in this case once already, and thus need not speculate to the same extent as other courts have when faced with such motions, as to the possible conflicts which may arise. This Court examines the possible conflicts not only as a Court fully familiar with criminal trials in general, but from the unique position of a Court that is thoroughly familiar with this particular criminal trial. While no one can predict with certainty the course a trial will take, significant light has been shed on the relationships of the parties, the potential testimony of witnesses, and other imponderables which are normally so difficult to discern prior to trial. Consequently, while this Court must still view this retrial through a looking glass, what it views is a road once travelled.
II. Per Se Violation of the Sixth Amendment
Recent Second Circuit opinions have reaffirmed prior holdings that an attorney has an actual "conflict of interest when, during the course of representation, the attorney's and defendant's interests 'diverge with respect to a material fact or legal issue, or to a course of action.'" Winkler v. Keane, 7 F.3d 304, 1993 U.S. App. LEXIS 26842, *8, No. 93-2164 (2d Cir. Oct. 13, 1993) (quoting Cuyler v. Sullivan, 446 U.S. 335, 356, 64 L. Ed. 2d 333, 100 S. Ct. 1708 n.3 (1980)). The Second Circuit has also reaffirmed that "the per se rule [of this Circuit] applies only when there is an 'actual or constructive denial of the assistance of counsel altogether.'" Winkler v. Keane, 7 F.3d 304, 1993 U.S. App. LEXIS 26842, *11, No. 93-2164 (2d Cir. Oct. 13, 1993) (quoting Strickland v. Washington, 466 U.S. 668, 692, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)).
The Second Circuit has held "that there is an 'actual or constructive denial of the assistance of counsel,' Strickland, 466 U.S. at 692, and, as such, a per se violation of the Sixth Amendment in two limited circumstances: where defendant's counsel was unlicensed, and when the attorney has engaged in the defendant's crimes." Cortland Bay, 5 F.3d 605, 611. See Solina v. United States, 709 F.2d 160, 168-69 (2d Cir. 1983) (unlicensed counsel).
"The per se rule applies when an attorney is implicated in the crimes of his or her client since, in that event, the attorney cannot be free from fear that a 'vigorous defense should lead the prosecutor or the trial judge to discover evidence of the attorney's own wrong doing.'" Cortland Bay, 5 F.3d 605, 611 (citing Bellamy v. Cogdell, 974 F.2d 302, 307 (2d Cir. 1992)). See United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984) (attorney implicated in defendant's crimes). However, "the per se rule does not apply any time a court learns that an attorney may have committed a crime; the attorney's alleged criminal activity must be sufficiently related to the charged crimes to create a real possibility that the attorney's vigorous defense of his client will be compromised." Cortland Bay Fulton, 5 F.3d 605, 611; See United States v. Aiello, 900 F.2d 528 (2d Cir. 1990).
In the case at the bar, the Government contends that Cutler should be disqualified because his representation of Gambino would constitute per se ineffective assistance of counsel. The Government bases its conclusion on the fact that Cutler is being investigated, inter alia, for alleged tax crimes, and alleged obstruction of justice. The Government contends that Cutler's alleged acts of obstruction, committed in concert with John Gotti and in furtherance of the interests of the Gambino crime family, are sufficiently related to the charged crimes to constitute a per se conflict, particularly since the proof to be offered at trial includes evidence of an act of obstruction of justice committed by the defendants.
In Cortland Bay, defendant Fulton was on trial for conspiracy to possess and import heroin. At trial, the Government notified the court that Lateju, a Government witness, claimed that on a prior occasion he had imported drugs that were either delivered to or belonged to defendant's counsel. Cortland Bay, slip op. at 6200. The allegations by the Government's witness, implicated Fulton's attorney in the same crimes for which Fulton was on trial. This placed Fulton's counsel in a conundrum. If the allegations were true, then lead counsel was involved in the same crimes as his client and with his client's co-conspirator. On the other hand, assuming the allegations were false, counsel would be precluded from challenging the witness's credibility since in doing so, he would be acting as an unsworn witness. Id. at 611. Thus Fulton's chosen counsel had an actual conflict of interest, requiring the application of the per se rule.
In assessing where alleged criminal conduct would suffice to cause a per se violation of the Sixth Amendment, the Second Circuit in Cortland Bay declined to draw a clear line. Instead the Court stated: "while we cannot say in the abstract where the line will be drawn that determines whether the attorney's criminal conduct is related to the charged crime, it is plain to us that this case crosses it." Id. at 611.
In United States v. Cancilla, 725 F.2d 867 (2d Cir. 1989) the defendant was convicted of engaging in a scheme to collect fraudulent insurance claims. In an appeal of the conviction the Government stipulated that defendant's trial counsel had himself engaged in a similar insurance schemes with one of Cancilla's co-conspirators. The Cancilla Court found that the per se rule applied because of the "similarity of the counsel's criminal activities to Cancilla's schemes." Id. at 870. The situation in Cancilla was also complicated by two additional considerations, (1) Cancilla knew nothing of counsel's illegal activities, and had, accordingly, not submitted a Curcio waiver and (2) Cancilla's defense counsel purposely avoided a line of questioning which may have helped his client, but would have prejudiced a former client and implicated counsel. Id. The Second Circuit found that counsel's lack of vigorousness impaired the adequacy of the representation afforded Cancilla.
Viewed in the entirety of the circumstances, this Court declines to find a per se violation of the Sixth Amendment present in this case. Cutler's alleged criminal activity is not sufficiently related to the charged crimes such that they create the possibility that his vigorous representation of Joseph Gambino will be compromised.
The Government's motion papers indicate that Cutler is being investigated for alleged tax crimes. Government's Memorandum at 6, 18 n.11. Specifically, the Government alleges that Cutler took payments "under the table" from John Gotti. See Locascio, 6 F.3d at 932 (citing United States v. Gotti, 771 F. Supp. at 565). The allegations of possible tax evasion or other tax crimes, while serious in nature, are not sufficiently related to the charged crimes to create a real possibility that the attorney's vigorous defense of his client will be compromised.
Cortland Bay, 611. See United States v. Aiello, 900 F.2d 528 (2d Cir. 1990); See also, Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir. 1988) (charges pending against counsel were unrelated to his representation of defendant).
Cutler is also being investigated for alleged obstruction of justice. The Government has introduced transcripts of taped conversations that the Government alleges 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." Government Memorandum at Exhibit B 2-4. In the present case, the Government plans to introduce evidence that the defendants, primarily John Gambino, participated in a scheme to obstruct justice by bribing a juror during the trial of United States v. Edward Lino, in the Eastern District. At the first trial, Government witness Salvatore Gravano testified that Joseph Gambino, or Lorenzo Mannino, drove John Gambino to a meeting where jury tampering was discussed. Trial Transcript of first trial United States v. Gambino et al., 88 Cr. 919 (PKL) ("Trial Transcript"), dated April 13, 1993, at 4109-4110. The Government took the position in the first trial that the jury tampering was "an act that is directly in furtherance and is an uncharged predicate act of this racketeering enterprise and serves the objects [of the conspiracy]." Trial Transcript at 4039. The alleged jury tampering was admissible as proof of the means and methods of the enterprise, Indictment at P 11(e), and as part of the objects of the enterprise. Indictment P 10(c). On this basis, evidence of jury tampering was admitted in the first trial as "an uncharged predicate act of the racketeering enterprise," Trial Transcript at 4039, 4090.
The Government now contends that because Cutler is being investigated for an obstruction of justice scheme, namely Rampino's contempt, and because the proof at trial going to the means and methods and objects of the enterprise, albeit not to a charge in the indictment, contains an obstruction of justice scheme, namely jury tampering, that this Court is compelled to disqualify defendant's chosen counsel based on per se ineffectiveness of counsel. This link is too tenuous to overcome the strong presumption in favor of defendant's chosen counsel.
While the submitted transcripts do not appear to establish conclusively that Cutler has engaged in obstruction of justice in the Rampino matter, even assuming these allegations to be true, the crime of obstructing justice by aiding contempt of a grand jury proceeding, is not sufficiently related to the charged crimes to constitute a per se violation of the Sixth Amendment. This conclusion is in part based on the fact that the alleged jury tampering is not a charged crime, but merely "an uncharged predicate act." Trial Transcript at 4039. The Second Circuit has clearly held that "The per se rule applies when an attorney is implicated in the crimes of his or her client." Cortland Bay, 5 F.3d at 611. Furthermore, the attorney's alleged criminal activity must be sufficiently related to the charged crimes. . . ." Id. at 6208. Here Cutler has allegedly participated in an act of obstruction of justice. Cutler's act of obstruction is not the same act for which the Government plans on introducing proof at trial. Additionally, obstruction of justice is not a charged crime. See Id. Accordingly, Cutler's alleged wrongdoings are not sufficiently related to the charged crimes to constitute a per se violation of the right to counsel. Id.
[By order of this Court this portion of this Opinion is to be filed under seal.]
III. In Exercising it's Discretion this Court Chooses Not to Disqualify Cutler
In United States v. Gotti, 771 F. Supp. 552 (E.D.N.Y. 1991) Judge Glasser disqualified Cutler on a number of grounds. Judge Glasser in Gotti found the following: (1) Cutler acted as house counsel to the Gambino crime family, Id. at 560; (2) Cutler's participation in government-taped conversations at which illegal activity was discussed could make Cutler an unsworn witness before the jury in explaining his own conduct and providing his interpretations of the conversations to which he was privy, Id. at 562-63; (3) Cutler's prior representation of Michael Coiro, a potential Government witness, gave rise to a conflict of interest. Id.; and (4) the implication by Gotti in taped conversations that he, Gotti, had paid Cutler money "under the table" made Cutler a potential accomplice as well as a potential witness to Gotti's tax fraud. Id. at 565.
The Second Circuit in United States v. Locascio, supra, affirmed the district court's decision to disqualify Cutler, finding that it was not an abuse of discretion. Locascio, 6 F.3d at 935. The Second Circuit stated that while disqualification is a drastic measure, "the district court is in the best position to evaluate what is needed to ensure a fair trial." Id. at 935. The Second Circuit found that "the district court made careful findings of fact on each qualifications," Id. and concluded "that the district court properly exercised its discretion in disqualifying Bruce Cutler and George Santangelo." Id.
The situation before this Court is significantly different from that presented in United States v. Gotti, 771 F. Supp. 552 (1991). Accordingly, this Court does not feel compelled to grant the Government's motion to disqualify. Of the grounds cited by Judge Glasser, the only one similar to this case is Cutler's role as house counsel. The Second Circuit has affirmed the findings of fact made by Judge Glasser, that Cutler has served as house counsel to the Gambino crime family. Locascio, 6 F.3d at 935. This presents a possible ground for disqualification, however, Judge Glasser's findings in Gotti, 771 F. Supp. at 552, do not compel this Court to disqualify Cutler.
It is an important distinction in this case that the accusations of Cutler's alleged obstruction of justice do not come from a Government witness. Since the allegations of Cutler's criminal activities exist independent of any Government witnesses there is no danger that Cutler could not conduct cross examination. Additionally, Cutler is not in jeopardy of becoming an unsworn witness in relation to his alleged wrong doings. In fact, in the first trial of this action, there were no indications that Cutler was acting as an unsworn witness.
Throughout the course of the first trial, there were no indications that the parties did not receive a fair trial. The dangers that courts seeks to avoid through disqualification, were not present. This Court saw no indication that Cutler's representation was anything less than vigorous; or that Cutler's interests were at odds with those of his client. Cutler conducted his cross examinations with tenacity and vigor. There was no indication that certain avenues of cross examination were avoided, or that the vigorousness of the defense was compromised. Additionally, Cutler consulted with co-counsel regarding trial strategy, so that counsel could present a well orchestrated and unified defense. The self serving nature that a court would expect an attorney to demonstrate if he were concerned with concealing certain information was not apparent in this case. See Cancilla, 725 F.2d at 870.
This Court has had the benefit of seeing and hearing all the evidence once already, and having a complete record to which to refer. This experience has placed this Court in a uniquely qualified position for ruling on this motion. Based on the experience of the prior trial, this Court does not foresee any problems created by the lack of conflict free counsel, which a knowing and intelligent Curcio waiver would not cure.
For the above stated reasons the Governments motion hereby is denied.
Dated: November 24, 1993
New York, New York
Peter K. Leisure