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June 12, 2000


The opinion of the court was delivered by: Cote, District Judge.


The issue before the Court is whether defendant's assigned counsel must be disqualified due to a conflict arising from his current representation of another criminal defendant who may be called as a trial witness. The defendant Esteban Gonzalez ("defendant" or "Gonzalez") is charged in four counts with crimes relating to his alleged repeated stabbing of a fellow inmate in the New York Metropolitan Correctional Center ("MCC") on February 28, 1999. The stabbing occurred in a "dorm cell" holding up to 25 inmates, each of whom is a potential witness to the incident. One of the dorm cell inmates is Kwok Ching Yu ("Yu"), whom defense counsel Alexander E. Eisemann ("Eisemann") also represents in an unrelated criminal case before the Honorable Lewis A. Kaplan. Eisemann recently notified the Government and the Court that he intends to call Yu as a witness at the defendant's trial. For the reasons discussed below, Eisemann is disqualified as defense counsel for Gonzalez.


The defendant was arraigned on May 4, 2000, at which time counsel from the Legal Aid Society was assigned for purposes of the arraignment only, because the defendant had requested that Eisemann, who is a member of the Court's CJA panel, be appointed to represent him. Eisemann had been representing the defendant as CJA counsel for approximately one year in a proceeding before the Honorable Whitman Knapp.*fn1

At the initial pretrial conference on May 5, 2000, counsel from the Legal Aid Society and Eisemann both appeared. Counsel from the Legal Aid Society noted that because the crime occurred at the MCC in the presence of a number of inmate witnesses, there was a strong likelihood that the Legal Aid Society had represented at least one of the witnesses and that therefore a conflict of interest would exist. For this reason, the Legal Aid Society requested that it not be assigned to this case. Eisemann then explained that the defendant had gone "through a couple of lawyers before" Eisemann was appointed to represent him in the case before Judge Knapp, that the defendant had a strong preference for him, and that he was already familiar with the facts of the case. The Court granted the joint request from the defendant and Eisemann to have Eisemann assigned as counsel, but warned the defendant:

I want you to understand that when one has assigned counsel, one is not in the position of choosing who is assigned to represent you, and should there ever come a point in time where it is no longer appropriate for Mr. Eisemann to represent you, for some reason that I decide, at that point I will be appointing you [a different] attorney to represent you. Do you understand that?

The defendant answered that he understood. The Court set the case down for trial on June 19.

On June 5, 2000, the Government wrote to advise the Court that it had learned that Eisemann was representing Yu in an unrelated criminal proceeding before Judge Kaplan and that Yu, one of the inmates in the dorm cell when the stabbing occurred, was a potential witness in this case.*fn2 The Government stated that it did not intend to call Yu as a witness, but nonetheless, in light of Eisemann's dual representation of the defendant and a potential witness, requested a hearing pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), to advise the defendant of his right to conflict-free representation. The Court scheduled a hearing for June 8.

At the hearing, to the surprise of the Court and the Government, Eisemann stated that he planned to call Yu as a witness, as, upon Eisemann's questioning, Yu had provided him with a version of the events in this case that exculpated Gonzalez. The Government stated that it would cross-examine Yu and that that would cause a conflict with any redirect by Eisemann. Referring to the serious conflict issues for both Yu and Gonzalez, the Court indicated that it might not accept a waiver from the defendant. Eisemann then suggested that perhaps, if he found additional witnesses, he might choose, or the defendant alone could choose, not to call Yu as a witness. To give counsel an opportunity to reflect on the changed circumstances and to present written submissions, the Court adjourned the hearing to the next day. Both parties then made written submissions.

At the conference the following day, Eisemann stated that Yu had not waived his attorney-client privilege and suggested that Yu would need independent counsel to advise him regarding any testimony he might give in this case. The Court expressed its belief that this was a situation in which a Curcio hearing would not adequately address the actual conflicts created by Eisemann's dual representation of the defendant and of Yu. The Government agreed, adding that should Yu attempt to give testimony exculpating Gonzalez, it would cross-examine Yu based on his prior inconsistent statements. Eisemann made various suggestions as to how he believed any conflict of interest might be cured, including the following: Yu, with the aid of independent counsel, might decide to waive his attorney-client privilege and/or his right to conflict-free representation; the interpreter who was present during the conversation between Yu and Eisemann could testify as to the form of Eisemann's questions, if not the substance of the conversation; the trial could be adjourned to a date when Eisemann's representation of Yu would be concluded; independent counsel could examine Yu at trial; or Eisemann could be relieved as Yu's counsel. In a subsequent submission, Eisemann has stated that it is

abundantly clear that both Yu and [the defendant] must have independent counsel to advise and represent them on the following issues: whether Mr. Gonzalez should call Yu as a witness, whether Yu should agree to testify or invoke his fifth amendment rights and, if he does, whether Mr. Gonzalez should seek to compel his testimony.


The Sixth Amendment right to effective assistance of counsel includes the right to conflict-free representation. See United States v. Rogers, 209 F.3d 139, 143 (2d Cir. 2000). To ensure that a defendant's right to conflict-free counsel is adequately safeguarded, a district court has an obligation whenever it is "sufficiently apprised of even the possibility of a conflict of interest" to initiate an inquiry and to disqualify counsel or seek a waiver from the defendant whenever the inquiry reveals that there is an actual or potential conflict of interest. United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994). Moreover, this Court has "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." Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

In conducting an inquiry regarding a conflict, a court must first investigate the details of the attorney's interests "`to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all.'" Rogers, 209 F.3d at 143 (quoting Levy, 25 F.3d at 153). An actual conflict is one that is so "severe" that "no rational defendant would knowingly and intelligently desire the conflicted lawyer's representation." Levy, 25 F.3d at 146. See also United States v. Lech, 895 F. Supp. 586, 589-90 (S.D.N.Y. 1995). As the Second Circuit has described it, an actual conflict exists when, "during the course of representation, the attorney's and defendant's interests `diverge with respect to a material factual or legal issue or to a course of action,'" United States v. Blau, 159 F.3d 68, 74 (2d Cir. 1998) (quoting Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993)), or "when the attorney's representation to the defendant is impaired by ...

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