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UNITED STATES v. RODOLITZ

November 24, 1986

UNITED STATES OF AMERICA, Plaintiff,
v.
ABRAHAM J. RODOLITZ, Defendant



The opinion of the court was delivered by: SPRIZZO

MEMORANDUM OPINION AND ORDER

SPRIZZO, D.J.:

BACKGROUND

 The defendant, Abraham J. Rodolitz, was convicted on December 13, 1984 on three counts of mail fraud and one count of witness tampering. On March 27, 1985, the defendant was sentenced by the Court to a two-year term of imprisonment and a fine of $253,000.00. The judgment subsequently was affirmed by the Second Circuit. See United States v. Rodolitz, 786 F.2d 77 (2d Cir. 1985). On May 19, 1986, the Second Circuit denied a motion for reargument or for rehearing en banc. The defendant now moves for:

 1. A new trial

 2. Dismissal of the indictment

 3. Inspection of the grand jury minutes

 4. Discovery and inspection of all notes, memoranda or other relevant papers in the possession of the United States attorney relating to any information provided by Joseph Nurnberg to the United States Attorney or to the grand jury in connection with this case.

 5. A hearing on the issue of whether there was a violation of the defendant's attorney-client privilege, and/or a violation of the work-product rule, and/or whether the indictment or the conviction was tainted as a result of information supplied by Joseph Nurnberg to the United States Attorney or the grand jury.

 Defendant's [Proposed] Order to Show Cause at 1-2. For the reasons set forth below, the Court concludes that the defendant's motion lacks merit and must be denied.

 In support of his motion, the defendant alleges that Joseph Nurnberg and his son, Ronald Nurnberg, represented the defendant on various civil matters from 1967 to 1983. See Affidavit of Ivan S. Fisher ("Fisher Aff.") at [P] 3; Affidavit of Abraham J. Rodolitz ("Rodolitz Aff.") at [P] 2. The defendant further alleges that both Joseph and Ronald Nurnberg were subpoenaed by the United States Attorney for the Southern District of New York in connection with previous grand jury proceedings against the defendant in the above-captioned criminal action. See Fisher Aff. at [P] 4. According to the defendant, however, he did not become aware that either attorney testified before the grand jury until Joseph Nurnberg revealed that fact during a deposition in a subsequent civil action in April of 1986. See Rodolitz Aff. at [P] 4. *fn1"

 The defendant's motion is predicated on the defendant's "information and belief" that Joseph Nurnberg revealed information to the United States Attorney's Office or to the grand jury which violated the work product rule and the defendant's attorney-client privilege. See Fisher Aff. at [P] 6. This belief is based solely on Joseph Nurnberg's deposition testimony in which he stated that his grand jury testimony "related to the recent criminal matter in which Mr. Rodolitz was involved," see id. at [P] 4, and defendant's assertion that "Nurnberg was actively involved in and had acknowledged of many of the matters that became items of evidence in the defendant's trial," see id. at [P] 6; see also Rodolitz Aff. at [P] 3.

 These allegations are totally insufficient to entitle the defendant to any relief, including a hearing. It is generally presumed that an attorney will protect his client's confidential interests before a grand jury. See United States v. Wolfson, 448 F.2d 59, 66 (2d Cir. 1977). Defendant has not presented to the Court any facts which indicate that either Joseph Nurnberg or Ronald Nurnberg failed to do so.

 Indeed, the deposition testimony of Joseph Nurnberg, upon which the defendant principally relies, flatly refutes defendant's claim that information protected by the attorney-client privilege or the work product rule was provided to the government. During that deposition, Joseph Nurnberg expressly disclaimed making any such disclosures and specifically stated that no privileged information was divulged to the government. *fn2" In light of that testimony and the total lack of any evidence to support defendant's ...


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