Cooper, In re, 87-1400

• Citation: 821 F.2d 833
• Decision Date: 09 June 1987
• Docket Number: No. 87-1400,87-1400
• Parties: In re Jonathan COOPER and Steven Lynn, Petitioners. Orig.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 833

821 F.2d 833

In re Jonathan COOPER and Steven Lynn, Petitioners.

No. 87-1400 Orig.

United States Court of Appeals First Circuit.

Submitted May 26, 1987.

Decided June 9, 1987.

Norman S. Zalkind, Kimberly Homan and Zalkind, Sheketoff, Homan & Rodriguez on petition for writ of mandamus for petitioner Jonathan Cooper.

John Wall, David Shaughnessy and Cullen & Wall on petition for writ of mandamus for petitioner Steven Lynn.

Kenneth P. Madden, Asst. U.S. Atty., and Lincoln C. Almond, U.S. Atty., on memorandum in support of opposition to writ of mandamus.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

PER CURIAM.

Petitioners seek a writ of mandamus compelling Judge Lagueux to disqualify himself from presiding over their criminal trial. Denials of motions to disqualify are reviewable via mandamus, In re United States, 666 F.2d 690, 694-695 (1st Cir.1981); In re Union Leader Corporation, 292 F.2d 381, 384 (1st Cir.1961), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961), and relief will be accorded when petitioners show a "clear and indisputable" right to the writ. In passing on such applications, we ask not whether this court would have decided as did the trial court, but whether the trial court decision "cannot be defended as a rational conclusion supported by a reasonable reading of the record." In re United States, 666 F.2d at 695.

We recount the background. Petitioners Cooper and Lynn have been indicted for drug offenses. A principal witness against them is Mitchell Fried, who has already been sentenced and has agreed to cooperate with the government. In January 1987, Cooper and Lynn moved to dismiss their indictments or, in the alternative, to bar Fried from testifying on the ground that Fried, first through Rhode Island counsel Walter Stone and then personally, offered to alter his testimony in exchange for payment. At the time the motion was filed, Lynn was represented by Andrew Good of the firm of Silverglate, Gertner, Baker, Fine & Good, and Cooper was represented by Norman Zalkind of a different firm. Affidavits from Good and Zalkind, which contained serious allegations of wrongdoing, accompanied the motion to dismiss.

Four days of evidentiary hearings, which to some extent pitted the credibility of Rhode Island Attorney Stone against that of Massachusetts Attorney Good and others, were held. We recount some of the evidence.

Good became counsel to Lynn in the fall of 1986. He arranged with Edward Gerstein, a Rhode Island attorney, to serve as Lynn's local counsel. Gerstein rented office space from Walter Stone, Fried's attorney, and Good asked Gerstein whether it could be arranged for defense counsel to interview Fried. Gerstein testified that he checked with Stone, and Stone, after checking with Fried, said Fried had agreed to an interview provided 1) Fried's attorney would be present, 2) Fried's attorneys' fees incurred as a result of the interview were paid, and 3) Fried could meet alone with Lynn first. Gerstein stated that Fried could be helpful to defendants, but did not know the particulars. Good objected to a private one on one meeting because, absent the meeting, he was not sure Fried would be able to identify Lynn and he did not want Lynn in a position where Fried would be able to testify that Lynn had made admissions or had solicited a bribe. Discussions ensued about various means to handle these matters (such as Fried and Lynn communicating through notes), but no resolution was reached and a dinner meeting was arranged.

On the evening of November 25, 1986, Good, Judith Mizner (a partner at Good's firm), Zalkind, Kimberly Homan (a partner at Zalkind's firm), and Stone met at a restaurant. According to Good, Stone told him that Fried could be a very good witness for the government as he had been at the last trial or he could come into court poorly dressed and be a very bad witness; that Fried was angry at Cooper and Lynn and felt they had been the conspiracy's undoing; that Fried was angry at the government because of the sentence he had received and felt he was the only one going to jail without any drug proceeds while more culpable people had gotten away; that Fried had made a photographic identification but if the private Fried-Lynn meeting worked out Fried could handle the identification and there would be no identification; that Fried would be a good government witness if the private meeting did not take place; and that Stone did not know and did not want to know what would take place at the private meeting.

Kimberly Homan (co-counsel along with Zalkind for Cooper) testified similarly concerning the dinner meeting: Stone had repeated the refrain several times that Fried could be very helpful to Cooper and Lynn or he could hurt them badly; it all depended on whether the meeting took place, and absent the private meeting, Fried would not authorize Stone to give any information. She added that in an earlier trial Fried had interchanged Cooper's and Lynn's first names and had indicated difficulty differentiating one from the other. Stone's reply to whether Fried still had that difficulty was, again, that it would depend on whether the meeting took place. Whether Fried hurt the government or the clients depended on the circumstances at the time of trial. Although at no time did Stone mention the word bribe or payoff, Homan understood the good witness/bad witness talk plus the discussion that Fried could be helpful if the private meeting took place to mean that Fried was prepared to alter his testimony.

Stone's account was as follows. He had talked to Fried and Fried had agreed to an interview provided that he could meet defendants face to face ahead of time and that any time Stone spent on the matter would be paid by defendants. Fried also told Stone that he had picked out one of the defendants in a photo array--Stone did not know whether it was Cooper or Lynn--and that the other one he had not been sure of because the picture was old. Stone did not want a private meeting to take place because he knew Fried was angry at Cooper and Lynn and Stone did not want physical violence. Stone told the lawyers at the dinner meeting there was no need for an interview since he (Stone) could give them the pertinent information, and he then recounted that Fried had had trouble with the photographic identification. The lawyers persisted in their request for a private interview and asked what Fried was like. Stone then described three different postures he had seen: 1) dressed like a typical drug dealer, 2) grubby and a horrible witness at a suppression hearing, and 3) well groomed, articulate, looking like a professor and making an excellent government witness at another conspirator's trial, which had taken place before Fried was sentenced. Now, Fried, due to report to jail soon, was angry at the government and angry at Cooper and Lynn, and Stone just did not know how he would be at trial or whether he would make an in court identification. At this point, he said, counsel started asking hypotheticals such as if there were no interview would Fried be a good witness and if there were an interview would he be a good witness. Stone said he never stated or implied Fried would repudiate an identification.

Believing that if a private meeting between Fried and Lynn were to take place, Fried would attempt extortion, defense counsel decided to try to catch Fried in the act. On December 1, 1986, Good called Stone and said he would really like to interview Fried and if the private meeting were a precondition to an interview, then Good was amenable and had advised Lynn what would and would not be proper at such a private meeting. Good then gave Stone a number in New York (in New York, unlike in Massachusetts, Lynn could lawfully record any conversation he had with Fried) where Lynn could be reached the next morning at 9:00 a.m. Stone relayed the number to Fried, but, according to Stone, advised him not to make the call. Fried made the call (which Lynn with the help of a private investigator recorded) and Fried and Lynn agreed to meet that evening at Logan airport. Immediately after Lynn described the clothing he would be wearing so that Fried could recognize him, Fried said "Why don't you pack a bag too?" a reference counsel interpreted to mean that Lynn should bring money for a pay off.

After the call, Good and Silverglate went to the United States Attorney's Office, explained what they thought was transpiring, and requested that Lynn be fitted with a recorder for the meeting. This was done, and Lynn and some agents proceeded to the airport. At the airport, Fried approached Lynn and handed him a pad of paper. According to Lynn, Fried wrote "I can help you or I can hurt you." Lynn asked Fried what he wanted, and Fried wrote "$250,000 plus five years interest." (These notes were not produced at the hearing. According to Lynn, Fried tore them up but retained the pieces.) Lynn asked if that were a real figure and Fried replied on the tape, "As far as I am concerned if your people in New York had done what they were supposed to do," a reference which could be construed to refer to the proceeds Fried believed himself entitled to had the drug conspiracy gone as planned. Lynn asked if 50 or 100 would be satisfactory, said he'd see what he could do, and asked Fried for a time and place. Fried was due to report to jail on December 4 and replied "same place at eleven o'clock tomorrow [December 3]."

Lynn was fitted out the next day again with a recording device and equipped with a brief case which he would represent as containing the money, but due to various delays in transcribing and reviewing the previous night's tape, he and the agents did not arrive at the airport until 11:20 or so. Fried was not then there (Fried reported to the government that he had been there at 11:00) and no meeting took place. Defendants felt the government was responsible for the delay in arriving at the...