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UNITED STATES v. GOTTI

June 15, 1998

United States of America, against John A. Gotti, Jr., Louis Ricco, Mario Antonicelli, Gregory DePalma, Craig DePalma, Michael Sergio, Stephen Sergio, William Marshall, Dominick Loiacono, Robert Sanseverino, Leonard Minuto, Sr., Steven Fortunato, Vincent Zollo, Peter Forchetti, Christian Binnie, John Forcelli, Marco Barros, Anthony Plomitallo, Michael Zamburos, Salvatore Locascio, Angelo Prisco, John Sialiano and Dennis McClain, Defendants


The opinion of the court was delivered by: PARKER

OPINION AND ORDER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 INTRODUCTION

 The government has moved to disqualify four defense counsel: Bruce Cutler from the trial representation of John A. Gotti, Robert L. Ellis from the representation of Gregory DePalma, Joseph R. Corozzo, Jr. from the representation of Anthony Plomitallo, and Richard A. Rehbock from the representation of Vincent Zollo.

 Alleging the existence of conflicts that cannot be waived or remedied except by disqualification, the government seeks to disqualify Rehbock and Cutler primarily on the ground that they, at some point, have allegedly acted as "house counsel" for the Gambino Crime Family. The disqualification of Corozzo is sought as a consequence of his prior representation of another defendant, Vincent Zollo, and his public association with other defendants and alleged Gambino Crime Family members. Finally, the disqualification of Ellis is sought on the basis of his prior representation of William Marshall, a co-defendant and now a cooperating witness, and his involvement in matters that will be the subject of the government's proof at trial. For the reasons that follow, the government's motion is granted with respect to Rehbock and Ellis and otherwise denied.

 The Indictment

 The defendants are charged in an original and four superseding indictments (collectively, "the Indictment") with the commission of various federal crimes. Gotti, DePalma, and Zollo are charged in an 86 count superseding indictment, and Plomitallo is charged in the 60 count original indictment, with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 18 U.S.C. ┬ž 1961 et seq. The Indictment alleges that the defendants, as participants in a criminal enterprise known as the Gambino Crime Family, engaged in, among other things, extortion, illegal gambling, loansharking, money laundering, robbery, and drug trafficking.

 Count One of the Superseding Indictment charges Gotti, DePalma, and Zollo, along with other defendants, with engaging in a racketeering conspiracy and details 44 racketeering acts. Counts Two and Three charge Gotti and DePalma, among others, with substantive racketeering violations and with conspiracy to engage in collection of unlawful debt, respectively. Counts Four through Twelve charge Gotti and DePalma, along with other defendants, with various crimes related to the extortionate control by the Gambino Crime Family of the nightclub "Scores." The Superseding Indictment also includes, among other charges, 6 counts of money laundering and 48 loan sharking counts.

 DISCUSSION

 A criminal defendant has a right under the Sixth Amendment "to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. At the same time, courts are obligated to protect the integrity of judicial proceedings and to ensure the effectiveness of the assistance of counsel by eliminating actual conflicts and carefully regulating potential ones. Wheat v. United States, 486 U.S. 153, 160, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988).

 Although the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, its essential aim is to guarantee a criminal defendant an effective advocate rather than to ensure that a defendant will inexorably be represented by preferred counsel. Wheat, 486 U.S. at 159. Thus, the Sixth Amendment "recognizes a presumption in favor of the accused's chosen counsel" that may be overcome by circumstances that weigh in favor of disqualification. United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993)(citations omitted). However, disqualification is a harsh remedy that should be invoked infrequently since it raises problems of constitutional dimensions. Id. at 935; United States v. Gambino, 838 F. Supp. 749, 753 (S.D.N.Y. 1993).

 The decision whether to disqualify requires balancing the constitutional right to counsel against the importance of "ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat, 486 U.S. at 160; Locascio, 6 F.3d at 935. Consequently, "in evaluating Sixth Amendment claims, 'the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such.'" Wheat, 486 U.S. at 160 (quoting United States v. Cronic, 466 U.S. 648, 657, n.21, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984)).

 With these threshold principles in mind, we turn to the government's contentions. The government has advanced multiple grounds for the disqualification of each attorney, grounds that may raise two types of problems. First, a defense attorney who is implicated in events that may become the subject of the government's proof becomes an unsworn witness at trial and, as a consequence, is not an appropriate advocate. See Locascio, 6 F.3d at 933-934. Second, an attorney's prior representation of a co-defendant or a significant witness in the matter for which his client is on trial may be subject to conflicting loyalties that impair representation of the client on trial. See Wheat, 486 U.S. at 155-156, 100 L. Ed. 2d 140, 108 S. Ct. 1692. The possibility that an attorney has acted as house counsel for a RICO enterprise typically raises both types of problems. When there are multiple potential bases for disqualification, the decision turns on a consideration of the various grounds in the aggregate. United States v. Rahman, 861 F. Supp. 266, 274 (S.D.N.Y. 1994) (citing United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994)).

 Attorney's Prior Representation

 An attorney may be disqualified due to his "prior representation of a witness or co-defendant" in his present client's case. Locascio, 6 F.3d at 931 (citing Stewart v. Kelly, 870 F.2d 854, 856-857 (2d Cir. 1989)). The concern here is that the attorney-client relationship with the witness or co-defendant gave rise to continuing obligations of loyalty and confidentiality that may be breached when the confidences are required to be exploited in, for example, cross examining the former client. On the other hand, if prior confidences are respected, the representation of the new client might be ineffective due, for example, to the inability of counsel to conduct a thorough cross-examination. United States v. Iorizzo, 786 F.2d 52, 57 (2d Cir. 1986). A waiver by both clients typically alleviates this problem. United States v. Leslie, 103 F.3d 1093, 1098 (2d Cir. 1997); United States v. Lussier, 71 F.3d 456, 462 (2d Cir. 1995) (citations omitted); Iorizzo, 786 F.2d at 57-58. A waiver by the current client alone will obviate the need for disqualification, unless the "conflict is so egregious that no rational defendant would knowingly and voluntarily desire the attorney's representation." See Lussier, 71 F.3d at 461. See United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994)).

 Attorney Involvement

 An attorney may be disqualified if he has first-hand knowledge of events that may be part of the government's proof at trial. In such circumstances, the attorney, if allowed to participate, could become an "unsworn witness for the accused" and the attorney's ability to rely, even if tacitly or indirectly, on his own knowledge of the events in question may provide "his client an unfair advantage, because the attorney can subtly impart to the jury his first-hand knowledge of the events without having to swear an oath or be subject to cross-examination." Locascio, 6 F.3d at 931 (citing United States v. McKeon, 738 F.2d 26, 34-35 (2d Cir. 1984)); United States v. Cunningham, 672 F.2d 1064, 1075 (2d Cir. 1982).

 Alternatively, the attorney's desire to minimize his own involvement in the events in question or to characterize his own conduct favorably creates pressures potentially inimical to his client's interests. Locascio, 6 F.3d at 933; United States v. Arrington, 867 F.2d 122, 129 (2d Cir. 1989). Because the attorney's status as an unsworn witness may inure to the benefit of the defendant, "waiver by the defendant is ineffective in curing the impropriety in such situations, since he is not the party prejudiced." Locascio, 6 F.3d at 934 (citing Cunningham, 672 F.2d at 1074-1075).

 As previously noted, an attorney's purported role as house counsel frequently raises both the prior representation and unsworn witness problems. Locascio, 6 F.3d at 933. An attorney's status as house counsel may be used to prove the existence of the enterprise, as required by RICO. An attorney's role as house counsel may also pit counsel's duties to his individual client against his overall loyalty to the organization. Id. Either of these problems implicates both the effectiveness of the representation of a particular client and the overall fairness and integrity of the trial process.

 The Government's Grounds for Disqualification

 Motions to disqualify typically present complicated practical problems. The potential for a serious conflict must, of course, be assessed by the trial court prospectively, without the benefit of testimony or a full record. Wheat, 486 U.S. at 163. The predicate for decisions regarding disqualification is often supplied by government proffer at a time when the government's proof is largely unknown to defendants or to the Court and consequently cannot, in any realistic way, be challenged or tested. In other words, disqualification motions often "require considerable conjecture by courts." Gambino, 838 F. Supp. at 753. "The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials." United States v. Gotti, 771 F. Supp. 552, 558 (E.D.N.Y. 1991) (quoting Wheat, 486 U.S. at 162-163) (internal quotations omitted).

 Bearing in mind these practical problems, we now consider the Government's showing with ...


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