U.S. v. Perez

• Decision Date: 04 April 2003
• Docket Number: Docket No. 02-1240.
• Citation: 325 F.3d 115
• Parties: UNITED STATES of America, Appellee, v. Guillermo Aliro PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

325 F.3d 115

UNITED STATES of America, Appellee, v. Guillermo Aliro PEREZ, Defendant-Appellant.

Docket No. 02-1240.

United States Court of Appeals, Second Circuit.

Argued: December 13, 2002.

Decided: April 4, 2003.

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Steven L. D'Alessandro, Special Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Jo Ann M. Navickas, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

Victor Toribio, New York, New York, for Defendant-Appellant.

Before: KEARSE, SACK, and RAGGI, Circuit Judges.

KEARSE, Circuit Judge.

Defendant Guillermo Aliro Perez appeals from a final judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Edward R. Korman, Chief Judge, convicting him of failing to file a currency report, in violation of 31 U.S.C. § 5316(b), and making a false statement to the government, in violation of 18 U.S.C. § 1001(a)(2), and sentencing him principally to 24 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, Perez contends principally (1) that he was denied the effective assistance of counsel because his attorney, who had also been his employer, (a) was a potential witness at trial, and (b) was representing another person who had been charged with a similar offense; and (2) that the trial court erred in allowing Perez to be cross-examined with respect to that other person's conduct. For the reasons that follow, we find no merit in any of Perez's contentions, and we affirm the judgment.

I. BACKGROUND

On September 27, 2000, at John F. Kennedy International Airport ("JFK"), as Perez prepared to board a flight to the Dominican Republic, a customs inspector advised him of the federal requirement that he file a report if he was about to transport from the United States monetary instruments totaling more than $10,000 ("currency report"), see 31 U.S.C. § 5316. Perez proceeded to sign a form declaring that he was carrying a total of $830. A routine X-ray examination of his luggage, however, showed that one bag contained five aerosol cans, and closer inspection revealed that the cans contained United States currency totaling $210,000. In all, Perez was found to be in possession of approximately $211,335. He was arrested for violating the currency report requirement and was eventually indicted on that charge and on one count of making a false statement to the government, in violation of 18 U.S.C. § 1001(a)(2).

From early September 2000 until the time of his arrest, Perez was employed as a paralegal by Ramon W. Pagan, Esq. After his arrest, Perez was represented in the present criminal proceeding by Pagan. At that time, Pagan was also representing one Andres Almonte. On September 19, 2000, eight days prior to Perez's arrest, Almonte had been arrested at JFK as he prepared to board a flight to the Dominican Republic and was charged with having failed to file an accurate currency report; he was carrying some $211,772 in his luggage, secreted in six aerosol cans.

This opinion principally addresses Perez's contention that he was denied the effective assistance of counsel because Pagan represented both Perez and Almonte and because Pagan was a potential witness at Perez's trial.

A. The First Curcio Inquiry

In January 2001, the government wrote to the district court pointing out the similarity between the money smuggling acts of Perez and Almonte, along with Pagan's representation of both defendants, and requested that the court conduct an inquiry of Perez pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir.1982) ("Curcio hearing"). At such a hearing, the trial court (1) advises the defendant of his right to representation by an attorney who has no conflict of interest, (2) instructs the defendant as to the dangers arising from particular conflicts, (3) permits the defendant to confer with his chosen counsel, (4) encourages the defendant to seek advice from independent counsel, (5) allows a reasonable time for the defendant to make a decision, and (6) determines, preferably by means of questions that are likely to be answered in narrative form, whether the defendant understands the risk of representation by his present counsel and freely chooses to run them. See id. at 888-90. The ultimate goal of these procedures is to permit the court to determine whether the defendant's waiver of his right to conflict-free counsel is knowing and intelligent. See id. at 888.

In requesting a Curcio hearing for Perez, the government stated that "[t]he central question in this case is whether the defendant knew that there was money in the cans in his luggage." (Letter from Special Assistant United States Attorney ("SAUSA") Steven L. D'Alessandro to Chief Judge Edward R. Korman, dated January 12, 2001, at 3.) The government contended, inter alia, that that knowledge could be inferred from the facts that Perez, as Pagan's paralegal, would have had access to facts pertaining to Almonte, Pagan's client; that the two smuggling efforts were strikingly similar; that the cans Perez was carrying were substantially identical to the cans Almonte had carried; and that the two attempts had occurred little more than a week apart. The government stated that it appeared that Pagan was at least a potential witness at trial, as he might have material information as to the knowledge that Perez, while working as his paralegal, had gained as to the details of Almonte's case. The government also noted that, when arrested, Perez was employed by Pagan and said he was traveling on business.

On January 29, 2001, a Curcio hearing was begun before Magistrate Judge Steven M. Gold, to whom the matter had been referred for report and recommendation. Those attending the hearing included Perez, Pagan, and a representative of the New York State Association of Criminal Defense Lawyers ("Defense Bar Association").

At that hearing, the government informed the court that it could not be sure whether it would attempt to call Pagan as a witness. (See Hearing Transcript, January 29, 2001 ("Jan. 29 Tr."), at 4-5.) The Defense Bar Association representative urged the court not to allow the government to interfere with an accused's right to counsel of his choice, absent some more certain reason to believe there was a conflict of interest. (See Jan. 29 Tr. at 7-13.) Pagan stated that he was not aware of any actual or potential conflict of interest resulting from his representation of both Perez and Almonte. (See Jan. 29 Tr. at 26.) Pagan also stated that Perez's job as his paralegal had not entailed any meaningful contact with Almonte:

Mr. Perez never saw Mr. Almonte's file or complaint, never interviewed Mr. Almonte here or at any jail facility. He's met the family, simply because they were brought to my office to bring me copies of their income taxes and proof of identity and citizenship and things of that nature.

(Jan. 29 Tr. at 17-18.)

The court received assurances from Perez that he spoke and understood English and that he was not laboring under a medical or mental condition that might impair his judgment. The court then proceeded, in accordance with United States v. Curcio, to advise and instruct Perez at length as to the dangers of potential conflicts, including the possibility that Pagan might be called as a witness at Perez's trial, and that other conflicts might arise if Almonte chose to cooperate with the government, or if Perez were offered a cooperation agreement that depended on his inculpating Almonte, or if Pagan were targeted by a grand jury investigation. (See, e.g., Tr. at 23-24, 26-36.) The magistrate judge also stated several times that one of the purposes of the hearing was to ensure that, if Perez were convicted, Pagan's simultaneous representation of Perez and Almonte would afford Perez no basis for challenging his conviction. (See Jan. 29 Tr. at 3, 20, 21-22.)

Under oath, Perez stated that he understood all that had been said, and he informed the court that he wanted Pagan to continue as his attorney:

THE DEFENDANT: According to my feelings, I don't see any conflict of interest in this situation. I think we can prove that later. I can prove that. I want Mr. Pagan to continue being my lawyer.

THE COURT: Would you like the opportunity to consult with a lawyer at no cost to you before you make that decision?

THE DEFENDANT: I don't think right now I have any reason to do that.

(Jan. 29 Tr. at 35-36; see also Tr. at 37 ("I want him to continue as my lawyer.").) The magistrate judge adjourned the hearing to give Perez additional time for reflection.

The hearing was resumed on the following day. The magistrate judge briefly summarized the potential conflicts of which he had warned Perez in the previous day's proceeding. (See Hearing Transcript, January 30, 2001 ("Jan. 30 Tr."), at 5.) In addition, Pagan stated that the issues had been covered with Perez

very extensively and he's also been told the same by the members of the New York State Association of Criminal Defense Lawyers. So I think in the long run, Mr. Perez has had more attorney attention from the private Bar than the normal defendant would be [sic] before this Court.

(Jan. 30 Tr. at 10.) Perez stated that he had thought about the court's advice and instructions, and he rephrased the potential conflicts in his own words. (See Jan. 30 Tr. at 5-9.) Perez stated that the issues were clear to him and that he wanted to continue with Pagan as his attorney:

THE COURT: Do you still want to give up your right to have a different lawyer appointed to represent you and continue with Mr. Pagan as your attorney?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand that by doing this, you're giving up your right to challenge your conviction, if it should be obtained — if you're convicted, you will not be able to complain...