The opinion of the court was delivered by: Gleeson, District Judge.
The Government has moved to disqualify defendant's principal
counsel, Ronald Richards, from representing the defendant at
trial. On February 16, 2001, I issued an order stating that the
motion was granted, and that this opinion would follow. Set
forth below are the reasons Richards may not appear at trial as
A. The Los Angeles Indictment
RR: — than I am.
JL: Yeah, yeah.
JL: I understand.
JL: Okay, okay.
RR: — that's what I'm trying to help you out with.
Tape 2 at 26. Richards concluded that conversation on a similar
RR: Because, I don't want to prosecute you.
JL: Okay, I understand that.
RR: Okay, I'm not here to hurt you.
RR: I'm a very sensitive individual.
JL: I do feel better.
RR: Okay good, alright.
Tape 2 at 30.
Confronted with a person who claimed to have committed crimes
for his client and who was feeling pressure to cooperate,
Richards sought to relieve the pressure. He assured her that the
mere fact that other couriers might have given her name to the
agents was no reason to cooperate:
JL: Probably, I, I don't know.
Tape 2 at 5-6. See also Tape 1 at 7 (RR: "I mean, you don't
need to sort of imply like you did something so you can get
something. I mean it's not necessary."); Tape 2 at 6 (RR: "I
know this case inside and out and your name has never came (sic)
up in this case."); Tape 2 at 23 (RR: "See you keep giving [the
agents] way too much information voluntarily").
Not content with merely attempting to persuade Leary that the
government had no case against her, Richards sought to convince
Leary that cooperating with the government was not in her best
interests. He suggested, falsely, that she would receive no
benefit from cooperation if Orgad's motion to dismiss the Los
Angeles Indictment with prejudice were granted:
JL: I have no idea, that's.
RR: Okay, well, I'm going to explain that to you.
Tape 2 at 12-13. See also Tape 1 at 8 (RR: "Well, ur, when he
said give you a good deal, what did he mean by that? . . . Let
me just try to walk you through this. If you admit that you were
involved in a crime, you're gonna have to plead guilty to a
felony narcotics sale, you know, or importation. You're gonna be
registered as narcotics offender the rest of your life and
you're gonna be on federally supervised, uh, release. Simply
because he told you that he has information. That's why I think
you're better off coming out here, seeing a lawyer and realizing
that if you don't say anything or incriminate yourself.").
Richards was relentless in his effort to get Leary to
California. See Tape 1 at 8 (RR: "I think you're better off
coming out here . . ."); Tape 1 at 9 (RR: ". . . do you want to
come to California? . . . I can help you more if you're in
California, because that's where I'm at."); Tape 1 at 9 (RR: "Do
you want to come to California?"). See also Tape 2 at 22. The
tape recordings reveal that Richards had multiple reasons for
Richards is not naive. He knew that Leary could well be
cooperating with the government as she spoke to him by phone. As
discussed infra, he sprinkled disclaimers throughout the
conversations for that very reason, although they were for the
most part transparent. One reason Richards wanted Leary to come
to California was so he could speak to her more forthrightly
than he could over the telephone.
Tape 2 at 10 (emphasis added).
Richards repeatedly referred to his desire to be able to speak
more freely to this potential witness against his client. See
Tape 2 at 11 (RR: "So, once you get out here, we can, you know,
I say, develop more of a rapport with each other, but over the
phone, three thousand miles away . . . it is very difficult");
Tape 2 at 24 (". . . once you come here I can facilitate you
doing whatever you want. It's much easier than talking to you on
the phone in Jacksonville.").
Despite his leeriness, Richards had numerous moments of almost
startling candor in his conversations with Leary. For example:
RR: you know, they'd first have to find you . . .
Tape 1 at 10. At that point, the key to dealing with Leary,
according to Richards, was to get Leary to Los Angeles, because
Los Angeles was where his "infrastructure" was:
RR: — where you are now, to assist you.
Tape 2 at 12.
In theory, separate counsel would advise Leary with only her
best interests in mind. But Richards made it clear that he would
have a role in that representation, and that the advice to Leary
would be to reject the offer of cooperation: "You know, I can
get you, a way to come out to California, if you were here and
you had your own attorney, at least between the two of us it
would be very difficult for someone to get you, to scare you
into doing something." Tape 2 at 4 (emphasis added).
Though professing at one point that "I can't tell you not to
talk to" the agents,*fn6 in the same breath Richards told
Leary that the lawyer Richards would assign to her would give
her that advice:
RR: I can't tell you not to talk to them.
Tape 2 at 24 (emphasis added). See also Tape 2 at 22-23 (in
response to Leary's statement that she will need to know what to
do when the agents contact her, Richards states: "but they're
not going to talk to you again . . . That's what I keep telling
you . . . You're gonna have a lawyer. He's gonna tell you what
Part of the money Richards would send to Leary, see infra,
was for her to obtain a new cellular telephone. Richards told
Leary "Don't give the number out to anybody . . . If you start
calling people in Jacksonville, they'll, they'll find you in two
minutes." Tape 3 at 4. Richards had previously admonished Leary
for making herself too "accessible" to the agents, Tape 2 at 14,
that she was "like a sitting duck," Tape 1 at 9, and that she
should move out
of her apartment. Tape 2 at 16. After she received the money
Richards wired to her, Richards told Leary: "you stay incognito
. . . don't, do not, you know, go places you normally go . . .
if you're worried about something." Tape 4 at 2-3.
9. Richards Sent Leary Money To Prevent Her Cooperation
Richards does not dispute that he sent Leary money. His
machinations with respect to the justification for the payment
and the manner in which it was sent suggest that he was trying
to purchase Leary's silence.
a. The Fabrication Of A Justification For The Payment
Initially, the purported reason for sending money to Leary was
to pay for her travel to California so Richards could "help"
RR: . . . would it be helpful if I um, had uh, one
of your friends like Western Union you something?
JL: Western Union me what?
RR: Some money.
RR: For you, if you need to travel.
JL: I guess if you want to go ahead and, uh,
arrange some travel.
Tape 2 at 3. However, the ostensible purpose of the wired money
soon became the need to pay Leary's rent:
JL: Right now for that thing, for me to be in jail
last night cost me, uh, some money. You know, I
was just, to make some money for my rent, and now
I can't because of that. You know?
RR: How much is the rent?
JL: It was three hundred ($300) . . . I mean,
would you be able to send me some money Western
Union just for the rent for right now, until, you
RR: I'm happy to.
Tape 2 at 15.
Richards thereupon latched on, at least temporarily, to the
notion that he was sending Leary rent money. Tape 2 at 19 (RR:
"Okay, so I'm gonna send you the Western Union for your rent
. . . so you'll have some rent."); Tape 2 at 26 (RR: "I'm going
to send you this money so you can have some money for rent.")
There were problems with the notion that the money was for
Leary's rent. One was the specter that, because Leary would be
coming to California, she would not be paying the rent anyway.
Tape 2 at 16 (RR: "Why don't you move out after this so you
don't have that rent expense?"). Another was the fact that the
amount actually sent ($500) exceeded the amount of the supposed
rent ($300). Finally, by the time it was sent, the money was for
"rent and shit," Tape 3 at 2, the latter category including,
inter alia, the new cellular telephone that Richards wanted
Leary to get. Tape 3 at 4 ("But okay, so what I'm gonna do is
I'm gonna send you five hundred now and you're gonna call me at
two, and you'll get a new cell phone and then we'll [UI]. Don't
give the number out to anybody.").
The bigger problem with the "rent" story was Richards's
apparent realization that, if this day came, he would be
hard-pressed to justify sending rent money to a prospective
witness against his client, even if it were actually to pay
rent. This realization, and the final metamorphosis of the
purpose of the payment to Leary, is captured on the tape.
Seconds after describing himself as a "very hip young lawyer,"
Richards demonstrated his legal acumen by thinking out loud,
eventually alighting upon his final justification for sending
money to an adverse witness:
RR: I mean, I mean, forget about. I mean, we're
going to get, I'm going to send you this money so
you can have some money for rent.
RR: I'm going, I'm going —
JL: Thank you.
RR: — I'm going to take care of this but you just
got to slow down and um, you know, realize that
uh, [sniff] that, that none of this is, um, you
know, none of this is, uh, let me see what I'm
trying to tell you here so, so, so we can have,
uh, so we can have, um, so we have a situation
here. [UI]. I mean let me just focus my thoughts
for a minute.
RR: One is, that, that I'm giving you this money
because you need some money to travel to come out
here to possibly assist me in this case.
RR: Okay, so, so, I, I want you to understand
that. Number two, as a person. I'm just trying to
help you because I see you're scared.
Tape 2 at 26-27.
So the rent money story was abandoned, and the travel money
story was readopted. This is Richards's final story on the
tapes, and on this motion he is sticking to it; he indignantly
defends his payment to Leary as an "advance for expenses and
reasonable compensation for loss of time to a witness to travel
to the location of the hearing." Brief for Orgad, at 7.
There are serious problems with this story as well. First,
there was no "hearing," or any other proceeding, for Leary to
travel to. As Richards himself put it while arguing a different
point, "[t]here wasn't even a case pending." Oral Arg. at 67.
Second, even if there were something pending, Richards was
plainly interested only in making Leary inaccessible to the
government, not in producing her in court. Third, even if there
were a pending proceeding, and even if Richards wanted to
produce Leary at it, the $500 was still not for travel expenses,
as Richards himself stated on the tape. He told Leary that he
would take care of those expenses separately by purchasing the
airline ticket (which Leary would pick up at the airport), and
by picking Leary up at the Los Angeles airport. See, e.g.,
Tape 3 at 3 (RR: "I'll send you . . . Can I send you five
hundred [$500]?" JL: "That's fine." RR: "And then, and then
we'll just take care of your travel airfare here.").
Indeed, the fact that Richards was really sending the money
for reasons other than advancing travel expenses became
explicit. As mentioned above, Leary was to use part of the money
to obtain a new cellular telephone. Also, in the phone call
confirming that the money had been received, Richards revealed
both his true belief that the money had nothing to do with
advancing travel expenses and his understanding that Leary posed
a "problem" for Orgad:
JL: . . . I finally got it.
RR: Oh, good. Well, they didn't give you a
problem, did they?
JL: No, they didn't.
RR: Oh, okay. Good
JL: I got it alright.
RR: Okay, so that should solve our short, our,
your short term problem.
JL: Yeah, for right now. Um, yeah, uh, I'm gonna
give you a call on, uh, another phone within
another, a day um, whenever I get my new, I get a
RR: Okay, great.
RR: Okay, so you stay incognito . . .
Tape 4 at 2 (emphasis added). Leary had previously told Richards
that she could not travel for "at least two days." Tape 3 at 5.
What Richards described as "our, your short term problem" had
nothing to do with travel expenses. It had everything to do with
the fact that a prospective witness against Orgad, who was being
pressured by federal agents to cooperate, was asking Richards
b. The Concealment Of The True Identity Of The Sender Of
Casting further doubt on the legitimacy of his payment to
Leary, Richards conducted the transaction in a manner designed
to disguise the source of the funds.
(i) Who is Helping Leary?
The deception regarding the source of the funds began with a
charade that was eventually abandoned entirely: that the money
originated with some unspecified "friends" of Leary in Los
Angeles. At the outset, Richards adhered firmly to this fiction.
When Leary first asked for money, Richards said: "[Y]ou have
other friends in Los Angeles besides Koki that told me that they
wanted to help you out." Tape 1 at 7. See also Tape 2 at 3
(RR: "Would it be helpful if I . . . had one of your friends
like Western Union you something."); Tape 2 at 4 (RR: "I didn't
know, you said you were broke, so I could, a lot of friends of
yours, but they said that they could loan you some money.") Tape
2 at 4.
Richards did not explain why Leary's friends would flock to
Orgad's lawyer in order to help Leary out. When pressed ever so
slightly on the subject by Leary, Richards's fumbling response
revealed the implausibility of the notion that the money was
coming from anyone but Richards:
RR: I promise you that if you come here, you'll
have, I'll help you to get an attorney to
represent you, so you're not alone, so you have
someone fighting for you.
RR: Okay. Number three, if you need —
JL: — my friends or Koki's friends?
RR: No, your friends. They didn't identify
themselves to me as Koki's friends —
RR: — as Koki's friends. My client —
JL: Mm-hm —
RR: — has nothing to do with helping, with the
respect to, you know, I, I mean maybe they're
helping you because they, I, I don't want to
speculate as why —
JL: — yeah.
RR: — they on, only they would help you.
Tape 2 at 7-8. In any event, by the third taped conversation
between Leary and Richards, all pretense that the financial
assistance was coming from Leary's "friends" was abandoned in
favor of Richards's idea that he was "advancing" her travel
funds so she could "travel to the location of the hearing."
Brief for Orgad at 7.
(ii) The Use Of A False Name To Transfer The Funds
Even after Richards abandoned the pretense that Leary's
"friends" would send her the money, and no doubt as a hedge
against the dubious propriety of the payment, he decided to
conceal his identity as the sender of the funds. At first, when
asked by Leary if he would send her money in his own name,
Richards said "Yeah, probably." Tape 2 at 16. But he soon
thought better of it:
RR: . . . okay, as far, as far as the sender, I'm
gonna put your mom down as the sender.
RR: Okay, what's your mom's name?
JL: It's [redacted] Leary
RR: [redacted] Leary. Perfect. That will be the
Tape 2 at 20-21.
It later occurred to Richards that he should disguise not only
his identity as the sender, but Leary's as the recipient. Thus,
he began their third conversation with the suggestion that he
send the money to Leary's roommate:
RR; I was gonna, I was gonna ask you if you wanted
me to send it to your friend instead . . .
Tape 3 at 2. Leary agreed and asked for $1,000, $700 more than
Richards had previously agreed to pay her. Tape 3 at 2. They
compromised on $500. See Tape 3 at 3 (RR: "Can I send you five
hundred?" JL: "That's fine." RR: "Is that enough?"). As it
turned out, Richards in fact used Leary's mother's name, instead
of his own, to send the money, but used Leary's name as the
recipient. Oral Arg. at 29-30.
10. Richards's Strained Protestations of Innocence
As mentioned above, Richards was explicit in his concern that
agents might be taping Leary's conversations with him, just as
he had taped her conversations with them. He therefore littered
the conversations with statements such as:
•"You know, talk to the other side, I don't, I
don't want, you know, I don't want in any way to
be construed that, that, that some how I'm in
any way preventing you from going in and
cleansing your soul with the government." Tape 2
• "there's a few things, you can even write them
down if you want to be sure, one thing is, my
client is adamant that he's never done anything
illegal with you nor asked you to do anything
illegal." Tape 2 at 7.
•"You know, I just was calling uh, an other
lawyer to make sure, you know, that this all was
kosher." Tape 3 at 2.
The government suggests that these self-serving statements
fall into the "doth protest too much" category, an argument that
has considerable force. Also, occasionally Richards simply could
not help himself, and his baser instincts intruded directly on
his efforts to appear innocent. For example, his pontification
that it would be illegal for him to shelter Leary was
immediately contradicted by his assurance that he would
"facilitate" her disappearance; his nod to the rule that he
could not advise her not to speak to the agents was trumped in
the same breath by his assurance that he would supply her with a
lawyer who would do exactly that:
RR: See you keep giving them way too much
information voluntarily, and I am precluded just
like they are also precluded —
JL: Well, I just —
RR: — from telling you not to.
RR: See you got to understand something, one thing
I can't do, I can't tell you, if there's a
warrant, I'm gonna have you — shelter you or avoid
you. That's illegal.
RR: But if you, if you are on your own, just want
to disappear, you're an American citizen. You can
go wherever you want.
RR: You know? And so I'm saying, but once you
come here I can facilitate you doing whatever you
want. It's much easier than talking to you on the
phone in Jacksonville.
RR: Second of all, I can't tell you not to talk to
RR: You know? But, but if you have a lawyer, the
lawyer can tell them we are not giving any
statements so pound sand.
JL: Okay, and . . .
RR: So that's, you know, you just got to realize
that, until you get here, I can't have anybody as
a lawyer to see you because um. You know, the,
they're all in Los Angeles
Tape 2 at 23-24 (emphasis added).
A. The Qualified Right to Counsel of Choice
The Sixth Amendment to the Constitution provides that "[i]n
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defense." U.S. Const. Amend.
VI. The right to counsel "was designed to assure fairness in the
adversary criminal process." Wheat v. United States,
486 U.S. 153, 158, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (citing United
States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564
(1981)). The focus of Sixth Amendment claims, therefore, is on
the "`adversarial process, not on the accused's relationship
with his lawyer as such.'" Wheat, 486 U.S. at 159, 108 S.Ct.
1692 (quoting United States v. Cronic, 466 U.S. 648, 657 n.
21, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)).
The right to counsel includes the right to be represented by
counsel of choice, see Powell v. Alabama, 287 U.S. 45, 53, 53
S.Ct. 55, 77 L.Ed. 158 (1932), but that is not an absolute
right: "while the right to select and be represented by one's
preferred attorney is comprehended by the Sixth Amendment, the
essential aim of the Amendment is to guarantee an effective
advocate for each criminal defendant rather than to ensure that
a defendant will inexorably be represented by the lawyer whom he
prefers." Wheat, 486 U.S. at 159, 108 S.Ct. 1692.
A defendant's right to be represented by counsel of choice is
limited in part because "[f]ederal courts have 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, 486
U.S. at 160, 108 S.Ct. 1692; see also United States v.
Locascio, 6 F.3d 924, 931 (2d Cir. 1993), cert. denied,
511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994). Thus, the
presumption in favor of allowing a defendant to be represented
by counsel of choice can be overcome by a showing that the
chosen attorney has an actual conflict of interest or a
potentially serious one. See Wheat, 486 U.S. at 164, 108 S.Ct.
1692; Locascio, 6 F.3d at 931. Indeed, the Supreme Court in
Wheat explicitly endorsed the disqualification of counsel "not
only in those rare cases where an actual conflict may be
demonstrated before trial, but in the more common cases where a
potential for conflict exist which may or may not burgeon into
an actual conflict as the trial progresses." Wheat, 486 U.S.
at 163, 108 S.Ct. 1692. The Court further recognized that
deciding motions to disqualify counsel necessarily requires
considerable conjecture by trial courts:
Unfortunately for all concerned, a district court
must pass on the issue of whether or not to allow a
waiver of a conflict of interest by a criminal
defendant not with the wisdom of hindsight after the
trial has taken place, but in the murkier pretrial
context when relationships between parties are seen
through a glass, darkly. The likelihood and
dimensions of nascent conflicts of interest are
notoriously hard to predict, even for those
thoroughly familiar with criminal trials.
Id. at 162-63.
Because of the courts' independent interest in the integrity
of judicial proceedings, there are several situations in which
disqualification of counsel may be appropriate despite a
defendant's willingness to waive the right to conflict-free
counsel. For example, a chosen attorney may be disqualified when
he ought to be called as a witness for his client, see, e.g.,
Locascio, 6 F.3d at 932-33; United States v. Castellano,
610 F. Supp. 1151 (S.D.N.Y. 1985), or when counsel could become an
unsworn witness for the accused at trial. See Locascio, 6 F.3d
at 933-34; United States v. Arrington, 867 F.2d 122, 129 (2d
Cir.), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d
37 (1989). An attorney also may be disqualified when there is a
risk that a vigorous defense may reveal illegal conduct by the
attorney. See United States v. Cancilla, 725 F.2d 867 (2d Cir.
1984). Another type of disqualifying conflict may arise due to
defense counsel's prior representation of a government witness,
United States v. lorizzo, 786 F.2d 52 (2d Cir. 1986), or
current representation of a co-defendant. See Wheat, 486 U.S.
at 159-60, 108 S.Ct. 1692.
In the instant case, multiple conflicts of interest, both
actual and potential warrant the disqualification of Orgad's
counsel of choice. Orgad's expressed (through Richards) desire
to waive his right to conflict-free counsel is immaterial as the
number and depth of the conflicts in this case lead me to
conclude that the representation of Orgad by Richards at trial
would pose too great a threat to the Court's institutional
interest in the integrity of the trial itself. See Wheat, 486
U.S. at 162-63, 108 S.Ct. 1692.
B. The Conflicts In This Case
1. Richards Ought to be a Witness for Orgad
Except in limited circumstances that I shall address below, a
lawyer may not serve as an advocate in a case where "it is
obvious that the lawyer ought to be called as a witness on a
significant issue on behalf of the client." New York Code of
Professional Responsibility DR 5-102(C).*fn7 If Richards
ought to be available at trial to rebut the testimony of Leary,
he cannot appear as counsel for Orgad.
In this respect, this case is similar to United States v.
Cunningham, 672 F.2d 1064 (2d Cir. 1982), cert. denied,
466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). In that case,
Sweeney, a lawyer, was charged with, inter alia, conspiring to
impede the perjury trial of an alleged co-conspirator. Id. at
1065. The government claimed that he had obstructed the trial by
destroying evidence, including some envelopes that Sweeney's
firm's receptionist, Gay McCreery, had typed. McCreery had been
called to testify at a pretrial hearing in the perjury case, and
had testified that she was unable to locate the envelopes. Id.
Before Sweeney's trial, the government stated that McCreery
would testify that she had a conversation with Sweeney's lawyer,
Michael Kennedy, before the aforementioned pretrial hearing.
McCreery's testimony would be as follows:
Mr. Kennedy told me that I would probably be
questioned about the envelopes. I was not to worry
about the envelopes, the envelopes were safe. The
envelopes are his responsibility they were not my
responsibility. He then said that the government had
not been helpful to them, and if the government
wanted the envelopes they would have to find them.
Id. at 1068. In affirming an order disqualifying Kennedy from
representing Sweeney at trial, the Second Circuit stated, inter
alia, as follows:
If McCreery's testimony is admitted at trial, it
requires no leap of the imagination to conclude that
Kennedy ought to be a rebutting witness, either to
deny the conversation, or to provide an innocent
explanation for the jury to consider. If Kennedy were
to be sworn as a witness it is clear that he should
not serve as trial attorney.
Id. at 1074. As the court observed, even if Kennedy were to
admit that the conversation with McCreery had occurred, he might
offer "a perfectly innocent explanation" of his statement that
the envelopes were "safe." Id.
The same situation exists in the case before me. Although
Richards has not denied that he had the conversations with
Leary, he has offered various innocent explanations of those
conversations that the jury should consider. Indeed, there are
numerous respects in which unconflicted counsel for Orgad might
find it useful to elicit Richards's testimony at trial. Some
pertain to the details of the evidence on the tapes. For
• The tapes suggest that Richards used Leary's
mother's name when sending money to Leary because
Richards wanted to camouflage an unlawful payment to
a prospective witness. However, Richards denies
that, and asserts that he used that name merely to
ensure that Leary's mother could retrieve the money
from Western Union if Leary were arrested. Oral
Argument at 52.*fn8
• Whereas the tapes suggest that Richards wanted to
assign to Leary a lawyer who would do Richards's
bidding, i.e., a member of Richards's Los Angeles
"infrastructure," Richards claims that all he meant
was that he would help Leary by providing some names
of lawyers in Los Angeles. Oral Arg. at 49.
• Richards concedes that it would have been
unethical for him to send Leary money to purchase a
new cellular telephone. Oral Arg. at 43. He further
concedes that the jury could reasonably conclude
from the tapes that Richards did just that. Id.
Yet he denies that he sent the money for that
purpose. Id. at 44.
• Richards asserts that various friends of Leary's
actually offered to send her money through Richards,
i.e., that such talk on the tapes was not a ruse
to camouflage what was really the offer of a bribe,
an inference the tapes support. See Oral Arg. at
Richard's testimony also might prove useful to Orgad with
respect to the "big picture" of the Richards-Leary interactions.
Although Orgad does not contest the government's assertion that
Richards's statements are admissible against Orgad pursuant to
Fed.R.Evid. 801(d)(2),*fn9 Richards asserted at oral argument
that Orgad was unaware of Richards's conversations with Leary.
Oral Arg. at 67. Thus, Orgad may wish to contend at trial that
Richards was a young, inexperienced lawyer who made errors in
judgment that should not be held against Orgad even though they
were made on his behalf. To the same effect, Orgad may wish to
elicit Richards's testimony that his goal was not to tamper with
Leary, but rather to gather evidence of the agents' pressuring
of her. See Oral Arg. at 45.
Although Orgad has not explicitly offered to forego having
Richards available to testify at trial, for several reasons it
would not matter to me if he did. First, when the rebuttal
testimony available from counsel is as potentially significant
as Richard's is here, the decision to forego it cannot
rationally be made in advance of trial. Trials take on lives of
their own, and how the evidence will unfold is notoriously
difficult to predict, especially in criminal cases, where
pretrial discovery is far less expansive than in civil cases.
Whether Richards should be called to testify for Orgad will be a
tactical decision that will
involve the assessment of a number of variables, including
Leary's demeanor, the rest of the government's evidence, and an
assessment of Richard's likely credibility. It is not a decision
that can or should be made now.
Second, even if Orgad were to decide now not to call Richards
at trial, the potential significance of Richards's testimony as
rebuttal evidence is sufficiently great that I would not accept
the waiver. "While the prospect of allowing someone to defend
himself with one hand tied behind his back may present an
interesting spectacle in a wrestling ring, the court's
`institutional interest in the rendition of just verdicts in
criminal cases,' . . . and the proper administration of justice
require that a defendant not be so encumbered." Arrington, 867
F.2d at 129 (quoting United States v. Dolan, 570 F.2d 1177,
1184 (3d Cir. 1978)).
Third, even if such a waiver were offered and accepted, it
would not necessarily cure the problem created by Richards's
conflicts. I have a legitimate interest in ensuring that any
future judgment remains intact on appeal or in future collateral
proceedings. Wheat, 486 U.S. at 161, 108 S.Ct. 1692. Accepting
a waiver of the right to call Richards now would not protect me
from being, as the Supreme Court characterized it in Wheat,
"whip-sawed" by a future claim that Orgad received ineffective
assistance of counsel at trial as a result of his waiver. Id.
See also United States v. Kliti 156 F.3d 150, 156 (2d Cir.
1998) ("when faced with an attorney as a sworn or an unsworn
witness, the proper recourse is to disqualify the attorney, not
to exclude the testimony").
Fourth, even if a waiver were offered, accepted and effective
in addressing the fact that Richards "ought to be called as a
witness" within the meaning of DR 5-102, his appearance at trial
would inevitably make him an unsworn witness to events to be
proved at trial, an independent basis for his disqualification
that I address in the next section.
I can quickly address DR 5-102's four exceptions to the rule
of disqualification when an attorney ought to be a witness for
his client, for they are clearly inapplicable here. Three of the
exceptions (when the attorney's testimony relates solely to an
uncontested issue, or to a matter of formality, or to the value
of the legal services rendered) are not even arguably available
to Orgad. The fourth exception arises when disqualification of
the lawyer "would work a substantial hardship on the client
because of the distinctive value of the lawyer or counsel in the
particular case." DR 5-102(A)(4). In this regard, Richards
contends that the harm to Orgad would be severe because (1)
Richards has an "incredible bond" with Orgad; indeed, they have
worked so closely that Richards "lost an engagement over this
case;" and (2) Richards has spent "hundreds of hours" with Orgad
preparing for the "California case and this case." Oral Arg. at
These facts do not establish that Richard's disqualification
would work a substantial hardship on Orgad. There are other
attorneys who will dedicate themselves to Orgad's defense. That
Richards "lost an engagement" in order to see the case all the
way through may translate into a substantial hardship for
Richards if he is disqualified, but I and DR 5-102 have only
Orgad's interests in mind. And the mere fact that Orgad will
have to bear the expense of retaining substitute counsel is not
a cognizable hardship. See United States v. Kwang Fu Peng,
766 F.2d 82, 87 (2d Cir. 1985) ("if the costs of retaining
substitute counsel were, without more, deemed to constitute
`substantial hardship' under [the predecessor to DR 5102(A)(4)],
the exception would swallow the rule.").
Finally, even if there were some hardship inflicted on Orgad,
it could not plausibly be said to stem from the "distinctive
value" of Richards in this particular case. True, Richards
successfully moved to dismiss the Los Angeles Indictment, but,
as far as I can tell from the sparse record
before me, that success was due to the incompetence of the
prosecutors, not the forensic skills of Richards. And while
Richards may have distinguished himself from other lawyers in
the way he dealt with Leary, a prospective witness, it was
obviously not in a manner that enhanced the value of his
services to Orgad. Finally, I do not intend to break the
"incredible bond" between Orgad and Richards except with respect
to the conduct of the trial. Richards may not appear as counsel
at trial and may not be present in the courtroom (except as a
witness) while the jury is present. However, provided Orgad
retains separate counsel who can provide independent advice
regarding the wisdom of keeping Richards on the defense team,
Richards may participate in all other aspects of the case. See
Cunningham, 672 F.2d at 1074 (disadvantage to client in
disqualification of attorney is "reduced considerably" by the
continuing ability of counsel to "participate in all aspects of
the defense except the actual trial").
2. Richards Would Be An Unsworn Witness At Trial
Where an attorney has first-hand knowledge of events presented
at trial, his role as an advocate may result in giving his
client an unfair advantage over the government. Having
experienced some of the events in question first-hand, Richards
may be able to "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 933. For
example, "[i]f counsel were to cross-examine a witness as to her
conversation with him, argue the credibility of her testimony or
suggest alternative interpretations of her account of the
conversation, he would place himself in the position of an
unsworn witness." United States v. McKeon, 738 F.2d 26, 35 (2d
Cir. 1984) (citing Cunningham, 672 F.2d at 1074). "When an
attorney acts as an advocate with respect to events in which he
was a participant, the fact-finding process is impaired,"
Locascio, 6 F.3d at 934, and since the defendant is not the
party prejudiced by the impairment, a waiver by the defendant
cannot solve the problem. Id (citing Cunningham, 672 F.2d at
1074-75). Even if Richards does not explicitly address the
evidence at issue, his mere appearance at counsel table may
distort the fact-finding process and require disqualification.
See Castellano, 610 F. Supp. at 1167 (cited with approval in
Locascio, 6 F.3d at 933).
Accordingly, courts may find that an actual, non-waivable
conflict exists when an attorney will likely become an unsworn
witness on a material issue of fact at trial. See Ciak v.
United States, 59 F.3d 296, 304-05 (2d Cir. 1995) ("Standing
alone, becoming an unsworn witness is a basis for
disqualification of an attorney."); Locascio, 6 F.3d at 933-34
(upholding disqualification where defendant's attorney would be
an unsworn witness due to the attorney's presence during
recorded conversations that constituted evidence at trial);
McKeon, 738 F.2d at 34-35 (requiring disqualification where
attorney essentially would be acting as both an advocate and a
witness); Cunningham, 672 F.2d at 1075 (upholding
disqualification where attorney would act as an unsworn witness
Here, the government is legitimately concerned that when
Richards (or another attorney at trial) advocates a particular
interpretation of Richards's statements to Leary, the
interpretation will be given added credibility due to Richards's
status as counsel in the case. Orgad contends that the problem
can be remedied without disqualifying Richards. Specifically, he
suggests that (1) the transcripts of the conversations could be
redacted to eliminate Richards's name; or (2) the government
could be precluded from calling Leary as a witness and from
introducing the tapes into evidence, thereby eliminating the
unsworn witness problem.
The first proposal is unrealistic in the extreme. In addition
to redacting any reference to Richards by name on the tapes or
transcripts, Richards's voice would of
course have to be redacted from the tapes; otherwise the jury
would recognize it. Thus, the jurors would have only
transcripts, and they would be told that Leary's recorded
conversations were with an unidentified attorney for Orgad.
After engaging in those contortions to present the evidence, we
would be deluding ourselves if we thought the jurors would not
quickly figure out that the unidentified attorney is Richards.
Indeed, they would be hard-pressed to come up with any other
reason why the tape was not played or why the lawyer was not
identified by name.
The second proposed solution is equally unavailing. The tapes
constitute substantial evidence of Orgad's role in the charged
conspiracy and his consciousness of guilt. It would hardly be
fair to exclude it at trial "so that an accused can continue
with conflicted counsel." Locascio, 6 F.3d at 934.
3. Richards's Conduct as "House Counsel" is Evidence of the
Crime Charged Against Orgad
Yet another type of conflict of interest exists in this case
because of Richards's efforts to arrange for an attorney for
Leary. As set forth in the statement of facts, the taped
conversations fairly support the inference that Richards sought
to assign a member of his "infrastructure" of attorneys to Leary
in order to keep her from cooperating against Orgad. Moreover,
though Richards and Leary never explicitly discussed who would
actually pay the attorney's fee, a juror could rationally infer
that Richards intended to do so. Indeed, given Leary's
purportedly dire need for money, that inference may be
The Second Circuit had held that the payment of legal fees for
others — "benefactor payments" — or otherwise arranging for
their representation is highly probative evidence of the
existence and membership of criminal enterprises: "We have
previously indicated that payment of attorneys' fees by one
individual on behalf of other suspected members of a criminal
enterprise `may imply facts about a prior or present
relationship' between the benefactor and his beneficiaries."
United States v. Simmons, 923 F.2d 934, 949 (2d Cir.), cert.
denied, 500 U.S. 919, 111 S.Ct. 2018, 114 L.Ed.2d 104 (1991)
(quoting In re Shargel, 742 F.2d 61, 64 (2d Cir. 1984)).
Though Richards denies that he was attempting to control Leary
by assigning her a lawyer (and will presumably deny an intent to
make a benefactor payment), his own actions would justify a jury
in concluding otherwise, and thus contribute to the necessity of
4. The Specter of Illegal Conduct by Richards
In United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984),
the government revealed after trial on charges of insurance
fraud that defense counsel had possibly been involved in similar
criminal activity with someone connected to the scheme at issue
in the trial. The Second Circuit reversed the conviction due to
counsel's conflict of interest: "it must have occurred to
counsel that a vigorous defense might uncover evidence or prompt
testimony revealing his own crimes . . ." Cancilla, 725 F.2d
at 870. The court noted that counsel's potential exposure
constituted a per se violation of the Sixth Amendment, and
necessarily infected the entire proceeding. Similarly, in
Arrington, defense counsel was implicated by a government
witness in an alleged plot to silence witnesses. See 867 F.2d
at 123. In upholding the disqualification of the lawyer, the
Second Circuit observed that a refusal to disqualify would have
saddled the client with "counsel encumbered with a strong
incentive to conduct the trial in a manner that would minimize
counsel's own exposure." Id. at 129.
Precisely such a conflict infects this case. A vigorous
cross-examination of Leary may be helpful, perhaps even
critical, to Orgad's defense at trial. But Richards has a
powerful incentive to steer the defense away from such an
examination. Title 18 of the United States Code, Section
1512(b)(3) makes it a crime to "corruptly persuade another
person, or attempt to do so . . . with the intent to hinder,
delay or prevent the communication to a law enforcement officer
. . . of information relating to the commission or possible
commission of a Federal offense. . . ."*fn10 Solely with
respect to his dealings with Leary, there is evidence that
Richards may have violated this statute in several ways: (1) by
attempting to persuade Leary to assert her Fifth Amendment
privilege in order to protect Orgad from criminal investigation
or prosecution, see United States v. Cioffi, 493 F.2d 1111,
1119 (2d Cir.), cert. denied, 419 U.S. 917, 95 S.Ct. 195, 42
L.Ed.2d 155 (1974); (2) by sending money to Leary without legal
justification to persuade her to either refrain from speaking to
law enforcement agents or to lie to them about her (and Orgad's)
activities; and (3) by advising her to flee, and offering to
facilitate her flight, for the same improper purpose.*fn11
In short, Orgad should be represented at trial by an attorney
who is not concerned that the defense will shed light on his or
her own misconduct. Richards has good reason to harbor such a
concern, and for that additional reason I will not permit him to
represent Orgad at trial.
For the foregoing reasons, Richards is disqualified from
representing Orgad at trial.