The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
The government has moved this court for an order disqualifying George Santangelo from representing any of the defendants in this case at trial. This motion, like the motion previously made to disqualify Gerald Shargel, Bruce Cutler and John Pollok, is based upon the assertion that counsel's continued participation would give rise to conflicts of interest which cannot be waived or remedied save by an order of disqualification. Defendants have cross-moved for an order disqualifying Assistant United States Attorney John Gleeson from prosecuting this case on behalf of the government.
The Government's Motion to Disqualify George Santangelo
The government predicates its motion on the assertion that Santangelo's "presence at counsel table would needlessly deprive the government of a fair trial, create a conflict of interest that cannot be waived or remedied by measures other than disqualification, and compromise the integrity of these proceedings by fostering an appearance of impropriety." Government's Memorandum in Support of Motion to Disqualify George Santangelo (Gov't Mem.) at 1.
On November 12, 1991, Greenfield stated in a letter to the court "that with your Honor's permission, as of November 12, 1991 I am respectfully withdrawing as trial counsel to Mr. Frank Locascio . . . ." This court never granted Greenfield permission to withdraw, however; rather, the court advised him at a subsequent court appearance that he would not be permitted to withdraw given the ethical considerations confronting Mitchell. That Greenfield alone has represented Locascio throughout countless pretrial proceedings and court appearances -- and that he was fully conversant with his client's case and was prepared to proceed to trial as far back as August 28, 1991 -- is beyond cavil. On that date, he informed the court of his readiness to commence trial on Locascio's behalf on September 23, 1991.
On October 3, 1991, the court advised all parties that the trial of this case would begin with jury selection on January 20, 1992. The parties and the court were unaware at the time that the Martin Luther King, Jr. federal holiday fell on that date; subsequently, trial was rescheduled for January 21.
On January 6, 1992, fifteen days prior to jury selection, George Santangelo entered his appearance as co-counsel to Locascio. Three days thereafter, Mitchell advised that he would not present any portion of Locascio's defense. Transcript of Proceedings of January 9, 1992 at 2. At that hearing, Assistant United States Attorney John Gleeson stated that after reviewing the prosecution's anticipated trial proof during the preceding three days, he had asked Santangelo to discuss with him the government's basis for believing that Santangelo should not have entered the case. Gleeson also stated that a motion to disqualify would follow should Santangelo refuse to withdraw. That motion was filed on January 15, 1992.
The court has had occasion in the recent past to review the mandate of the sixth amendment to the Constitution that "in all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence." The court has also had occasion, in the course of this case, to review the relationship between that mandate and a motion to disqualify counsel, see United States v. Gotti, 771 F. Supp. 552 (E.D.N.Y. 1991), and is mindful of the sensitive concerns, discussed in detail in Gotti, to which a motion such as this gives rise. It is with an acute consciousness of those concerns that this motion is addressed.
A review of the government's proffer yields two bases upon which a motion for disqualification may be predicated: 1) that Santangelo is answerable to defendant John Gotti, the alleged leader of the Gambino Family -- the "enterprise" on which counts 1 and 2 of the indictment are bottomed; and 2) that Santangelo's presence at this trial would offend DR 5-102 of the Model Code of Professional Responsibility.
A. Santangelo's Connection to Counts 1 and 2
The government contends that Santangelo is "house counsel to the Gambino Family." Gov't Mem. at 2, 8. In addressing the motion, the court shall use the phrase "answerable to Gotti" rather than "house counsel". The difference is purely semantic: in either case, the pernicious effect upon the institutional interest in the rendition of just criminal verdicts is the same, whether Santangelo is the recipient of "benefactor payments" (an allegation not vigorously advanced by the prosecution) or whether he simply answers to Gotti rather than to Locascio.
1. Salvatore Gravano's proffered testimony
Gravano was one of the four defendants initially named in the indictment, along with Gotti, Locascio, and Thomas Gambino.
The indictment charged Gravano with becoming the consigliere (counselor) of the Gambino Family following the incarceration of Joseph N. Gallo on May 30, 1989.
Gravano has now chosen to cooperate with the prosecution. The government states that Gravano will testify that shortly after the defendants were arraigned, Gotti told Gravano that he (Gotti) would assign Santangelo to represent either Gravano or Locascio. Gov't hem. at 9. Such an "assignment" of counsel by Gotti for his co-defendant would clearly be probative of the existence of the charged RICO enterprise. Cf. United States v. Simmons, 923 F.2d 934, 939 (2d Cir.), cert. denied, 114 L. Ed. 2d 104, 111 S. Ct. 2018 and 112 S. Ct. 383 (1991); In re Grand Jury Subpoena Served Upon John Doe, 781 F.2d 238, 251 (2d Cir.) (en banc), cert. denied, 475 U.S. 1108, 89 L. Ed. 2d 913, 106 S. Ct. 1514 (1986); Gotti, 771 F. Supp. at 560.
That it mattered little which defendant Santangelo would represent -- that, in effect, the clients were fungible -- may be readily inferred by the jury from excerpts of intercepted conversations in which Gotti is heard to decree that lawyers (both his and others') work within certain parameters prescribed by him, and that their concern must be not only for their ostensible clients but for others in the Gambino Family as well. See, e.g., United States v. Gotti, 771 F. Supp. at 558. Gravano will further testify that Gotti's insistence that lawyers representing the Family march in lock-step contributed to his own decision to cooperate with the government. Evidence of Santangelo's eleventh-hour appearance may warrant the jury to believe that Gravano's testimony in this regard rings true.
The prosecution lists a number of cases in which Santangelo represented either Gotti or persons whom the government alleges are affiliated with the Gambino Family.
Referring to a similar list in an earlier opinion in this case, 771 F. Supp. at 561, this court noted the statement of the court in Simmons that "the fact that a lawyer has multiple clients in no way implies a connection between them." 923 F.2d at 949. The Simmons court went on to say, however, that it made that observation "under circumstances in which there was no other evidence of a criminal association between the attorney's clients." Id.
2. The intercepted conversations
The government contends that there is other evidence from which a jury could readily conclude that a criminal association exists between Santangelo's clients and Gotti, and that Gotti is the final arbiter of Santangelo's decisions. Accompanying the government's motion is a transcript
of a lawfully intercepted conversation from April 18, 1990 among Gotti, Bruce Cutler, and others.
The essence of the relevant portion of the conversation is Gotti's insistence upon knowing about, and ultimately approving of, all legal activity in the case not only on his own behalf, but also on behalf of others. Gotti ordains the response the attorneys must make to government assertions of the existence of a Mafia, a Cosa Nostra, or a Gambino Crime Family: there are to be no concessions, and there is to be no finger-pointing. (Tr. 3) Cutler acknowledges his compliance with Gotti's edicts in this regard, assuring Gotti that he met with the lawyers "three times to tell them your credo in life. . . . But I made them understand: no concessions, everything is denied, everything is fought down to the wire." (Tr. 7)
In an elaboration on his "credo," Gotti is heard to suggest to Cutler that "there ain't nothing" on the tapes as far as he is concerned, and "if there is, it's a mystery to me, I know nothing. . . . Maybe . . . talk to myself a little when I'm talking on that tape." (Tr. 27-28) After commenting unfavorably about a portion of a brief which he demands to have deleted, Gotti goes on to say:
Yeah, but you see, Bruce, these things I gotta see before we submit. How many times we gotta go through this . . . you know what I mean? How many times we gonna go through this? I don't want nothin' submitted . . . . (Tr. 6)
During a discussion in which Cutler attempts to explain the "legalese" of a particular brief, Gotti says: "But I don't want it. Since when have I agreed to that?" (Tr. 9) The conversation then proceeds as follows:
CUTLER: In other words, you and your friends are friends. It's not the Mafia, it's not the Gambino Family, it's not anything. That's what he means, it's not in your language, it's not written strong enough. I agree with it. I agree with you. I agree with you.
GOTTI: Okay, but here's what I'm saying.
CUTLER: It's not a concession.
GOTTI: Listen to me. Anything that's put in on my behalf, I wanna see it first, anyway. Who the fuck is he to ...