worthy of mention to the court that the reason he sought to withdraw was that his client had already fired him.
Indeed, this court has never granted Greenfield permission to withdraw from his representation of Locascio in this case, and the court reiterates now that such permission is not forthcoming. A district court may rightly refuse a "last-minute change in counsel" that would disrupt the trial schedule. United States v. Solina, 733 F.2d 1208, 1211 (7th Cir.), cert. denied, 469 U.S. 1039, 83 L. Ed. 2d 408, 105 S. Ct. 519 (1984). A fortiori, then, this court may rightly refuse a last-minute withdrawal by the only attorney for Locascio who is, apparently, free of any conflict of interest or other ethical taint. See also United States v. West, 877 F.2d 281, 286 (4th Cir.), cert. denied, 493 U.S. 869, 107 L. Ed. 2d 149, 110 S. Ct. 195 (1989) ("The determination of whether or not a motion for substitution of counsel should be granted is within the trial court's discretion . . . ."); United States v. Torres, 793 F.2d 436, 440 (1st Cir.), cert. denied, 479 U.S. 889, 93 L. Ed. 2d 262, 107 S. Ct. 287 (1986) (not abuse of discretion by district court to refuse "eleventh-hour" dismissal by defendant of his attorney when attorney has "acted diligently and competently"); United States v. Mills, 597 F.2d 693, 700 (9th Cir. 1979) ("The denial of a motion to dismiss counsel is a matter resting within the sound discretion of the trial judge."); United States v. Michelson, 559 F.2d 567, 572 (9th Cir. 1977) ("This Court has recently reiterated its adherence to the rule that a trial court properly acts within its discretion when it refuses to allow the substitution of counsel on the eve of trial.").
Greenfield represented to this court several months ago that he would be prepared to proceed to trial in defense of Locascio by September of 1991; since that representation was made, this court has not excused Greenfield from this matter. Now that both the attorneys who have made appearances for Locascio since September have been shown to have either actual or potential ethical difficulties in their representation of Locascio, the necessity of Greenfield's continued participation in this matter on behalf of his client is manifest.
The Defendants' Cross-Motion to Disqualify John Gleeson
Attached to the defendants' Notice of Motion to disqualify John Gleeson is an excerpt from a book, Mob Star, co-authored by Jerry Capeci, a columnist for the New York Daily News. The excerpted passage describes a 1987 incident from the previous federal criminal trial of John Gotti in this courthouse. That incident was the service of a subpoena on the hospital where Gleeson's wife was employed for the production of her personnel records. Gleeson himself took strong exception to this tactic, and the impropriety of the subpoena was acknowledged by the defense counsel who caused it to be served. Judge Nickerson, in quashing the subpoena on his own motion, remarked that it was "completely off the wall."
Defense counsel in this case now argue that, partially as a result of that incident, Gleeson has an "intense personal interest" in this prosecution and should therefore be disqualified. Upon the most cursory analysis, this argument boils down to the following: 1) An entirely inappropriate subpoena was served for the personnel records of Gleeson's wife; 2) Gleeson (unsurprisingly) took exception to it; 3) the defense attorney responsible recognized its impropriety and apologized in writing; 4) the court quashed the subpoena on its own motion; 5) therefore, Gleeson has an "intense personal interest" in this case warranting his disqualification. The speciousness of this reasoning is so patently apparent as to suggest that the only purpose for asserting it is harassment. A passing reference to 28 U.S.C. § 1927 may be instructive here.
The second basis for the cross-motion is that Gleeson should withdraw withal if it is apparent that he should make himself available as a witness. The argument runs as follows: 1) In an intercepted conversation of November 30, 1989, the following remarks are made:
GOTTI: They hate me . . . (IA)
. . . prosecutors. If this is fucking Gleeson again, this fucking rat motherfucker again . . . .
GRAVANO: You think it's gonna be him?
LOCASCIO: Well, I think them now or later.
GRAVANO: You think it's going to (IA) I don't think they're going to be like Gleeson or Giacalone.
2) Gravano decided to cooperate with the government. 3) "It is perfectly reasonable to assume" that Gravano's decision to cooperate was motivated in substantial part by his concern that Gleeson would go to any ends to ensure his conviction, and thereby right the perceived wrongs that the defendants had committed against Gleeson personally. 4) Therefore, Gleeson's involvement in Gravano's decision to cooperate is a proper subject of proof, and Gleeson should be called as a witness.
It should be noted at the outset that it was Gotti, not Gravano, who said the prosecutors hate him. Conceding that Gravano's motive to cooperate may be the subject of cross-examination when Gravano testifies,
there is simply no reason why, on the basis of the conversation excerpted above, Gleeson should be available as a witness if it is Gravano's motive that the defense believes to be relevant.
There is another cogent reason for concluding that the cross-motion should be denied as baseless. The law is clear, in this circuit and elsewhere, that the defendant can call government counsel as a witness only if required by a compelling and legitimate need. To permit otherwise would be to countenance a procedure which would inevitably confuse the distinction between advocate and witness, between argument and testimony. See United States v. Dupuy, 760 F.2d 1492, 1496 (9th Cir. 1985); United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975), cert. denied, 424 U.S. 942, 47 L. Ed. 2d 348, 96 S. Ct. 1410 (1976); United States v. Torres, 503 F.2d 1120, 1124 (2d Cir. 1974); United States v. Newman, 476 F.2d 733, 738 (3d Cir. 1973). There is neither a legitimate nor a compelling need -- indeed, there is no need at all -- for Gleeson to testify.
The third basis for the cross-motion
is generated by the unexplained modification of the text of various of the tape recorded [sic] conversations which the Government has offered in support of their present motion. Defense counsel is confident that the Court will agree that the reference by the Government to "meter" is not accurate and that what is really said is "on my behalf." (Opp. Mem. at 36)
Having listened to the tape recordings in question more than a dozen times, the court finds defendants' confidence misplaced. There is no doubt in the court's mind that the word used by Gotti in the April 18, 1990 conversation is "meter".
The defendants' use of the government's previous draft transcripts in support of their cross-motion is particularly egregious in that it flagrantly violates a prior order of this court. Not long after the defendants were indicted, their counsel requested that the government provide draft transcripts of the intercepted conversations. Upon learning that the government had tentative draft transcripts and was preparing others, the court determined that disclosure would be helpful to the defendants in their preparation for trial. Recognizing that these transcripts were still tentative, and might contain errors, the defendants consented to the entry of an order dated July 1, 1991, which stated in relevant part:
Ordered, that draft transcripts provided prior to trial cannot be used against the government by any person, in any proceeding . . . and it is further
Ordered, that the defendants agree that the use of any draft transcripts will be limited to trial preparation for this case and may not be used at trial by the defendants for any purpose whatsoever . . . .
Because the defense explicitly recognized that the transcripts furnished by the government were tentative and because they consented to the entry of the order set out above, the use of those transcripts here would be more so a fitting object for sanctions under 18 U.S.C. § 401(3) than the basis for a successful motion to disqualify a member of the prosecution.
Accordingly, the motion to disqualify Santangelo is granted, and the motion to disqualify Gleeson is denied.
Dated: Brooklyn, New York
January 21, 1992
I. LEO GLASSER, U.S.D.J.