U.S. v. Caggiano
| Decision Date | 11 January 1982 |
| Docket Number | Nos. 81-5002,81-5022 and 81-5182,81-5021,s. 81-5002 |
| Citation | 660 F.2d 184 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Gabriel Robert CAGGIANO, Defendant-Appellee (81-5002). UNITED STATES of America, Plaintiff-Appellee, v. Raymond BASZNER (81-5021), Nigel Winfield (81-5022), Defendants-Appellants. Raymond BASZNER, Petitioner, v. UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF TENNESSEE, WESTERN DIVISION, AT MEMPHIS, (81-5182), Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert F. Collins, Boston, Mass., Walter Underhill, Jr., Edward G. Grogan, Kemper B. Durand, Rosenfield, Borod & Kremer, P.C., Memphis, Tenn., for defendants-appellants.
W. Hickman Ewing, Jr., U. S. Atty., Joe A. Dycus, Asst. U. S. Atty., Memphis, Tenn., Deborah Watson, Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Gabriel Caggiano, Winchester, Mass., pro se.
Before WEICK and KEITH, Circuit Judges, and PORTER, * U. S. District Judge.
The Government has appealed to this court under 28 U.S.C. § 1291 from an order of the district court granting the motion of the defendant Gabriel Robert Caggiano, filed in a 1977 criminal case to disqualify the entire United States Attorney's Office in Memphis, Tennessee, consisting of many lawyers because of an alleged appearance of a conflict of interest of only one of the Assistant United States Attorneys in said office. Defendants Baszner and Winfield have appealed to this court from an order of the district court denying their motion to disqualify the entire United States Attorney's Office in Memphis, Tennessee, because of an alleged conflict of interest of one of the assistants employed in the office and said defendants have also filed a petition in this court for a writ of mandamus to compel the district court to grant their motion to disqualify. By order of this court, all of the appeals which were timely filed, and the mandamus proceeding, were consolidated for argument and have been briefed and orally argued.
This is the second appeal in this unduly prolonged case which was first tried to a jury that was unable to agree upon a verdict and the court declared a mistrial. The defendants then filed a motion to dismiss the indictment claiming double jeopardy which motion was denied by the court. On appeal, we affirmed by order. United States v. Caggiano, 624 F.2d 1101 (6th Cir. 1980).
Appellee Caggiano, joined by Baszner and Winfield, contends that we have no jurisdiction to hear the government's appeal asserting that no final appealable order had been entered. Baszner and Winfield contend that the order denying their motion to disqualify is a final appealable order and in any event, we have jurisdiction in mandamus. In other words, while Baszner and Winfield are claiming that an order granting a motion to disqualify is not a final order as to the government, they assert that an order denying a motion to disqualify is final as to them.
For the foregoing reasons and those which follow, we hold that the order granting the motion to disqualify is final as to the government and it has the right to appeal under § 1291 and that we have no jurisdiction to hear the appeals of the defendants, other than Caggiano.
We are of the opinion that the district court erred in disqualifying the entire office of the United States Attorney and we therefore reverse.
On October 13, 1977, a federal grand jury sitting in the Western District of Tennessee, returned a multicount indictment charging Gabriel Caggiano, an attorney at law, (appellee in Case No. 81-5002), Raymond Baszner (appellant in Case No. 81-5021 and petitioner in Case No. 81-5182), and four other co-defendants with mail and wire fraud, interstate transportation of stolen and fraudulently obtained property, and conspiracy to commit these offenses. The indictment arose out of a complex series of transactions, the object of which was allegedly to defraud Elvis Presley out of a jet airplane or airplanes.
Following a number of pretrial motions filed by the defendants, the trial of Caggiano, Baszner, and a co-defendant commenced on August 21, 1978. 1 The case went to the jury on September 7, 1978, and on September 11, the jury announced that it had found Baszner not guilty on three counts but was hopelessly deadlocked on the remaining counts, as it also was on all counts relating to Caggiano. The co-defendant was found guilty on three counts and not guilty on all other counts. Upon request of Caggiano and Baszner, the district court declared a mistrial.
In November of 1978, a grand jury returned a superseding indictment which named, inter alia, Caggiano, Baszner, and Nigel Winfield (appellant in Case No. 81-5022) as defendants. Within the next nine months, defendants either individually or collectively filed a myriad of motions, including motions by Caggiano and Baszner to dismiss the indictment premised on a claim that retrial would place them twice in jeopardy for the same offense. 2 The latter motions were overruled, and an interlocutory appeal followed to this court with the result as before stated. They all operated to delay the criminal case which in 1981 is not yet ready for the second trial.
In May of 1980, while the appeals were pending, Mr. Phil Canale, Jr., Esq., accepted a position as an Assistant United States Attorney for the Western District of Tennessee. Mr. Canale, along with Mr. Edward Kizer, Esq., had represented Caggiano during the first trial and during the preliminary stages of his defense to the second indictment, though the extent to which Canale assisted in Caggiano's defense following the mistrial is not altogether clear and is the subject of some dispute.
By order of June 13, 1980, this court affirmed the district court's rulings on the motions to dismiss the indictments. 3 Shortly after receipt of the court's mandate, the district court, on October 15, 1980, scheduled trial of the case for January 5, 1981. On November 25, 1980, Baszner moved to disqualify the entire United States Attorney's Office for the District because of an alleged conflict of interest of one of its many attorneys. Caggiano joined in Baszner's motion on December 15, filing in addition a motion to dismiss for want of a Speedy Trial. Three days later, Winfield too moved to disqualify the United States Attorney's Office.
A hearing was held on the motions at which the district court considered the affidavits submitted by each of the defendants in support of their motions as well as affidavits submitted by the government in response. The hearing provided an opportunity for Caggiano and the other appellants, Baszner and Winfield, to offer evidence, but they offered only the affidavits. These affidavits provide in essence as follows:
Caggiano In an affidavit filed December 18, 1980, Caggiano states that he retained Canale in November of 1977. Canale had acted as lead counsel during the initial On March 18, 1980, while his interlocutory appeal was pending before this court, Caggiano states that he first learned of the possibility that Canale would accept employment in the United States Attorney's Office. He asserts that he had been assured Canale would continue to represent him regardless of any appointment to the United States Attorney's Office. By letter of May 14, 1980, Caggiano learned that the possibility had come to pass, that Canale had received an appointment and would be sworn in on May 16, 1980. In that letter, Canale informed Caggiano that Mr. Kizer would handle oral argument on the appeal, scheduled for June 4, 1980. 4 Nonetheless, it is alleged that Canale suggested that he might still be able to represent Caggiano in other aspects of the case.
trial and had assisted in formulation and preparation of the interlocutory appeal to this court on the double jeopardy issue. He states that as of August 20, 1979, he had paid Canale in excess of $25,000.
Canale, according to Caggiano's affidavit, accepted a $500 check on May 20, 1980, as payment for his services and expenses relative to the appeal. Further, on July 9, 1980, Caggiano sought, and was given, Canale's advice as to whether he should petition the Supreme Court for a writ of certiorari. It was not until October 28, 1980, that Canale told Caggiano during a telephone conversation that he no longer could represent him.
Baszner Baszner filed a single affidavit in support of his motion. In that affidavit, Baszner alleges that he and his attorney, Mr. Vincent Flynn, Esq., had met Mr. Canale and Mr. Kizer several times before and during the initial trial. As a result of those meetings, Canale had become privy to confidential information and strategy relating to his defense. 5 Further, Baszner alleges, Canale had represented him during the final stages of the initial trial. Specifically, Canale on behalf of Caggiano and Baszner, had joined in a motion for a mistrial and renewed an earlier motion for a judgment of acquittal when Baszner's attorney was absent during jury deliberations on September 8 and 11, 1978.
Winfield Winfield's motion was supported by the affidavit of his attorney, Mr. Robert F. Collins. Mr. Collins, according to his affidavit, met Canale at various times in the months prior to Canale's appointment and "(d)uring these meetings, various defense tactics and strategy were discussed, evidence was considered and discussed and exchanged between us as counsel for the co-defendants in this cause, and ... (Canale) has material knowledge relative to the defense of (Winfield)."
The government The government responded to the defendants' supporting affidavits with six affidavits of its own: two by Mr. Michael Cody, United States Attorney for the Western District of Tennessee; two by Mr. Joe Dycus, an Assistant United States Attorney who had represented the government during the first...
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