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December 9, 1985


The opinion of the court was delivered by: KEENAN


JOHN F. KEENAN, United States District Judge:

Involved herein is a motion for a mistrial and a severance on behalf of the above-named defendant who is presently in his eighth week of trial together with nine co-defendants alleged to be members and associates of the Colombo Family of La Cosa Nostra. The 51-count indictment charges the defendants with substantive violations of, and conspiracy to violate, the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) and (d), through a wide range of criminal activity. For the reasons stated below, the Court denies the application.

 In his affidavit in support of the motion for a mistrial and severance, the defendant asserts that he has just recently learned that there is a possible conflict of interest between him and the attorney representing him in the trial of this case, Michael Coiro, Esq. The possible conflict perceived by the defendant arises from three cases in which Mr. Coiro was involved.

 In the first of these cases, Mr. Coiro represented Mr. Cataldo in 1972 before New York State Supreme Court Justice William Brennan, who is currently on trial in the Eastern District of New York for accepting illegal payments. United States v. Brennan, 85 Cr. 452 (Weinstein, J.). Mr. Cataldo was charged therein with robbery of watches from a warehouse at Kennedy International Airport. Justice Brennan dismissed the case on the People's motion after suppressing an identification of the defendant by a night watchman.

 In the second case at issue, Mr. Coiro represented John Donelly (an unindicted co-conspirator in the instant case) at his arraignment in 1969 on charges of illegal possession of a gun. Mr. Donelly was represented by another attorney for the remainder of the proceedings. He was convicted of the charges. The conviction was reversed, however, and Mr. Donelly pleaded guilty to a misdemeanor before Justice Brennan and received a fine.

 The third case involving Mr. Coiro has been referred to in the trial of Justice Brennan in the Eastern District. It has been alleged in that trial that a Mr. Sal Polisi gave $75,000 to Mr. Coiro in 1979 to "fix" another case before Justice Brennan.

 The defendant asserts that he, Mr. Coiro and Mr. Donelly may be targets of a grand jury investigation in the Eastern District of New York into "fixed" cases before Justice Brennan. The defendant claims that he has become estranged from Mr. Coiro as rumors about the Eastern District grand jury investigation have come to his attention. Mr. Cataldo asserts that recently his communications with his attorney have been limited by his fear that Mr. Coiro may be attempting to gain information from him which would assist Mr. Coiro in defending himself if he were indicted. The defendant requests a mistrial and a severance in order to retain a new attorney and allow him sufficient time to prepare for trial.

 In addressing this application, the Court is mindful of two potentially conflicting policy factors. First, a defendant has a constitutional right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981). Second, a court must be aware of the "disruptive effect upon court calendars in complex, multi-party cases, when lawyers seek last minute severances, continuances or other strategic advantage by 'newly discovered' conflicts of interests." United States v. Morando, 628 F.2d 535, 536 (9th Cir. 1980); see Holloway v. Arkansas, 435 U.S. 475, 486-87, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978) (court has interest in avoiding abuses caused by untimely motion for separate counsel "for purposes of delay or obstruction of the orderly conduct of the trial"); United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963). Of course, preservation of a defendant's constitutional rights must take precedence over concerns for efficiency and conservation of judicial resources.

 In support of his motion, the defendant cites cases in which the conflict of interest first appeared, or was first asserted, after conviction of the defendants therein. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 338, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980); United States v. Cancilla, 725 F.2d 867 (1984). In such cases, a defendant seeking to overturn his conviction must show that there was an actual conflict of interest that adversely affected his attorney's performance at trial. Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980).

 Where, as here, the possibility of a conflict is raised before the conclusion of the trial, the trial court must "take command of the situation." United States v. Bernstein, 533 F.2d 775, 788 (2d Cir. 1976). Often, this will take the form of an evidentiary hearing

 to determine whether there exists such a conflict of interest that the defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the sixth amendment. In addition, the trial judge should see that the defendant is fully advised of the facts underlying the potential conflict and is given an opportunity to express his or her views.

 United States v. Alberti, 470 F.2d 878, 881-82 (2d Cir. 1972), cert. denied, 411 U.S. 919, 36 L. Ed. 2d 311, 93 S. Ct. 1557 (1973); cf. United States v. Lovano, 420 F.2d 769, 773 (2d Cir.) ("The rule in this circuit is that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel."), cert. denied, 397 U.S. 1071, 25 L. Ed. 2d 694, 90 S. Ct. 1515 (1970).

 The Court has in this case on November 22, 1985 held a conference with the defendant, Mr. Coiro, the attorney representing Mr. Cataldo for the purposes of this motion, Stanley Teitler, Esq., and the Assistant United States Attorneys. On December 9, 1985 the Court heard testimony from Mr. Coiro concerning this motion. Mr. Coiro's testimony to the effect that he would prefer not to proceed amounts to no more than an expression of his desire. Nothing has been ...

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