U.S. v. Cunningham
| Decision Date | 18 February 1982 |
| Docket Number | 701,D,Nos. 690,s. 690 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Patrick J. CUNNINGHAM and John J. Sweeney, Defendants-Appellants. ockets 81-1455, 81-1457. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel J. Buffone, Washington, D. C. (Michael E. Tigar, Linda Huber, Tigar, Buffone & Doyle, P. C., Washington, D. C., on the brief), for defendant-appellant Cunningham.
John J. Sweeney, pro se.
Michael Kennedy, New York City (Sheryl E. Reich, Michael Kennedy, P. C., New York City, on the brief), for defendant-appellant Sweeney.
John S. Martin, Jr., U. S. Atty., S. D. N. Y., New York City (Gerald E. Lynch, Robert S. Litt, Asst. U. S. Attys., New York City, on the brief), for plaintiff-appellee.
Before MESKILL and KEARSE, Circuit Judges, and METZNER, District Judge. *
Defendants Patrick J. Cunningham and John J. Sweeney appeal from an order of the United States District Court for the Southern District of New York, Charles L.
Brieant, Judge, disqualifying their respective attorneys in a pending criminal prosecution. 1 The court disqualified Cunningham's counsel, Michael E. Tigar, from any further representation of Cunningham in connection with the present case on the ground that Tigar's previous representation of John Spain, an unindicted coconspirator whom the government plans to call as a witness, created a conflict of interest for Tigar. The court disqualified Sweeney's counsel, Michael Kennedy, from appearing as trial counsel in the present case on the ground that he ought to be a witness at the trial to explain the expected testimony of Gay McCreery, whom the government plans to call as a witness. Because we conclude that, in all the circumstances, Cunningham's interest as a criminal defendant in being represented in this matter by counsel of his own choice outweighs the government's interest in disqualifying Tigar, we reverse the district court's order with respect to Cunningham. Because we conclude that Sweeney's interest as a criminal defendant in being represented at trial by counsel of his own choice should be protected if McCreery's testimony is not admissible into evidence, thereby eliminating any need for Kennedy to be a witness, we vacate the district court's order with respect to Sweeney and remand for further proceedings to determine whether McCreery's testimony will be admissible
The present prosecution was commenced on July 1, 1981, with the filing of an indictment charging Cunningham and Sweeney, who are lawyers and members of the New York City law firm Sweeney, Cunningham & Krieg, P.C., with inter alia, conspiring between 1972 and 1981 to evade the income tax laws, to obstruct various criminal and grand jury investigations, and to impede the prosecution of an alleged coconspirator. In particular, Cunningham is charged with conspiracy, income tax evasion, filing of false tax returns, perjury, false statements, and obstruction of justice, in violation of 18 U.S.C. §§ 371, 1001, 1510, 1623, and 2 (1976), and 26 U.S.C. §§ 7201 and 7206(1) (1976). Sweeney is charged with conspiracy, perjury, and making false statements, in violation of 18 U.S.C. §§ 371, 1623, and 1001.
The investigation that led to the indictment was begun some six years before by the Internal Revenue Service ("IRS"), focusing on Cunningham's tax liability. At the time, Cunningham, who had long been active in Democratic Party politics, serving at various times as Chairman of the Bronx Democratic County Committee, Chairman of the New York State Democratic Committee, and a member of the Democratic National Committee, was the subject of a criminal investigation by New York Special Prosecutor Maurice Nadjari. From the outset of the IRS investigation, Cunningham was represented by Tigar, who represented him also in the Nadjari investigation and related litigation. 2 The IRS investigators sought a substantial amount of information relating to the defendants' law firm and requested, inter alia, the production of numerous firm documents. During at least part of this time defendants assert that their firm was represented by Kennedy. Kennedy apparently undertook representation of Sweeney individually in mid-1980.
Shortly after the present indictment was filed, Tigar and Kennedy entered their appearances for Cunningham and Sweeney, respectively. Thereafter the government moved to disqualify both Tigar and Kennedy on the basis of events that occurred during the investigation that led to the indictment. The events involved John
Spain, a friend and political associate of Cunningham.
In January 1978, Spain was interviewed by IRS agents about certain payments he allegedly had made to Cunningham. Spain apparently told the IRS at that time that he had paid Cunningham $2000 in cash for legal services in 1975. 3 In June 1980, however, Spain testified to a grand jury that he had not made such a statement to the IRS. As a result Spain was indicted for perjury before the grand jury in violation of 18 U.S.C. § 1623. After his indictment, Spain sought to retain Tigar to defend him. Tigar informed Spain that he would be unable to represent Spain at trial, since he already represented Cunningham. Tigar suggested that Spain instead retain another lawyer, Gustave Newman, but offered to assist in Spain's defense. Tigar was paid a $5000 retainer and met with Spain on at least three occasions thereafter; he arranged for Spain to be examined by a psychiatrist (who later testified at Spain's trial that Spain suffered from an impaired memory), and helped prepare pretrial motions. Newman, however, was responsible for the conduct of Spain's case and completed the trial preparation without Tigar's assistance. Newman represented Spain at trial, and Tigar's role apparently ended before trial.
Spain was brought to trial on the perjury charge in February 1981, and Kennedy was to figure behind the scenes of a hearing held in connection with that trial. At the trial, Marie Falco, Cunningham's secretary at Sweeney, Cunningham & Krieg, P. C., testified for Spain. She stated that in January 1978 Spain had reported to her the substance of his IRS interview, that at that time he said he had denied to the IRS that he had paid Cunningham $2000 in cash, and that she had prepared a memorandum to record this contemporaneous report. Falco produced such a memorandum, dated January 25, 1978, and it was admitted into evidence. The government, however, suspecting that Falco's testimony and the memorandum had been fabricated by Cunningham and Falco, obtained a court order on February 12 requiring Sweeney, Cunningham & Kreig, P. C., to produce the typewriter on which Falco claimed to have typed the memorandum. Later that day the firm produced the typewriter, which was equipped with a virtually new ribbon. Since it was possible that the predecessor ribbon might have revealed that the Falco memorandum had been typed recently rather than three years before, as claimed, a separate hearing was held on February 13-19 to determine whether anyone had tampered with the typewriter before it was produced.
At the hearing, Gay McCreery, a receptionist at Sweeney, Cunningham & Kreig, P. C., testified on February 17 that the typewriter was generally located at her desk, but that it was rarely used. She stated that the ribbon had been changed a month before in connection with a servicing of the machine, and that since then she had used the machine only to type a short memorandum and to address a number of envelopes for Cunningham on February 12. The government responded that afternoon, February 17, by obtaining a subpoena directing the firm to produce these envelopes; McCreery returned on February 18, however, to testify that she had been unable to locate them. On February 19, Cunningham testified that on February 16, i.e., the day before the subpoena was served, he no longer needed the envelopes, and that he therefore had thrown them into a garbage can outside his building. The hearing ended inconclusively; no findings of fact were made.
The Spain trial ended in a mistrial when the jury was unable to agree on a verdict. When the government announced its intention to retry Spain, he agreed to plead guilty to criminal contempt, a lesser offense, and to testify against Cunningham. Thereafter, McCreery testified before the grand jury about a conversation she had had with Kennedy before her testimony at the hearing on February 18. She told the grand jury:
Mr. Kennedy told me that I would probably be questioned about the envelopes. I was not to worry about the envelopes, the envelopes were safe. The envelopes are his responsibility they were not my responsibility. He then said that the government had not been helpful to them, and if the government wanted the envelopes they would have to find them.
In support of its motion to disqualify Tigar from representing Cunningham in the present action, the government stated that it would call Spain as a witness at trial. It expected Spain to testify that, at Cunningham's request, he had lied to the IRS agents, and that thereafter he had lied to the grand jury about his statements to the IRS. (See note 3 supra.) Since Tigar had represented Spain in the early stages of the prosecution of Spain for perjury, the government contended that that prior representation would prevent Tigar from vigorously cross-examining Spain in Cunningham's behalf. The government argued that Cunningham had the right to be represented by counsel free of any conflict of interest and that this was a right that Cunningham could not waive. It also argued that Tigar's continued representation of Cunningham would create an appearance of professional impropriety.
Spain himself did not move to disqualify Tigar from representing Cunningham. At the...
To continue reading
Request your trial
-
Douglas v. United States
...be overridden in certain limited situations. See id.; United States v. Shepard, 675 F.2d 977, 980 (8th Cir.1982); United States v. Cunningham, 672 F.2d 1064, 1070 (2d Cir.1982). Nonetheless, two types of restrictions substantially limit a trial court's discretion to disqualify a defendant's......
-
US v. Gotti, No. CR-90-1051.
...F.2d 856, 870 (5th Cir.1978), "doctors and lawyers have been known to commit crimes." The defendants' reliance upon United States v. Cunningham, 672 F.2d 1064 (2d Cir.1982) and United States v. Castellano, 610 F.Supp. 1137 (S.D.N.Y.1985) as validating their request for a hearing is misplace......
-
Grand Jury Subpoena Served Upon Doe, In re
... ... We have before us for en banc reconsideration an appeal from an order entered October 22, 1984 in the Eastern District of New York, Eugene H. Nickerson, District ... Cunningham, 672 F.2d 1064, 1070 (2 Cir.1982), cert. denied, 466 U.S. 951 (1984), and "where the inability of retained counsel to serve gives promise of ... ...
-
State v. Williams
...to waive the right to conflict-free representation. See United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir.1986); United States v. Cunningham, 672 F.2d 1064, 1069 (2d Cir.1982). In view of the defendant's repeated assurances that he understood what he was doing and wished to proceed with tri......
-
Court Upholds GE's Attorney-Client Privilege Amidst Government Challenge
...of Erie, 473 F.3d 413, 419 (2d Cir. 2007). 41 IRC Section 7525(a)(1). 42 2015 WL 5443479 at *2. 43 See, United States v. Cunningham, 672 F.2d 1064 (2d. Cir. 44 Id. 45 Id. 46 D. Conn. L. Civ. R. 26(c)(4). 47 2015 WL 5443479 *2. 48 Id. The content of this article is intended to provide a gene......
-
Work-product and Attorney-client Privileges in Colorado
...(E.D.Pa. 1979). 12. Penk v. Oregon State Board of Higher Education, 99 F.R.D. 511, 514--15 (D.Ore. 1983). See also, U.S. v. Cunningham, 672 F.2d 1064, 1073, n.8 (2d Cir. 1980) (attorney-client privilege does not protect underlying facts). 13. Dixon v. Cappellini, 88 F.R.D. 1, 3 (M.D.Pa. 198......