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discussing a criminal defense attorney's experience level and noting that “the best evidence of [counsel's] inexperience was his inability to recognize that the absence of a proffer agreement in this case was good for Reich, not bad”
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04 CR 257 (S) (JG).
January 27, 2005
MICHAEL S. WASHOR, ESQ., New York, New York, Attorney for Defendant.
ROSLYNN R. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York, By: Steven H. Breslow, Assistant U.S. Attorney.
MEMORANDUM AND ORDER
The defendant Edward Reich made various motions, most of which were disposed of orally on January 5, 2004. On that date, I took under submission Reich's motion to suppress statements made on the day he was arrested, December 18, 2003. This memorandum and order disposes of that motion, which is denied for the reasons set forth below.
The findings of fact set forth here are based on the materials submitted in support of and in opposition to Reich's motion and the evidence adduced at the January 5, 2005 hearing.
On December 18, 2003, at approximately 8 a.m., three FBI agents went to the defendant's home on West 68th Street in Manhattan. After they introduced themselves, they were invited into the apartment by Reich and his wife. The agents informed Reich that they had a warrant for his arrest. They instructed him not to speak and encouraged him to listen. The agents took out a tape recorder and said to Reich that they wanted him to listen to a tape. They then played a brief excerpt of a recording that, according to the government, evidences Reich's acceptance of cash bribes while acting as a referee in public auctions in Brooklyn, New York. The agents were hoping to enlist Reich's cooperation, and they played the tape in an effort to convince him that he would be convicted if he sought to contest the charges on which he would be arrested.
Reich, a lawyer and former President of the Brooklyn Bar Association, expressed a concern about what would happen to him if he chose to cooperate. Specifically, he and his wife had plans to leave on vacation to Brazil in four days, and they were concerned about whether they could go. Reich, a locally prominent attorney, also had concerns about his reputation if his arrest were to become public. Finally, Reich also had concerns about the welfare of his mother, who at that time was not in good health. It soon was made clear to Reich by the agents that if he chose to cooperate with the government, he would not be publicly arraigned in open court later that day. Indeed, the government used the prospect of a waiver of arraignment, i.e., a nonappearance in court by Reich, as an inducement to him to decide to cooperate with their investigation.
Reich and his wife decided that it was in his best interest to be represented by counsel. They told the agents that a lawyer was needed. Reich's wife stated to him: "I'm going to call Barry." One of the agents asked who Barry was, and Reich's wife responded that she was referring to Barry Kamins, another prominent attorney in Brooklyn. An FBI agent told the Reichs not to call Kamins because he was also a referee in Brooklyn. Specifically, the agent said that it was not a good idea for Reich to involve Kamins as his attorney.
Reich and his wife explained that Reich was not a practitioner of criminal law and did not know any other criminal lawyers. Reich's wife asked the agents to recommend a lawyer. One of the options provided to the Reichs by the agents was Kevin O'Donnell, a former assistant district attorney in Queens County. One of the agents (Robert Katzman) worked with O'Donnell as an assistant district attorney before joining the FBI. Reich was taken to the FBI offices at 26 Federal Plaza in Manhattan. Arrangements were made for O'Donnell to meet with him there.
O'Donnell has been a member of the New York bar since 1995. From 1994 through 1998, he was an assistant district attorney in Queens. For two years after that, O'Donnell was an associate at a large New York firm, from which he left to start a private practice with another lawyer in 2000. For the last few years he has been in private practice on his own. He has very limited federal experience.
When O'Donnell arrived at the FBI offices, he met with the FBI agents and with an Assistant United States Attorney. He was told that Reich was going to be charged with accepting bribes as a referee. Specifically, O'Donnell was told that Reich would be charged with taking money for lowering bid amounts after auctions of real property that he presided over as referee. O'Donnell was also told that the government had a tape recording of a conversation that established Reich's guilt. The government wanted to know if Reich wanted to talk to them about cooperating in the investigation. If Reich chose to cooperate, he would not be publicly arraigned. Rather, a waiver of speedy arraignment would be executed, and Reich's arrest would remain a secret, at least for a while.
O'Donnell then met privately with Reich for approximately thirty minutes. He introduced himself and described briefly his background to his new client. O'Donnell told Reich that the government appeared to have a case against him and discussed Reich's potential cooperation. O'Donnell informed Reich that he had a choice: he could either cooperate, in which case there would be no public arraignment; or he could choose not to cooperate, and the case against him would become public later that day. O'Donnell also discussed the nature of the charge against Reich, at least as much as he could given the information provided to him by the FBI. O'Donnell hadn't seen any charges, but he was told, correctly, that Reich was charged with bribery in his capacity as a referee. In his discussion with Reich, O'Donnell referred to the taped conversation that Reich had heard previously (O'Donnell himself had not listened to that conversation).
O'Donnell told Reich that O'Donnell and Agent Katzman had previously worked together. Based on his knowledge of Katzman's reputation when Katzman was an assistant district attorney, O'Donnell assured Reich that Katzman was a straight shooter, that is, he could be trusted not to double-cross Reich if Reich chose to cooperate with him.
O'Donnell made it clear that the decision whether to cooperate was entirely Reich's. He did not press Reich to cooperate, although he knew full well that his old co-worker Katzman wanted very much for Reich to cooperate. O'Donnell could not recall whether or not he specifically told Reich that he did not have to speak to the agents, but it is clear from the context of the conversation (not to mention Reich's considerable experience and training as a lawyer), and I find, that Reich well knew that he had the right not to speak to the agents or the AUSA.
In his private conversation with his client, O'Donnell learned that Reich was intending to profess his innocence of the crimes for which he was held suspect. In light of that, according to O'Donnell, he could see no harm in Reich speaking to the agents.
At the end of their conversation, Reich decided to speak to the agents. It was a rational decision by a prominent lawyer in full possession of his faculties. He thereupon met with the agents, making the statements that are the subject of this motion to suppress. During the debriefing, it became clear at more than one juncture that Reich was providing information that the agents did not believe. On more than one such occasion, O'Donnell asked for and was given the opportunity to speak to his client privately. He took those opportunities to apprise Reich of the difference between what he was saying and what the government apparently believed to be the truth. O'Donnell told Reich that the agents believed that Reich was holding back information.
There are no statements made by the defendant prior to O'Donnell's arrival on the scene at the FBI offices that the government intends to elicit at trial.
The questioning ended at approximately 2:00 p.m., and O'Donnell left the FBI offices for the courthouse, advising Reich that he would be arraigned later that afternoon. Although Reich never reached an agreement to cooperate with the government, for reasons that are not clear from the record before me, the government agreed to allow Reich to waive speedy arraignment that day. Reich was permitted to go home and was told that he could take the vacation to Brazil that he had planned with his wife.
The charges against Reich were subsequently unsealed, and he stands indicted today for conspiring to accept bribes, bribery (five counts), conspiracy to commit mail fraud, mail fraud (three counts), extortion (four counts), and making a false statement to the FBI during the interview with the agents.
This last count, count 15, was dismissed on January 5, 2005. It states that the false statement was made on December 19, 2003, but it seems clear to me that the count is based on the December 18 statements described above.
At no time on December 18, 2003, were Miranda warnings administered to Reich.
B. Discussion
In support of his motion to suppress, Reich argues (1) that he was deprived of his qualified right to counsel of choice under the Sixth Amendment when he met with the agents on December 18, 2003; (2) O'Donnell was ineffective, that is, his performance fell below Sixth Amendment standards, and thus the results of the interrogation should be suppressed; and (3) that he never received his Miranda warnings. None of these arguments has any merit.
A threshold argument the government makes in opposition to Reich's Sixth Amendment claims is that his Sixth Amendment right had not yet attached at the time the events in question occurred. This is correct. The Sixth Amendment right does not attach until the commencement of adversary judicial proceedings. See, e.g., United States v. Gouveia, 467 U.S. 180, 187-88 (1984). In a situation like Reich's, where a defendant has been arrested on a warrant but not yet indicted, the Sixth Amendment right attaches upon the defendant being arraigned. Because Reich had not yet been arraigned as of the time he made the statements in question, and indeed was not even arraigned that day in light of his agreement with the government, his Sixth Amendment right to counsel had not yet attached. However, I need not decide the motion on that ground, as both of Reich's Sixth Amendment arguments lack merit.
Reich's claim that the government intentionally intruded into his attorney-client relationship with Barry Kamins is frivolous. On the day in question, there was no such relationship. True, the Reichs considered calling Kamins for assistance after the agents announced that they had an arrest warrant for Reich. But no attorney-client relationship had yet been established. More importantly, the comment that Reich alleges as the intrusion was simply an admonition by the FBI agent that it would have been a bad idea for Reich to call another referee in Brooklyn to represent him in connection with cooperation into suspected corruption in the Brooklyn court system. This was obviously true, and neither the law nor common sense forbade the FBI agent from telling that to the Reichs. Reich's contention that this comment is equivalent to the disparagement of counsel in the case on which he relies is wholly unpersuasive. See United States v. Amlani, 111 F.3d 705, 710-12 (9th Cir. 1997) (conduct that would state a Sixth Amendment claim included a prosecutor repeatedly disparaging defendant's chosen counsel in front of the defendant, essentially telling the defendant and his wife that the attorney did not care about the defendant, was not competent, and could not prevent defendant's conviction). Accordingly, I reject Reich's argument that the government interfered with his counsel of choice.
I hasten to add that retaining Kamins would have been a bad idea even assuming, as I do, that Kamins's own conduct as a referee was beyond reproach.
I also reject the contention that O'Donnell provided ineffective assistance of counsel. The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984).
Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for 'reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen 'from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "'the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 521 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
These principles are an odd fit with a pretrial motion to suppress statements. Ineffective assistance of trial counsel claims typically look back on attorney performance in trials that produced a conviction. Reich seeks to use the doctrine to look back on attorney performance in an investigation that has produced an indictment. This is uncharted territory. In any event, Reich's complaints about the performance of O'Donnell misapprehend the demands placed on counsel in O'Donnell's situation. The government was trying to enlist Reich's cooperation in a criminal investigation. As it often does, it sought to exert the maximum lawful pressure on him to do so. The principal ingredients of the pressure exerted on Reich were (1) a decision not to cooperate would result in the public disclosure of the charges against him later that day, ruining his reputation and perhaps his livelihood; (2) strong assertions that the evidence against him was overwhelming, buttressed by the playing of the tape-recording; and (3) the typical threat that Reich would spend a long time in jail if he did not cooperate, implicit in which was an assurance that he would spend less time in jail if he did cooperate. In that "the train is leaving the station" setting, O'Donnell cannot properly be faulted for, among other things, not having examined the arrest warrant; not requesting a transcript of the tape; and not taking notes of the debriefings of his client. Nor does it fall below the standard of performance required by Strickland for an attorney in O'Donnell's position not to discuss the defense of entrapment with his client, precisely how many years he might receive in jail, or the prospect of immunity.
Some of Reich's claims are factually inaccurate. O'Donnell was not thrust upon Reich against his will, as Reich asserts. He was one of several names provided to the Reichs, and Reich had an opportunity to meet with him for approximately half an hour before meeting with the agents. Reich is no stranger to the law. He knew full well he was not required to retain O'Donnell. As for O'Donnell's relationship with Agent Katzman, such relationships are hardly unusual in New York, where former prosecutors frequently become defense lawyers and relationships between the defense bar and law enforcement officials abound. Indeed, had Reich's efforts to cooperate with the government turned out differently, a prior professional relationship between his counsel and one of the agents working on the case would have served him in good stead. The mere fact that it did not turn out well does not suggest anything improper in the relationship between the attorney and the agent.
It is true that some lawyers would not have advised Reich to enter into a proffer with the government if Reich's plan was to assert his innocence. Defendants in that situation never make converts out of FBI agents and prosecutors who have already decided that the defendant is guilty. On the other hand, it is not as though the government never signs up as cooperating witnesses people who professed innocence at their first debriefing. Also, more importantly, it was Reich's fervent desire on December 18, 2003, to keep the fact of his arrest private. In the circumstances, it was reasonable for O'Donnell to conclude that the only way his client could achieve that result would be to undergo the debriefing that Reich chose to undergo at the hands of the agent and the prosecutor. That is not the sort of decision which is properly second-guessed on a later occasion pursuant to Strickland.
O'Donnell was in over his head representing a defendant in a federal criminal case, especially one who needed to make a virtually split-second decision about whether to cooperate. However, that does not mean that O'Donnell rendered ineffective assistance. The judgment call to advise his client to enter into the proffer session despite his intention to profess his innocence was, as explained above, precisely that: a judgment call. The "failure" to obtain a proffer agreement with the government before the proffer, for which O'Donnell expressed pointed regret and shame, may actually have been O'Donnell's best accomplishment that day. Those agreements benefit the government, not the defendant. Their essential purpose is to secure the proffering defendant's waiver of most of the protections afforded by Fed.R.Evid. 410. The resulting disadvantage to the defendant is severe, and has generated considerable controversy. Indeed, two highly experienced practitioners have criticized such agreements because they "substantially restrict the ability to defend" at trial. Robert G. Morvillo and Robert J. Anello, "Allowing Use of Proffer Statements at Trial," New York Law Journal, June 1, 2004, at 3.
In short, the best evidence of O'Donnell's inexperience was his inability to recognize that the absence of a proffer agreement in this case was good for Reich, not bad. Reich's current counsel, for all his criticism of O'Donnell, is laboring under the same impediment. Had he sought to preclude the government's use of Reich's proffer statements pursuant to the terms of Fed.R.Evid. 410, he might have been on to something. Instead, he brought this unusual, and meritless, motion to suppress.
Finally, Reich's Fifth Amendment claim is also meritless. He complains that he was not advised of his Miranda rights before he gave his proffer. But Miranda rights are intended to advise those persons who are subject to custodial interrogations of their right to counsel and the consequences of making statements. Where, as here, counsel is actually present, and the defendant is questioned only after counsel is consulted and both counsel and the defendant agree to the interrogation, Miranda warnings are not required. See United States v. Guariglia, 757 F. Supp. 259, 264 (1991).
CONCLUSION
For the foregoing reasons, the motion to suppress statements is denied.
So Ordered.