U.S. v. Curcio

• Decision Date: 26 May 1982
• Docket Number: No. 1000,D,1000
• Citation: 680 F.2d 881
• Parties: UNITED STATES of America, Appellee, v. Francis CURCIO and Gus Curcio, Defendants-Appellants. ocket 82-1066.
• Court: U.S. Court of Appeals — Second Circuit

Page 881

680 F.2d 881

UNITED STATES of America, Appellee, v. Francis CURCIO and Gus Curcio, Defendants-Appellants.

No. 1000, Docket 82-1066.

United States Court of Appeals, Second Circuit.

Argued March 12, 1982.

Decided May 26, 1982.

Elaine S. Amendola, Bridgeport, Conn. (Jacob D. Zeldes, Zeldes, Needle & Cooper, P. C., Bridgeport, Conn., on the brief), for defendants-appellants.

Richard D. Gregorie (Strike Force Atty.), New Haven, Conn. (U. S. Dept. of Justice, Organized Crime & Racketeering Section, Alan H. Nevas, U. S. Atty., D. Conn., New Haven, Conn., on the brief), for appellee.

Before TIMBERS, KEARSE, and CARDAMONE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Francis Curcio and Gus Curcio, brothers, appeal from an order of the United States District Court for the District of Connecticut, T. F. Gilroy Daly, Judge, disqualifying their counsel in a pending criminal prosecution. Both Francis and Gus had retained Jacob D. Zeldes, Esq., and his firm, Zeldes, Needle & Cooper, P. C., to represent them. The court ruled that Zeldes and his firm could represent neither brother in the present case on the grounds that Zeldes's past, continuing, and proposed representation of each defendant presented Zeldes with conflicting interests and that neither defendant had made a knowing and intelligent waiver of his right to be represented by counsel free of any conflict of interest. Because we conclude that, in all the circumstances, the defendants were not given an adequate opportunity to make a knowing and intelligent waiver of their rights to conflict-free representation, we vacate the district court's order and remand the matter for further proceedings.

FACTS

The present prosecution was commenced on January 13, 1982, with the filing of a seven-count indictment charging Gus Curcio with five counts of making extortionate extensions of credit, in violation of 18 U.S.C. §§ 892 and 2 (1976); charging Francis Curcio with the same five counts, plus a sixth count, of making extortionate extensions of credit; and charging Francis, Gus, and three other persons (two of whom were also named in various substantive counts) with conspiracy to make extortionate extensions of credit in violation of § 892. The conspiracy count alleges that pursuant to the conspiracy Francis made such extensions of credit and directed Gus and the other defendants to make such extensions of credit.

Zeldes has represented each of the Curcio brothers in a series of criminal matters since 1969. He has defended Francis against charges of extortion, interstate travel in aid of racketeering, making false statements on a tax form, violating probation, and violating numerous Connecticut gambling laws. He has defended Gus against charges of gambling, sale and possession of marijuana, possession of LSD, interfering with a police officer, and murder. At the arraignment of the Curcios in the present action on January 28, Zeldes informed the court that he generally represented the Curcios and would probably represent them in the present matter, but he declined to enter a formal appearance until he had reviewed the possibility of a conflict of interest. The district judge directed the Curcios to return to court on February 5 for a determination of who would represent them.

On February 5 the government moved, pursuant to Fed.R.Crim.P. 44(c), ¹ to disqualify Zeldes "as attorney for Francis and/or Gus Curcio" on two grounds. First, the government contended that Zeldes's representation of both Curcios in the present case would present a conflict of interest because the indictment attributes a different role to Francis than to Gus, and the Curcios may have different defenses available to them. Second, the government contended that neither Curcio should be represented by Zeldes because Zeldes's continuing representation of both brothers on other criminal matters presented Zeldes with a conflict of interest here as to each. Zeldes's brief on behalf of the Curcios, filed minutes after the government filed its motion, argued that a criminal defendant has a right under the Sixth Amendment to the Constitution to be represented by counsel of his choice and that he may waive his right to separate representation.

The court immediately held a hearing in which it heard oral argument from attorneys for both sides and questioned the defendants. The hearing was conducted under unusual time constraints, for on February 5 Gus was appearing, with Zeldes nearby for consultation as needed, before a state grand jury in connection with a murder for which Gus was then under investigation. The hearing in the present case was accordingly held in less than one hour, during the luncheon recess of the grand jury.

After hearing from the attorneys, the court questioned Gus Curcio. Gus stated that he was a high school graduate and had attended college for half a semester, that he had previously been a defendant in a felony trial, that Zeldes had advised him of his right to separate and independent counsel, that he understood this right, that he was aware that the court would find counsel for him if necessary, and that he understood that the case might develop in an unanticipated way to make his interest "very adverse" to that of a codefendant. Gus stated that he nevertheless waived his right to conflict-free representation in order to be represented by Zeldes. He also stated that he would waive his attorney-client privilege with respect to any of his communications with Zeldes to the extent that Zeldes wished to use the information on behalf of Francis. The court then asked Gus if he understood the possible conflicts between his and Francis's interests in deciding at trial whether or how to cross-examine witnesses or in deciding whether he or Francis should testify. Gus indicated that he understood, but inquired if he might later be allowed to discharge Zeldes. The court explained that this would be permitted only if "it meant no delay at any time in the proceedings." Gus reaffirmed his waiver on that basis.

The court then examined Francis Curcio along similar lines. Francis stated that he had reached the final year of high school but had not completed it, that he understood his right to separate counsel, that he realized that the court would find counsel for him if necessary, that he knew that conflicts of interest might arise, particularly in the cross-examination of witnesses and the decision whether or not he or Gus should testify, and that he realized that it was impossible to predict with certainty what conflicts might arise. Francis stated that he nevertheless waived his right to an attorney who was free of all conflict in order to retain Zeldes. He also stated that he would waive his attorney-client privilege with respect to any of his communications with Zeldes to the extent that Zeldes wished to use the information on behalf of Gus.

At the conclusion of the hearing, the court orally granted the government's motion and ruled that Zeldes and his firm could represent neither defendant. The court read our previous decisions, e.g., Camera v. Fogg, 658 F.2d 80 (2d Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 981, 71 L.Ed.2d 117 (1981); United States v. DeFillipo, 590 F.2d 1228, 1237-38 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2844, 61 L.Ed.2d 288 (1979); United States v. Mari, 526 F.2d 117, 119-21 (2d Cir. 1975) (Oakes, J., concurring), cert. denied, 429 U.S. 941, 97 S.Ct. 359, 50 L.Ed.2d 311 (1976), as suggesting that "trial judges should not allow (an attorney to represent more than one defendant in a criminal case) except in extraordinary circumstances"; the court stated that it found no such circumstances in the present case. Transcript at 34. On February 8, the court filed a memorandum of decision holding that neither defendant had made a knowing and intelligent waiver of his rights; and, citing Camera, DeFillipo, Mari, and United States v. Carrigan, 543 F.2d 1053, 1057-58 (2d Cir. 1976) (Lumbard, J., concurring), it concluded that a knowing and intelligent waiver is rarely possible unless a conflict is outside the realm of reasonable foreseeability.

The appeal followed.

DISCUSSION

The appeal presents two sets of questions as to a criminal defendant's Sixth Amendment right to the effective assistance of counsel. First is the individual defendant's right to prefer representation by an attorney of his choosing over representation by any attorney of undivided loyalty-raising questions we have recently discussed in United States v. Cunningham, 672 F.2d 1064 (2d Cir. 1982), decided some two weeks after the district court's decision in the present case. The second matter, not raised by Cunningham, is the rights of two or more defendants to insist on being represented by the same counsel. In the circumstances of the present case, we conclude that the answers to both inquiries will depend on whether and to what extent Francis and Gus make knowing and intelligent decisions to waive the right to representation by an attorney of undivided loyalty.

A. Representation of Either Francis or Gus

In United States v. Cunningham, supra, we dealt with an attempt by the government to disqualify counsel for Cunningham on the ground that his long-time counsel, Michael Tigar, had once represented an associate of Cunningham who would be a witness for the government at Cunningham's trial. The witness had been a defendant in an aborted trial in a related case, in preparation for which he had been represented briefly by Tigar; the witness did not object to Tigar's continued representation of Cunningham and did not join in the government's disqualification motion. On the other hand, the witness did not waive his right to assert his attorney-client privilege with respect to his communications with Tigar. Cunningham, an experienced attorney and politician, maintained, after extensive questioning by the court, that he wished to be represented by Tigar despite Tigar's conflict of interest....