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United States District Court, S.D. New York

June 16, 2004.


The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


At the conclusion of a hearing on May 7, 2004, the Court ruled from the bench that it would uphold the claim of Gregory Cherry, expressed by his former attorney, Maurice Sercarz, Esq., that conversations between Cherry and Mr. Sercarz that took place in May 2002 are privileged and that Mr. Sercarz cannot be compelled to testify as to the contents of those conversations. On May 7, 2004 the Court indicated that an opinion setting forth its reasons in full would be filed. This is that opinion.

In a decision reported at 188 F. Supp.2d 429 (S.D.N.Y., 2002) I granted the defendants' motion for a new trial pursuant to Rule 33, Fed.R.Crim.P. This decision was based principally on the presentation of new evidence in the form of testimony from Christopher Thomas. In his testimony, Thomas reported that Gregory Cherry made statements to Thomas exonerating defendants of the crimes for which they were convicted by inculpating himself. I admitted Thomas's testimony into evidence under FRE 804(b)(3) as describing a statement aby Cherry against the latter's penal interest. My evidentiary ruling turned upon the existence of corroborating circumstances indicating the trustworthiness of those declarations. There were a number of corroborating circumstances, including comparable declarations that Joyce London, Esq., counsel for defendant Rodriguez, described Cherry having made to her in an affidavit.

  The government moved for reconsideration of this evidentiary ruling and, therefore, of the decision to grant defendants a new trial. In support of the motion, AUSA Sharon McCarthy submitted an affirmation dated September 3, 2002 which stated in part at ΒΆ 7:

The Government determined though a proffer by Cherry's attorney, Maurice Sercarz, Esq., that was obtained on May 29, 2002, that Cherry continues to maintain that Camacho and Rodriguez committed the Ocasio/Garcia murders. In addition, according to the attorney proffer, Cherry disputes London's allegations that Cherry had implied, in conversations with her, that he was responsible for the Ocasio/Garcia murders.
The substance of those declarations ascribed by AUSA McCarthy's to Cherry are, of course, inconsistent with the testimony of Christopher Thomas. If they were entitled to consideration by the Court, they would tend to cast doubt upon the trustworthiness of Cherry's declarations to Thomas, potentially tipping the scales against admission into evidence of Thomas's testimony.

  The question then arose as to how Cherry's declarations, described in his attorney's proffer as recounted in AUSA McCarthy's affidavit, could find their way into the evidentiary record on this hearing, given that Cherry had in the past adamantly refused to testify in the absence of considerations and undertakings that the government had been equally adamant in refusing to grant. In these circumstances, I directed in an opinion reported at 2004 WL 235257 (S.D.N.Y. Feb. 6, 2004 that Mr. Sercarz testify, adding in that opinion that:

Since Mr. Sercarz communicated to the government a proffer which Cherry undoubtedly authorized him to make, it would not appear that the attorney-client privilege would bar any testimony which I intend to receive. I state that proposition tentatively because counsel have not had an opportunity to address it. 2004 WL 235257, at *8 (emphasis added).
  The italicized perception on my part was based upon the well-established rule that "[w]hen otherwise privileged communications are disclosed to a third party, the disclosure destroys confidentiality upon which the privilege is premised." In re Keeper of the Records of XYZ Corporation, 348 F.3d 16, 22 (1st Cir., 2003). See also, In re Von Bulow, 828 F.2d 94 (2d Cir. 1987) (holding that disclosure of otherwise privileged communications between an attorney and his client made with the authority and permission of the client destroys the privilege with respect to those disclosures); United States v. Jacobs, 117 F.3d 82, 87-91 (2d Cir. 1997) (in dicta, reiterating the rulings articulated in Von Bulow). Within the context of that rule, I assumed (1) that Sercarz had revealed portions of his privileged communications with Cherry to the government, and (2) that these revelations had been authorized by Cherry, thereby waiving his privilege to confidentiality in those communications.

  As it turned out, however, my assumptions were incorrect, and the tentative nature of my perception was prescient. When notified of his summons to testify, Mr. Sercarz promptly invoked the attorney-client privilege on Cherry's behalf. Specifically, in a letter to the Court dated February 24, 2004, Mr. Sercarz took issue with Court's assumptions of fact, stating that, in his opinion, "Mr. Cherry did not desire that I waive the attorney-client privilege in my conversations with the United States Attorney's Office."

  I invited counsel for the government and defendants to comment on the viability of Sercarz's assertion of privilege on behalf of Cherry in the circumstances presented. All parties declined to express a substantive view. The government, in a letter from AUSA Marc Mukasey's dated April 23, 2004 (the "April 23 letter"), provided the best justification for this forbearance, pointing out that determination of the applicability of the attorney client privilege in this case "turns upon whether Cherry authorized Mr. Sercarz to disclose the information conveyed by him to AUSA McCarthy." To determine whether or not Cherry had, explicitly or implicitly, authorized Sercarz to report on his communications with Cherry, the government suggested that the Court "conduct an in camera hearing on the question, at which it could hear from Mr. Sercarz and, if necessary, Cherry," April 23 letter at 1-2, to determine the existence and scope of any waiver of confidence by Cherry.

  On Friday, May 7, 2004, having accepted the government's suggestion, I conducted an in camera examination of Mr. Sercarz on a sealed record for the purpose of determining the circumstances of his discussions with Cherry and subsequently with AUSA McCarthy in May 2002. I put such questions to him as I thought appropriate. Counsel for the government and for both defendants suggested questions of their own. I put these questions to Mr. Sercarz as well, to the extent that they were not repetitive of my own. Mr. Sercarz answered all of these questions in a direct and forthright manner and the Court found his testimony entirely credible. The following facts are established from the record thus made.

  At some point prior to May 9, 2002, the government was made aware that Cherry may have made declarations to other individuals inconsistent his statements to Christopher Thomas. Understandably, the government wished to pursue this subject with Cherry. At that time, as he is now, Cherry was in federal custody serving a lengthy sentence. The government arranged to have Cherry moved to the Manhattan Correctional Center (the "MCC") to facilitate a conversation.

  Quite properly, AUSA McCarthy concluded that Cherry should be represented by counsel. AUSA McCarthy contacted Mr. Sercarz, who had represented Cherry previously, and asked him to contact Cherry in relation to the subject of statements he may have made relating to defendants and the crimes for which they were convicted. Mr. Sercarz agreed to do so, despite the fact that he was not, at that time, actively engaged as Cherry's attorney.

  An interview between Mr. Sercarz and Cherry took place on May 9, 2002 in a conference room in the offices of the United States Attorney for the Southern District of New York. Mr. Sercarz began the interview by explaining to Cherry the nature of the government's revived interest in him, and asking Cherry if he consented to have Mr. Sercarz represent him as his attorney in that regard. Cherry responded in the affirmative. The attorney-client relationship then attached. Mr. Sercarz and Cherry proceeded to discuss the issues at hand At the end of this preliminary interview, Cherry instructed Mr. Sercarz that he (Cherry) would make no substantive declarations to the government unless the government promised him certain benefits, including immunity from prosecution and consideration for relief from his current sentence pursuant to Federal Rule of Criminal Procedure 35.

  Mr. Sercarz left Cherry, went to a different room, and entered into a discussion with AUSA McCarthy. Mr. Sercarz found himself in the delicate position familiar to all experienced and reputable defense attorneys: bound by his client's instructions of confidentiality, but also tasked to obtain some benefit for the client. Accordingly, Mr. Sercarz undertook to persuade AUSA McCarthy to have the government grant Cherry immunity from prosecution and Rule 35 consideration by suggesting that if the government did so, then it might, in Mr. Sercarz's view, come to pass that Cherry might have something to say that the government might find useful in relation to their motion for reconsideration of this Court's May 7, 2002 Order.

  It is important to stress that at no time during these negotiations did Mr. Sercarz quote or paraphrase to AUSA McCarthy the substance of any statements that Cherry made to Mr. Sercarz. Mr. Sercarz did not do so because he recognized that he was bound by the attorney-client privilege and that Cherry had instructed Mr. Sercarz to keep their conversations in confidence absent an acceptable quid pro quo from the government.

  At the end of these negotiations, AUSA McCarthy promised to consider the proposed exchange of testimony for immunity and Rule 35 consideration. AUSA McCarthy later told Mr. Sercarz that Cherry would receive no consideration from the government, and elected to pursue the motion for reconsideration based on the affirmation that I quoted supra.

  Based on the testimony provided by Mr. Sercarz in response to questioning conducted by the Court in camera, it is clear that Mr. Sercarz and Cherry established an attorney-client relationship on May 9, 2002 before engaging in any substantive conversation. Cherry may, therefore, invoke the attorney-client privilege with respect to his conversations with Mr. Sercarz on that day. It is also clear that Mr. Sercarz engaged in a negotiation with the government to seek terms under which Cherry might provide testimony in response to the government's questions. It is evident, however, that at no time during these conversations did Mr. Sercarz repeat to AUSA McCarthy, or any other party, statements made by Cherry to Sercarz in the context of their attorney-client relationship. It is also clear that Sercarz did not, at any time, tell AUSA McCarthy or any other third-party what Cherry stated he would say in response to the government's proposed questions. In short, Mr. Sercarz did not reveal any privileged conversations between he and Cherry. It follows that he did not breach the attorney-client privilege that existed between he and Cherry.

  The Court reaches this finding of fact notwithstanding the fact that exchanges between Sercarz and AUSA McCarthy pertaining to what Cherry might and might not say in response to the government's questions did take place. It is clear that an exchange of this nature did occur. It is equally clear, however, that Mr. Sercarz, in order to advance his client's interests while protecting his client's privilege, chose his words with a care consistent with his reputation and experience. The Court is satisfied that Mr. Sercarz was able to engage in negotiations with the government on behalf of his client without breaching privilege.

  Furthermore, even if Mr. Sercarz had repeated to the government statements made to him by Cherry, such revelations would have been made without Cherry's authority and, consequently, would not constitute a waiver of Mr. Cherry's attorney-client privilege. Consistent with his February 24, 2004 letter to the Court, Mr. Sercarz testified that Cherry explicitly forbade Mr. Sercarz from revealing the content of their conversations to the government. Cherry's subsequent request to relieve Mr. Sercarz after the government sought testimony from Mr. Sercarz provides corroboration for this testimony.*fn1 Given that "an attorney may not waive the privilege without his client's consent," In re von Bulow, 828 F.2d at 100-101, any revelation by Mr. Sercarz in this circumstance would not have constituted a waiver of the attorney-client privilege. However, I emphasize again that no such revelation was made in this case.

  Given these facts, Cherry's declarations as described in the "attorney proffer," the phrase AUSA McCarthy used in her affidavit, cannot become a part of the evidentiary record on this hearing. Rule 1101 of the Federal Rules of Evidence deals with the "applicability of the Rules." Rule 1101(c) provides succinctly: "The rule with respect to privileges applies at all stages of all actions, cases and proceedings." The language could not be more broad, and certainly encompasses the present proceeding. Lest the point somehow be missed, the Advisory Committee's 1972 Notes on the proposed Rules say: "Subdivision (c) singling out the rules of privilege for special treatment, is made necessary by the limited applicability of the remaining rules." It follows that I cannot consider the declarations AUSA McCarthy attributes to Cherry through his attorney's proffer; nor would I entertain her testimony on the subject, unless she is in a position to state under oath that the account Mr. Sercarz gave to the Court, which I have summarized in this memorandum, is false or mistaken in a material respect.*fn2

  For the foregoing reasons, the Court holds that no waiver of Cherry's attorney-client privilege occurred on May 9, 2002. Consistent with this finding, Mr. Sercarz cannot be compelled to testify as to any conversation that occurred between he and Cherry in the context of their attorney-client relationship.

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