United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR., United States District Court Chief
Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. Here, enforcement of that guarantee requires the
Court to balance Defendant Eugene Gosy's right to an
attorney of undivided loyalty against his right to be
represented by counsel of his choosing.
February 2, 2017, United States Magistrate Judge H. Kenneth
Schroeder, Jr. (“Magistrate Judge”) granted the
Government's motion for a determination of conflict of
interest (ECF No. 11) and removed attorney Jesse Baldwin as
Defendant's counsel of record in this case. ECF No. 46;
see ECF No. 49. Defendant now appeals. ECF Nos. 47,
53. For the reasons stated below, the Magistrate Judge's
decision is affirmed.
114-count indictment charges Defendant with violations of 21
U.S.C. § 846 (conspiracy to distribute controlled
substances), 21 U.S.C. § 841(a)(1) (unlawful
distribution of controlled substances), 18 U.S.C. § 1349
(conspiracy to commit health care fraud), and 18 U.S.C.
§ 1347 (health care fraud). See ECF No. 1. With
respect to the health care fraud counts, the Government
alleges that, between October 2011 and August 2013, Defendant
defrauded insurance companies who paid New York State
Workers' Compensation claims by billing for medical
services supposedly rendered or personally supervised by him
as a “Board Authorized Health Care Provider”
despite the fact that he was actually out of town when the
services were performed. Id. Should this case
proceed to trial, the Government will bear the burden of
proving beyond a reasonable doubt that Defendant
“knowingly and willfully” executed a scheme or
artifice to defraud a health care benefit program.
See 18 U.S.C. § 1347.
indictment specifically references two letters that give rise
to the present dispute. ECF No. 1, at 17. The first letter,
dated August 24, 2009, is a formal Administrative Warning
sent to Defendant by the New York State Workers'
Compensation Board. ECF No. 11, Ex. B (“Warning
Letter”). The Warning Letter admonishes Defendant for
certain acts of professional misconduct and reminds him that
Personally and actively supervise all professional medical
services performed by registered nurses or other persons
trained in laboratory or diagnostic techniques in accordance
with Workers' Compensation Law Section 13-b(1)(c).
Reports of instruction for such treatment, the treatment
itself, the patient's condition and progress shall be
signed and maintained by you when you are acting as the
supervising attending physician.
second letter, dated September 22, 2009, was sent to the
Workers' Compensation Board by Defendant's attorney
Jesse Baldwin. ECF No. 11, Ex. A (“Baldwin
Letter”). The Baldwin Letter states that Defendant
acknowledges receipt of the Warning Letter but has declined
to sign it. Id. Importantly, the Baldwin Letter also
states that Defendant “understands the regulatory
requirements set forth in [the Warning Letter] and will make
every effort to continue compliance with this and all other
requirements applicable to medical providers rendering care
to Workers' Compensation patients.” Id.
The letters themselves were used as exhibits in the grand
jury proceeding. ECF No. 33, at 7.
prove that Defendant acted “knowingly and willfully,
” the Government intends to call Mr. Baldwin as a
witness. See ECF No. 33, at 8-10. The Government
argues that Mr. Baldwin's testimony is necessary for two
reasons. First, the Government intends to use Mr.
Baldwin's testimony to introduce the Baldwin Letter into
evidence as a statement made by an opposing party's agent
pursuant to Federal Rule of Evidence 801(d)(2)(D). Second,
the Government believes that Mr. Baldwin's testimony
about the circumstances surrounding the Baldwin Letter will
demonstrate that Defendant was aware of the New York State
Workers' Compensation rules and intentionally
that Mr. Baldwin's role as a witness presented at least a
potential conflict of interest between him and Defendant, the
Government filed a motion before the Magistrate Judge
requesting an inquiry and a determination as to whether Mr.
Baldwin must be disqualified or whether Defendant could waive
the conflict. ECF No. 11. The Magistrate Judge initially
denied the Government's motion, ECF No. 16, and the
Government appealed, ECF No. 17. After hearing argument from
the parties and appointing independent counsel to advise the
Defendant, this Court reversed the Magistrate Judge's
decision and remanded for further proceedings. ECF No. 29.
This Court found:
Although the extent to which a conflict exists is unclear at
this time, it is evident that further investigation is
necessary. Mr. Baldwin's representation of the Defendant
in this case is potentially problematic not only because Mr.
Baldwin may be called to testify as a fact witness, but also
because the Defendant may want to raise a defense-such as
good faith reliance on the advice of counsel- that puts his
interests at odds with Mr. Baldwin's.
Id. at 3.
remand, the Magistrate Judge held oral argument and received
written submissions from both parties. See ECF Nos.
31, 33, 38, 40, 49. The Magistrate Judge concluded that
although it is impossible to predict with certainty the
precise nature of the proof at trial or the arguments raised
by both sides, Mr. Baldwin's status as a witness creates
an unwaivable conflict of interest between him and Defendant.
See ECF No. 49, at 8-16. Accordingly, the Magistrate
Judge removed Mr. Baldwin as Defendant's counsel of
record in this case. ECF No. 46.
he found that the conflict is unwaivable, the Magistrate
Judge observed that any harm to Defendant is mitigated by two
key factors. First, in addition to Mr. Baldwin, Defendant has
also retained attorneys Herbert Greenman and Joel Daniels to
represent him in this case. ECF No. 49, at 14 (noting that
Mr. Greenman and Mr. Daniels “are two of the most well
qualified, experienced defense criminal trial lawyers in the
Western District” while Mr. Baldwin's practice is
primarily focused on civil cases). Second, the Magistrate
Judge pointed out that although Mr. Baldwin could no longer
serve as Defendant's counsel of record, he is not barred
from communicating with Defendant or Defendant's other
attorneys. Id. at 20-21, 31.
the Magistrate Judge removed Mr. Baldwin pursuant to his
authority under 28 U.S.C. § 636(b)(1)(A), this Court
will review that decision to determine whether it was clearly
erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A)
(“A judge of the court may reconsider any pretrial
matter under this subparagraph (A) where it has been shown
that the magistrate judge's order is clearly erroneous or
contrary to law.”); Local R. Crim. P. 59(b)(1).
Sixth Amendment right to assistance of counsel “was
designed to assure fairness in the adversary criminal
process.” Wheat v. United States, 486 U.S.
153, 158 (1988). In most cases, fairness dictates that the
defendant “may be represented by any counsel who will
agree to take his case.” United States v.
Cain, 671 F.3d 271, 293 (2d Cir. 2012) (quoting
United States v. Cunningham, 672 F.2d 1064, 1070 (2d
Cir. 1982)). But “while 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.” Wheat, 486 U.S. at 159. The right to
effective assistance of counsel includes the right to be
represented by an attorney who is free from conflicts of
interest. Wood v. Georgia, 450 U.S. 261, 271 (1981).
United States v. Levy, 25 F.3d 146 (2d Cir. 1994),
the Second Circuit set forth the two-step analysis that
district courts must follow whenever the
“specter” of a conflict of interest arises
between a criminal defendant and his chosen attorney. First,
at the “inquiry” stage, the court must
“investigate the facts and details of the
attorney's interests to determine whether the attorney in
fact suffers from an actual conflict, a potential conflict,
or no genuine conflict at all.” Id. at 153. An
actual conflict occurs “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.'”
Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993)
(quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n.3
if the court's inquiry reveals the existence of an actual
or potential conflict, the court has a
Levy, 25 F.3d at 153. So long as the conflict does
not fundamentally impair the lawyer's representation, the
defendant may make a knowing and intelligent waiver of his
right to conflict-free counsel pursuant to the procedure set
out in United States v. Curcio, 694 F.2d 14 (2d Cir.
1982). However, if the conflict is “such that no
rational defendant would knowingly and intelligently desire
the conflicted lawyer's representation, ” then the
court must immediately disqualify the attorney.
Levy, 25 F.3d at 153; see also Cain, 671
F.3d at 293-94. Although the Sixth Amendment creates a
presumption in favor of the defendant's counsel of
choice, this 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. In determining whether to accept a
defendant's waiver, the Court is also mindful that
“[f]ederal courts have an independent interest in
ensuring that criminal trials are conducted with the ethical
standards of the profession and that legal proceedings appear
fair to all who observe them.” Id. at 160.
this Court agrees with the Magistrate Judge that there is a
serious potential for a fundamental conflict of interest
between Mr. Baldwin and Defendant and that a waiver would be
unacceptable. Defendant, through his two remaining attorneys,
raises various arguments in ...