At oral argument, it became clear that both defendants Gehl and Jackson might want to waive their right to be represented by conflict-free counsel. The Second Circuit "has recognized that even when a constitutional defect exists, which would arise only when an actual conflict exists, 'waiver by the accused of the conflict can conceivably alleviate the constitutional defect, so long as the representation by counsel does not seriously compromise the integrity of the judicial process."' United States v. Rahman, 837 F. Supp. 64, 70 (S.D.N.Y 1993) (quoting Locascio, supra, 6 F.3d at 933-34)). So, as previously mentioned, on March 23, 1994, the court conducted a hearing to address the waiver issue. Because a district court cannot casually accept a waiver of this nature, as directed by the Second Circuit, this court "advised these defendant[s] of the danger arising from the particular conflict; . . determined through questions that were likely to be answered in narrative form whether the defendant[s] understood those risks and freely chose to run them; and . . . gave the defendant[s] time to digest and contemplate the risks after encouraging [them] to seek advice from independent counsel." United States v. Rogers, 9 F.3d 1025, 1031 (2d Cir. 1993) (citing United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986) (citation omitted)).
A. Defendant Jackson
Through questioning Mr. Jackson in accordance with the above the court elicited the following pertinent information. Mr. Jackson is forty-five years old; he has had no formal education beyond seventh grade. He is currently employed as Tempotech's general manager and he has been with that company for the past five years. Mr. Jackson indicated that he fully understood the nature of the hearing, and, more importantly, that he was fully aware of the ramifications of continuing to be represented by BS&K attorney Lowe, at the same time a government witness, who allegedly will implicate him in some fashion, is being represented by another attorney, formerly of BS&K. Mr. Jackson exhibited both to the court and to the government, in response to an explicit inquiry by AUSA Benedict, that he fully understands that attorney Lowe's continued representation of him may preclude attorney Lowe from fully cross-examining Mr. Maynard at trial. More specifically, Mr. Jackson is keenly aware that attorney Lowe's ability to fully cross-examine Maynard may be circumscribed by the fact that Lowe cannot use any privileged information he may have received from Graham. With full knowledge of that, nonetheless, Mr. Jackson still insists on being represented by Mr. Lowe, and unequivocally waived his right to present and future conflict-free representation in this case. Even in the face of persistent inquires from the court, and when fully advised of the fact that Mr. Maynard is not willing to waive any attorney-client privilege, Mr. Jackson remained steadfast in his desire to continue being represented by Mr. Lowe.
During the hearing the court was struck by the fact that Mr. Jackson's responses were not off-the-cuff, but thoughtful and obviously the result of much deliberation. As alluded to earlier, this delicate issue did not first come to defendant Jackson's attention on March 23, 1994. Rather, in the months prior to this motion, it had been the subject of much discussion between he and attorney Lowe, as well as the subject of some correspondence. Mr. Jackson did indicate, however, that he did not discuss this conflict issue with counsel other than Mr. Lowe. Satisfied with the discussions he and Mr. Lowe have had, though, defendant Jackson informed the court that he is not interested in getting a second opinion from a different lawyer. Overall, at the conclusion of Mr. Jackson's testimony, the court was left with the impression that despite his lack of formal education, Mr. Jackson is an intelligent person, who is perfectly capable of making decisions regarding his own affairs, including the decision as to whether or not to continue being represented by attorney Lowe in this matter. Consequently, the court finds that under all of the circumstances defendant Jackson has made a knowing and intelligent waiver of his right to conflict-free representation under the Sixth Amendment.
B. Defendant Gehl
The court questioned Mr. Gehl in the same manner as it did Mr. Jackson. Mr. Gehl is a fifty-three year old business person. He has a master's degree in international trade and is the president of both defendant corporations - Tempotech and Gehl Productions. Mr. Gehl founded the former company in 1970; the latter was more recently formed by him approximately three to four years ago. Prior to the hearing, Mr. Gehl and attorney Zuckerman had fully discussed not only the purpose of the hearing, but Gehl's Sixth Amendment right to be represented by conflict-free counsel, i.e. counsel having no divided loyalties. In that regard, Mr. Gehl indicated that he understands the purpose of cross-examination and its importance to his defense herein.
Mr. Gehl further testified that he fully understands the conflict issues relating to Mr. Semetis, and the government's contention of "imputed taint" insofar as Mr. Zuckerman is concerned. In response to a direct inquiry from the court, Mr. Gehl stated that despite Semetis' involvement, it was his understanding that this is "completely" Mr. Zuckerman's case. Mr. Zuckerman has personally represented Gehl and Tempotech for the past eleven years and Mr. Gehl candidly stated, "I guess I'm very comfortable with this relationship." Although Mr. Gehl and Mr. Zuckerman apparently discussed the potential conflict concerns here at length, at the time of the hearing, Mr. Gehl had not discussed them with any other lawyer. The court thus gave Mr. Gehl permission to consult with another lawyer on this issue, and he did that. The court also advised Mr. Gehl of Suzanne Trumble's affidavit, but that it was unaware as to the position Robin Maynard is taking with respect to this disqualification motion.
At the hearing, Mr. Gehl came across as a well educated, articulate and savvy business person. Given his formal education, and the many years he has spent in the business world, including international business, in combination with his overall demeanor during the hearing, Mr. Gehl too strikes the court as a person who is perfectly capable of making decisions effecting his own affairs, including the decision as to whether or not to continue being represented by attorney Zuckerman in this matter. The court therefore finds that based upon all of the facts before it, defendant Gehl has made a knowing and intelligent waiver of his right to conflict-free representation under the Sixth Amendment.
As earlier implied, these waivers by defendants Gehl and Jackson cannot end the court's inquiry, as the defendants all seemed to suggest at one point or another. In Wheat the Supreme Court explicitly rejected the notion that a waiver by an affected defendant could cure all problems created by multiple representation; and in so doing, noted that "no such flat rule can be deduced from the Sixth Amendment presumption in favor of counsel of choice." 486 U.S. at 160, 108 S. Ct. at 1697. Thus, as mentioned earlier, the court's acceptance of the defendants' waivers in this case does not obviate the court's "independent duty to ensure that criminal defendants receive a trial that is fair." Id. As part of this balancing process the court must also take into account the government's interest in "protecting its witnesses from tactics that are unfair[.]" See Falzone, supra, 766 F. Supp. at 1275 (quoting United States v. James, 708 F.2d 40, 46 (2d Cir. 1983)). This balancing approach places the court in an unenviable position, as so cogently explained by Judge Mukasey in Rahman,:
The cases cited offer scant guidance for district courts in the exercise of the wide discretion Wheat affords, beyond directing that they apply a presumption in favor of counsel of choice (Wheat) and permitting but not requiring them to accept waivers of actual conflict unless to do so would seriously compromise the integrity of the judicial process (Locascio). These authorities define no easily articulated rule, and appear to require not only the weighing of interests neither precisely measurable nor easily compared (positively weighted value of defendants' choice balanced against integrity of the judicial process), but also the evaluation of relationships that are not now clear . . . and an augury of a future that cannot be certain . .