The opinion of the court was delivered by: Garaufis, United States District Judge
The defendant, Karol Liszewski ("Liszewski" or "Defendant"), is charged with twenty co-defendants in a twenty-nine count indictment alleging that the defendants, purported members of a criminal enterprise known as the Greenpoint Crew, committed the following crimes: racketeering and racketeering conspiracy; narcotics distribution conspiracy; conspiracy to distribute anabolic steroids; conspiracy to deal in firearms and illegal dealings in firearms; alien in possession; conspiracy to traffic in fraudulent identification documents; transfer of fraudulent passports, stolen social security cards, and stolen drivers licenses; possession of fraudulent identification documents; credit card fraud conspiracy; conspiracy to traffic in stolen motor vehicles; sales of stolen motor vehicles; receipt of motor vehicle with altered vehicle identification number (VIN); VIN alteration; conspiracy to sell a stolen violin and possession of a stolen violin; extortion conspiracy; robbery conspiracy; and attempted extortion.
Liszewski is charged only in Count Fifteen of the indictment: conspiracy to traffic in stolen motor vehicles. The indictment alleges that Liszewski and eight co-defendants engaged in this conspiracy between July 2005 and February 2006. Liszewski is alleged to have taken part in overt act (e) in Count Fifteen, engaging in a telephone conversation with co-defendant Krzystzof Sprysak in which they "discussed purchasing and selling a stolen motorcycle." (See Indictment ¶ 61(e)). Liszewski was arraigned before Magistrate Judge Ramon Reyes on March 8, 2006, at which time he pled not guilty to the charge of conspiring to traffic in stolen motor vehicles.
At his arraignment, Liszewski was represented by Robert Connolly, Esq. ("Connolly"), a partner in the law firm of Certilman Balin. Connolly currently represents Liszewski. The Government, by letter dated April 12, 2006, moved for Connolly's disqualification, alleging that he is afflicted with conflicts of interest that are so numerous and overlapping that they are not waivable and therefore mandate disqualification pursuant to Wheat v. United States, 486 U.S. 153 (1988). (See generally Govt. 4/12/06 Ltr. Mot.) Specifically, the Government alleges that Connolly's prior and current representation of co-defendants in this matter, unindicted co-conspirators, and cooperating witnesses, as well as his status as a potential witness at trial, require his disqualification. Connolly counters that any potential conflicts of interest are waivable. (See generally Connolly 6/1/06 Ltr. Resp.). At a hearing held on June 23, 2006, Curcio counsel was appointed for Liszewski. A Curcio hearing was held before this court on July 11, 2006. At the hearing, Liszewski attested that he had met with Curcio counsel, that he understood fully the potential conflicts, and that he nonetheless wished to waive those conflicts. (See Transcript of Hearing dated July 11, 2006 ("Curcio Tr."), at 27-29). In particular, Liszewski's Curcio counsel stated the following:
Your Honor, I had an opportunity to speak to the defendant on a number of occasions and I explained the law to him and I explained the potential conflicts of each of these many items which have been brought up by the Government.
His position, he's considered it seriously, talked to his family, and he's talked to me at length, and his position is that he would prefer to keep Mr. Connolly as his attorney. He thinks the conflicts, potential conflicts, are really moot given the nature of his defense in this case.
I have explained to him that sometimes you just don't know where things are going in a trial, but that I would articulate his position to you, Your Honor, and that you may well decide that there are just too many problems.
(Curcio Tr. at 3). At the conclusion of the hearing, I reserved decision on the matter. I now hold, for the reasons set forth below, that the Government's motion to disqualify Robert Connolly as attorney for Defendant Liszewski is DENIED at this time, without prejudice to the Government's ability to move for reconsideration at some later date if circumstances change.
A. The Right to Conflict Free Counsel
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The right to the effective assistance of counsel also includes the right to be represented by an attorney who is free from conflicts of interest. See, e.g., Wood v. Georgia, 450 U.S. 261, 271 (1981). However, a criminal defendant "does not have the absolute right to counsel of her own choosing." United States v. Locascio, 6 F.3d 924, 931 (2d Cir.1993); see also Wheat v. United States, 486 U.S. 153, 159 (1988) ("[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."). In United States v. Locascio, the Second Circuit explained that although a criminal defendant can waive his Sixth Amendment rights in certain circumstances, the right to waiver is "not absolute." Locascio, 6 F.3d at 931. The right is not absolute because "'[f]ederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.'" Id. (quoting Wheat, 486 U.S. at 160); see also United States v. Jones, 381 F.3d 114, 119 (2d Cir. 2004) ("The disqualification issue . . . implicates not only the accused's right to counsel, but also the interests of the judiciary in preserving the integrity of its processes, and the government's interest in a fair trial and a just verdict.").
Accordingly, the Supreme Court has held that "the District Court must recognize a presumption in favor of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Wheat, 486 U.S. at 164. Evaluating the facts and circumstances of each case to determine whether actual or potential conflicts exist is left to the district court. See id. The law of this circuit clearly defines actual and potential conflicts. "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. Perez, 325 F.3d 115, 125 (2d Cir. 2003) (citations omitted). A potential conflict of interest exists if "'the interests of the defendant may place the attorney under inconsistent duties at some time in the future.'" Id. (quoting United States v. Kliti, 156 F.3d 150, 153 n.3 (2d Cir. 1998)).
A conflict of interest, whether actual or potential, can be so serious that a rational defendant would never knowingly or intelligently desire the conflicted lawyer's representation. In such a case, the district court is obliged to disqualify the attorney, without regard to any waiver on the defendant's part. United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994); see also Jones, 381 F.3d at 120; United States v. Schwarz, 283 F.3d 76, 95 (2d Cir. 2002).
B. Prior representation of Co-Defendants and Cooperating Witnesses
Prior representation of a co-defendant or Government witness can create a potentially serious conflict of interest because the attorney may be limited in impeaching the former client on cross-examination or attacking his credibility on summation without becoming what is referred to as an "unsworn witness." In addition, when an attorney possesses first-hand knowledge of events that may be the subject of testimony at trial, it is possible that he or she could become an "unsworn witness for the accused." United States v. Gotti, 9 F. Supp. 2d 320, 324 (S.D.N.Y. 1998). In that situation, an attorney's relationship to the events in question may unfairly prejudice the prosecution because "the attorney can subtly impart his first-hand knowledge of the events without having to swear an oath or be subject to cross-examination." Locascio, 6 F.3d at 933. Therefore, "[w]aiver by the defendant is ineffective in curing the impropriety in such situations, since he is not the party prejudiced." Id. at 934.
What is not entirely clear in the context of prior representation is whether the previous representation need be on a substantially related matter to justify disqualification over the client's attempt to waive the conflict. See, e.g., Ciak v. United States, 59 F.3d 296, 304 (2d Cir. 1995) abrogated on other grounds by Mickens v. Taylor, 535 U.S. 162 (2002) (on habeas appeal, discussing the potential for serious conflict when attorney sought to impeach "a key government witness who was his former client in a closely related matter") (emphasis added); United States v. Iorizzo, 786 F.2d 52, 54 (2d Cir. 1986) (reversing mail fraud convictions on ground that counsel was conflicted due to his "earlier representation of the government's key witness in a related state proceeding") (emphasis added); compare Tineo v. Kelly, 870 F.2d 854, 857 (2d Cir. 1989) (reversing district court's grant of habeas petition where counsel was disqualified for prior representation of prosecution witness, noting that attorney's divided loyalty between a client and a former client was "no less true simply because [attorney'] representation of the clients did not concern the same matter."). In Tineo, the Second Circuit noted that "[t]wo clients' interests in separate matters may be just as opposed, and the potential for conflict just as serious [as when representation concerned the same matter]." Tineo, 870 F.2d at 857; but see, e.g., United States v. Paone, 782 F.2d 386, 392 (2d Cir. 1986) (holding defendant was not denied effective assistance of counsel when midway through trial, court denied request to disqualify counsel who had represented a government witness ten years prior in obtaining bail after arrest on unrelated charges); United States v. Pizzonia, 415 F. Supp. 2d 168, 178 (E.D.N.Y. 2006) (Weinstein, J.) ("Limited representation of a government witness unrelated to representation of the defendant is not likely to present a disabling conflict.").
In the case of United States v. Perez, 325 F.3d 115 (2d Cir. 2003), the Second Circuit emphasized that "where the right to counsel of choice conflicts with the right of an attorney of undivided loyalty, the choice as to which right is to take precedence must generally be left to the defendant and not be dictated by the government." Perez, 325 F.3d at 125 (citing United States v. Cunningham, 672 F.2d 1064, 1073 (2d Cir. 1982)). In Perez, the Circuit Court discussed two cases in which it held attorney conflicts to be unwaivable -- United States v. Fulton and United States v. Schwarz -- as illustrations of the "very narrow category of cases" in which a client's knowing and intelligent waiver of conflict-free counsel would be overridden by the district court. See Perez, 325 F.3d at 126-7 (emphasis added). In Perez, the attorney in question represented the defendant Perez, who was also the attorney's former employee as a paralegal in his law office.
While representing Perez, the attorney was also representing another client, by the name of Almonte, who had been arrested just prior to Perez for strikingly similar conduct. Thus, the attorney himself was deemed a potential witness at Perez's trial. See id. at 119-20. Nonetheless, the Court of Appeals found the conflicts posed by the attorney's representation of both Perez and Almonte and by his potential status as a trial witness to be waivable conflicts, and the attorney was not disqualified. Id. at 127-29.
The Perez decision is perhaps most informative in its treatment of Schwarz and Fulton as precedent for disqualifying counsel. In Fulton, 5 F.3d 605 (2d Cir. 1993), a government witness implicated the defendant's trial counsel in a drug importation scheme related to the one for which his client was being prosecuted. This, the court found, created an actual conflict "so severe as to amount to per se ineffective assistance" because the attorney had to be concerned with his client's interest as well as his personal reputation and the fact that he himself could have been accused of a crime. In Schwarz, 283 F.3d 76 (2d Cir. 2002), the court also found an unwaivable conflict where the attorney had an overwhelming financial conflict of interest. The lawyer represented a police officer who was one of the defendants in the Abner Louima case, and his firm concurrently received a two-year, $10 million retainer to represent the Policeman's Benevolent Association ("PBA") in a civil suit filed by Louima.*fn1 The court concluded that the conflict created by the enormous financial incentive in serving the PBA's interest gave rise to "the distinct possibility . . . that, at each point the conflict was felt, [counsel] would sacrifice
Schwarz's interests for those of the PBA." Schwarz, 283 F.3d at 96.
The Second Circuit's treatment of Fulton and Schwarz in the Perez decision suggests that these two cases represent extremes where disqualification notwithstanding waiver is appropriate, but that in lesser circumstances, ...