Appeals from an order of the United States District Court for the Southern District of New York, Dudley B. Bonsal, Judge, disqualifying defendants' attorneys in a criminal case on the ground of a conflict of interest arising from prior representation of a planned trial witness.
Kearse, Pierce, and Pratt, Circuit Judges.
Defendants Frank James and Wallace Rice appeal from an order of the United States District Court for the Southern District of New York, 555 F. Supp. 794, Dudley B. Bonsal, Judge, disqualifying their attorneys in a pending criminal prosecution. The four-count indictment charges James and Rice principally with possession of narcotics and diluents, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 844 (1976), and with conspiracy to distribute and possess with intent to distribute narcotics, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). When the defendants made known their intention to call as a trial witness one Leroy "Nicky" Barnes in support of a defense of entrapment, the government, joined by Barnes, moved to disqualify defendants' attorneys and their firm on the ground that they had previously acted as attorneys for Barnes and had been partners of Barnes's principal attorney with respect to related matters. The district court granted the motion. We affirm.
The underlying facts do not seem to be in dispute. In 1978, Barnes was convicted, after a ten-week trial in 1977 with more than a dozen codefendants (hereinafter "1977 Barnes trial"), of several violations of the narcotics laws, including engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (1976). His conviction, for which he received a sentence of, inter alia, life imprisonment without possibility of parole, was affirmed in part on the basis of evidence that Barnes was an organizer and boss of a large narcotics organization. United States v. Barnes, 604 F.2d 121, 155-58 (2nd Cir. 1979), cert. denied, 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980). Defendants James and Rice are allegedly long-time and close associates of Barnes in the narcotics business. They were not defendants in the trial that led to Barnes's 1978 conviction.
James and Rice are currently represented by the firm of Goldberger, Feldman, Dubin & Weisenfeld, P.C. (the "Goldberger firm"), whose partners are Paul A. Goldberger, Jerry Feldman, Lawrence Dubin and J. Jeffrey Weisenfeld. In particular, Goldberger has appeared on behalf of James; Weisenfeld originally appeared on behalf of Rice, but has been replaced by Feldman as Rice's planned trial counsel.
Until nearly the end of 1977, Goldberger and Feldman were partners of David Breitbart in a three-man law firm called Goldberger, Feldman & Breitbart (the "Breitbart firm"). In December 1977, at the end of the 1977 Barnes trial, the Breitbart firm was dissolved and Goldberger and Feldman formed a new firm.
B. Prior Representation of Barnes by Goldberger, Feldman Breithart
From the early 1970's until December 1977, Barnes was represented in a number of criminal proceedings, state and federal, by the Breitbart firm. He was represented in court principally by Breitbart. From time to time, however, Goldberger and/or Feldman also were present and conferred with Breitbart about Barnes's cases. Goldberger also represented Barnes at certain state court bail hearings and made arguments on his behalf. Feldman as well may have argued certain legal questions on Barnes's behalf in state court proceedings. In addition, in connection with one state court trial, Weisenfeld was often present in court and argued some legal questions on behalf of Barnes.
At the 1977 Barnes trial, Breitbart represented Barnes, and Goldberger and Feldman represented codefendants of Barnes. During the trial, Goldberger and Feldman conferred with Breitbart and Barnes; in addition, counsel for the various defendants collaborated on strategy and filed joint motions on behalf of all defendants. When the Breitbart firm was dissolved in December 1977 at the end of this trial, Goldberger and Feldman ceased to have any role in the representation of Barnes.
C. The Motion To Disqualify
Sometime in 1981 or 1982, Barnes began cooperating with the government. Based at least in part on information furnished by Barnes, the present prosecution was commenced against James and Rice in October 1982. In December, defendants informed the government that they intended to call Barnes as a witness at trial in order to establish a defense of entrapment. The government quickly moved to disqualify Messrs. Goldberger and Feldman and their law firm from representing the defendants, supporting its motion with ...