(Tr. at 33, 160-62.) At first, Lupo shielded the Defendant by withholding information regarding the Defendant and lying about the Defendant's involvement in any criminal acts. (Tr. at 233-34, 249-50.) See generally Biaggi, 909 F.2d at 690-91. In order to find a chain of tainted evidence, the Court must find that the information in the proffer session led to Lupo's cooperation. Helmsley, 941 F.2d at 82. The Court fails to see any connection here.
Furthermore, there is no indication, as explained in Helmsley, that the information here was used by the Government to induce or anger Lupo into pleading guilty or into cooperating. In fact, the opposite is true here. 941 F.2d at 83; see also Biaggi, 909 F.2d at 689. From all the submissions, it appears that the fact that the Defendant attended a proffer session under the grant of immunity had little, if any, impact on Lupo's decision to plead. There is no indication that Lupo ever knew what was said at the proffer sessions or that what was said influenced Lupo. And when Lupo did decide to cooperate, he contacted the FBI agent. The Court also takes note that Lupo was already indicted on information not provided by the Defendant, at the time of the proffer session. Therefore the Defendant's information did not lead the Government to Lupo.
See United States v. Kurzer, 534 F.2d 511, 517 (2d Cir. 1976).
B. Defendant's Motion for Judgment of Acquittal or a New Trial Based on His Sixth Amendment Right to Counsel is Denied
Defendant argues that Nastasi could have been deposed before his death, at which deposition he would have denied the receipt of any bribes and accordingly, provided exculpatory evidence for the Defendant. (11/25/96 Franklin Aff. P 2.) Defendant argues that Franklin's representation of the Defendant and Nastasi created an actual conflict of interest, which prevented Franklin from pursuing a deposition.
The Sixth Amendment to the Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend VI. This right encompasses the right to conflict-free counsel. Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978); United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994); United States v. Curcio, 680 F.2d 881, 885 (2d Cir. 1982). A defendant has suffered ineffective assistance of counsel, in violation of his Sixth Amendment rights, if there existed a potential conflict which prejudiced the defendant or there existed an actual conflict. Levy, 25 F.3d at 152. The Defendant claims there was an actual conflict.
If an actual conflict is found, a court must disqualify the attorney, because this type of conflict cannot be waived. Levy, 25 F.3d at 153. "An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and the defendant's interests diverge with respect to a material factual or legal issue or to a course of action." Levy, 25 F.3d at 155 (quoting Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993), cert. denied, 511 U.S. 1022, 114 S. Ct. 1407, 128 L. Ed. 2d 79 (1994)) (internal quotation marks omitted). When alleging an actual conflict, the defendant must show that the conflict adversely affected the attorney's performance, in that there was another defense tactic that could have been pursued, but was not, because it conflicted with the attorney's other interests. The Court finds that there was no actual conflict here. The attorney's interest in representing Nastasi did not diverge from that of Blau's interest. In fact, taking for the moment Nastasi's proposed deposition testimony as true, their interests were aligned. There has been no indication that there was another defense Franklin should have pursued that was diametrically opposed to Nastasi's interests.
Potential conflicts are conflicts that may be waived in order that the defendant be permitted to retain counsel of choice. Williams v. Meachum, 948 F.2d 863, 866 (2d Cir. 1991). A waiver is accepted if it is a knowing and intelligent choice. Williams, 948 F.2d at 866-67. In determining this, the court is to look to the "particular facts and circumstances surrounding [the] case, including background, experience, and conduct of the accused." Williams, 948 F.2d at 866. Usually, a court will be able to judge these factors before a trial takes place, because the attorneys or the defendant will inform the court of a potential conflict. Here, the Court was neither informed nor could it have surmised that there was a conflict.
Bridges v. United States, 794 F.2d 1189, 1193 (7th Cir. 1986); 9/11/96 Franklin Aff. P 8. This does not mean, however, that a waiver cannot be determined without the usual inquiry made by the Court at a Curcio or other similar hearing. See, e.g., Bridges, 794 F.2d at 1193.
The Court is troubled by what it views as possible gamesmanship. This is the first time the Defendant has raised this issue. The Defendant and his attorney, realizing there was a potential conflict, possibly withheld that information so it could be included in the arsenal of appellate issues. A Defendant cannot withhold a possible conflict from the Court's attention and then, only after trial, bring it to the Court's attention, requesting a new trial.
The Defendant has not given any reason why this conflict was not brought to the Court's attention prior to this time.
The Court finds that a potential, and therefore waivable, conflict, at best, was created by defense counsel and Defendant's studied silence on this issue until post-conviction motions, and not an actual conflict. Defendant waived this conflict when he signed the retainer agreement. Although he knew there were potential conflicts, he still retained Franklin. The Defendant is an educated man, having graduated from law school. He is an experienced professional. The Court was able to assess him during his testimony and he appears to be an intelligent and thoughtful man. Furthermore, the Defendant made the informed, conscious choice to fire his first experienced defense attorney, Gary Naftalis, Esq., and replace him with Mr. Franklin.
The Court finds that the Defendant made the informed choice to hire Mr. Franklin, warts and all. To permit him to raise this issue now, after failing to inform the Court, prior to trial, would be inappropriate. The Court finds his waiver was knowingly, intelligently and voluntarily made. United States v. Bonilla-Marquez, 924 F.2d 770 (8th Cir. 1991); Bridges, 794 F.2d 1189.
Accordingly, the Defendant's motion for a judgment of acquittal and, in the alternative, for a new trial is DENIED.
Dated: New York, New York
April 21, 1997
Deborah A. Batts