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U.S. v. DIPIETRO

March 2, 2004.

UNITED STATES OF AMERICA -against- ANGELO DIPIETRO, ET. AL., Defendant


The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge

OPINION & ORDER TO BE FILED UNDER SEAL

The Government has asked the Court to disqualify the law offices of Gary Greenwald, Esq., from representing defendant Angelo DiPietro due to a conflict of interest. According to the Government, the conflict arises from Mr. Greenwald's prior representation of John Doe*fn1 in this matter. Government Letter, dated February 17, 2004 ("Gov't. Ltr."), at 1. Mr. Doe is a witness to at least two of the offenses charged in the above-referenced superceding indictment ("Indictment") and also allegedly participated, along with Defendant DiPietro, in at least two other offenses charged in the Indictment. Id. The Government believes that Mr. Greenwald cannot represent DiPietro without violating the Page 2 ethical duties of loyalty and privilege that Mr. Greenwald owes to John Doe and that he would owe to DiPietro. Id.

In response to the Government's request, Mr. Greenwald asserts that his prior representation of John Doe in this same matter does not create an actual conflict of interest at this time. Greenwald Letter, dated February 20, 2004 ("Def. Ltr."), at 1. Moreover, Mr. Greenwald contends that even if there were a conflict by virtue of his prior representation of Doe, both DiPietro and Doe have indicated their desire to waive such conflict. Id. at 2.

 I. Factual Background

  In Count One of the Indictment, Angelo DiPietro and others are charged with participating in a conspiracy to extort a victim ("Victim #1") with whom they had invested money. Gov't. Ltr. at 2. In Count Two of the Indictment, DiPietro and others are charged with attempting to extort Victim #1. Id. According to the Government, the evidence will show that, on more than one occasion, DiPietro and his co-conspirators kidnapped Victim #1 and used extreme threats of violence against Victim #1 in an effort to get Victim #1 to return money that DiPietro and his co-conspirators had invested with Victim #1. Id. The Government also contends that the evidence will show that, on one of those occasions, Victim #1 was with John Doe when Victim #1 was being pursued Page 3 by DiPietro and his co-conspirators. Id. On that occasion, DiPietro's co-conspirators, who had been enlisted by DiPietro to threaten Victim #1, allegedly engaged in threatening physical conduct towards Doe. Id.

  In Count Five of the Indictment, DiPietro is charged with participating in a conspiracy to extort a second victim ("Victim #2"). Id. In Count Six, DiPietro and others are charged with actually extorting Victim #2. Id. The Government alleges that the evidence will show that DiPietro and others collected debts from Victim #2 by means of threats of physical violence. Id. According to the Government, one of DiPietro's co-conspirators in these crimes was John Doe, who participated in the crime at the direction of DiPietro. Id. The Government also contends that it possesses tapes of conversations between DiPietro and Doe in which DiPietro directs Doe concerning the collection of a debt. Id. The tapes also reveal a conversation in which DiPietro informed another individual that Doe was subservient to DiPietro and that Doe did what DiPietro told him to do. Id.

  In July 2003, Doe was served with a grand jury subpoena in this matter.*fn2 Id. As a result of the subpoena, Doe Page 4 retained Gary Greenwald, Esq. Id. Mr. Greenwald then arranged a meeting, on August 5, 2003, with two agents of the Federal Bureau of Investigation's field office in White Plains, New York. Id. Assistant United States Attorney Tim Treanor, the AUSA who filed this request for disqualification on behalf of the Government, was present for a portion of that meeting. Id. During the course of the meeting, Mr. Greenwald and Doe indicated to the Government that Doe was willing to cooperate with the Government's investigation by providing information to the Government. Id. Doe was asked questions about numerous individuals, including Angelo DiPietro. Id. at 3. In response, Doe provided information to the Government about DiPietro. Id. More specifically, Doe admitted that he had worked for DiPietro. Id. In addition, Doe provided information about the current business interests of DiPietro; however, Doe denied participating in any criminal activity with DiPietro. Id. At the conclusion of the meeting, Mr. Greenwald and Doe indicated that Doe was willing to provide any information that the Government requested, but was not willing to testify against anyone. Page 5 Id. Because of Doe's desire not to testify, the Government indicated that it could not utilize Doe's cooperation. Id.

  After the August 5, 2003 meeting, Mr. Greenwald, on behalf of John Doe, maintained contact with the Government. By letter, Mr. Greenwald informed the Government that, "Based upon our conversations, it appears that any cooperation that you would like cannot take place for the reasons that I have advised you of over the phone." Gary Greenwald's Letter to FBI Special Agent Presutti, dated September 30, 2003.

  On February 4, 2004, the Government arrested Angelo DiPietro for his alleged participation in the acts indicated in the Indictment. Gov't Ltr. at 3. On February 6, 2004, the Government was informed that members of DiPietro's family had retained Mr. Greenwald to represent DiPietro; as a result, the Government called Mr. Greenwald and informed him that it believed he had a conflict of interest, based on his current representation of Doe in the same matter. Id. Mr. Greenwald responded that he intended to represent both Doe and DiPietro. Id. In an apparent, albeit delayed, recognition of the impropriety of such dual representation, Mr. Greenwald changed his position on February 9, 2004, when he informed the Government that he was terminating his representation of Doe and continuing his representation of Page 6 DiPietro. Id. Mr. Greenwald also informed the Government that Doe's position with respect to cooperating had not changed. Id.

 II. Discussion

  A defendant has a right under the Sixth Amendment to conflict-free legal representation. United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994). While the Sixth Amendment encompasses a defendant's right to be represented by the lawyer of his choice, the essential aim of the Sixth Amendment's right to counsel is to ensure an effective advocate for all criminal defendants. Wheat v. United States, 486 U.S. 153, 159 (1988). Thus, a defendant's right to the lawyer of his choice is not absolute, and the court is not required to accept a defendant's waiver of his lawyer's conflict of interest. United States v. Arrington, 867 F.2d 122, 128 (2d Cir. 1989).

  When a district court has been informed of the possibility of a defense counsel's conflict of interest, it has a threshold obligation "to investigate the facts and 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." Levy, 25 F.3d at 153; see also Fed.R.Crim.P. 44(c) (duty to make inquiry in cases of joint representation). If the Page 7 district court determines that the defense counsel has an actual or potential conflict, the court has a "disqualification/waiver obligation" to determine whether the conflict is so severe as to obligate the court to disqualify the attorney or a lesser conflict that can be waived in a Curcio hearing. United States v. Kliti, 156 F.3d 150, 153 (2d Cir. 1998).

 
A. Greenwald's Representation of DiPietro is an Actual Conflict
  Although the line between an actual and potential conflict is not always clear, United States v. Cruz, 982 F. Supp. 946, 948 n.6 (S.D.N.Y. 1997), 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 . . . or when the attorney's representation of the defendant is impaired by loyalty owed a former client." United States v. Blau, 159 F.3d 68, 74 (2d Cir. 1998)(internal quotation omitted). See also United States v. Locasio, 6 F.3d 924, 931 (2d Cir. 1993) ("There are many situations in which a district court can determine that disqualification of counsel is necessary. The most typical is where the district court finds a potential or actual conflict in the chosen attorney's representation of the Page 8 accused, either in a multiple representation situation . . . or because of counsel's prior representation of a witness or co-defendant." (citations omitted). Put simply, "an actual conflict is one that is so serious that it impedes the attorney's ability to present a vigorous defense." Cruz, 982 F. Supp. at 948 n.6.

  There can be little doubt that Mr. Greenwald's representation of Angelo DiPietro creates an actual conflict and thereby precludes Greenwald from presenting a vigorous defense; indeed, it is incredibly hard to believe that Mr. Greenwald himself does not recognize this.*fn3 From August 2003 until February 2004, Mr. Greenwald represented Doe in his dealings with the Government in this very matter. At those meetings, John Doe, presumably on the advice of counsel, admitted to a long-standing relationship with DiPietro, including a relationship during the time of the charged conduct. According to the Government, it is that relationship alone that helps to establish the conspiracy between Doe and DiPietro. Furthermore, Doe provided the Government with information regarding, inter Page 9 alia, Angelo DiPietro's involvement with the acts charged in this Indictment. In other words, ...


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