United States District Court, W.D. New York
August 12, 2005.
UNITED STATES OF AMERICA, Plaintiff,
SINCERRAY SULLIVAN, Defendant. UNITED STATES OF AMERICA, Plaintiff, v. ZECHARIAH BURNETT, Defendant.
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Attorney Michael J. Tallon, Esq. ("Tallon") is retained counsel
for both defendants, Sincerray Sullivan ("Sullivan") and
Zechariah Burnett ("Burnett"). Tallon represents Sullivan on a
petition alleging a violation of probation, which was filed
February 18, 2005. Tallon also represents Burnett in a
three-count indictment charging Burnett with possession of
cocaine and possession of a firearm in furtherance of a drug
trafficking crime. Burnett's arrest stems from an alleged
shooting that occurred on or about August 4, 2004, near Central
Park and Third Street in Rochester, New York.
Pending before the Court is the Government's motion to
disqualify attorney Tallon from representing both defendants
based on a conflict of interest. The Government's motion was
filed April 29, 2005. Tallon filed a declaration opposing the
motion on May 18, 2005, and the Court heard argument on the
motions on June 8, 2005.
Apparently defendants Sullivan and Burnett know each other and
may have some personal relationship. The Government has several
bases for seeking Tallon's removal because of what the Government
perceives to be a clear conflict of interest.
First of all, the Government represents that Sullivan may be a
witness in the case against Burnett. Sullivan was interviewed by
law enforcement officers and allegedly put Burnett at the scene
of the shooting. She apparently also provided some information to
the officers that Burnett and the victim of the shooting had been
arguing with each other just prior to the shooting. The Assistant
United States Attorney handling the Burnett case also represented
that Sullivan may have given somewhat conflicting statements
about the matter. The Government's concern is an obvious one:
Tallon represents both Sullivan and Burnett; he has an obvious
conflict since he may be forced when representing Burnett to question or
cross-examine Sullivan should she in fact be called as a
Government witness. Although Sullivan indicated some reluctance
to testify when the Court questioned her on June 8, it is
apparent that the Government intends to further question her and
subpoena her for trial, if necessary.
The Government also indicated that it wished to attempt to get
more information from Sullivan against Burnett, and that there
was some indication at least that her cooperation against Burnett
might lead to more favorable consideration from the Government
concerning Sullivan's own criminal matter, the allegation that
she violated probation. Furthermore, the Government represented
that it had some information that Sullivan may have taken steps
to threaten a potential witness against Burnett.
On June 8, 2005, I did question Sullivan and she indicated
quite strongly that she understood the potential conflict but
still wished Tallon to be her lawyer. The Court has not yet
spoken to Burnett about the matter.
"A defendant's Sixth Amendment right to the effective
assistance of counsel includes the right to be represented by an
attorney who is free from conflicts of interest." United States
v. Blount, 291 F.3d 201, 210 (2d Cir. 2002) (citing Mickens v.
Taylor, 535 U.S. 162 (2002)), cert. denied, 537 U.S. 1141
(2003). The Sixth Amendment right to counsel is not absolute;
although a defendant's choice of counsel is presumptively
favored, a determination of disqualification by the court will be
sustained where the court, in its sound discretion, finds either
an actual conflict or a serious potential for conflict. Wheat v.
United States, 486 U.S. 153, 164 (1988). "An attorney has an actual, as opposed to a potential, conflict
of interest when, during the course of the representation, the
attorney's and the defendant's interests diverge with respect to
a material factual or legal issue or to a course of action."
United States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002)
(internal quotation omitted), cert. denied, 511 U.S. 1022
(1994). "An attorney has a potential conflict of interest if the
interests of the defendant could place the attorney under
inconsistent duties in the future." United States v. Jones,
381 F.3d 114, 119 (2d Cir. 2004), cert. denied, 125 S.Ct. 916
When a court has been advised of either a potential or actual
conflict of interest between the defendant's attorney and the
defendant, the court has an obligation to make a further inquiry.
If a conflict, actual or potential, threatens to compromise
either the adequate representation of a defendant or the
institutional interest in rendering a just verdict, "a trial
judge has discretion to disqualify an attorney or decline a
proffer of waiver." United States v. Fulton, 5 F.3d 605, 612
(2d Cir. 1993). "If the court discovers that the attorney suffers
from a severe conflict such that no rational defendant would
knowingly and intelligently desire the conflicted lawyer's
representation the court is obliged to disqualify the
attorney." United States v. Levy, 25 F.3d 146, 153 (2d Cir.
1994). "Among the situations where such disqualification is
likely to arise, `[t]he most typical is where an actual conflict
arises from a multiple representation.'" United States v.
Muflahi, 317 F.Supp.2d 208, 212 (W.D.N.Y. 2003) (quoting United
States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993), cert.
denied, 511 U.S. 1070 (1994)).
In the case at bar, I find that Tallon has an actual conflict
of interest, and that disqualification is mandated. Even if I
were to find that only a potential conflict exists, however, I
would in my discretion disqualify Tallon from representing both
Sullivan and Burnett because of the risk that their competing interests could prevent Tallon
from adequately representing them both.
As noted, the Government has stated its intention to call
Sullivan as a witness in the case against Burnett. Although it is
unclear at this point what the gist of her testimony would be
concerning Burnett's role in the August 4 shooting, if she were
to testify consistent with her alleged statement to investigators
that Burnett was at the scene of the shooting and had been
arguing with the victim, Tallon, as Burnett's attorney, would
certainly want to discredit Sullivan's testimony. In his role as
Sullivan's attorney, however, Tallon would not be able ethically
to do so. See United States v. Alvarez, 580 F.2d 1251, 1258
(5th Cir. 1978) ("defense counsel [who represents both
defendant and government witness] is torn between serving the
witness' best interests in fully cooperating with the government
in supplying credible testimony and the accused's obvious desire
to discredit the witness' testimony. The Constitution does not
countenance such divided loyalties"); United States v.
Rodriguez, No. 99 CR 166, 1999 WL 314162, at *2 (E.D.N.Y. May
18, 1999) (noting that "[b]ecause of his obligations to [a client
who was cooperating witness for the government, defendant's
attorney] will be required to forego effective cross-examination
of [witness] on behalf of" defendant).
Similarly, in United States v. Malpiedi, 62 F.3d 465 (2d Cir.
1995), the defendant's attorney had previously represented an
important government witness ("Goldfine") during grand jury
proceedings. On appeal from the defendant's conviction, the
Second Circuit vacated and remanded, finding that the attorney
had an actual conflict of interest "because his duty to Goldfine
conflicted with [defendant] Delli Bovi's interest in a full and
effective cross-examination of Goldfine." Id. at 469. The court
stated that it was "in Delli Bovi's interest to have his attorney
conduct a thorough, no-holds-barred cross-examination of
Goldfine," and that his attorney "was unable to cross-examine Goldfine on her
testimony during her first grand jury appearance because of his
obligations as her prior attorney and her invocation of the
attorney-client privilege." Id.
In addition, the Government has indicated that it may be open
to the idea of giving Sullivan some consideration in the case
against her if she cooperates in the case against Burnett. By
representing both Sullivan and Burnett simultaneously, Tallon
would find it virtually impossible to give Sullivan unbiased
advice about whether to cooperate without violating his
obligations to Burnett.
The case law supports this view. In Muflahi, for example, the
court held that an actual conflict of interest existed because of
defense counsel's joint representation of separately charged
store employees in a felony food stamp fraud prosecution in which
store owner was also charged, given the government's offer to the
employees to plead to misdemeanors in return for testimony
against owner and, if necessary, against each other. The court
reasoned that counsels' representation of one employee was
inherently adverse to the interests of the other employee in
deciding, with the objective assistance of counsel, whether to
accept the proffered plea, stating that "[c]ounsel may entertain
the notion that they can perform this Janus-like feat without
violating their respective duty of zealous representation to both
Defendants but the court thinks otherwise." 317 F.Supp.2d at 214.
See also United States v. Yannotti, 358 F.Supp.2d 289, 292
(S.D.N.Y. 2004) (defense counsel had conflict of interest because
his father and uncle were allegedly high-ranking officials in
same crime family as defendant; noting that although defendant
had some incentive to cooperate with the government, "[i]t
appears unlikely . . . that [attorney] would advise his client to
make a deal since [the client] may be able to provide information
and testimony that the government could use against" attorney's
father and uncle); cf. Rodriguez, 1999 WL 314162, at *2 (noting that attorney who
represented cooperating witness and defendant would be conflicted
in advising defendant whether to accept plea offer, since as
attorney for witness, attorney's interest was to obtain as many
convictions as possible).
Some of these matters, of course, depend on how events unfold
in these cases. That it is impossible to say with certainty at
this point how Sullivan would testify, or whether she would be
willing to cooperate with the Government in its case against
Burnett in exchange for some benefit in her own case, does not
mean that disqualification is not warranted, in spite of
Sullivan's waiver. As the Supreme Court observed in Wheat,
Unfortunately for all concerned, a district court
must pass on the issue 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 pre-trial
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. It is a
rare attorney who will be fortunate enough to learn
the entire truth from his own client, much less be
fully apprised before trial of what each of the
Government's witnesses will say on the stand. A few
bits of unforeseen testimony or a single previously
unknown or unnoticed document may significantly shift
the relationship between multiple defendants. These
imponderables are difficult enough for a lawyer to
assess, and even more difficult to convey by way of
explanation to a criminal defendant untutored in the
niceties of legal ethics.
482 U.S. at 162-63. It is for those reasons, the Court concluded,
that "the district court must be allowed substantial latitude in
refusing waivers of conflicts of interest 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
exists which may or may not burgeon into an actual conflict as
the trial progresses." Id. at 163. See also Jones,
381 F.3d at 120 ("in situations where a potential conflict exists, one
that may ripen into an actual conflict as the trial progresses,
district courts must have latitude to permit or deny a
defendant's waiver of such conflict"). I conclude, therefore, that Tallon cannot represent both
Sullivan and Burnett, regardless of whether his clients would
waive their rights to a non-conflicted attorney. At this point,
however, I see no reason why Tallon could not ethically continue
to represent either Sullivan or Burnett. I therefore leave it up
to Tallon to decide which one he chooses to represent.*fn1
The Government's motion to disqualify defense counsel Michael
J. Tallon from representing both Sincerray Sullivan and Zechariah
Burnett is granted.*fn2 Tallon is directed to advise the
Court, in writing, within ten (10) days as to his election so
that the other client can proceed to obtain new counsel.
IT IS SO ORDERED.