U.S. v. Schwarz
| Decision Date | 28 February 2002 |
| Docket Number | Docket No. 00-1479.,Docket No. 00-1483.,Docket No. 00-1515. |
| Citation | 283 F.3d 76 |
| Parties | UNITED STATES of America, Appellee, v. Charles SCHWARZ, Thomas Wiese, and Thomas Bruder, Defendants-Appellants, Justin A. Volpe and Michael Bellomo, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Diarmuid White (Brendan White, Ronald P. Fischetti, and Mark L. Freyberg on the brief), New York, NY, for Defendant-Appellant Schwarz.
Richard M. Asche, Litman, Asche & Gioiella, LLP (Russell M. Gioiella and Howard S. Weiner, Litman, Asche & Gioiella, LLP, and Joseph Tacopina, Joseph Tacopina, P.C., on the brief), New York, NY, for Defendant-Appellant Wiese.
Jeremy Gutman (Stuart London, Worth Longworth Bamundo & London, on the brief) New York, NY, for Defendant-Appellant Bruder.
Barbara D. Underwood, Chief Assistant United States Attorney (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Alan M. Vinegrad, David C. James, and Lauren Resnick, Assistant United States Attorneys, on the brief), Brooklyn, NY, for Appellee.
Mark F. Pomerantz, Paul, Weiss, Rifkind, Wharton & Garrison (Clifford Chance Rogers & Wells LLP and Newman & Greenberg, on the brief), New York, NY, for Amicus Curiae The New York Council of Defense Lawyers.
Before: WALKER, Chief Judge, CABRANES, and STRAUB, Circuit Judges.
TABLE OF CONTENTS
THE FIRST TRIAL ................................................................ 81
I. Factual Background ........................................................ 81
A. Pre-trial Proceedings .................................................. 81
B. Trial Proceedings ...................................................... 84
C. Post-trial Proceedings ................................................. 88
D. Prior Proceedings on Appeal ............................................ 89
II. Schwarz's Challenges to the First Trial .................................. 90
A. The Conflict of Interest Issue ......................................... 90
1. The Conflict of Interest ............................................ 90
a. The Actual Conflict .............................................. 91
b. The Lapse in Representation ...................................... 92
2. The Waiver .......................................................... 95
B. The Jury Contamination Issue ........................................... 97
THE SECOND TRIAL ............................................................. 100
I. Factual Background ...................................................... 100
II. The Challenge to the Sufficiency of the Evidence in the Second Trial ... 105
A. The Agreement ........................................................ 106
B. Knowledge of the Pending Federal Grand Jury .......................... 106
C. Intent to Obstruct the Federal Grand Jury ............................ 107
REMAINING CLAIMS .............................................................. 110
CONCLUSION .................................................................... 110
Defendants-Appellants Charles Schwarz, Thomas Bruder, and Thomas Wiese appeal from their convictions, after two jury trials, on charges brought related to the events surrounding the brutal assault on Abner Louima in the early hours of August 9, 1997, while he was in custody at the 70th Police Precinct in Brooklyn, New York, and its aftermath.
The three appellants and defendant Justin Volpe were ultimately charged, in a twelve-count superseding indictment handed down on March 3, 1999, with conspiracy to deprive and with depriving Louima of his civil rights, in violation of 18 U.S.C. §§ 241 and 242, by assaulting him in a police car ("the car assaults"); Schwarz and Volpe were charged with conspiracy to deprive and with depriving Louima of his civil rights by sexually assaulting him in the bathroom of the 70th Precinct; and Schwarz, Bruder, and Wiese were charged with conspiracy to obstruct justice, in violation of 18 U.S.C. §§ 371 and 1503, by lying to state and federal prosecutors in an effort to exculpate Schwarz with respect to the bathroom assault. See United States v. Volpe, 42 F.Supp.2d 204, 208 (E.D.N.Y. 1999). In addition, Volpe and defendant Michael Bellomo were charged with various offenses in connection with an arrest unrelated to the assaults on Louima. Id. Neither Volpe nor Bellomo are appellants in this appeal. The district court severed the charge of conspiracy to obstruct justice (Count Twelve) from the remaining counts, which were tried first.
Prior to the close of the first trial, before the government rested and out of the jury's presence, Volpe entered a guilty plea to six of the seven counts with which he was charged, including assaulting Louima in the patrol car and in the bathroom. See United States v. Volpe, 78 F.Supp.2d 76, 81 (E.D.N.Y.1999). At the end of that trial, the jury found Schwarz guilty of both conspiring to violate and violating Louima's civil rights based on the bathroom assault, but acquitted Schwarz, Wiese, and Bruder of all charges related to the car assaults.
At the second trial, the jury found Wiese, Bruder, and Schwarz guilty on the single charge at issue: conspiracy to obstruct a federal grand jury proceeding based on their statements to various investigators to the effect that Schwarz did not participate in the bathroom assault.
On June 27, 2000, the United States District Court for the Eastern District of New York (Eugene H. Nickerson, District Judge) sentenced Schwarz to 188 months of imprisonment, five years of supervised release with a special prohibition on possession of a firearm, and a special assessment of $300, and ordered restitution to Louima in the amount of $277,495. See United States v. Bruder, 103 F.Supp.2d 155, 185 (E.D.N.Y.2000). Bruder and Wiese were each sentenced to 60 month prison terms, three years of supervised release with a special prohibition on possession of a firearm, and a $100 special assessment. See id. at 190.
Appellants raise a host of challenges to their convictions. We discuss only those claims that are dispositive of this case and intimate no view on other issues on appeal that we have found unnecessary to address. The first part of our discussion will review the facts and proceedings relevant to the first trial, and will then consider Schwarz's challenges to that trial, specifically addressing: (A) whether Schwarz's attorney labored under an unwaivable conflict of interest that required his disqualification; and (B) whether the district court erred in denying without a hearing Schwarz's motion for a new trial based on the jury's exposure during jury deliberations to extrinsic information that Volpe's guilty plea referred to another police officer in the bathroom. The second part of our discussion will review the facts and proceedings relevant to the second trial and will consider the challenge made by all three appellants with respect to their convictions at the second trial: that there was insufficient evidence that appellants conspired to obstruct a federal grand jury investigation, as required by 18 U.S.C. § 1503.
For the reasons that follow, we hold that Schwarz's convictions for the civil rights violations must be vacated and remanded for a new trial because his attorney's unwaivable conflict of interest denied him effective assistance of counsel and because the jury was improperly exposed to prejudicial extrinsic information during jury deliberations. We also hold that all three appellants' convictions at the second trial for conspiracy to obstruct justice must be reversed for insufficient evidence.
Shortly after the assault on Louima in August 1997, the law firm that represented the Policeman's Benevolent Association ("PBA"), the police officers' union, hired Stephen Worth and Stuart London as trial counsel to represent Schwarz and Bruder respectively. Both attorneys were hired as outside conflict counsel to avoid any conflicts of interest that might arise if the PBA's regular retained law firm were to represent multiple defendants. Worth's and London's fees were to be paid by the PBA.
In February 1998, after Schwarz had been indicted by the federal grand jury, Worth, London, and some other attorneys formed a law firm, Worth, Longworth & Bamundo, LLP (the "Worth firm"). In May 1998, the Worth firm entered into a two-year $10 million retainer agreement with the PBA (the "PBA retainer") to represent all police officers in administrative, disciplinary, and criminal matters as well as to provide them with civil legal representation. After entering into the PBA retainer, Worth and London agreed to continue their representation of Schwarz and Bruder without charging further fees beyond the PBA retainer.
Shortly after learning of the formation of the Worth firm and its agreement with the PBA, the government wrote a letter to the district court dated May 28, 1998, to advise it of potential conflicts of interest arising from the joint representation of Schwarz and Bruder by partners in the same law firm and from the Worth firm's PBA retainer. The government urged the district court to conduct a hearing pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir.1982).
Worth, on behalf of himself and London, wrote a letter to the district court dated June 17, 1998, to provide details concerning these issues. The letter asserted that no substitution of counsel was needed, in part because the Worth firm had not represented any PBA officials or delegates that had been called to testify before the grand jury, and in part because ...
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