bongiorni. A further investigation by the Massachusetts State Police and the Amherst Police Department led to Berte's arrest in August of 1999, and Berte was charged with the home invasion in Hampshire County Superior Court. Berte was convicted on May 5, 2000, and sentenced on July 27, 2000.
While Berte himself did not testify at trial, there was testimony that his "Uncle Carmine," who worked in a barbershop with a private back room for gambling (a possible reference to Carmine Manzi), fronted money for a drug deal. (See Berte Trial Transcript, Vol. III at 50-51.) There were also references to bookmaking activities in which Berte was involved. (See Id., Vol. IV at 58-59.)
Bongiorni confirms that he filed an appearance on Berte's behalf on August 13, 1999, and did not file his disappearance until February 11, 2000, when Berte retained substitute counsel. In an affidavit, Bongiorni describes his representation of Berte as follows:
2) . . . During the course of my representation, . . . Berte was under house arrest with the exception of a thirty day period of time between October, 1999 and November, 1999, when he was under sentence in the Hampshire County House of Correction for a violation of probation occasioned by his August 13, 1999 arrest.
3) The majority of my meetings with . . . Berte took place in his home because of his bail situation. During this period of time, I believe I met with . . . Berte and his family on five (5) or six (6) occasions. Approximately seventy-five . . . percent of the meetings I had with. Berte were one-on-one meetings. During the last several months of my representation, between Christmas, 1999 and February, 2000 when I withdrew my appearance, the meetings were with one or more of his family members present, and I do not believe I obtained any privileged communication during this time period.
(Bongiorni's Affidavit ("Bongiorni's Aff."), attached to Defendants' Opposition Memorandum ("Defs.' Brief"), 2, 3.) For his part, Berte avows that he "do[es] not waive the attorney-client privilege regarding . . . Bongiorni's representation of [him]" and that he "do[es] not want any information . . . Bongiorni obtained as a result of representing [him] to be used in any way for the benefit of or at the trial of . . . Delevo or the Manzis." (Berte's Declaration, Exhibit A to the Government's Affidavit ("Gov't's Aff."), ¶¶ 6-7.)
Berte has also been charged with related crimes in this court. On August 3, 2001, a three count felony information was filed charging Berte with participation in an illegal gambling business and the use of a communication facility in furthering drug trafficking. See Criminal Action No. 01-30034-MAP. The information was filed after Berte, represented by yet another attorney, George F. Kelly ("Kelly"), entered into a plea agreement with the Government in April of 2001.
As part of his plea agreement, Berte covenanted to cooperate fully with the Government, to provide complete and truthful information to all law enforcement personnel and, if requested, to testify before any grand jury and at any hearing and trial. In turn, the Government agreed that, in the event Berte provides substantial assistance in the investigation and prosecution of others who have committed criminal offenses, it would request a downward sentencing departure from otherwise applicable guidelines and would communicate the nature and extent of Berte's assistance to the state district attorney.
On August 10, 2001, Berte's guilty plea was entered and accepted by District Judge Michael A. Ponsor. Berte has not yet been sentenced because his testimony is still expected in the two criminal cases at bar. In particular, the Government avers that Berte will be called to testify at trial in 00-30036 about the gambling debt owed by Sullivan to him and Giuseppe Manzi. Berte will also be called to testify at trial in 01-30024 about marjjuana transactions involving the Manzis.
Upon inquiry of the court, the Government represented at oral argument that, during plea negotiations, it was aware of Berte's prior representation by Bongiorni. The Government also avers that, although it formally notified Bongiorni that Berte was in fact cooperating a few weeks after the plea was entered on August 10, 2001, it had informal discussions with Bong iorni regarding Berte's possible cooperation prior to that date. The Government also explains that in September of 2001, after Berte had been placed with the witness security program, copies of Berte's plea agreement were forwarded to Bongiorni.
II. STANDARD OF REVIEW
The sixth amendment to the United States Constitution entitles a defendant to the effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 66 (1932). A purpose of the amendment is to ensure that criminal defendants receive a fair trial. Strickland v. Washington, 466 U.S. 668, 689 (1984). Nonetheless, as Defendants recognize, the right to counsel of one's choosing is not absolute. United States v. Lanoua 137 F.3d at 656, 663 (1st Cir. 1998) (citing Wheat v. United States, 486 U.S. 153, 159 (1988)). Thus, a court can disqualify an attorney over a defendant's objection where it finds either "actual conflict or a serious potential conflict." Id.
When seeking disqualification of counsel, the Government bears the "heavy burden" of demonstrating that it is justified since disqualification "should be a measure of last resort." In re Grand Jury Proceedings, 859 F.2d 1021, 1026 (1st Cir. 1988) (citation and internal quotation marks omitted). If, however, there exists "a realistic potential for conflict of interest," the court's own "`interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them'" may outweigh the defendant's sixth amendment right to choose his own counsel. Id. at 1023 (quoting Wheat, 486 U.S. at 160).
III. DISCUSSION
The Government argues that Bongiorni's prior representation of Berte amounts to a "serious potential conflict," if not an "actual" one under the above standards and governing ethical rules. In response, Defendants assert that there is no conflict whatsoever. They avow, however, that, should this court find an actual or potential conflict, they are prepared to waive any such conflict. Bongiorni, too, avows that he is fully aware of his ethical obligations to Berte as a former client, but believes that his prior representation neither diminishes his ability to effectively represent his present clients nor offends any ethical requirement. Nonetheless, he has advised his clients of their right to review with independent counsel any decision they make with respect to his continued representation.
Not unlike the First Circuit in In re Grand Jury Proceedings, supra, the Government points to the Massachusetts Rules of Professional Conduct which are included within the Massachusetts Supreme Judicial Court ("SJC") Rules. In particular, the Government cites the following: Rule 1.6(a), which states, in pertinent part, that "[a] lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation"; Rule 1.7(b) which states, in pertinent part, that "[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless . . . the lawyer reasonably believes the representation will not be adversely affected . . . and . . . the client consents after consultation"; Rule 1.8(b) which states, in pertinent part, that "[a] lawyer shall not use confidential information relating to representation of a client to the disadvantage of the client or for the lawyer's advantage or the advantage of a third person, unless the client consents after consultation"; and Rule 1.9(a) which states that "[a] lawyer who has formally represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interest of the former client unless the former client consents after consultation." See In re Grand Jury Proceedings, 859 F.2d at 1023 n. 3 (noting that the local rules of the District of Massachusetts adopt the SJC rules prescribing ethical standards of the Massachusetts bar).
The Government's motion is not the first time that the potential for conflict has arisen in these cases. Early on, the court determined that Bongiorni's joint representation had to be addressed pursuant to Fed.R.Crim.P. 44(c). Thus, on December 15, 2000, the Manzis were each advised of their right to separate representation. (See Docket No. 4 in 00-30036.) Then again, on June 12, 2001, following a superceding indictment in 00-30036 and the indictment in 01-30024, Defendants were individually advised by the court of their right to separate, independent counsel. (See Docket No 137 in 00-30036; Docket No. 8 in 01-30024.) The court described to each defendant the myriad problems with joint representation and recommended that each consult with independent counsel about the wisdom of a waiver. In addition, the court received Bongiorni's assurances that there was no present conflict that could result in a lack of effective assistance of counsel or other prejudice to any defendant and that he would monitor events and inform the court should any potential conflict arise. Nonetheless, each defendant clearly indicated on the record that he waived his right to separate counsel, and the court, after finding that no conflict of interest was likely to arise, received written confirmations to that effect. (See Docket Nos. 5, 28, 29, 138, 140 and 142 in 00-30036; Docket Nos. 9 and 10 in 01-30024.)
The court's willingness to accept Defendants' voluntary joint representation waivers in no way binds its consideration of the Government's present motion. See United States v. Fahey, 769 F.2d 829, 834 (1st Cir. 1985) (recognizing that, under Supreme Court precedent, "joint representation is not a per se violation of constitutional guarantees") (citation and footnote omitted). Rather, the instant motion must be considered in light of more recent developments, namely, the revelation that Bongiorni previously represented a key witness. Moreover, the present motion is measured under somewhat different standards. See Mickens v. Taylor, — U.S. —, 2002 WL 459251, at *7 (Mar. 27, 2002).
Even so, Bongiorni's prior representation of Berte obviously compounds the joint representation problem. To be sure, Berte's proposed testimony appears to be aimed more at the Manzis than at Delevo. Nonetheless, Bongiorni represents that neither he nor his clients have any desire for him to remain as Delevo's counsel to the exclusion of the Manzis; as Bong iorni acknowledged at oral argument, it is an "all or nothing" situation. (Transcript of March 15, 2002 Hearing at 15.)
In deciding now to allow the Government's motion and disqualify Bongiorni, the court makes three findings: (1) given Berte's invocation of the attorney-client privilege, a serious potential conflict of interest exists; (2) the Government has not manufactured the conflict; and (3) Berte has not waived the attorney-client privilege. The court's reasoning follows.
A. Does an Actual or Serious Potential Conflict Exist?
It is clear to the court that Bongiorni faces, if not an "actual" conflict of interest, a "serious potential conflict" that would materially affect his ability to effectively represent Defendants. Whether or not this matter is one of "those rare cases where an actual conflict may be demonstrated before trial," it at least falls comfortably alongside "the more common" circumstance, "where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses," Wheat, 486 U.S. at 163. e.g., as in the First Circuit's Lanoue decision. See Lanoue, 137 F.3d at 663-64 (upholding disqualification prior to trial where defense counsel formerly represented potential government witness). See also United States v. O'Malley, 786 F.2d 786, 792 (7th Cir. 1986) (upholding pretrial disqualification on grounds that defendant's counsel had previously represented major government witness). Compare State ex rel. S.G., 791 A.2d 285, 297-98 (N.J.Super.Ct. App. Div. 2002) (refusing to disqualify law firm from representing defendant where attorney in firm represented nowdeceased victim on prior unrelated matter). Indeed, Bongiorni himself has acknowledged, both to the court and to his present clients, that absent a waiver from Berte, he "would be strictly prevented from cross-examining . . . Berte as to any confidences obtained during the course of the attorney-client relationship." (Bongiorni's Aff. ¶ 5.)
The Supreme Court's recent 5-4 decision in Mickens does not apply here. While there is much food for thought in the split decision, the Supreme Court was admittedly evaluating "only . . . the effect of a trial court's failure to inquire into a potential conflict" in a narrow quite distinguishable, factual circumstance. Id., 2002 WL 459251, at *7.
To be sure, Defendants argue that the court should hold an in camera hearing — at which only Bongiorni, Berte, and Kelly would be present — so as to gather sufficiently detailed information about Berte's communications with Bongiorni. That quasi ex parte proceeding, in Defendants' view, would permit the court to gauge whether Bongiorni's inability to inquire into certain items "would materially affect [his] ability to effectively represent these defendants." (Defs.' Brief at 4-5.)
In the court's estimation, such a hearing is unwarranted for a number of reasons. First, Defendants cite no case law for this novel proposition. But see O'Malley, 786 F.2d 786 at 793 (refusing to require in camera hearing in disqualification matter). Second, it would be practically impossible for the court to draw the line which Defendants request, namely, the point where Bongiorni's inability to inquire into certain matters would materially affect his ability to represent Defendants. In many ways, the very fact that there are matters upon which Bong iorni could not inquire of Berte is proof enough of the conflict he faces. Third, the Government's description of the testimony which it expects Berte will provide in the cases at bar makes clear that the facts in all three cases are intertwined.
For similar reasons, the court rejects Defendants' suggestion, as one possible alternative to Bongiorni's complete disqualification, that a co-counsel could assist Bongiorni at trial in order to avoid a conflict.
The federal information to which Berte has pleaded guilty ties the facts even more closely together. At Berte's plea hearing, the Government indicated that, had the case gone to trial, the evidence would show that from 1996 to 1999 Berte, together with the Manzis and others (including three additional defendants in the cases at bar), ran an extensive betting operation in western Massachusetts. (See Berte Plea Transcript in Criminal Action No. 01-30034-MAP at 22.) The Government also described evidence which would show Berte's active involvement in marjjuana distribution in 1998, (see id. at 23), the same year in which the Manzis were allegedly involved in a marjjuana conspiracy.
Finally, and perhaps most importantly, the documentation provided to the court at its request demonstrates the seriousness of the conflict without further inquiry. Bongiorni represented Berte for over nine months. As Berte avows, he first consulted Bong iorni on May 6, 1999, the same day that his apartment was searched. For his part, Bongiorni confirms that he filed his appearance in the state matter on August 13, 1999, soon after Berte was charged, and did not disappear from that case until the following February. Bongiorni also affirms that he met with Berte as many as six times, four of those times alone. In the court's view, this is more than sufficient time and contact for Bongiorni to be apprised of many intimate details, including confidences of Berte regarding the Manzis. The state charges, after all, were rooted in Berte's relationship with them. The court need not wait for this to blossom into an actual conflict at trial for it to know now that the potential conflict is so serious as to require disqualification.
B. Has the Government Manufactured a Conflict?
The court also rejects Defendants' claim that any conflict, whether real or potential, has been manufactured by the Government to gain a tactical advantage. "The Government's considerable control over Berte's future," Defendants assert, "strongly suggests his invocation of the privilege, after extensive debriefing by Government Agents[, and] belies any assertions that such action is undertaken for any reason other than to provide the Government with an avenue for counsel's disqualification, undermining the defendants' efforts to defend themselves with counsel of their choice." (Defs.' Brief at 10.) This is a serious charge and, as such, must be carefully considered by the court. See Wheat, 486 U.S. at 163. In the end, however, the court finds that the allegation lacks both foundation and merit.
For one thing, the very notion of "invocation" upon which Defendants rely is questionable. The privilege need not have been formally "invoked" by Berte for Bongiorni to be bound by his confidences. See United States v. Edgar, 82 F.3d 499, 508 (1st Cir. 1996) (noting that the " attorney has an obligation to assert the privilege on behalf of the client") (emphasis added); U.S. Trust Co. of N Y v. Lewis, 1992 WL 110728, at *1 (S.D.N.Y. May 12, 1992) ("In the absence of an affirmative act by [the client] to waive the privilege, it remains in effect. . . .") (citing 2 J. Weinstein M. Berger, Weinstein's Evidence ¶ 503(c)[03] (1990)). At no time was there any indication here that Berte would do anything but claim the privilege. Thus, even had Berte remained silent, Bongiorni would be no less obligated to protect confidential communications made by his former client. See Edgar, 82 F.3d at 508 ("The first line of defense to protect [a client]'s privilege lays in the hands of his lawyer."); Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine at 32 (4th ed. 2001) ("[B]ecause a client is often a layperson without knowledge of the intricacies of the privilege or how it must be raised to be preserved, counsel has a professional obligation.., to raise it on the client's behalf."). At best, therefore, Defendants' only complaint concerns the timing of the Government's having communicated to their attorney that Berte was not waiving the privilege. That, in the end, is not much of a complaint.
Second, the timing of the alleged "invocation" well prior to trial substantially eviscerates any claim of manufacture. Prior to Berte's plea, the Government, knowing of Bongiorni's prior representation, advised him of Berte's possible cooperation. Shortly after Berte entered his plea on August 13, 2001, the Government formally notified Bongiorni and sent him a copy of the plea agreement. Only when Bongiorni himself decided that no conflict existed did the Government file the present motion. See, e.g., United States v. Register, 182 F.3d 820, 833 (11th Cir. 1999) (rejecting "manufacture" argument where it was "unlikely that the government fully had developed its trial strategy when it filed the motion to disqualify defense counsel"), cert. denied, 531 U.S. 849 (2000).
Third, Berte's present counsel avows that at no time has his advice "been colored by considerations of what tactical advantage, if any, the government might reap from the disqualification of . . . Bongiorni." (Kelly's Declaration, Exhibit B to the Gov't's Aff., ¶ 5.) Accordingly, Defendants' claim of manufacture must fall by the wayside.
C. Has Berte Waived the Privilege?
Finally, Defendants seem to imply that Berte may have revealed the same information to the Government's investigators as he might have confided to Bongiorni, thereby waiving the attorney-client privilege. The court rejects this argument.
When an attorney is put in the position of having to cross examine a former client, there is obviously a serious potential for conflict, especially when, as here, it is clear that the subject matter of the representations overlap. As the First Circuit explains, "the loyalty a lawyer owes to his client is so basic to rendering effective assistance that it should not be sullied by even the appearance of a possible conflict." United States v. Mazzaferro, 865 F.2d 450, 456 (1st Cir. 1989). Moreover, "[i]nsofar as questioning of the client is concerned `[t]he privilege attaches not to the information but to the communication of the information.'" United States v. James, 708 F.2d 40, 44 n. 3 (2nd Cir. 1983) (quoting United States v. Cunningham, 672 F.2d 1064, 1073 n. 8 (2nd Cir. 1982)). "In other words, a client does not waive his attorney-client privilege `merely by disclosing a subject which he had discussed with his attorney.'" O'Malley, 786 F.2d at 794 (quoting J. Weinstein M. Berger, Weinstein's Evidence, Advisory Committee's Note to Standard 511 (1984)).
See also United States v. Moscony, 927 F.2d 742, 750 (3rd Cir. 1991) (stating that "an attorney who cross-examines former clients, inherently encounters divided loyalties"); United States v. Dolan, 570 F.2d 1177, 1184 (3rd Cir. 1978) (holding attorney properly disqualified because he "could not effectively cross-examine his former client now an important prosecution witness without intruding into matters protected by the attorney-client privilege"); United States v. Kelly, 870 F.2d 854, 857 (2d Cir. 1989) ("Two clients' interests in separate matters may be just as opposed, and the potential for conflictjust as serious.").
In Lanoue, the First Circuit upheld a disqualification where the defendant's counsel formerly represented a potential Government witness, even when both the Defendant and the potential witness, unlike the instant matters, had waived their rights to conflict-free counsel. See id., 137 F.3d at 663-64. Obviously, the fact that Berte has not waived his privilege presents a significantly more compelling case for disqualification.
In this vein, the court takes particular note of Berte's statement during his state sentencing. Although he did not admit to the charges — simply stating at the time that he "apologize[d] for the actions that [the court] believe[d he] committed" (Berte Sentencing Transcript (July 27, 2000) at 40) — he hinted at darker things:
I'm not going to come in front of you and say that I have been an angel, but there are so many things that you will never understand and so many things that people don't understand about the complexities of this case and the reasons why things had to go this way. I'm not going to put my family and anyone I love injeopardy. I think you can read between the lines and understand what I'm trying to say without coming out in open court.
(Id. at 37.) Although the sentencing judge roundly rejected any implication that Berte was "the victim of anything," (id. at 41), Berte's personal concerns are evident and his decision to invoke his privilege here must be respected.
D. Summary
In summary, while a presumption exists in favor of Defendants' selection of counsel, that presumption has been overcome here by the demonstration of at least a serious potential for conflict. Rather than facing theoretical conflicts of interest, as may have been present at the early stages of these cases, the court has before it ample information to easily predict a serious potential for conflict. As such, the Supreme Court's cautionary language in Wheat is particularly apt:
The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government's witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics.Wheat, 486 U.S. at 162-63. Finally, the court hopes that this memorandum will serve to adequately explain to Defendants, disappointed though they may be, why it must disqualify Bongiorni. At bottom, however, the court is not only concerned with Defendants' rights, but the Government's interest in protecting its witnesses, Berte's right to maintain his privilege and the public's interest in having trials conducted fairly. See O'Malley, 796 F.2d at 789.
IV. CONCLUSION
For the reasons stated, the Government's motion is ALLOWED. Defendants are ordered to appear, each with substitute counsel or individually, at the status conferences scheduled for April 25, 2002 (at 2:30 p.m. in 00-30036 and at 3:00 in 01-30024).