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UNITED STATES v. LECH

August 4, 1995

UNITED STATES OF AMERICA against WLODEK JAN LECH


The opinion of the court was delivered by: SONIA SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 The motion before me is the result of a disturbing oversight by the United States Attorney's Office for the Southern District of New York. On the eve of trial, defendant's counsel, a member of the Southern District of New York Federal Defender Division, received materials produced pursuant to 18 USC § 3500. These materials revealed that a cooperating witness whom the government intends to use at trial was formerly represented by another member of the Southern District Federal Defender Division. Defendant Wlodek Jan Lech ("Lech") now moves for sanctions, barring the government from using the cooperating witness's testimony at trial. For the reasons discussed below, the motion is denied.

 Background

 Lech, Carmine Russo ("Russo"), and Henry Fulton ("Fulton") were named in a multi-count indictment charging them with conspiracy and bribery in connection with an asbestos removal project at Julia Richman High School in Manhattan (the "Julia Richman Asbestos Removal Scheme"). Because the indictment charged Fulton and Russo with other crimes including conspiracy, bribery and mail fraud in connection with a New York City Board of Education ("BOE") project located at 402 Eastern Parkway in Brooklyn (the "402 Eastern Parkway Project"), I severed Lech's trial pursuant to Federal Rule of Criminal Procedure 8(b). See Opinion and Order of the Court, published at 161 F.R.D. 255 (S.D.N.Y. 1995). Following a six week trial, a jury convicted Fulton of the counts related to the 402 Eastern Parkway Project, and acquitted him on all counts related to the Julia Richman Asbestos Removal Scheme. *fn1" Lech's trial was scheduled to begin on July 31, 1995, less than one week after the jury's verdict in the Fulton trial.

 At Fulton's trial, the government elicited testimony from a cooperating witness, Joseph Tantillo ("Tantillo"), who was a BOE official. Tantillo became a cooperating witness as a result of an agreement he entered into with the United States Attorney's Office on December 10, 1992 (the "Cooperation Agreement"). See Cooperation Agreement, attached as Ex. A to First Letter to the Court of Andrew H. Schapiro, dated July 28, 1995 (the "July 28 Letter"). The terms of the Cooperation Agreement were negotiated by a prosecutor who is no longer with the United States Attorney's Office, and Tantillo's then lawyer, John P. Curley ("Curley") of the Southern District of New York Federal Defender Division of the Legal Aid Society (the "Federal Defender Division"). Both Curley and Tantillo signed the Cooperation Agreement. Id. Sometime after entering into the Cooperation Agreement, Tantillo relieved Curley in favor of a privately retained attorney, Albert Gaudelli ("Gaudelli"). Gaudelli represented Tantillo at his plea allocution before Judge Peter K. Leisure on April 13, 1993. Gaudelli continues to represent Tantillo.

 Since the date of his arrest, May 19, 1994, Lech has been represented by Andrew H. Schapiro ("Schapiro"), an attorney with the Federal Defender Division. This is the same office that represented Tantillo when the Cooperation Agreement was signed. Curley, in fact, is now a senior trial attorney in that office. Schapiro discovered this possible conflict of interest on July 27, 1995, over one year after he began representing Lech and just four days before Lech's trial was to begin, when the government produced the Cooperation Agreement pursuant to 18 U.S.C. § 3500. Although the first page of the Cooperation Agreement lists Curley's name, address, and affiliation with the Federal Defender Division, it did not occur to the government that a possible conflict of interest existed. This failure to recognize the conflict is even more astonishing considering that the government introduced the Cooperation Agreement as an exhibit at Fulton's trial and produced 3500 materials noting Curley's presence as Tantillo's attorney at various meetings.

 Immediately upon reviewing the Cooperation Agreement on July 27, Schapiro advised the Court of the conflict and a preliminary conference was held later that afternoon. The government, Schapiro, Curley, Lech, Tantillo, and Gaudelli were present at a full hearing held on July 28. *fn2" At the beginning of the hearing, Schapiro advised the Court that he did not believe Lech wanted to substitute counsel at this late date. Schapiro also represented to the Court that he did not learn of the connection between his office and Tantillo until the government's production of 3500 material the day before, and that he had not been a member of the Federal Defender Division at any time during which Curley represented Tantillo. Schapiro and Curley declared that they had conversed generally about Tantillo just prior to the July 27 conference, merely to confirm the period of Curley's representation of Tantillo. No further conversations were held between Curley and Schapiro regarding either Tantillo or Lech. Both affirmed that no client confidences were ever revealed to Schapiro.

 Schapiro and Curley represented that a strict "Chinese Wall" would be maintained between them for as long as necessary. To ensure that none of Tantillo's confidences are revealed, Schapiro and Curley agreed to separate their work areas and files. Schapiro and Curley further agreed to have another staff member remove any computer files regarding Tantillo from office hard drives, and to ensure that Tantillo's file is kept away from any person connected to the Lech case. Schapiro and Curley also agreed to take the necessary precautions to ensure that no secrets are revealed by any support personnel who worked on Tantillo's case.

 After conferring with his attorney, Tantillo waived any potential conflict in having one of Curley's colleagues represent Lech. For the reasons to be discussed, I concluded that under the unique circumstances of this case, only a potential conflict of interest existed with Schapiro's continued representation of Lech. I then began the first phase of a Curcio hearing, during which I explained the possible dangers of a conflict to Lech. I appointed a Criminal Justice Act Panel ("CJA") attorney to advise Lech independently about his situation. Later that afternoon, Lech and his CJA attorney returned. Lech indicated a desire to waive Schapiro's potential conflict, but based upon his answers at the earlier Curcio hearing and his request to have the CJA attorney attend the trial as a monitor, I concluded that Lech did not fully understand the consequences of a waiver. I, therefore, postponed Lech's trial for a week, and set another Curcio hearing for Thursday August 3, 1995.

 Discussion

 I. The Conflict of Interest

 The Sixth Amendment to the Constitution provides

 
in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ... and to have the assistance ...

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