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UNITED STATES v. GEHL

May 13, 1994

UNITED STATES OF AMERICA,
v.
ROBERT J. GEHL, GEORGE JACKSON, TEMPOTECH INDUSTRIES, INC.; and GEHL PRODUCTIONS, INC., Defendants.


McCurn


The opinion of the court was delivered by: NEAL P. MCCURN

MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 The first part of the indictment in this case charges the defendants, Robert J. Gehl, Tempotech Industries, Inc., Gehl Productions, Inc. (collectively referred to throughout as "the Gehl defendants") and George Jackson with violating the Lacey Act Amendments of 1981, 16 U.S.C. § 3371 et seq., by selling for human consumption salmon eggs from certain New York State waters allegedly in contravention of 6 N.Y.C.R.R. § 37.1. *fn1" The second part of the indictment, pertaining only to the Gehl defendants, alleges that they engaged in illegal financial structuring in connection with this caviar business, in violation of 31 U.S.C. § 5324. The defendants are also charged under 18 U.S.C. § 371 with engaging in conspiracies in conjunction with the alleged offense just described.

 Defendant George Jackson is currently being represented by George Lowe of the Syracuse, New York law firm of Bond, Schoeneck & King ("BS&K"). The Gehl defendants are currently being represented by Richard Zuckerman of the Detroit, Michigan law firm of Honigman Miller Schwartz and Cohn ("the Honigman law firm"). Presently before the court is a motion by the government to disqualify attorneys Lowe and Zuckerman on the basis that a conflict of interest exists, or at the very minimum, a substantial appearance of such a conflict exists, if these two attorneys are allowed to continue representing their respective clients. Arthur Semetis of the New York City law firm of Plunkett & Jaffe, P.C., who at one point described his firm as "co-counsel" for the two corporate defendants, *fn2" but who has not formally appeared in this action, is also a subject of the government's disqualification motion.

 On March 15, 1994, in addition to hearing oral argument on defendants' motion to dismiss the first six counts of the indictment, *fn3" the court also heard argument on the government's motion to dismiss all defense counsel. The court reserved decision pending a hearing to explore whether Messrs. Gehl and Jackson fully understood the risks associated with continued representation by their current attorneys in this prosecution. On March 23, 1994, the court conducted such a hearing. At the end of the hearing the court continued to reserve decision with respect to the issue of whether to disqualify attorneys Lowe and Zuckerman. Prompted in part by certain comments Mr. Zuckerman made during these two proceedings, however, the court granted the government's motion to disqualify attorney Semetis and the Plunkett law firm from representing the Gehl defendants, in any capacity, in this case. The court further directed that from that day forward not only Mr. Semetis, but also anyone at the Plunkett law firm, be strictly prohibited from discussing this prosecution with attorney Zuckerman and/or anyone at the Honigman law firm. Included in the court's direction was a prohibition against communications between anyone from the Plunkett law firm and defendant Robert Gehl or anyone acting on his behalf. Mr. Semetis was so advised in writing on March 28, 1994. Letter of Richard Zuckerman to Arthur J. Semetis (Mar. 28, 1994). The court reminds Messrs. Semetis and Zuckerman, as well as their respective law firms, of their continuing obligation to fully comply with this order throughout the duration of this case.

 The court has now had the opportunity to fully reflect on the thorny issues which are inherent in any motion to disqualify counsel based on a claimed conflict of interest. These issues are particularly acute where, as here, the court must balance the defendants' Sixth Amendment right to counsel with the interests of the government, the witnesses and the integrity of the judicial process as a whole. With the exception of Arthur Semetis just discussed, for the reasons set forth herein, the court finds that defendants Gehl and Jackson should be allowed to proceed with their chosen counsel; and consequently, the government's motion to dismiss must be denied in that respect.

 BACKGROUND

 The government's theory of disqualification differs as to each defense counsel. Therefore, the court will separately outline the facts and circumstances surrounding each defense counsel's representation of their respective clients to date. Also, given the inherently fact intensive inquiry which is essential to any motion to disqualify, the court will painstakingly review the record before it on this motion. From there the court will go on to consider, in light of the applicable case law, whether those circumstances warrant the drastic remedy of disqualification. See United States v. Locascio, 6 F.3d 924, 935 (2d Cir. 1993) ("Although disqualification is a drastic measure, the district court is in the best position to evaluate what is needed to ensure a fair trial.").

 Prior to the return of the indictment in this case, during the investigative period, a government case agent wanted to interview Robert Maynard. Mr. Maynard, a former New York State employee, had been a manager of a State salmon fish hatchery. It is the government's theory that Mr. Maynard was bribed by defendant Tempotech "in exchange for allowing it access to New York State owned salmon eggs, which ultimately were turned into some of the illegal caviar at issue in the indictment." Memorandum of Law in Support of Motion to Disqualify Counsel Due to Conflicts of Interest ("Government's Memorandum") at 2. Mr. Maynard declined to be interviewed without counsel, though, so in January 1993, he obtained Richard Graham, of BS&K. At the time Mr. Graham was an associate in BS&K's Watertown, New York office. Since then, as of February 1, 1994, BS&K's Watertown office has been closed and Mr. Graham has become associated with another law firm. Affidavit of George Lowe (Feb. 14, 1994) at P 2.

 Insofar as his dealings with Mr. Graham are concerned, George Lowe of BS&K avers that after Mr. Maynard retained Graham, Lowe had "one or perhaps" two conversations with Graham. Id. During those conversations, Graham was seeking "guidance in protecting Maynard's interests in negotiations with the United States Attorney." Id. Mr. Lowe further avers that he has "no recollection of the conversation or conversations," although he does remember that he was told that the case pertained to the allegedly illegal sale of caviar. Id. Lowe estimates that the total time spent in conversation with attorney Graham did not exceed ten minutes. Id. at P 3. Mr. Lowe did not charge for his time on this matter; nor has he personally met or spoken with Mr. Maynard. Id. Finally, Lowe has never seen Graham's office file on Mr. Maynard. Id. All of the foregoing occurred while Mr. Graham was still associated with BS&K.

 Eventually, on February 25, 1993, Maynard was interviewed by the case agent. Attorney Graham was present throughout and the government agreed, in accordance with Fed. R. Crim P. 11(e)(6), that any information obtained during that interview could not later be used against Mr. Maynard if he were to be indicted. The government deems the information Mr. Maynard provided during this interview to be "substantial." Government's Memorandum at 2. In the government's opinion that information "will cause damage to the defendants, including George Jackson." Id. Not surprisingly then, the government intends to call Mr. Maynard as a witness at trial. *fn4"

 While negotiating with attorney Graham to secure Maynard's cooperation in being interviewed, AUSA Benedict spoke with attorney Lowe on a completely unrelated matter. Id. at 2. When Benedict happened to mention that he was involved in an environmental case where another BS&K attorney represented one of the witnesses, Mr. Lowe indicated that he knew the identity of that attorney, and that he was also aware of the subject matter of that investigation. Id. From this, Benedict surmised, correctly as it turns out, that Graham had spoken to Lowe to ensure that Maynard was sufficiently protected in agreeing to be interviewed by the government in this case.

 Eventually, in August, 1993, Mr. Lowe was retained by defendant Jackson. *fn5" Initially, Lowe failed to make any connection between Jackson and Lowe's earlier conversations with Graham. Id. at P 4. Later that month, after Lowe told Benedict that he had been retained to represent Mr. Jackson, Benedict promptly reminded Lowe of Graham's prior representation of Maynard, a government witness. Id. Presuming that there "was a connection between Maynard and Jackson," Lowe responded that he would remove himself from the case. Id.

 Lowe then advised defendant Jackson of his intention to withdraw as counsel. Id. at P 5. Protesting, defendant Jackson told Lowe that he had never heard of Maynard. Id. After that, Lowe asked attorney Graham to inquire of Maynard as to Maynard's relationship with defendant Jackson. Id. Graham did that and advised Lowe that, likewise, Maynard had never heard of Jackson. Id. In light of the foregoing, both orally and in writing, Lowe raised the potential conflict of interest concerns with Jackson. Id. Jackson still insisted that he wanted to continue being represented by Mr. Lowe, and the government was so advised on August 26, 1993. Id. From that time to this, Mr. Lowe has been involved in all aspects of this case, including pre-trial discovery and pre-trial motions, which have been comprehensive and extensive, consisting of far more than the usual boilerplate omnibus motions so often seen in criminal actions before this court. *fn6"

 On January 18, 1994, approximately four and a half months after being advised that defendant Jackson insisted that Lowe continue to represent him, the government brought the current motion to disqualify Lowe. This aspect of the government's motion is premised upon the theory that "Mr. Graham's detailed knowledge of attorney-client privileged information precludes another lawyer [Lowe] from the same firm [BS&K] from representing a second client [defendant Jackson] with adverse interests." Government's Memorandum at 4. Regardless of what Lowe claims he knows or does not know about Maynard by way of Graham, the government contends that Graham's knowledge of privileged attorney-client information gained through his representation of Maynard, a government witness, is imputed to Lowe, thus requiring Lowe's disqualification.

 Prior to oral argument, due to a concern about Graham advising Maynard as to whether he should waive the potential conflict, the government sought immediate court intervention. See id. at 5. A court conference was held on January 25, 1994, pertaining solely to that issue. During the conference it was agreed that the court would independently locate another attorney to represent Mr. Maynard solely for the purpose of advising him on the conflict or potential conflict issue and attorney-client privilege implications in relation thereto. The court eventually enlisted the services of attorney William Lynn. *fn7" In the meantime, after advising Graham of this conference, and directing him not to contact Maynard, Mr. Lowe avers that he has "not at any time had any other discussions with Mr. Graham about Mr. Maynard." Lowe Affidavit at P 7.

 At the court's direction, on March 15, 1994, attorney Lynn and Mr. Maynard met to discuss the matter of BS&K representing both a government witness and a defendant in the same criminal matter. Prior to that meeting, AUSA Benedict and attorney Lowe provided Lynn with their respective positions on the potential conflict of interest. See Court exh. 1 (Letter of William F. Lynn to Court (March 21, 1994)). Following that meeting, Mr. Lynn informed the court in writing as to the outcome. *fn8" In short, Mr. Maynard is satisfied with the representation he has received from attorney Graham, and for the moment is continuing to be represented by him. *fn9" Mr. Maynard most emphatically is not, however, "willing to waive any attorney-client privilege." Id. Significantly, Mr. Maynard has not joined in the government's motion to disqualify attorney Lowe.

 II. Claimed Conflict Re: Attorney Semetis

 For whatever reasons, *fn10" during the course of oral argument and the hearing on this matter, attorney Zuckerman, in his own words, agreed to "throw Mr. Semetis to the wolves." Put less graphically, Zuckerman essentially agreed that Mr. Semetis should be precluded from continuing to represent the Gehl defendants in this case, in any capacity; and, as mentioned earlier, Semetis already has been advised informally of that fact. Thus, a detailed account of Mr. Semetis' prior involvement in this case might not seem necessary at this juncture. Nevertheless, the specifics of Semetis' prior representation of two immunized government witnesses is ...


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