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UNITED STATES v. GALLEGO

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


November 12, 1996

UNITED STATES OF AMERICA, against ALFREDO GALLEGO, GEORGE GALLEGO, and STEVEN MARTINEZ, Defendants.

The opinion of the court was delivered by: KAPLAN

ADDENDUM TO OPINION

 LEWIS A. KAPLAN, District Judge.

 This Court issued an opinion in this case, which denied defendant Martinez' motion for a new trial, on November 6, 1996. As the motion was premised on the claim that Martinez received ineffective assistance of counsel, the opinion discusses affidavits and testimony given by two of Martinez' former lawyers, both of whom were appointed pursuant to the Criminal Justice Act.

 It has been suggested to the Court that one reading the opinion without knowledge of the applicable principles and of the history of the case might conclude that the attorneys in question, or CJA appointed lawyers in general, were willing "to give up a client apparently to protect" themselves. Such an impression would be entirely misconceived.

 By moving for a new trial based on the alleged ineffectiveness of counsel, Martinez put in issue various communications between himself and his counsel and, at least to that extent, waived his attorney-client privilege. His former counsel nevertheless declined to make themselves available to the government in connection with the government's preparation of a response out of concern that doing so would reveal privileged communications going beyond the scope of the waiver of the privilege or otherwise violate their duties to Martinez. The Court therefore requested that former counsel review Martinez' motion and prepare drafts of responsive affidavits. The drafts then were furnished only to the attorney representing Martinez on the motion in order to permit Martinez to claim, if he thought it appropriate, that anything contained in the draft affidavits was privileged notwithstanding the waiver inherent in Martinez' having made his motion. Only after satisfying himself that the proposed affidavits did not exceed the scope of the waiver, or obtaining the Court's ruling as to any point on which a claim of privilege was made, did Martinez' motion counsel turn the affidavits over to the government for use in preparing its response. Subsequently, one of Martinez' former counsel testified at an evidentiary hearing at which Martinez and his motion counsel both were present and thus able to object to any proposed testimony.

 In these circumstances, it is evident that Martinez' former counsel conducted themselves with all appropriate fidelity to their erstwhile client. They did not volunteer information and cooperated only after Martinez' legitimate interests were protected and only to the extent necessary in light of the motion that Martinez made.

 SO ORDERED.

 Dated: November 12, 1996

 Lewis A. Kaplan

 United States District Judge

19961112

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