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United States v. Galestro

August 16, 2006


The opinion of the court was delivered by: Garaufis, United States District Judge


On June 28, 2006, the Government moved to disqualify Richard Levitt, Esq. ("Levitt"), Nicholas Kaizer, Esq. ("Kaizer"), and their law firm from representing Gino Galestro ("Galestro"), on the basis that Levitt previously represented a cooperating witness who is expected to testify against Galestro in this matter. The prior client, Michael Maggio ("Maggio") was represented by Levitt regarding allegations identical to those charges now facing Galestro. (Gov't Ltr. Br., dated June 28, 2006, at 1.) Oral argument was heard regarding the instant motion on July 20, 2006, at which time Maggio, through counsel, joined the Government's motion. (Transcript of Oral Argument, dated July 20, 2006 ("Tr."), at 3.) For the reasons set forth below, the Government's motion is GRANTED.


On January 27, 2006, an arrest warrant was issued for Maggio, who is now a cooperating witness in the instant prosecution. (Aff. Supp. Arrest Warrants, dated Jan. 27, 2006.) Levitt arranged for Maggio's surrender, and on February 1, 2006, Levitt filed a notice of appearance, and represented Maggio at his arraignment and bail hearing. (Levitt Aff., dated July 10, 2006 ("Levitt Aff.") ¶¶ 4-5; Kaizer Aff., dated July 10, 2006 ("Kaizer Aff.") ¶¶ 3-5.) Assistant United States Attorney Joey Lipton ("AUSA Lipton") provided Kaizer with transcripts of recorded conversations in which Maggio discussed an alleged arson charged in this case, and Maggio also told Kaizer that he "participated in a murder and that the Government would likely find out about it." (Kaizer Aff. ¶ 4.) Levitt and Kaizer read to Maggio the transcripts of the recorded conversations. (Levitt Aff. ¶ 4; Kaizer Aff. ¶ 4.) Levitt and Kaizer then counseled Maggio about whether to plead guilty, either with or without cooperating with the government, or go to trial.*fn1

(Levitt Aff. ¶ 4.) After Maggio decided to cooperate, new counsel was appointed. (Id. ¶ 6; Kaizer Aff. ¶¶ 7-9.)

Levitt, Kaizer, and their law office now represent Galestro, a death-eligible defendant in the same indictment (Levitt Aff. ¶¶ 1-2), wherein the Government alleges, inter alia, that Galestro was a "soldier" in the Bonanno organized crime family ("OCF"), and that he conspired to murder and murdered Robert McKelvey, and conspired to commit and committed arson and robbery, in the furtherance of the Bonanno OCF. (Indictment ¶¶ 12-38.) Galestro states that Levitt and Kaizer are his counsel of choice. (Tr. at 20.)

The Government has submitted a sealed affirmation to this court, indicating that Maggio is a central witness in this matter, and a critical witness against Galestro in connection with the indictment allegations, including the alleged McKelvey murder, arson, and robbery in the furtherance of the Bonanno OCF. (Lipton Sealed Aff. ¶¶ 4-9.) Maggio joins the Government's motion in seeking Levitt and Kaizer's disqualification, stating that he does not waive the attorney client privilege, and that he discussed with Kaizer the details of the charged arson and murder, and other crimes, and the roles of participants in those crimes, "including the involvement of Gino Galestro." (Maggio Aff. ¶ 6.)


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 Supreme Court has held "that an element of this right is the right of a defendant . . . to choose who will defend him." United States v. Gonzalez-Lopez, 126 S.Ct. 2557, 2561 (2006) (citing Wheat v. United States, 486 U.S. 153 (1988)). 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), even assuming a valid waiver of conflict, 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.'" Locascio, 6 F.3d at 931 (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.").

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). Under certain circumstances, a trial court is obliged to disqualify an attorney in order to protect the defendant's right to effective assistance of counsel where the attorney has "'(1) a potential conflict of interest that results in prejudice to the defendant, or (2) an actual conflict of interest that adversely affects the attorney's performance.'" United States v. Perez, 325 F.3d 115, 125 (2003) (quoting United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994)). Second Circuit case law 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." Id. at 125 (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 must disqualify the attorney, without regard to any waiver on the defendant's part. Levy, 25 F.3d at 153; see also Jones, 381 F.3d at 120; United States v. Schwarz, 283 F.3d 76, 95 (2d Cir. 2002).

Where the attorney's conflict of interest involves an attorney's conflicting duties of loyalty to a defendant and a former client, the court may disqualify an attorney in order "to avoid the prospect of a conflict of interest which potentially could confer an unfair advantage on [the defendant] . . . or adversely affect [the other client's] interests." United States v. DiTommaso, 817 F.2d 201, 220 (2d Cir. 1987) (citing United States v. James, 708 F.2d 40, 45 (2d Cir. 1983); United States v. Ostrer, 597 F.2d 337, 340 (2d Cir. 1979)); see also United States v. Cunningham, 672 F.2d 1064, 1072 (2d Cir. 1982). "The principle is well established that an attorney should be disqualified from opposing a former client if during his representation of that client he obtained information relevant to the controversy at hand." Ostrer, 597 F.2d at 340 (internal quotation omitted).

The Supreme Court in Wheat, discussing the dilemma facing trial courts where a defendant's preferred choice of counsel has a conflict of interest, notes that "trial courts confronted with multiple representations face the prospect of being 'whipsawed' by assertions of error no matter which way they rule." Wheat, 486 U.S. at 161; see also Jones, 381 F.3d at 120-21. Accordingly, the Wheat Court 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; see also Jones, 381 F.3d at 120 ("[I]n 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."). Even in cases where a defendant waives an actual or potential conflict, the district court has "substantial latitude" in evaluating the facts and circumstances of each case to determine whether to accept or refuse the defendant's waiver of the conflict. See Wheat, 486 U.S. at 163. However, despite this "broad latitude," id., where the disqualification of a defendant's chosen counsel is erroneous, no additional showing of prejudice is required to make the violation complete, and that defendant is entitled to reversal of the conviction, as the error constitutes a "structural error" not subject to harmless error review.*fn2

Gonzalez-Lopez, 126 S.Ct. ...

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