United States v. Parlato

• Decision Date: 10 May 2021
• Docket Number: 15-CR-149-A
• Citation: 538 F.Supp.3d 286
• Parties: UNITED STATES of America, Plaintiff, v. Frank R. PARLATO, Jr., and Chitra Selvaraj, Defendants.
• Court: U.S. District Court — Western District of New York

538 F.Supp.3d 286

UNITED STATES of America, Plaintiff,

v.Frank R. PARLATO, Jr., and Chitra Selvaraj, Defendants.

15-CR-149-A

United States District Court, W.D. New York.

Signed May 10, 2021

Filed May 11, 2021

Elizabeth Russo Moellering, Government Attorney, John D. Fabian, Government Attorney, Richard D. Kaufman, U.S. Attorney's Office, Buffalo, NY, for Plaintiff.

Herbert L. Greenman, Paul J. Cambria, Jr., Justin D. Ginter, Lipsitz Green Scime Cambria LLP, Buffalo, NY, James C. Roscetti, Roscetti & DeCastro, P.C., Niagara Falls, NY, for Defendant Frank R. Parlato, Jr.

Joel L. Daniels, Buffalo, NY, for Defendant Chitra Selvaraj.

DECISION AND ORDER

RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE

The defendant, Frank R. Parlato, Jr., has moved to adjourn his June 8, 2021 trial for approximately six months. One of defendant Parlato's retained counsel has a trial scheduling conflict that precludes him from further participating in the defendant's case until another complex and lengthy federal criminal trial in the District of Arizona is completed. The scheduling conflict is primarily due to the unprecedented backlog of trial-ready criminal cases caused by the COVID-19 public health emergency.

The United States opposes the motion to adjourn the June 8, 2021 trial on the ground that the adjournment is unnecessary and because Sixth Amendment speedy trial interests favor proceeding as scheduled. It argues that defense counsel's trial scheduling conflict does not really preclude him from continuing in his role as secondary counsel in this case, and that defendant's other two well-respected counsel are more than competent enough to handle the trial. Given that a Superseding Indictment was returned approximately three years ago and that this case has been trial ready for approximately two years without any effort by defendant's secondary counsel to adjourn his District of Arizona trial in favor of this one, it argues that it is past the time for jury selection and trial.

The Court heard oral argument on April 28, 2021. At the time, the Court informed the parties that it was leaning toward denying defendant Parlato's motion to adjourn the June 8, 2021 trial. However, for the reasons that are stated below, the Court grants the motion to adjourn.

BACKGROUND

Defendant Parlato is charged in an eighteen-count Superseding Indictment with wire fraud in violation of 18 U.S.C. § 1343, money laundering in violation of 18 U.S.C. § 1957, and conspiracy in violation of 18 U.S.C. § 371 (conspiracy to commit wire fraud conspiracy and a Klein¹ conspiracy involving obstruction of the lawful functions of the Internal Revenue Service of the Treasury Department "IRS"). Dkt. No. 118. The charges arise from relatively complex evidence of financial transactions related to an office building located at 360 Rainbow Boulevard, Niagara Falls, New York, known as the One Niagara Building. The two defendants, one of whom is defendant Parlato, allegedly (a) used shell entities and bank accounts in the names of the shell entities to conceal money from creditors and potential creditors, (b) used special lawyer trust bank accounts to conceal money from creditors and potential creditors, and (c) did the same to obstruct the IRS. The Court assumes the parties’ familiarity with the lengthy prior proceedings in the case and the issues raised by the parties.

DISCUSSION

The Court has broad discretion over defendant Parlato's motion to adjourn. The Supreme Court has stated:

Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel.

Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).

In this case, the defendant's motion to adjourn his trial rests on his Sixth Amendment right to counsel of his choice. Dkt. Nos. 218, 220. In United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), a case neither party brings to the Court's attention, the Supreme Court concluded that denial of a defendant's preferred counsel's motions to appear in the case was a denial of the defendant's Sixth Amendment right to counsel of his choice. Id. at 142-43, 152, 126 S.Ct. 2557. Gonzalez-Lopez announced that a violation of a defendant's right to counsel of choice is a per se structural error that is not subject to harmless error review on appeal. Id. A trial court's violation of the constitutional right to counsel of choice therefore results in automatic reversal.

Gonzalez-Lopez is particularly significant here because it explicitly reaffirmed "a trial court's wide latitude in balancing the right to counsel of choice against the demands of its calendar." Id. at 152, 126 S.Ct. 2557 (citing Wheat v. United States, 486 U.S. 153, 163-64, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) ). And since Gonzalez-Lopez was decided in 2006, the Second Circuit has repeatedly given substantial deference to trial judges’ scheduling rulings that significantly impinge on a defendant's right to counsel of choice. See e.g., United States v. Griffiths, 750 F.3d 237, 241-42 (2d Cir. 2014) ; United States v. Konstantin, 280 Fed. App'x 54, 55 (2d Cir. 2008) (non-precedential Summary Order). It is therefore well settled that requiring a defendant to go to trial without the defendant's counsel of choice remains within a trial court's sound discretion. There should be no doubt that unavailability of a defendant's counsel of choice does not dictate a federal court's criminal trial schedule.

However, neither defendant Parlato nor the United States has addressed whether the Sixth Amendment right to counsel of choice extends to secondary counsel where, as in this case, a defendant's lead counsel remains available and capable. The United States assumes, without analysis, that it does not. The defendant assumes it does. Similarly, neither party has considered how to weigh the extent that such a constitutional right -- assuming it exists -- can lawfully be impinged upon when balanced against the demands of a trial court's calendar and the public's interest in the timely disposition of a criminal case.

It appears that the Second Circuit has never extensively examined a Sixth Amendment right to counsel of choice as to secondary counsel, although it has ruled as if a constitutional right to secondary counsel exists. Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001). At least two other Circuits have concluded that the Sixth Amendment extends a defendant's choice-of-counsel right to more than one retained attorney. No Circuit Court ruling that the Court has located restricts the choice-of-counsel right to a single attorney² .

In United States v. Laura, 607 F.2d 52, 57 (3d Cir. 1979), the defendant's lead counsel was assisted by local counsel. Due to a possible conflict of interest on the part of the local counsel, the district court dismissed local counsel. Id. at 54-55. The Third Circuit held that this dismissal -- a summary disqualification of one the defendant's two attorneys -- directly implicated the defendant's right to counsel of choice. The defendant had hired "a defense team composed of two attorneys who may have served distinct and important functions on her behalf." Id. at 58. If the defendant wanted to keep both of those attorneys to represent her, the Third Circuit observed, "[t]hat choice is hers to make and not the court's, unless some appropriate justification for the dismissal is provided." Id. at 58.

More recently, in Rodriguez v. Chandler, 492 F.3d 863 (7th Cir. 2007), the Seventh Circuit stated, based partly upon the circumstances of Gonzalez-Lopez, that a criminal defendant may suffer an even greater Sixth Amendment injury if "[he] thought that having two lawyers would help (they could share the work, and two sets of ideas may be better than one) but ended up represented at trial by just one." Id. at 864. The point is not just that two or three attorneys may be better than one. See Rodriguez v. Montgomery, 594 F.3d 548, 551 (7th Cir. 2010). The point is, and this Court agrees with the Third and Seventh Circuits on this, that a defendant may well suffer from a Sixth Amendment choice-of-counsel violation even when the defendant has other capable, and even highly-respected, retained counsel in the roles of lead and secondary counsel at trial.

Accordingly, the issue before the Court is not simply whether defendant Parlato's other two attorneys, who are indeed "experienced, skilled, and highly respected," Dkt. No. 219, p. 4, will provide the defendant with constitutionally effective assistance of counsel if his trial proceeds as scheduled on June 8, 2021. See Dkt. No. 219, p. 5 (citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), a case involving the constitutional effectiveness of assigned counsel, not the constitutional right to counsel of choice)³ . Instead, the Court must give due weight to the duly considered and constitutionally protected choice of the defendant to proceed with one of the attorneys he has retained.

As mentioned above, the evidence in this case is relatively complex, as it involves alleged concealment of fraudulent commercial real estate-related financial transactions through shell-entity bank accounts and through special lawyer trust bank accounts. The United States expects to call more than 40 witnesses. It appears the United States has produced approximately 100,000 pages of documents during pretrial discovery, and that does not include Jencks Act material⁴ . The defendant expects to put on a case, and it appears he may put on an advice-of-counsel defense....