U.S. v. Pizzonia
| Decision Date | 14 February 2006 |
| Docket Number | No. 05-CR-425 (JBW).,05-CR-425 (JBW). |
| Citation | 415 F.Supp.2d 168 |
| Parties | UNITED STATES of America, v. Dominick PIZZONIA, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
United States Attorneys Office, Eastern District of New York, Brooklyn, NY, by Winston Y. Chan, Mitra Hormozi, Joseph Lipton, Deborah Sue Mayer, for the United States.
Rubinstein & Corozzo LLP, New York City, by Joseph R. Corozzo, Jr., for Defendant.
Law Offices of Gerald L. Shargel, New York City, by Henry Mazurek, for Defense Counsel.
AMENDED MEMORANDUM AND ORDER ON DISQUALIFICATION MOTION
Table of Contents
I. Facts ............................................................. 174
II. Sixth Amendment ................................................... 175
III. Defense Counsel's Prior Representation of Government Witness ...... 177
A. Law ............................................................. 177
B. Application of Law to Facts ..................................... 179
1. Michael DiLeonardo ........................................... 179
2. Primo Cassarino .............................................. 180
IV. Defense Counsel's Current and Prior Representation of Unindicted
Co-Conspirator ................................................... 180
A. Law ............................................................. 180
B. Application of Law to Facts ..................................... 181
V. Defense Counsel's Alleged Role as Co-Conspirator .................. 182
A. Law ............................................................ 182
B. Application of Law to Facts .................................... 182
VI. Criminal Investigation of Defense Counsel ......................... 183
A. Law ............................................................ 183
B. Application of Law to Facts .................................... 184
VII. Defense Counsel's Natural and Alleged Criminal Family Loyalties ... 184
A. Law ............................................................ 184
B. Application of Law to Facts .................................... 185
VIII. Conclusion ........................................................ 186
Dominick Pizzonia is accused of participating in a racketeering conspiracy involving the Gambino organized crime family. Three murders, extortion and loan-sharking are charged as predicate acts. Citing multiple conflicts of interest, the government has moved for the disqualification of his attorney, Joseph R. Corozzo, Jr. ("defense counsel"). After an evidentiary hearing, the motion is denied. See United States v. Curcio, 680 F.2d 881 (2d Cir. 1982) ().
The government has alleged eight conflicts of interest between defendant and defense counsel: 1) defense counsel's prior representation of government witness Michael DiLeonardo; 2) defense counsel's prior representation of a co-defendant of government witness Primo Cassarino; 3) defense counsel's current representation of Ronald Trucchio, one of defendant's unindicted co-conspirators in what are referred to as "the Uva murders"; 4) defense counsel's prior representation of John Setaro, an unindicted co-conspirator in both the Uva murders and one of the loan-sharking acts; 5) two ongoing investigations of defense counsel by the United States Attorney; 6) defense counsel's position as associate of the Gambino crime family and unindicted co-conspirator; 7) defense counsel's loyalties to his father and uncle, both highranking members of the Gambino family; and 8) defense counsel's position as "house counsel" to the Gambino family. Based on somewhat similar allegations, defense counsel was recently disqualified in another case involving the Gambino family. See U.S. v. Yannotti, 358 F.Supp.2d 289 (S.D.N.Y.2004).
At the Curcio hearing the government presented the testimony of Michael DiLeonardo a former officer of the Gambino crime family and a key cooperating witness in the instant case who claimed to have retained defense counsel in a prior prosecution. To avoid a possible conflict between defense counsel and his alleged former client, the court ordered that an independent attorney conduct cross-examination of the witness. DiLeonardo testified about his legal and social relationship with defense counsel and defense counsel's continuing relationship with members of the Gambino crime family, including John Gotti, Jr. His testimony was credible and uncontradicted.
The government also submitted two audio-video recordings of defense counsel consulting with John Gotti, Sr.—the late head of the Gambino family—on fairly intimate terms at the United States Medical Center for Prisoners in Springfield, Missouri. The recordings are the subject of another memorandum and order. See Amended Mem. & Order on Release of Video Recordings of February 14, 2006.
Defense counsel is an able attorney with considerable experience defending persons accused of participating in organized crime. See Gov't Mem. 18-19 (). He denies any link to crime warranting disqualification. Defendant has known him from childhood and has great confidence in his skill and devotion. Defendant's natural family strongly concurs.
The evidence submitted by the parties supports the following findings of fact:
1. John Gotti, Jr. assisted defense counsel financially when defense counsel was attending law school.
2. After defense counsel was admitted to practice in New York, John Gotti, Jr. made fairly "regular" payments to him for legal advice and representation on criminal matters.
3. Defense counsel's father and uncle were, and are, members and officers of the Gambino crime family.
4. During a trip to Foxwoods Casino in Connecticut in 1994, defense counsel and members of the Gambino crime family dined together; some "business matters," presumably related to gambling, were discussed.
5. While DiLeonardo—a key government witness in the instant case— was being prosecuted on federal extortion charges in Atlanta, Georgia, he was represented by attorneys at trial, but not by present defense counsel. In March or April of 2001, he asked defense counsel to interview Craig DePalma, a Gambino family member, to determine if DePalma would testify against DiLeonardo. DePalma's name appeared on a government witness list for the Atlanta trial. DiLeonardo tendered a check for one thousand dollars for legal fees to defense counsel. Defense counsel never cashed the check and was not acting as an attorney when making the inquiry about DePalma's intentions. He never acted as DiLeonardo's attorney. He did report back to DiLeonardo that DePalma presented no danger in the Atlanta trial.
6. Funds to retain defense counsel in this prosecution were supplied only by defendant and his family.
"In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The right to an attorney includes both the right to counsel of one's own choosing, Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988), and the right to an attorney unimpaired by conflicts of interest. United States v. Perez, 325 F.3d 115, 125 (2d Cir.2003). When a defendant seeks to be represented by an attorney with divided loyalties, these rights collide. If they do, "the choice as to which right is to take precedence must generally be left to the defendant and not be dictated by the government." Id.
The presumption in favor of a defendant's choice of counsel may be rebutted by a showing of either actual conflict or serious potential for conflict. Wheat, 486 U.S. at 164, 108 S.Ct. at 1700; United States v. Jones, 381 F.3d 114, 119 (2d Cir.2004) (citing United States v. Locascio, 6 F.3d 924, 931 (2d Cir.1993)). Once a court is apprised of the possibility of a problem, it must determine whether the defendant can waive the right to a conflict-free attorney. Perez, 325 F.3d at 125 (citing United States v. Levy, 25 F.3d 146, 153 (2d Cir.1994)); Jones, 381 F.3d at 119.
A serious problem arises when "there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person." Restatement (Third) of the Law Governing Lawyers § 121 (2000) ("Restatement").
A conflict is either potential or actual. A potential conflict arises if "the interests of the defendant could place the attorney under inconsistent duties in the future." Jones at 119 (emphasis and citation omitted). An actual conflict arises when the attorney's and the defendant's interests "diverge with respect to a material factual or legal issue or a course of action, or when the attorney's representation of the defendant is impaired by loyalty owed to a prior client." Jones, 381 F.3d at 119 (internal quotation marks and citations omitted). If counsel suffers from only a potential conflict or an insignificant actual conflict, defendant may waive the right to conflict-free counsel. Perez at 125; Levy, 25 F.3d at 153.
If a conflict is waivable, a Curcio hearing is conducted to determine whether defendant's waiver is knowing and intelligent. Perez at 127; Levy, 25 F.3d at 153. See also Restatement § 122(1) (). Such a hearing was conducted in the present case with defense counsel represented by an independent attorney.
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