United States District Court, S.D. New York
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
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
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
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.
Id. Because of Doe's desire not to testify, the
Government indicated that it could not utilize Doe's cooperation.
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
DiPietro. Id. Mr. Greenwald also informed the Government
that Doe's position with respect to cooperating had not changed.
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
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
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
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,
alia, Angelo DiPietro's involvement with the acts charged
in this Indictment. In other words, Greenwald's involvement with Doe was
not only on the very same case in which he now wants to represent
DiPietro*fn4, but Greenwald's representation of Doe actually involved
Greenwald's facilitating Doe's cooperation against DiPietro.
Greenwald's prior representation of Doe is problematic for numerous
reasons. First, if Doe were to become a co-defendant in this matter, Mr.
Greenwald, consistent with his ethical duties of loyalty and privilege,
would be unable to shift blame for crimes charged in the Indictment from
DiPietro to Doe. Second, Greenwald would be unable to interpret recorded
conversations between Doe and DiPietro in a light favorable to DiPietro
but unfavorable to Doe. Third, even after trial Mr. Greenwald would be
from making sentencing arguments on behalf of DiPietro regarding
matters that might implicate or increase the sentence of Doe. Fourth, if
Doe were to become a government witness in this matter, Mr. Greenwald
would be significantly limited in sharing information with DiPietro that
was provided to him by Doe. Fifth, Mr. Greenwald would be unable to
cross-examine Doe and would be unable to comment negatively in closing
arguments about Doe's testimony. In sum, whether or not John Doe becomes
a Government witness, and whether or not John Doe is ultimately indicted,
Gary Greenwald's defense of Angelo DiPietro, by virtue of his prior
representation of John Doe, is going to be significantly limited.
B. Actual Conflicts of Interest Cannot Be Waived
Where a conflict of interest is actual, the court is "obliged" to
disqualify the attorney. Levy, 25 F.3d at 153. Further, if a
court "justifiably finds an actual conflict of interest, there can be no
doubt that it may decline a proffer of waiver, and insist that the
defendants be separately represented." Wheat, 486 U.S. at 162.
Nevertheless, Greenwald claims that Mr. Doe's waiver of attorney-client
privilege conclusively establishes the propriety of Greenwald's
representation of DiPietro. Mr. Greenwald is wrong. Pursuant to both
Wheat and Levy, and
in light of the Court's determination that Mr. Greenwald's conflict
is so severe as to impede his ability to adequately represent DiPietro,
Doe's "waiver" is irrelevant. Moreover, even if this were a waivable
conflict, which it is not, the facts do not support a knowing and
voluntary waiver; to the contrary, the facts explicitly undermine such a
conclusion. The Government has demonstrated that John Doe worked for
Angelo DiPietro. The Government has indicated that there are recorded
conversations between DiPietro and a third party where DiPietro was heard
to say that Doe did what he told him to do. Gov't Ltr. at 2. Most
importantly, there is apparently evidence that associates of Angelo
DiPietro, on DiPietro's order, physically intimidated John Doe. Having
relied on DiPietro for his employment, having been victimized by
DiPietro, and ultimately having been physically threatened by DiPietro's
co-conspirators, it is little wonder that Doe deferred when he learned
that DiPietro wanted the same lawyer Doe had already retained.*fn5 Given
the apparently coercive nature of the relationship
between DiPietro and Doe, the Court is not satisfied that Doe's
waiver was, or ever could be, voluntary.*fn6
C. Even if Gary Greenwald's Representation of Angelo
DiPietro is Only a Potential Conflict, the Integrity of
the Judicial Process is Best Served by Disqualifying Mr.
A potential conflict of interest is a "lesser" conflict.
Wheat, 486 U.S. at 162. A potential conflict exists where a
court finds that "a rational defendant could knowingly and intelligently
desire the conflicted lawyer's representation . . ." Id.
However, even where a defendant wants to waive a potential conflict, a
district court still has "substantial latitude in refusing waivers of
conflicts of interest." Id. at 163.
It should also be noted that a defendant's Sixth Amendment right to
counsel is not the only interest at issue when a potential conflict
arises. The trial court also has an independent duty to preserve the
integrity of the judicial process and to ensure that "criminal trials are
conducted within the ethical standards of the profession and that legal
proceedings appear fair to all who observe them." Id. at 163.
Accordingly, a district court should decline to permit a defendant to be
represented by the counsel of his choice if that representation
would undermine the integrity of the judicial process. Id.
Although the Court is aware that "disqualification is a harsh remedy
that should be invoked infrequently," United States v. Gotti,
9 F. Supp.2d 320, 323 (S.D.N.Y. 1998), it is unquestionably appropriate
here. Permitting Mr. Greenwald to drop John Doe in favor of Angelo
DiPietro would seriously handicap Mr. DiPietro's defense, would unduly
prejudice the legal rights of Mr. Doe, and would ultimately cast doubt on
the integrity of the judicial process. Thus, pursuant to both
Wheat and Levy, and in the interests of justice, the
Court hereby disqualifies the Law Offices of Gary Greenwald, Esq. from
representing Angelo DiPietro.*fn7