The opinion of the court was delivered by: WALKER
On March 25, 1986, the Court granted the mistrial motions of defendants Pedro Rivera, Sonia Rivera and August Laguer. Each has now moved for dismissal of the indictment on the ground that retrial would constitute double jeopardy. As part of their motions, they seek a hearing and recusal of this judge. The Court now denies all motions.
Indictment 85 Cr. 1072 named Peter Rivera, Jr., Pedro Rivera, Sonia Rivera, Venus Rivera Rosario, and August Laguer as members of a conspiracy to distribute heroin. The indictment also charged various counts of heroin distribution, unlawful weapons possession, and named Peter Rivera, Jr. in a separate conspiracy to distribute cocaine.
On March 12, 1986, twelve days before the scheduled trial date, the government informed the Court by affidavit of a "Potential conflict of interest which Peter Rivera, Jr.'s lawyer in the instant case may have." The affidavit of Assistant United States Attorney Mercado, the prosecutor, recounted that a government Witness, Gilbert Bonilla, would testify against Peter Rivera, Jr. and a number of the "workers" in his Lower East Side "White Horse" heroin distribution ring. The affidavit did not specify which "workers" or state whether Bonilla would implicate any of Peter Rivera, Jr.'s co-defendants. It recounted that, the previous day, Bonilla had admitted to Mr. Mercado that he had perjured himself when he testified for the defense in the state court murder trial of another unrelated drug dealer, Raphael Rivera.
The affidavit recounted Bonilla's claim that Raphael's attorney had suborned the perjury. A check by AUSA Mercado revealed that Raphael's attorney in that state trial had been Kenneth Schreiber, a law partner of Kenneth Salaway, Peter Rivera, Jr.'s retained attorney in this case. The affidavit went on to say that Bonilla was "not certain" of the attorney's name but "believes" it to be Salaway, although Bonilla "may be mistaken" since he thinks the attorney who spoke to him at the state trial is "the same one who took his testimony in the court that day."
The affidavit also added that, according to 3500 material, another government witness recalled a 1978 incident in the Latin Palace discotheque in which no defendants were present but where this unnamed witness and the "lawyers Salaway and Schreiber were all snorting cocaine together" and still another time when the witness believed that Mr. Schreiber came to court "coked up."
The affidavit specifically raised the issue of a conflict of interest between Peter Rivera, Jr. and his counsel, Mr. Salaway. It also requested a pre-trial conference with Mr. Salaway and Peter Rivera at which "Peter Rivera, Jr. would be advised of the potential conflict and options" since "the above facts indicate that the alleged involvement of Mr. Salaway and his partner might interfere with Mr. Salaway's ability to represent Peter Rivera, Jr."
The Court held the requested conference on the record the following day, March 13, 1986, with Peter Rivera, Jr., Mr. Salaway, and Mr. Mercado present. The government did not request, nor did the Court order, the presence of the co-defendants or their counsel. The Court provided a copy of the affidavit to Peter Rivera, Jr. and Mr. Salaway and ordered the record sealed.
The Court then briefly outlined the nature of the conflict. Mr. Salaway responded with an unequivocal denial of the accusations on behalf of himself and Mr. Schreiber and affirmed his ability to continue to represent Mr. Rivera. The prosecutor provided his view of the conflict and recommended appointment of independent counsel before taking any waiver by Peter Rivera, Jr. of his right to conflict-free counsel. Peter Rivera, Jr. stated throughout the proceeding that he wanted Mr. Salaway to represent him at trial. The Court decided to appoint independent counsel to "review this matter and give you (Mr. Rivera) independent advice so that you could make an informed decision based on the advice of independent counsel" and adjourned the conference to the following day. T(3/13) 11-14.
On March 14, 1986, the Court appointed Elliot Sagor as independent counsel. Mr. Sagor conferred with Mr. Rivera and reported to the Court at length on his extensive discussions with Mr. Rivera concerning possible conflicts and Mr. Rivera's persistent expression of the desire to have Mr. Salaway represent him. In two separate allocutions, Peter Rivera, Jr. reiterated his wish to keep Mr. Salaway as counsel. The Court accepted Mr. Rivera's waiver of the right to conflict-free counsel.
On March 24, 1986, trial began as to defendants Peter Rivera, Jr., Pedro Rivera, Sonia Rivera, and August Laguer.
After opening statements, two agent-witnesses testified about the availability of "White Horse" heroin on the Lower East Side and about specific purchases of "White Horse" heroin from persons other than the defendants. On March 25, 1986, the government announced that Bonilla would be the next witness.
At that time, Sonia Rivera's counsel reported that he had received Bonilla's 3500 material the previous night and the material revealed that Bonilla had accused Mr. Salaway of possible subornation of perjury. He added that that day he had been informed that Bonilla had "publicly identified his (Mr. Salaway's) partner who was involved in this." T. 86. At the Court's direction the prosecutor proffered what Bonilla would say with respect to the perjury incident. Mr. Salaway then reported that Peter Rivera, Jr. was now "unhappy" with Mr. Salaway representing him "since I would be called as a witness" with respect to the 1978 "coke snorting" incident. T. 90-91. After confirming with Mr. Salaway that he did not represent the defendant at the state murder trial of Raphael Rivera, and did not know Bonilla, the Court ordered the trial to proceed since "any concerns on the part of [Peter] Rivera at this point are hypothetical." T. 92.
When the prosecutor requested the Court to poll other defense counsel as to whether they intended to call Mr. Salaway or Mr. Schreiber to testify, the following colloquy occurred:
THE COURT: First of all, in the event that this witness is unable to identify Mr. Salaway as having been involved in the so-called incident, that resolves the matter as far as calling Mr. Salaway is concerned, does it not?
Mr. HUFFMAN (counsel to Sonia Rivera): Correct.
THE COURT: In the event that he identifies Mr. Schreiber in some incident of alleged illegality, then is it your intention to call Mr. Schreiber?
MR HUFFMAN: We may well call Mr. Schreiber.
THE COURT: Why does that present a problem or difficulty?
Mr. Salaway responded that his client's problem was not Mr. Schreiber testifying, but that Mr. Salaway might be asked to testify by co-counsel as to the Latin Palace incident. Mr. Huffman then stated that he would want Mr. Salaway as a witness to the 1978 Latin Palace incident if a witness testified to the incident.
At the government's request, the Court then asked Peter Rivera, Jr. to state his position as to continued representation by Mr. Salaway:
PETER RIVERA: My position is to dismiss my counsel because I didn't really realize there were two witnesses in the case and I didn't feel that it was going to hurt my lawyer to represent me, cross-examining Mr. Bonilla, but then I also realized that there's another witness saying that he was sniffing cocaine inside the Latin Palace.
Also I was speaking to other people in MCC, letting me know that he can help me out in my case if he was called as a witness and he can hurt me if he was called up to the stand in front of the judge -- I mean in front of the jury here. It seems like he is involved --
THE COURT: Mr. Rivera, last week you read an affidavit, did you not, of Mr. Mercado?
And that did set forth all of these facts, is that correct?
PETER RIVERA: Yes, your Honor. But also I was speaking to other individuals inside MCC and they were actually coaching me -- advising me how I can also get myself out of a situation that I don't belong in.
At the government's request, the Court granted a recess. Mr. Huffman requested a copy of the Mercado affidavit; the Court ordered it unsealed and provided to co-defendants. T. 96.
After the recess, the Court directed the trial to proceed against all defendants since the concerns of Peter Rivera, Jr. "are at this point only potential concerns." T. 100. Defendants other than Peter Rivera, Jr. then moved for a mistrial since "it may well be that the jury may believe the witness on the stand with respect to Mr. Salaway having, for example snorted cocaine" and "the jury may well become prejudiced against other counsel." The motions were denied. T. 101. The Court then granted counsels' request for a transcript of the pretrial proceeding:
THE COURT: ". . . I will allow a transcript to become unsealed. I would caution counsel, though, that this transcript contains, as you can imagine, allegations against counsel, as does the material that you have received, and, therefore, I'm going to permit it to be unsealed, but I'm going to direct counsel not to reveal it or show it to any person other than is necessary for the purposes of this litigation.
Mr. JOY (counsel to Pedro Rivera): I take it that doesn't ...