U.S. v. Ostrer, No. 486

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore WATERMAN, GURFEIN and VAN GRAAFEILAND; VAN GRAAFEILAND
Citation597 F.2d 337
PartiesUNITED STATES of America, Appellee, v. Louis C. OSTRER, Defendant-Appellant. ocket 78-1318.
Docket NumberD,No. 486
Decision Date23 April 1979

Page 337

597 F.2d 337
UNITED STATES of America, Appellee,
v.
Louis C. OSTRER, Defendant-Appellant.
No. 486, Docket 78-1318.
United States Court of Appeals,
Second Circuit.
Argued Jan. 16, 1979.
Decided April 23, 1979.

Page 338

Alan M. Dershowitz, Cambridge, Mass. (Silverglate, Shapiro & Gertner, Boston, Mass., Harvey A. Silverglate and Ann Lambert Greenblatt, Boston, Mass., of counsel), for defendant-appellant.

Richard F. Ziegler, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. S. D. N. Y., Alan R. Naftalis and Howard W. Goldstein, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before WATERMAN, GURFEIN and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York disqualifying Michael B. Pollack, Esq., from representing appellant in a pending criminal prosecution. The ground for disqualification was that, while employed as a Government attorney,

Page 339

Pollack had participated in criminal investigations so related to the present action 1 that he now is in a position to use information obtained during those investigations to aid his present client. We affirm.

From 1970 to 1975, Pollack was employed by the Department of Justice as a special attorney assigned to the Brooklyn Strike Force. While he was serving as a federal prosecutor, Pollack's official duties brought him into contact with three persons whom the Government intends to call as witnesses at appellant's trial. Pollack personally prosecuted two of those men, Barresi and Geller, and called the third, Brown, as a witness at Geller's trial.

Pollack's prosecution of Barresi arose from Barresi's alleged extortionate activities as an officer of the union local from which appellant is charged with having embezzled.$2.3 million. Pollack prosecuted Geller for income tax evasion in connection with an alleged scheme to draw unearned money from a corporation in the form of salaries and deduct the withdrawals from the corporation's income as legitimate business expenses. 2 Geller and Brown owned check-cashing establishments in New York City. Brown had sold an establishment to Geller and frequently stopped by to help him learn the business. Pollack interviewed Brown and called him as a witness at Geller's trial. After the trial, Pollack had discussions with the New York County District Attorney's office concerning its investigation of illegal check-cashing operations, an investigation which extended to the businesses of Geller and Brown. Pollack arranged for federal agents under his supervision to review papers seized from Brown's establishment. They were also given access to evidence seized from Geller's place of business. 3

The Government intends to call both Geller and Brown to testify concerning transactions they had with appellant in connection with their check-cashing operations. Their testimony will be offered in support of the Government's claim that appellant attempted to avoid paying income taxes by using fictitious entities and false names to conceal his true financial status. The Government contends that Pollack's earlier supervision of the review of the documents seized from the check-cashing establishments of Geller and Brown revealed information to him about the matters concerning which Geller and Brown will be asked to testify. 4 The Government made no showing as to Barresi's anticipated testimony or the relationship between his alleged extortionate activities and the conduct forming the basis of the instant indictment, representing only that "Pollack's involvement as the prosecutor of (Barresi) doubtless provided information to him which perhaps could be of use to him when Barresi appears as a Government witness in the trial of this case."

This Court recently noted that disqualification motions should be granted

Page 340

where the attorney in question is potentially in a position to use privileged information...

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61 practice notes
  • Grand Jury Subpoena Served Upon Doe, In re, No. 638
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 13, 1984
    ...is not absolute. It "must give way when required by the fair and proper administration of justice." United States v. Ostrer, 597 F.2d 337, 341 (2 Cir.1979). While involuntary disqualification Page 251 of counsel may prevent an accused from retaining counsel of his choice, courts h......
  • Douglas v. United States, No. 82-1048.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • February 13, 1985
    ...Releford v. United States, 288 F.2d 298, 299-302 (9th Cir.1961). 32. E.g., Agosto, 675 F.2d at 971, 974-76; United States v. Ostrer, 597 F.2d 337, 341 (2d Cir.1979); United States v. Kitchin, 592 F.2d 900, 903-04 (5th Cir.), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979); Un......
  • United States v. Cain, Nos. 09–0707–cr (L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 31, 2012
    ...672 F.2d 1064, 1070 (2d Cir.1982). The right to counsel of one's choice “is not an absolute one,” however. United States v. Ostrer, 597 F.2d 337, 341 (2d Cir.1979). The Sixth Amendment also embraces a right to effective assistance of counsel, which includes the right to be represented by an......
  • US v. Zolp, Crim. A. No. 86-299.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 30, 1987
    ...advantage.'" Id. at 45, quoting United States v. Cunningham, 672 F.2d 1064, 1072 (2d Cir.1982) (quoting United States v. Ostrer, 597 F.2d 337, 339-40 (2d Cir.1979)). In the case at bar Berger, although in the shoes of a defendant, seeks to make use of matters known to him solely by vir......
  • Request a trial to view additional results
61 cases
  • Grand Jury Subpoena Served Upon Doe, In re, No. 638
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 13, 1984
    ...is not absolute. It "must give way when required by the fair and proper administration of justice." United States v. Ostrer, 597 F.2d 337, 341 (2 Cir.1979). While involuntary disqualification Page 251 of counsel may prevent an accused from retaining counsel of his choice, courts h......
  • Douglas v. United States, No. 82-1048.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • February 13, 1985
    ...Releford v. United States, 288 F.2d 298, 299-302 (9th Cir.1961). 32. E.g., Agosto, 675 F.2d at 971, 974-76; United States v. Ostrer, 597 F.2d 337, 341 (2d Cir.1979); United States v. Kitchin, 592 F.2d 900, 903-04 (5th Cir.), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979); Un......
  • United States v. Cain, Nos. 09–0707–cr (L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 31, 2012
    ...672 F.2d 1064, 1070 (2d Cir.1982). The right to counsel of one's choice “is not an absolute one,” however. United States v. Ostrer, 597 F.2d 337, 341 (2d Cir.1979). The Sixth Amendment also embraces a right to effective assistance of counsel, which includes the right to be represented by an......
  • US v. Zolp, Crim. A. No. 86-299.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 30, 1987
    ...advantage.'" Id. at 45, quoting United States v. Cunningham, 672 F.2d 1064, 1072 (2d Cir.1982) (quoting United States v. Ostrer, 597 F.2d 337, 339-40 (2d Cir.1979)). In the case at bar Berger, although in the shoes of a defendant, seeks to make use of matters known to him solely by vir......
  • Request a trial to view additional results

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