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June 14, 1994

MOHAMMAD A. SALAMEH, a/k/a "Kamal Ibraham," NIDAL AYYAD, MAHMUD ABOUHALIMA, AHMAD MOHAMMAD AJAJ, a/k/a "Khurram Khan," RAMZI AHMED YOUSEF, a/k/a "Azan Muhammad," a/k/a "Khurram Ham," a/k/a "Rashed," a/k/a "Kamal Ibraham," a/k/a "Abdul Basit," and ABDUL RAHMAN YASIN, a/k/a "Aboud," Defendants.


The opinion of the court was delivered by: KEVIN THOMAS DUFFY


 Defendants Mohammed A. Salameh, Nidal Ayyad, Mahmud Abouhalima, and Ahmad Mohammad Ajaj (collectively the "defendants") were convicted on March 4, 1994, for committing various criminal acts having to do with the bombing of the World Trade Center on February 26, 1993. On May 24, 1994, each defendant was remanded to the custody of the United States Attorney General for period not to exceed 240 years.

 After the verdict but prior to sentencing, the defendants moved to dismiss the counsel who represented them in the seven-month trial over which I presided. In addition, the defendants petitioned to permit the law firm of Kunstler & Kuby (the "Kunstler firm") to be substituted as counsel for purposes of sentencing. At a hearing on April 15, 1994, I denied the application to have the Kunstler firm be substituted, and I directed that other conflict-free counsel be substituted as counsel for the defendants.

 Although not absolute, the Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684-85, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); United States v. Morrison, 449 U.S. 361, 364, 66 L. Ed. 2d 564, 101 S. Ct. 665 (1981). An important component of this limited right is that defendants have the right to conflict-free representation. Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980); Glasser v. United States, 315 U.S. 60, 70, 86 L. Ed. 680, 62 S. Ct. 457 (1942). See United States v. Curcio, 694 F.2d 14, 22 (2d Cir. 1982) ("Curcio II"); United States v. Curcio, 680 F.2d 881, 886 (2d Cir. 1982) ("Curcio I"). Thus, when a defendant seeks to have counsel who already represents a co-defendant represent him as well, a court should generally conduct a hearing "to determine whether a conflict exists to the degree that a defendant may be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the Sixth Amendment." United States v. Carrigan, 543 F.2d 1053, 1055 (2d Cir. 1976). See Fed. R. Crim. P. 44(c).

 If it is determined that a conflict exists, a defendant may waive the right to conflict-free counsel if the court accepts such waiver is knowingly and voluntarily made. Curcio I, 680 F.2d at 888. The United States Supreme Court in Wheat v. United States, 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988), however, ruled that "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Id. at 159. Thus, the Constitutional protection afforded by the Sixth Amendment focuses on the fairness of the adversarial process and not on the accused's relationship with any particular lawyer. See United States v. Cronic, 466 U.S. 648, 657 n.21, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984); Strickland, 466 U.S. at 689.

 From this precept, Wheat deduces that waivers of conflict-free representation need not be accepted by a district judge when the institutional interest of ensuring fair legal proceedings is jeopardized by multiple representation. Wheat, 486 U.S. at 160. In Wheat, the petitioner argued that waivers by the defendants cured all problems created by multiple representation. The Court rejected this argument and held that:

no such flat rule can be deduced from the Sixth Amendment presumption in favor of counsel of choice. Federal Courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. . . . Not only the interest of the criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation." Id.

 Thus, "where the court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented." Id. at 162. See United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir. 1978).

 Wheat recognized that a trial court's balancing of the institutional interest of ensuring that fair legal proceedings are conducted with the right to counsel of choice is frequently questioned. "Trial courts confronted with multiple representations face the prospect of being 'whipsawed' by assertions of error no matter which way they rule." Wheat, 486 U.S. at 161. Because of the complexity involved in balancing these interests, Wheat affords district judges "substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where actual conflict may be demonstrated . . . but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict." Id. at 163.

 The principles underscored by Wheat were recently recognized by the Court of Appeals for the Second Circuit. "Although a criminal defendant can waive [his] Sixth Amendment rights [to conflict free counsel] in some circumstances, that right to waiver is not absolute." United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 365 (1994). Instead, the presumption in favor of the defendant's chosen counsel must be weighed against "the interests of the courts in preserving the integrity of the process and government's interests in ensuring a just verdict and a fair trial." Id. Moreover, the presumption is "overcome by a showing of an actual conflict or potentially serious conflict." Id. See United States v. Fulton, 5 F.3d 605, 612 (2d Cir. 1993); United States ex rel. Stewart v. Kelly, 870 F.2d 854, 856 (2d Cir. 1989); United States v. Arrington, 867 F.2d 122, 129 (2d Cir. 1989); United States v. Snyder, 707 F.2d 139, 145 (5th Cir. 1983).

 Ordinarily, the issue of conflicts of interest due to the representation of multiple defendants by the same counsel arises in the pre-trial context. It is rare for a multiple counsel conflict to arise after a verdict but prior to sentencing. Two related reasons exist for this phenomenon. First, unlike the pre-trial stage, the conflicts that may arise from multiple representation at the post-trial stage are usually clear. Only the foolish would attempt to predict at the pre-trial stage what the events of a trial will be. By the time the trial has ended, the defenses as well as the facts of the case have been fully set forth to a jury. The uncertainty that exists at the pre-trial stage has passed. The defenses and arguments that the multiple defendants have made vis-a-vis each other are clear. Therefore, any conflict that may exist is also clear.

┬áBecause the conflicts are clear at the post-trial stage, attorneys as members of the bar and officers of the court will generally not put the court in the position of resolving a conflict dispute prior to sentencing. This self-policing mechanism is premised on the notion that attorneys have an ethical duty to "decline proffered employment . . . if it would be likely to involve . . . representing differing interests." Disciplinary Rules of the Code of Professional Responsibility, N.Y. Comp. Codes R. & Regs. tit. 22, ┬ž 1200.24(a) (1993). The Kunstler firm has, however, not consistently cleaved to the bar's professional duties in their legal practice. See, e.g., United States v. Lonetree, 35 M.J. 396, 411-13 (C.M.A. 1992) (hearing is ordered to determine whether William Kunstler provided ineffective assistance of counsel when he advised his client not accept a plea agreement that would have significantly reduced his sentence in order to argue at trial that the government's case was racially motivated), cert. denied, 123 ...

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