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June 29, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


The dilemma presented in this case is a familiar one, though it is here posed in the most intense circumstances. In protecting the right of criminal defendants to counsel, courts have conflicting duties, on the one hand, to guarantee effective assistance of counsel, police the rules governing the legal profession, and preserve the appearance and reality of fairness in the criminal process, and, on the other, to protect a defendant's right to counsel of choice, and avoid the appearance or reality of government imposition on the attorney-client relationship. The difficulty in balancing those conflicting duties is heightened in a capital case where a defendant's very life is on the line, and where defense counsel represents the defendant's only bulwark against the federal government, which holds the power to determine whether to seek the ultimate penalty. The government in this case seeks to disqualify an attorney over defendant's explicit objections. No resolution of this dilemma will be entirely satisfactory, for the rights in question cannot all be fully protected without sacrifice of at least some aspect of the conflicting rights. Nevertheless, with considerable reluctance, the government's motion will be granted.


  Hector Manuel Ramos (along with a co-defendant, Nelson Moreno, who is not involved in the present motion) is charged in the instant seven-count indictment with one count of murder for hire conspiracy, 18 U.S.C. § 1958, and four counts of murder in furtherance of a continuing criminal enterprise, 21 U.S.C. § 848 (a), (c), (e), & (A)(1), as well as use of a firearm in relation to a crime of violence, 18 U.S.C. § 924(c), and narcotics conspiracy, 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(c).*fn1 Violations of 18 U.S.C. § 1958 and 21 U.S.C. § 848(e) each carry the potential penalty of death.

  As is often the case in potential capital cases, judicial proceedings have been stalled while the parties pursue the time-consuming administrative process by which the Department of Justice decides whether the ultimate punishment will actually be sought. See 9 United States Attorneys' Manual ("USAM") § 10.000 et seq. Understandably choosing to actively attempt to influence the all-important exercise of prosecutorial discretion, defense counsel in capital cases often join with the government in effectively staying the usual criminal procedure of filing motions and preparing for trial on the merits, and instead choose to pursue an investigation into potential mitigating circumstances, the results of which will be presented first to the United States Attorney and then to the Department of Justice in Washington in an effort to persuade prosecutors not to seek the death penalty. See id. Due to the commendable efforts of Congress and of the Department of Justice to ensure — to whatever extent such assurance is possible to flawed human judgment in a fallen world — that this awesome decision is made equitably and after full deliberation, this process is lengthy and expensive. Although the original indictment in this case was filed on June 5, 2003, from a procedural standpoint the case remains in its earliest stages, with pretrial discovery and defense investigation ongoing. So far as the Court is aware, the defense has not presented its argument for life to the United States Attorney, the United States Attorney has not determined what he will recommend to the Attorney General, and, it follows, the government as a whole has not decided whether to endeavor to persuade a jury to have the defendants killed.

  Throughout this long ordeal, from his first arrest on a complaint on May 23, 2003, Ramos (who is indigent) has been represented by Valerie S. Amsterdam, a member of the Court's Criminal Justice Act ("CJA") panel. Amsterdam, an attorney with over 25 years of experience at the criminal bar, is well known to this Court as an extremely capable and zealous defense attorney. Although Amsterdam was appointed by the Magistrate Judge by the usual process of random assignment, as it happens she is one of only approximately 20 attorneys in this district who have been certified by the Court as qualified to handle capital cases. Moreover, the Court has observed that, even among the ranks of determined defenders, Amsterdam stands out for her dedication to her clients, and her success in achieving a personal rapport with them. In this case, Amsterdam represents that she has spent countless hours investigating the complex allegations, counseling her client, and developing a strategy for his defense. (Letter to the Court from Valerie S. Amsterdam of June 18, 2004 ("Amsterdam Letter 6/18/04"), at 10.) From everything the Court has been able to observe, there is no reason to doubt that representation.

  Early in the case, as authorized by the statute governing federal death-eligible offenses, 21 U.S.C. § 848(q)(4)-(7), the Court acceded to Ramos's request to appoint a second attorney, John H. Jacobs, to assist in the capital defense. Ramos, through Amsterdam, particularly sought the appointment of Jacobs, a friend and colleague of Amsterdam's who had worked with her before. The Court granted that application, in significant part because of the advantages of constituting a defense team that could work effectively together. The team promptly set to work reviewing discovery materials and conducting independent investigation in aid of Ramos's intended presentation to the government.

  On January 20, 2004, the Court received the first indication that all was not well with the defense team. On that date, the government advised the Court that Amsterdam and Jacobs were under criminal investigation by the United States Attorney for the Eastern District of New York. As it is obligated to do, in order to protect a defendant's right to counsel, see United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), the Court then conducted a careful inquiry of the defendant on February 2, 2004. During that inquiry, the Court advised Ramos of the risks of proceeding with attorneys who might have a conflict of interest, in that they were being investigated by the same Department of Justice (albeit a different unit in an adjoining judicial district) that was prosecuting him. (2/2/04 Tr. at 8-11.) After a lengthy colloquy, the Court offered, and Ramos accepted, the services (at government expense under the CJA) of an independent attorney, Stephen Guarneri, to advise him on the advantages and disadvantages of seeking new counsel. (Id. at 11-16.) The Court gave Ramos three days to consider his options. After consulting with his attorneys and with Guarneri, and reflecting on his best course of action, Ramos elected to waive any conflict and continue to be represented by Amsterdam and Jacobs. (2/5/04 Tr. at 4-6.) Having observed Ramos throughout this and other conferences, the Court has no doubt that Ramos made this decision intelligently and with as much information and counsel as the Court and counsel could provide. (See id. at 5-6.)

  The defense proceeded with its investigations. Apparently, however, so did the prosecutors in the Eastern District, and on April 22, 2004, Amsterdam was indicted on five counts. All of the charges arise from alleged acts in the course of her practice of criminal defense, and counts one through four in particular stem from her handling of CJA appointments. These charges are all related to the central allegation that she accepted payment from a client she had been appointed to represent under the CJA, and that she subsequently lied about the payment to the court, to prosecutors and to law enforcement officers. Amsterdam, of course, is presumed innocent of these charges, and vehemently protests her innocence. (See 1/28/04 Tr. at 9; Amsterdam Letter 6/18/04 at 2.) The government advised the Court of this indictment on May 4, 2004, moving for Amsterdam's disqualification. (Letter to the Court from Assistant United States Attorney Helen Cantwell of May 4, 2004.) The Court called the parties together for a conference on May 6, 2004.

  The conference had certain extraordinary aspects. Among other things, the Court received communications not only from the defendants and their attorneys, but also from criminal defense attorneys representing each of Ramos's attorneys. The government represented that, due to the nature of certain allegations in her indictment, Amsterdam was banned by the Bureau of Prisons from the detention facility in which Ramos was being held, and thus effectively precluded from consulting with her client in person. Her attorney, Elkan Abramowitz, wrote to the Court to express confidence that, as a result of his intervention, this prohibition would soon be rescinded. (Letter to the Court from Elkan Abramowitz of May 5, 2004.) Meanwhile, Jacobs notified the Court that, on the advice of his attorney, Gerald Shargel, Jacobs would not appear in the same courtroom with Amsterdam, as a consequence of the ongoing proceedings in the Eastern District.*fn2 And indeed, at the conference, Jacobs did not appear, although an associate appeared on his behalf. (5/6/04 Tr. at 5.) Amsterdam advised the Court that she had not yet had the opportunity to consult with her client about these developments, but that she was "emotionally, professionally, and . . . financially" interested in remaining on the case (id. at 28), and that out of "deep loyalty to Mr. Ramos" she was committed to letting him make the decision about future representation (id. at 27).

  The Court directed that Ramos be afforded an opportunity to confer separately with Amsterdam, Jacobs, and Guarneri, and directed counsel to notify Guarneri of the renewed need for his services. (Id. at 30-33.) The Court made clear that while it was up to Ramos to consider, in light of all these events, whether he preferred to change either or both of his present counsel, Jacobs would have to appear at the next conference if he was to remain on the case. (Id. 33-35.)

  On May 21, 2004, Amsterdam informed the Court that Ramos did not consent to her removal from the case, but had decided to discharge Jacobs. (Letter to the Court from Valerie S. Amsterdam of May 21, 2004.) The government then alerted the Court that, contrary to the Court's instructions, Guarneri had not been notified of the need for his services; it further claimed that Jacobs had represented in an earlier conversation with the assistant United States Attorney that Ramos did not want Jacobs discharged. (See to the Court from Assistant United States Attorney Daniel Gitner of May 26, 2004, at 3-4.) At a subsequent conference on May 27, Jacobs again declined to appear, after providing conflicting advice to the Court as to whether or not he would attend the conference. (See to the Court from John Jacobs of May 26, 2004, by facsimile, 10:16 a.m. and 4:13 p.m.) Upon the defendant's confirmation that he wished to discharge Jacobs, the Court removed Jacobs from the case and appointed Jeremy Schneider, another member of the Court's capital defender panel, as co-counsel, to assure continuity of counsel.*fn3 (5/27/04 Tr. at 12-15.) The Court emphasized to Ramos that should Amsterdam be convicted, she might not be able to continue to represent him. (Id. at 10-12.) Once again the Court urged Ramos to consult with Guarneri, but scheduled briefing on the government's motion to disqualify Amsterdam in the event that the defendant should choose to continue with her. (Id. at 14-18.)

  Both sides have submitted-briefs, and the matter is now ...

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