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UNITED STATES v. KWANG FU PENG

February 8, 1985

UNITED STATES OF AMERICA,
v.
KWANG FU PENG, Defendant



The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge:

Information that came to light during the trial of this case presents this court with serious dilemmas. During the cross-examination of the government's first witness, the defendant's attorney made reference to a conference held at the defense attorney's office involving the witness, the defendant, the attorney, and one of the attorney's partners. The attorney therefore is a potential witness in the trial. This presents two problems. First, whether the defendant's attorney must be disqualified pursuant to Rule 5-102 of the Disciplinary Rules of the American Bar Association Code of Professional Responsibility ("DR 5-102") and second, whether such disqualification would require the court to declare a mistrial for one of the few times in this judge's thirty-three years on the bench.

 BACKGROUND

 The defendant in this action is charged with one count of wire fraud in violation of 18 U.S.C. § 1343 and one count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314. The government alleges, in substance, that defendant Peng stated to Geoffrey Galley, among others, that he was a representative of a far eastern government and that he was authorized to sell a large quantity of gold on behalf of that government. Galley allegedly entered into an agreement with Peng whereby Galley was to find a buyer for the gold. Pursuant to this agreement, Galley and the potential buyers gave Peng over $200,000.00, which money, according to the government, Peng took across state lines and spent for his personal use. Peng's defense at trial was that he believed in good faith all along that there was gold to sell, but that the transaction simply fell through. Moreover, Peng contends that under his agreement with Galley, the money was Peng's to spend and not refundable.

 Galley was the government's first witness. he had the most contact with Peng during the period described in the indictment, and he testified as to his discussions and agreements with Peng. The subject of conversations Galley had after Peng's arrest was broached during the cross-examination of Galley by Peng's trial counsel, Mr. Ferrara. The relevant portion of the testimony is as follows:

 Q: Did you negotiate with Mr. Skourlis in an attempt to resurrect this transaction after July 18, 1984?

 A: No, sir.

 Q. Did you have any discussions with Mr. Skourlis regarding his obtaining for you the identity of the seller of the gold involved in this transaction?

 A: That is not an accurate representation of the discussion which took place which I will be delighted to state if you will allow me to.

 Q: You did talk to Mr. Skourlis about this gold transaction, correct?

 A: No.

 Q: You did not talk to him about this gold transaction?

 A: I don't believe an answer yes or no is adequate for the question.

 Q. Did you talk to Mr. Skourlis?

 THE COURT: Please give the answer you believe is adequate.

 Q: Mr. Skourlis approached me and said, "Do you, sir, wish to meet with me," because there was a terrible misunderstanding. Mr. Peng had all the money and had not in fact, touched the money, and he could prove that all the statements that he had made concerning the availability of the gold were true, and so "I came to meet you at your office".

 MR. FERRERA: I move to strike the response, Judge.

 THE COURT: Denied.

 Q. Did you offer to discontinue this proceeding, this criminal proceeding, if the money was returned to you?

 A: You said to me --

 Q: Answer the question.

 A: No I did not offer to discontinue because it is not my proceeding.

 Q. Aside from the conference in my office, aside from that conference, did you attempt, through Mr. Skourlis, to induce Mr. Peng to ...


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