U.S. v. Levy

• Decision Date: 03 June 1994
• Docket Number: D,No. 808,808
• Citation: 25 F.3d 146
• Parties: UNITED STATES of America, Appellee, v. Chaim LEVY, Defendant-Appellant. ocket 93-1292.
• Court: U.S. Court of Appeals — Second Circuit

Page 146

25 F.3d 146

UNITED STATES of America, Appellee, v. Chaim LEVY, Defendant-Appellant.

No. 808, Docket 93-1292.

United States Court of Appeals Second Circuit.

Argued Feb. 15, 1994.

Decided June 3, 1994.

David Schoen, Montgomery, AL, for defendant-appellant.

Emily Berger, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Susan Corkery, Julie Copeland, Asst. U.S. Attys., on the brief), for appellee.

Before: NEWMAN, Chief Judge, MAHONEY and CAMPBELL, ^* Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal primarily concerns problems stemming from a criminal defendant's representation by an attorney subject to various conflicts of interest. Chaim Levy appeals from the April 12, 1993, judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge), convicting him, after a jury trial, on five counts of conspiring to possess and possessing heroin with the intent to distribute, in violation of 21 U.S.C. Secs. 841, 846 (1988). On appeal, Levy challenges his conviction and sentence on numerous grounds, his most significant complaint being that he was denied the effective assistance of counsel in violation of the Sixth Amendment as a consequence of his lawyer's conflicts of interest. We conclude that Levy's rights under the Sixth Amendment were impaired, and we reverse his conviction and remand for a new trial.

Background

Defendant-appellant Chaim Levy, his nephew Eliahu Levy ("Eliahu"), and Yacob Elimelekh worked together to coordinate drug transactions in New York and Israel. The Government uncovered this operation with the help of a confidential informant who engaged in various heroin transactions involving Levy, Eliahu, and Elimelekh. In June 1989, after the arrest of his nephew Eliahu in the United States, an arrest warrant was issued for Chaim Levy, who was then in Israel. Attorney Ivan Fisher, who had served as Levy's counsel in a prior drug case, informed the Government that he represented both Levy and Eliahu.

In the course of plea negotiations on Eliahu's behalf, Fisher tried to arrange for Levy to assist the Government in exchange for "cooperation" credit for Eliahu. ¹ During these negotiations, both Levy and Fisher made various statements that inculpated Levy. Eliahu ultimately rejected any plea bargain and was formally indicted on August 31, 1989. On October 4, 1989, Eliahu was inadvertently released from custody and fled the United States, apparently to Israel. The Government came to believe that Fisher might have been involved in Eliahu's flight.

Meanwhile, Levy traveled to Egypt in September of 1989, where he was arrested. Levy was then formally indicted in the Eastern District of New York and was extradited to the United States in late October 1989. From this point on, Levy's case has a complicated history, which appears to have contributed to the inadequate trial court exploration of the conflict issues raised on this appeal. Levy's case was initially assigned to Judge Reena Raggi, who recused herself because her division had prosecuted Levy when she was with the U.S. Attorney's Office for the Eastern District of New York. Next, Judge Joseph M. McLaughlin handled the case until he was elevated to the Court of Appeals. Judge Leo I. Glasser then received the case, but his schedule required a further reassignment. Judge Weinstein took over for the remainder of Levy's prosecution and trial, except for one day during jury deliberations when he was ill and Judge Eugene H. Nickerson presided.

Fisher continued to represent both Levy and Eliahu upon Levy's return to the United States. Though never formally moving to disqualify Fisher, the Government repeatedly alerted the District Court to what it believed were Fisher's conflicts of interest. Specifically, the Government presented four grounds that it suggested would preclude Fisher's continuation as defense counsel for Levy: (1) Fisher's joint representation of Levy and Eliahu; (2) Fisher's status as a defendant awaiting his own sentencing in the Eastern District on unrelated criminal charges; (3) Fisher's status as the object of an Eastern District grand jury's investigation into Eliahu's flight; and (4) Fisher's status as a possible witness concerning statements made during the plea negotiations on behalf of Eliahu. Through a series of letters and statements to the District Court, the Government requested that the Court at least engage Levy in a colloquy to determine if he was willing to waive his right to a non-conflicted lawyer.

From the outset, Judge McLaughlin, to whom the case was then assigned, was concerned about the conflicts identified by the Government, and in the course of various hearings the Court questioned Fisher about these matters. During a November 6, 1989, hearing, Fisher stated that he had already discussed with Levy each of the conflict issues raised by the Government except for the problem posed by the lawyer's status as a possible witness. Fisher claimed that this last concern did not genuinely present a conflict problem because the statements made during Eliahu's plea negotiations were not likely to become an issue during Levy's trial, and because Fisher's co-counsel could take over Levy's defense if by some chance they did.

Recognizing the problems precipitated by Fisher's representation of Levy and not fully reassured by Fisher's attempt to diffuse these problems, Judge McLaughlin wisely suggested that Fisher let his co-counsel take over Levy's defense. Fisher resisted this suggestion, claiming that Levy strongly desired his services. Judge McLaughlin then suggested that Fisher at least cease his representation of Eliahu and was apparently satisfied by Fisher's statement that "[i]n the event that [Eliahu] is brought back here I represent I will not represent him." Though recognizing that there were other conflict problems, Judge McLaughlin stated that he was not prepared at that time to engage Levy in a full colloquy to determine if he was willing to waive his right to a non-conflicted lawyer. Judge McLaughlin recommended that the Government make a formal motion to put in issue these other conflicts.

A December 15, 1989, hearing focussed primarily on the conflict raised by Fisher's status as a potential witness concerning statements made during Eliahu's plea negotiations. By this point, the Government had conceded that these statements could be introduced at trial only to rebut or impeach Levy if he testified. That concession led Fisher to claim that there was no conflict at all because Levy was not going to testify at trial. Judge McLaughlin was disturbed by Fisher's assertion that Levy was willing to forgo his right to testify at trial in order to retain Fisher as his attorney. The hearing concluded with the parties agreeing to further brief this issue for the Court.

By this stage, the Government had still not made a motion to disqualify Fisher. However, in a lengthy letter to the District Court dated January 5, 1990, the Government urged Fisher's disqualification. The letter outlined all four of the problems that the Government believed necessitated Fisher's removal and concluded that "the totality of all four conflicts of interest converge and combine to present an irrefutable necessity to disqualify" Fisher.

Treating the Government's letter as a motion, Fisher replied in a January 10, 1990, letter to the District Court that "the letter motion seeking my disqualification should be denied." Fisher claimed that (1) Levy had explicitly waived any conflict arising from his "prior representation of Eliahu," ² (2) any conflict from his prosecution on unrelated criminal charges "had been resolved in open Court during a prior proceeding," ³ and (3) his status as a potential rebuttal witness was of no consequence because the statements the Government sought to elicit from him were inadmissible and, in any event, Levy would not testify concerning these matters. Fisher did not respond to the conflict alleged to arise from his being a target of grand jury inquiry concerning Eliahu's flight.

During a brief status conference before Judge McLaughlin on January 11, 1990, Fisher asserted his view that the conflicts issues had been "honed down" to a dispute over the possible use in Levy's trial of statements made during Eliahu's plea negotiations. Judge McLaughlin inquired as to the other conflict problems stemming from Fisher's "own situation." Fisher stated: "That has been waived, Your Honor. The defendant and the court had a colloquy.... On the record, that's been waived." Though the District Court accepted this representation, in fact there had not been any colloquy between Levy and the Court concerning Fisher's conflicts, nor was there evidence of any sort of waiver on the record. The Government did not directly challenge Fisher's claim of a waiver, but it did mention its January 5 letter suggesting that Fisher's multiple conflicts precluded any effective waiver from Levy and thus necessitated Fisher's disqualification. This discussion concluded with both parties asserting that they would further consider these points in motion papers, but in fact there was no further briefing of the conflict issues.

In part because a motion to dismiss was still pending, Judge McLaughlin did not rule concerning Fisher's disqualification before being elevated to the Court of Appeals. Levy's case was reassigned to Judge Glasser in October 1990. At a November 19, 1990, hearing, after Judge Glasser ruled on the motion to dismiss, the Government highlighted that conflict issues were still unresolved. As to the joint representation problem, Judge Glasser expressed the view that this was not a problem because Eliahu was a fugitive and the Government had no intention to try him in his absence. Judge Glasser then explained that he was not fully aware of the other conflict issues. In response, Fisher stated that he wanted to consult with Levy to insure that Levy still sought...