U.S. v. James

Decision Date03 May 1983
Docket NumberD,Nos. 1072,1073,s. 1072
PartiesUNITED STATES of America, Appellee, v. Frank JAMES and Wallace Rice, Defendants-Appellants. ockets 83-1026-83-1027.
CourtU.S. Court of Appeals — Second Circuit

Philip Le B. Douglas, Asst. U.S. Atty., New York City (John S. Martin, Jr., U.S. Atty., S.D.N.Y., Roanne L. Mann, Asst. U.S. Atty., New York City, on brief), for appellee.

J. Jeffrey Weisenfeld, New York City (Goldberger, Feldman, Dubin & Weisenfeld, P.C., New York City, on brief), for defendants-appellants.

Before KEARSE, PIERCE and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Frank James and Wallace Rice appeal from an order of the United States District Court for the Southern District of New York, 555 F.Supp. 794, Dudley B. Bonsal, Judge, disqualifying their attorneys in a pending criminal prosecution. The four-count indictment charges James and Rice principally with possession of narcotics and diluents, in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A), and 844 (1976), and with conspiracy to distribute and possess with intent to distribute narcotics, in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(A). When the defendants made known their intention to call as a trial witness one Leroy "Nicky" Barnes in support of a defense of entrapment, the government, joined by Barnes, moved to disqualify defendants' attorneys and their firm on the ground that they had previously acted as attorneys for Barnes and had been partners of Barnes's principal attorney with respect to related matters. The district court granted the motion. We affirm.

I. BACKGROUND

The underlying facts do not seem to be in dispute. In 1978, Barnes was convicted after a ten-week trial in 1977 with more than a dozen codefendants (hereinafter "1977 Barnes trial"), of several violations of the narcotics laws, including engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848 (1976). His conviction, for which he received a sentence of, inter alia, life imprisonment without possibility of parole, was affirmed in part on the basis of evidence that Barnes was an organizer and boss of a large narcotics organization. United States v. Barnes, 604 F.2d 121, 155-58 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Defendants James and Rice are allegedly long-time and close associates of Barnes in the narcotics business. They were not defendants in the trial that led to Barnes's 1978 conviction.

A. The Law Firms

James and Rice are currently represented by the firm of Goldberger, Feldman, Dubin & Weisenfeld, P.C. (the "Goldberger firm"), whose partners are Paul A. Goldberger, Jerry Feldman, Lawrence Dubin, and J. Jeffrey Weisenfeld. In particular, Goldberger has appeared on behalf of James; Weisenfeld originally appeared on behalf of Rice, but has been replaced by Feldman as Rice's planned trial counsel.

Until nearly the end of 1977, Goldberger and Feldman were partners of David Breitbart in a three-man law firm called Goldberger, Feldman & Breitbart (the "Breitbart firm"). In December 1977, at the end of the 1977 Barnes trial, the Breitbart firm was dissolved and Goldberger and Feldman formed a new firm.

B. Prior Representation of Barnes by Goldberger, Feldman & Breitbart

From the early 1970's until December 1977, Barnes was represented in a number of criminal proceedings, state and federal, by the Breitbart firm. He was represented in court principally by Breitbart. From time to time, however, Goldberger and/or Feldman also were present and conferred with Breitbart about Barnes's cases. Goldberger also represented Barnes at certain state court bail hearings and made arguments on his behalf. Feldman as well may have argued certain legal questions on Barnes's behalf in state court proceedings. In addition, in connection with one state court trial, Weisenfeld was often present in court and argued some legal questions on behalf of Barnes.

At the 1977 Barnes trial, Breitbart represented Barnes, and Goldberger and Feldman represented codefendants of Barnes. During the trial, Goldberger and Feldman conferred with Breitbart and Barnes; in addition, counsel for the various defendants collaborated on strategy and filed joint motions on behalf of all defendants. When the Breitbart firm was dissolved in December 1977 at the end of this trial, Goldberger and Feldman ceased to have any role in the representation of Barnes.

C. The Motion To Disqualify

Sometime in 1981 or 1982, Barnes began cooperating with the government. Based at least in part on information furnished by Barnes, the present prosecution was commenced against James and Rice in October 1982. In December, defendants informed the government that they intended to call Barnes as a witness at trial in order to establish a defense of entrapment. The government quickly moved to disqualify Messrs. Goldberger and Feldman and their law firm from representing the defendants, supporting its motion with affidavits setting forth, inter alia, the above facts as to the attorneys' past representation of Barnes. Barnes joined the motion. 1

In response to the motion, Goldberger and Feldman conceded most of the facts alleged by the government, including all of those discussed above. They argued, however, that they should not be disqualified because they had received no privileged communications from Barnes, except with respect to particular cases in which they had participated; because Barnes had waived any attorney-client privilege by cooperating with the government; and because even if there had been no waiver by Barnes, their continued representation of James and Rice would not interfere with Barnes's privilege. They pointed out that the present prosecution alleges wrongdoing in 1982 and not earlier, and that their contact with Barnes ended in December 1977 with the breakup of the Breitbart firm. Hence, they argued, they would be unable to use any information learned in confidence from Barnes in establishing that the 1982 acts were induced by the government. They also pointed out that Messrs. Goldberger and Feldman had represented James and Rice for some ten years, first as members of the Breitbart firm and then as members of their present firm, and that it would be a hardship for the defendants to change counsel.

In support of the need for disqualification to preserve Barnes's privilege, the government argued that the time periods were not so easily compartmentalized. It suggested that the entrapment defense was likely to elicit facts as to the longstanding relationship between Barnes and the defendants. Further, it observed that if the defendants sought to establish entrapment, the government would be entitled to prove James's and Rice's predisposition to commit the offenses charged. It anticipated that its proof of predisposition would draw heavily on the roles of James and Rice in Barnes's narcotics organization, thus creating a substantial relationship between issues in the present action and matters at issue in the prior representation of Barnes by the Breitbart firm. 2

Goldberger and Feldman rejected the possibility that they might agree to restrict their questioning of Barnes to matters of public record. They suggested that they could "do[ ] away with any risk of exploitation" of Barnes's rights by "agree[ing] to limit all questioning about Barnes' activities which relate to the period of time that the 'Breitbart' firm represented Barnes, to questions formulated from matters of public record or from a source independent of Barnes or any conversations had with him." (Letter dated January 6, 1983, to Judge Bonsal from Goldberger and Feldman ("Defendants' January 6 letter").)

D. Ruling of the District Court

In an order dated January 9, 1983 ("January Order"), the district court granted the motion. The court noted that Barnes himself had joined in the motion, and it ruled that his cooperation with the government could not be deemed a waiver of his attorney-client privilege.

The court found that the past association of Goldberger and Feldman with Barnes was neither brief, nor isolated, nor sterile. "Rather, they and their partner Breitbart regularly represented Barnes in connection with a variety of criminal charges brought against him in both federal and state courts," id. at 8; Goldberger and Feldman "aided in the defense of Barnes on several occasions," id. at 10, and hence were "clearly" in a position to receive confidential information, id. The court rejected the arguments of Goldberger and Feldman that their exposure to Barnes was limited because Breitbart was Barnes's principal attorney, finding instead that Goldberger and Feldman had "very likely" discussed Barnes's matters with Breitbart. Id.

The court indicated that there was a significant possibility that Goldberger and Feldman could exploit their prior confidential relationship with Barnes in questioning him, see id. at 8, stating that it was

satisfied that the relationship between the Barnes matters and the present case is substantial. Most of the charges brought against Barnes in the past concerned violations of the narcotics laws, the focus of the indictments in this case. Both James and Rice apparently were associated with Barnes' organization during the period when the Breitbart firm represented Barnes, making it likely that information acquired by Goldberger or Feldman from Barnes will bear directly on the use of an entrapment defense at trial.

Id. at 10. The court considered the offer of Goldberger and Feldman to limit their examination of Barnes to " 'questions formulated from matters of public record or from a source independent of Barnes or any conversations had with him,' " id. at 11 (quoting Defendants' January 6 letter), but concluded that Barnes's rights could not be adequately safeguarded, id. at 9.

Accordingly, while mindful of a criminal defendant's Sixth Amendment interest in being...

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