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United States v. Vertuccio

United States District Court, E.D. New York

December 6, 2017




         Vincent Vertuccio and John Servider were charged by indictment with a number of crimes, including conspiracy to obstruct a grand jury investigation relating to the other charged offenses. ECF Dkt. No. 1. Due to unforeseen, unforeseeable, and unfortunate developments, amidst preparation for trial and following preliminary motion practice, [1] Servider sought representation by Attorney James Froccaro, who represents Vertuccio.

         The relevant circumstances arose after Vertuccio had eschewed trial, which had happened months before, when he entered into a plea agreement with the government. His guilty plea was allocuted by the Court on April 12, 2017. See ECF Dkt. No. 116, Minute Entry for Apr. 12, 2017 Plea. Upon learning of Servider's new counsel plan, the government moved to disqualify Attorney Froccaro as Servider's trial counsel. On November 8, 2017, the Court granted the government's motion after a hearing for reasons then stated on the record. See Minute Entry for Nov. 8, 2017. Given the delicate balancing required to justify denial of a defendant's right to be represented by his chosen counsel, the Court indicated that it would issue a memorandum opinion to offer an expanded discussion of the highly unusual circumstances and corresponding reasons for the Court's decision to disqualify Attorney Froccaro from representing Servider as his trial counsel.


         From indictment, Servider was represented by Michael Rosen until Attorney Rosen's most untimely death in July of this year. Michael Rosen was a lion of the Bar of this Court. His work is that of legend. His knowledge, his skill, his integrity, and his simple human decency are of cherished memory. Servider lost a talented and highly experienced lawyer; the Eastern District lost a mensch and one of its wonderful amici.

         At the time of Attorney Rosen's death, as noted earlier, Vertuccio had already pleaded guilty and was awaiting a sentencing date. Servider was on course for trial, including on a conspiracy count to which Vertuccio had already pled guilty. Since it was clear that, though an attorney, Servider had no intention of representing himself, time was needed for Servider to find a replacement for Attorney Rosen. Servider was granted until September 6, 2017, to obtain new counsel. ECF Dkt. No. 125. But, when that date came and went without Servider succeeding in his quest, he was granted until October 13, 2017 to secure replacement counsel. See Minute Entry for Sept. 6, 2017. When Servider appeared on October 13, in a stunning move, he sought to retain Attorney Froccaro.

         In response to Servider's announcement, a hearing pursuant to United States v. Cur do, 680 F.2d 881 (2d Cir. 1982), was scheduled for November 8, 2017. The Court instructed both Vertuccio and Servider to consult independent counsel about the potential conflicts that this proposed representation might present. See Minute Entry for Oct. 13, 2017. Subsequently, the Government filed a letter motion to disqualify Attorney Froccaro as counsel for Servider. ECF Dkt. No. 133. Attorney Froccaro filed papers opposing the government's motion and cross-moved for permission to represent Servider, which the Court understood to be on behalf of both Servider and Vertuccio. ECF Dkt. No. 134.

         At the hearing on November 8, Servider and Vertuccio appeared with Attorney Froccaro, along with separate Curcio counsel for each defendant who had independently consulted with and advised their respective Curcio clients. The Court did not then conduct a formal Curcio allocution since it had not yet determined whether any actual or potential conflict was waivable in this instance. Each Curcio counsel, however, did represent that he had fully discussed the pitfalls of joint representation with his respective client and that each client desired to waive any conflict. Servider and Vertuccio then confirmed the representations that their Curcio counsel had made to the Court. Argument was then had on the government's motion to disqualify Attorney Froccaro. For reasons announced from the bench, the Court granted the government's motion, and advised the parties that this Memorandum Opinion would follow to provide greater depth and analysis for its decision. See Minute Entry for Nov. 8, 2017.

         Relevant Principles of Law

         Under the Sixth Amendment, a defendant in a criminal case is entitled to the assistance of competent counsel, see Wheat v. United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988), and there is a "presumption in favor of [representation by a defendant's] counsel of choice." United States v. Jones, 381 F.3d 114, 119 (2d Cir. 2004). Nevertheless, notwithstanding the right to choose one's own lawyer and that the right is a precept basic to the Sixth Amendment, "the essential aim of the [Sixth] 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, 108 S.Ct. at 1697. Additionally, federal 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. at 160, 1698. Conflict between these competing precepts and objectives can arise, as here, when a defendant seeks to be represented by an attorney who suffers from an actual or a potential conflict of interest, namely, when a defendant seeks to be represented by an attorney who "[is] represent[ing one of the] other defendants charged in the same criminal conspiracy." Id. at 159, 1697; see also United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994).

         When a court is made aware that there is even the possibility of an attorney's conflict of interest, it must follow the two-step analytical framework described in Levy. Levy, 25 F.3d at 153. First, there is an obligation to inquire and "investigate the fact and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, potential conflict, or no genuine conflict at all." Id. An actual conflict "exists when the attorney's and the defendant's interests 'diverge with respect to a material factual or legal issue or to a course of action, ' or when the attorney's representation of the defendant is impaired by loyalty owed to a prior client." Jones, 381 F.3d at 119 (citation omitted). A potential conflict exists if the defendant's interests "could place the attorney under inconsistent duties in the future." Id. (emphasis in original).

         If the court determines that there is an actual or potential conflict, it moves to the second step, which requires consideration of whether the conflict is automatically disqualifying or waivable. Levy, 25 F.3d at 153. The Second Circuit has clarified that there is a "very narrow category of cases in which we have held attorney conflicts to be unwaivable." United States v. Perez, 325 F.3d 115, 126 (2d Cir. 2003). Indeed, the Circuit has warned trial courts to avoid assuming "too paternalistic an attitude in protecting the defendant from himself." Id. (quoting United States v. Cur do, 694 F.2d 14, 25 (2d Cir. 1982)). More concretely, this line of authority suggests that there are only two instances where attorney conflicts are not waivable: (1) when the subject attorney faces or potentially faces criminal liability arising out of the same criminal conduct as the defendant seeking his services, and (2) when the subject attorney's financial interests diverge from those of the defendant. Perez, 325 F.3d at 126.

         But, beyond the "always" category, there is also a "sometimes" category. Lesser conflicts, including, for example, joint representation, are generally waivable, subject to a knowing and intelligent waiver. Id. at 127. In fact, Perez quite emphatically instructs that "[w]here the right to counsel of choice conflicts with the right to an attorney of undivided loyalty, the choice as to which right to take precedence must generally be left to the defendant and not be dictated by the government." Id. at 125. Still, this maxim of Sixth Amendment application falls into the "sometimes" category. As the Supreme Court made clear in Wheat, district courts must be afforded substantial latitude to refuse "waivers of conflicts of interests 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." Wheat, 486 U.S. at 163, 108 S.Ct. at 1699; see also United States v. Cain, 671 F.3d 271, 294 (2d Cir. 2012) (reiterating after Perez that district courts retain "broad latitude" when considering whether to disqualify chosen counsel).

         Another integer in the conflict calculus, moreover, is the trial court's independent responsibility "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." Wheat, 486 U.S. at 160, 108 S.Ct. at 1698. Trial courts, consequently, retain at least some discretion to disqualify counsel even where the law does not ...

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