The opinion of the court was delivered by: PETER K. LEISURE
The Government has moved this Court for an order disqualifying Bruce Cutler, Esq., from representing defendant Joseph Gambino at the retrial of this criminal action. The Government argues that Cutler must be disqualified because an ongoing investigation of Cutler for alleged obstruction of justice and tax evasion, creates an actual conflict of interest constituting per se ineffective assistance of counsel. Alternatively, the Government argues that if this Court does not find a per se violation of the Sixth Amendment, the Court should nonetheless exercise its broad discretion, and disqualify Mr. Cutler based on what the Government terms "the aggregate of the serious conflicts of interest." Government's Memorandum in Support of its Motion to Disqualify ("Government's Memorandum") at 23. The Defendants oppose this motion.
On November 4, 1993 this Court issued an Order denying the Government's motion, and indicating this opinion would follow. The reasons for denying the Government's motion are more completely set forth below; and, accordingly, the Government's motion hereby is denied.
The defendants, JOSEPH GAMBINO, JOHN GAMBINO, LORENZO MANNINO, and MATTEO ROMANO are charged in the ninth superseding indictment, with six criminal counts. Familiarity with the 36 page superseding indictment will be assumed, but it is summarized briefly for purposes of this opinion.
The enterprise charged in the indictment consists of a group of individuals associated in fact to conduct, participate in, commit and attempt to commit acts of racketeering as defined by Section 1961(1) of Title 18, United States Code. These alleged acts of racketeering involved dealing in narcotics and other dangerous drugs, murder, extortion, loansharking, bribery, and illegal gambling, which acts are chargeable under state law and punishable by imprisonment for more than one year, and offenses involving felonious manufacturing, importing, receiving, concealing, buying, selling and otherwise dealing in narcotics and other dangerous drugs, including those offenses set forth in count three of the indictment.
Count three charges defendants Joseph Gambino, John Gambino, Larenzo Mannino, and other co-conspirators with conspiracy to violate the federal narcotics laws. Counts four and five charge defendants John Gambino, Joseph Gambino, Lorenzo Mannino, and other co-conspirators with the murder of, and conspiracy to murder Franceso Oliveri. Count six charged defendants John Gambino and Joseph Gambino with bail jumping, a charge for which they were convicted in this Court based on a jury verdict, following a trial, completed on June 4, 1993. The jury was unable to reach a verdict on the remaining counts, and this Court declared a mistrial as to those counts.
Bruce Cutler, Esq. ("Cutler"), first appeared as counsel for Joseph Gambino in this case on February 16, 1989. Edward Panzer, Esq. ("Panzer"), who also represents Joseph Gambino, first appeared in this case on December 12, 1989. During the aforementioned trial, Cutler functioned as lead trial counsel for Joseph Gambino, and played an integral role in all aspects of Joseph Gambino's defense. Cutler gave opening and closing arguments on behalf of Joseph Gambino, conducted cross examination of key Government witnesses, including approximately two days of cross examination and re-cross examination of Government witness Salvatore Gravano, and participated in the decision to call witnesses in Joseph Gambino's defense. Trial Transcript of first trial, United States v. Gambino et al., 88 Cr. 919 (PKL) ("Trial Transcript"), at 106-131, 4400-4620, 6597-6605, 6265-6329. Both of Joseph Gambino's attorneys, Cutler and Panzer, appeared at the pretrial conferences for the aforementioned trial and again at the pretrial conferences for the retrial of this case, presently scheduled to commence on December 6, 1993.
Prior to this trial, Cutler has represented John Gotti in a number of matters, including United States v. Gotti, 85 Cr. 178 (EHN) (E.D.N.Y.) (racketeering case); People v. Gotti, No. 358/89 (N.Y. Sup Ct. 1989) (murder trial); and United States v. Local 1804-1, International Longshoremen's Association, 90 Civ. 963 (LBS) (S.D.N.Y. 1990). Cutler has also represented a number of persons whom the Government asserts are associated with John Gotti and the Gambino organized crime family.
On August 1, 1991, Hon. Judge Leo I. Glasser, United States District Judge in the Eastern District of New York ("Eastern District") found that Bruce Cutler had acted as "house counsel" to the Gambino crime family. United States v. Gotti, 771 F. Supp. 552 (E.D.N.Y. 1991). Judge Glasser based his decision on a significant amount of tangible evidence, including hours of surveillance tapes, and based on the extent of Cutler's legal representation of individuals whom the Government asserts are associated with John Gotti. The Court of Appeals for the Second Circuit recently affirmed Judge Glasser's opinion in United States v. Locascio, 6 F.3d 924, 932, 1993 U.S. App. LEXIS 26472, *16, (2d Cir. 1993), stating that "there was sufficient evidence for the district court to determine that Cutler had acted as house counsel to the Gambino crime family." Id. The Second Circuit held that Judge Glasser properly exercised his discretion in disqualifying Cutler. Id. at 933.
In its motion papers, the Government has informed this Court that Cutler is being investigated by a grand jury in the Eastern District for allegations of tax crimes and obstruction of justice. Government's Memorandum at 6. The Government contends that surveillance tapes it possesses contain conversations indicating that Cutler was taking money from John Gotti "under the table," as payment for his legal representation of members of the Gambino crime family. See Locascio, 6 F.3d at 932 (citing United States v. Gotti, 771 F. Supp. at 565). The Government has also produced transcripts of taped conversations that the Government maintains link Cutler to "a scheme to have Anthony Rapino, a prospective grand jury witness, commit contempt of court rather that testify in the grand jury, as to his knowledge of the murder of Paul Castellano by Gotti and others in the Gambino crime family." Government Memorandum at Exhibit B 2-4.
In order to assess fully and accurately the allegations against Cutler, and in order to evaluate the extent to which the on-going grand jury investigation in the Eastern District might interfere with Cutler's representation of Joseph Gambino in this case, this Court met in camera, on November 2, 1993, with Assistant United States Attorneys from the Southern District of New York ("Southern District") and Assistant United States Attorneys from the Eastern District of New York ("Eastern District"). At the application of the prosecutors from both Districts, this Court ordered the record of the November 2, 1993 meeting to be sealed. See Fed. R. Crim. P. 6(e).
[By order of this Court, the portion of this opinion relating to the aforesaid in camera ...