U.S. v. Leslie
| Decision Date | 08 January 1997 |
| Docket Number | No. 3652,D,3652 |
| Citation | 103 F.3d 1093 |
| Parties | UNITED STATES of America, Appellee, v. Peter LESLIE and Roland Williams, Appellants. ockets 95-1679, 96-1022. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles Lavine, Forest Hills, NY, for Appellant Peter Leslie.
Michael Hurwitz, Hurwitz, Stampur & Roth, New York City, for Appellant Roland Williams.
Maria L. Zanfini, Assistant United States Attorney, Southern District of New York, New York City, for Appellee.
Before: FEINBERG, CARDAMONE, and McLAUGHLIN, Circuit Judges.
BACKGROUND
Peter Leslie and Roland Williams were tried together in the Southern District of New York. (Duffy, Kevin T. Judge ). The jury convicted Leslie of one count of conspiracy to launder drug money in violation of 18 U.S.C. § 1956(h), one count of laundering $750,000 of drug money in violation of 18 U.S.C. § 1956(a)(3)(B), and one count of laundering $20,000 of drug money in violation of 18 U.S.C. § 1956(a)(3)(B). The jury deadlocked as to Williams. Upon retrial, a second jury convicted Williams of one count of conspiracy to launder drug money in violation of 18 U.S.C. § 1956(h), and one count of laundering $750,000 of drug money in violation of 18 U.S.C. § 1956(a)(3)(B). Judge Duffy sentenced both to 86 months' imprisonment. They appeal.
At the first trial, the government established that Leslie and Williams conspired to launder drug money, and then laundered the drug money through Williams's real estate business. Undercover FBI agents, working with a confidential informant ("CI"), spoke with Leslie in numerous recorded conversations. In these conversations Leslie, the CI and the agents discussed the inner workings of several illegal financial transactions.
On October 19, 1993, Leslie met with the CI and undercover FBI Agent Maniquis to discuss laundering drug money through a real estate business owned by Leslie's business associates.
The three met again in November for further discussion. The agent arranged to give Leslie a significant amount of supposed drug money and to take back checks drawn on the real estate business's bank accounts. In May, 1994, Leslie told the agent that his "real estate guys" were worried that the deal might be a setup. To insulate his associates, Leslie drew up a "loan agreement"--a document the real estate business could use to mask the transaction as a legitimate business deal in case of an audit--and gave it to the undercover agent for his signature.
After further discussion, Leslie told the agents that his real estate associates were still uneasy. He devised a small "test" transaction, to calm their jitters: Leslie accepted $20,000 in drug cash in exchange for checks drawn on the bank account of his corporation, Fort Securities Funding, at the First Bank of the Americas.
In July, Leslie informed the agents that his real estate associates were mollified and were now ready to go through with the larger, $750,000 deal. He told the agents that Leslie, Williams, and the agents met on a Manhattan street to make the cash-for-checks exchange. One agent said to Williams that the situation had to be "cool," and that "its like powder type money, so you can't be like bringing this over the border." While Leslie and Williams sat in their parked car, agents drove up in a separate car with the drug cash in a brown paper bag in the trunk. Williams and Leslie got out to inspect the money, and, again, Maniquis warned Williams that "there's a lot of powder in there from coke and everything, so you can't be bringing it over the border." When Williams reached for the bag of money in the trunk, the agents arrested both Leslie and Williams.
his partner in the venture was Roland Williams, and that Williams's company would furnish the checks for the laundering scheme. Leslie gave the agents a copy of another "loan agreement," this one bearing Williams's signature. Attached to the loan agreement were photocopies of checks signed by Williams from the account of his business, Realty Dealers, Inc., at the Carver Federal Savings Bank in Roosevelt, Long Island.
After his arrest, Williams explained to the agents that he thought the deal was legitimate. He claimed to be trying to get financing to buy some property and that Leslie had told him about a source of money from whom he could borrow cash. Although he admitted that Leslie's proposal sounded "shaky," he claimed he went to a DEA office in Garden City, and spoke to two agents by the names of Accaro and Melendez, and asked them to check on the people involved in the transaction. He further claimed that the DEA advised him that there was no information on these persons. At trial, the government called a DEA agent from Melville, New York who testified that, not only were there no DEA agents named Accaro or Melendez, there was not even a DEA office in Garden City.
Before trial, Leslie was represented by Bertram Brown. At a pre-trial conference in March, 1995, Leslie asked the court to relieve Brown and assign Frederick Hayes as his attorney. Understandably, Judge Duffy did not want to postpone the April 3rd date for the beginning of trial. Mr. Hayes informed Judge Duffy that he was willing to go forward despite the time crunch.
During the conference, Brown advised Judge Duffy that Hayes might have a conflict of interest: Hayes had once represented Williams in an unrelated criminal investigation a year before. (Hayes had counselled Williams during an FBI investigation of Williams's attempt to purchase the Freedom National Bank in New York.) Williams's attorney explained to Judge Duffy that Williams was prepared to waive any conflict that might arise if Hayes were to represent Leslie. While both Hayes and Leslie were present during this colloquy, neither said anything about a conflict of interest. The court did not conduct a hearing to determine if Leslie waived any conflict. Williams never testified at trial, and there was no mention of the Freedom National Bank.
At trial, Hayes complained that, despite his earlier representation that he was ready to try the case, he did not have enough time to review some discovery materials. In addition, in attempting to establish an entrapment defense for Leslie, Hayes asked an FBI agent on cross-examination whether Leslie had ever been investigated for money laundering in the past. The strategy backfired when the agent said yes. Hayes also failed to object or move for a severance when an agent testified to Williams's post-arrest statement implicating Leslie.
The jury convicted Leslie but deadlocked on Williams. After trial, Leslie asked the court to replace Hayes as his counsel. Judge Duffy appointed Charles Lavine, who moved for a new trial based on both Hayes's ineffective assistance, and Hayes's conflict of interest arising from his prior representation of Williams.
Judge Duffy denied the new trial, reasoning that Williams's waiver of any conflict at the pre-trial hearing constituted a waiver of the attorney-client privilege between Hayes and Williams, and with the privilege thus
eliminated, Hayes no longer had a conflict because he would have been free to cross-examine Williams on anything relevant. Judge Duffy also ruled that Hayes's representation was not ineffective.
On retrial, the government produced the same evidence, and Williams raised the same defenses. Williams called two witnesses: John Billeris, his real estate broker, and Richard Longworth, his real estate attorney. In an effort to prove that Williams thought the transaction was legitimate, both testified that Williams had been trying to get loans to purchase a piece of property.
During the government's cross-examination, however, Judge Duffy interjected and asked Billeris, the broker, if he had ever seen a closing occur in a car in the middle of the street. Billeris said he had not. Judge Duffy asked Longworth, the lawyer, if he had ever been to a closing in a car in the street. Longworth answered no, but that it was possible. Then Judge Duffy asked him if he had ever seen a closing in which $750,000 in a brown paper bag was part of the transaction. Longworth said no.
At the close of the evidence, Williams moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal because of the government's failure to prove the interstate commerce element of the money laundering statute. Judge Duffy permitted the government to reopen its case to call a witness from the Carver Federal Savings Bank to testify that Carver participated in interstate transactions and that its accounts were insured by the federal government.
Leslie argues that his trial attorney, Hayes, had a conflict of interest because of his prior representation of Williams. He argues that the court's failure to conduct a Curcio hearing, United States v. Curcio, 680 F.2d 881 (2d Cir.1982), to obtain a waiver of the conflict violated his Sixth Amendment right to counsel.
Under the Sixth Amendment, counsel is deemed ineffective if he had either: "(1) a potential conflict of interest that resulted in prejudice to the defendant, or (2) an actual conflict of interest that adversely affected the attorney's performance." United States v. Levy, 25 F.3d 146, 152 (2d Cir.1994). There is an actual conflict when the attorney's and the defendant's interests diverge on a material fact or a legal issue, Winkler v. Keane, 7 F.3d 304, 307 (2d Cir.1993), or when the attorney's current representation is impaired by the loyalty he owes a former client, United States v. Malpiedi, 62 F.3d 465, 469 (2d Cir.1995).
When the court learns of a possible conflict, it must explore the problem. Levy, 25 F.3d at 153. If that inquiry reveals an actual or potential conflict, the court has a "disqualification/wai...
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