U.S. v. Cortellesso, s. 80-1728

Decision Date09 November 1981
Docket Number80-1729,Nos. 80-1728,s. 80-1728
Citation663 F.2d 361
Parties9 Fed. R. Evid. Serv. 559 UNITED STATES of America, Appellee, v. Albert A. CORTELLESSO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ralph ALTIERI, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

John Tramonti, Jr., Providence, R.I., for appellants.

Robert J. Erickson, U. S. Dept. of Justice, Washington, D. C., with whom Paul F. Murray, U. S. Atty. and Edwin J. Gale, Sp. Atty., U. S. Dept. of Justice, Providence, R. I., were on brief, for appellee.

Before ALDRICH, CAMPBELL and BOWNES, Circuit Judges.

ALDRICH, Senior Circuit Judge.

After remand, following our decision in United States v. Cortellesso, 1 Cir., 1979, 601 F.2d 28, cert. denied, 444 U.S. 1072, 100 S.Ct. 1016, 62 L.Ed.2d 753, reversing the district court's order that suppressed the fruits of allegedly illegal searches, defendants Cortellesso, and Altieri, his son-in-law, were jointly convicted of conspiracy to receive, transport, possess, and conceal stolen property, 18 U.S.C. § 371 (Count I), and of receiving and concealing stolen property, 18 U.S.C. § 2315 (Count III), and defendant Cortellesso, alone, was convicted of possessing stolen goods in violation of 18 U.S.C. § 659 (Count II), and of removing evidence to prevent its seizure in violation of 18 U.S.C. § 2232 (Count IV). The property consisted principally of men's luxury clothing, Cortellesso being the proprietor of a men's clothing store in Providence, Rhode Island. Cortellesso received concurrent seven-year sentences on Counts II and III, to be served, and a consecutive sentence of one year, suspended, on Count IV, and was fined $10,000 on Count I and $5,000 on Count II. Altieri received a one-year suspended sentence.

Both defendants appeal. Cortellesso contends he was unconstitutionally denied counsel of his choice. 1 Altieri claims the evidence against him was insufficient to convict. Both argue that certain tape recordings were improperly admitted. Finding these contentions without merit, we affirm.

Cortellesso-Counsel

The basis for Count IV was that, following one of the searches and discovery of a large amount of allegedly stolen clothing in defendant Cortellesso's cellar, his attorney, a Mr. Jackvony, alleged orally agreed that defendant would not remove the clothing, and that it would remain there until the government arranged for proper storage that would protect it from injury. When the government agents returned two days later, the clothing was gone. Defendants' brief thrice flatly states, we can only think meretriciously, that Jackvony did make this agreement-including a statement that the government's "case closed with a stipulation that former defense counsel (Jackvony), a Government Attorney, and (F.B.I.) Agent Kennedy had all agreed that the goods would remain in the basement...." However, this is strikingly untrue. The only stipulation (which was read to the jury in lieu of his taking the stand) was to the effect that, if called to testify, Jackvony would testify to having made the agreement. The difference, of course, was that the government still had the burden of proving the fact. Even this stipulation was obtained only as a result of the court's ordering Jackvony's removal from the case as counsel for defendant (over defendant's unpardonably protracted objection by way of repeated motions for reconsideration), because of the government's need to use him as a witness. Cortellesso contends that Jackvony's removal was unnecessary, and hence a violation of his sixth amendment right to counsel of his choice.

If Jackvony were to remain in the case, there were two alternatives: that he be called as a witness, or that he not be called. Clearly, the first alternative would have been improper. The grand jury record, which Jackvony never disclaimed, showed that he would testify against his client on an issue fundamental to the government's case. This, as the court pointed out, would create an impossible situation, 2 the impropriety of which is well settled and requires no discussion. E.g., ABA Code of Professional Responsibility, DR 5-101(B); United States v. Crockett, 5 Cir., 1975, 506 F.2d 759, 761, cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40; In re Rappaport, 2 Cir., 1977, 558 F.2d 87, 90-91. While in oral argument defendant talked about his waiving any objection to Jackvony's dual and conflicting roles-not that we could recognize a waiver that would produce such a deformity-in the court below there was no suggestion of waiver, or of adopting such a procedure. Rather, the second alternative, only, was advanced, squarely and simply.

"THE COURT: Well, do you suggest that that means that because others who may have been involved in the conversation can testify to what in fact occurred during the conversation, that the Government can't call the witness who made the statements and, meaning no disrespect, get it directly from the horse's mouth?

"MR. JACKVONY: Yes, that is correct, your Honor. I say that if they can get it from other sources, that they cannot use me as a witness, and I say that ... (t)he agents are available, your Honor."

The government was not required to accede to this truncation of its evidence. We do not accept the dictum in United States v. Crockett, ante, 506 F.2d at 760, that the government must show that the evidence is "unobtainable from other sources," if it means that the government must settle for less than its best evidence. As the instant court pointed out, the government agents could be said to be vulnerable, as interested witnesses. Jackvony, on the other hand, from the government's standpoint was a clincher; defendant's only hope to win on this substantive issue would be to have him not testify. His absence would have two consequences. Not only would it weaken the government's case directly by a serious diminution of the total evidence, it would create a singular question in the jurors' minds-how was it that Jackvony, the most significant witness, had not testified? If the court explained that he could not testify because he was counsel, what inference, since he was defending the defendant against the charge and arguing that it was not to be believed, might the jury draw as to what he would have testified to if only he had been allowed the opportunity?

For the government, this would be a no-win situation; the defendant would have everything to gain, possibly including a most improper inference, and nothing to lose. "An accused's right to select his own counsel ... cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice." United States v. Bentvena, 2 Cir., 1963, 319 F.2d 916, 936, cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271; cf. Rolon Marxuach v. United States, 1 Cir., 1968, 398 F.2d 548, 551. It is inconceivable that defendant's right to a particular counsel should be permitted to impose these artificial disadvantages upon the government.

Nor does Cortellesso's position in any degree excite our sympathy; the court's ruling imposed a minimum hardship. In his brief, defendant states that the agreement issue was "a matter about...

To continue reading

Request your trial
31 cases
  • In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985
    • United States
    • U.S. District Court — Southern District of New York
    • March 11, 1985
    ...is entitled to the best evidence of criminal conduct, even if their investigation hampers defense counsel. United States v. Cortellesso, 663 F.2d 361, 363 (1st Cir.1981); United States v. Gomez, 584 F.Supp. 1185, 1188-89 (D.R.I.1984). Payden's fee arrangement with Goldberg, while probative ......
  • State v. Peeler, (SC 16380).
    • United States
    • Connecticut Supreme Court
    • August 19, 2003
    ...2d 40 (1975). Another circuit court of appeals has noted, however, that that statement in Crockett is dictum. United States v. Cortellesso, 663 F.2d 361, 363 (1st Cir. 1981). I believe that the approach taken by the United States Circuit Court of Appeals for the First Circuit is the more se......
  • State v. Peeler
    • United States
    • Connecticut Supreme Court
    • August 12, 2003
    ...2d 40 (1975). Another circuit court of appeals has noted, however, that that statement in Crockett is dictum. United States v. Cortellesso, 663 F.2d 361, 363 (1st Cir. 1981). I believe that the approach taken by the United States Circuit Court of Appeals for the First Circuit is the more se......
  • Com. v. Shraiar
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 6, 1986
    ...as both defense counsel and prosecution witness, where the attorney's testimony will prejudice the defendant. See United States v. Cortellesso, 663 F.2d 361 (1st Cir.1981); S.J.C. Rule 3:07, DR 5-102 (B), as amended, 382 Mass. 780 (1981). 4 A genuine conflict of interest arises whenever tri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT