January 10, 2018

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan, Bennette Deacy Kramer

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Eric N. Vitaliano disqualified an attorney from representing a defendant at a criminal trial because of an unwaivable conflict of interests. Judge Jack B. Weinstein discussed the lack of available alternatives to incarceration for violent offenders in sentencing three members of street gangs. And Judge Nicholas G. Garaufis rejected claims that his comments in prior related litigation and other factors required recusal.

Conflict of Interests -- Joint Representation

In  United States v. Vertuccio, 15 CR 174 (EDNY, Dec. 6, 2017), Judge Vitaliano explained why, despite waivers of any conflict of interests, an attorney could not serve as defendant's trial counsel when he had represented a co-conspirator at a guilty plea with an upcoming sentence.

Co-defendants Vertuccio and Servider were indicted for a number of offenses, including conspiracy to obstruct a grand-jury investigation relating to the other charged crimes. During the conspiracy, Servider served as Vertuccio's lawyer.

Throughout the proceedings, attorney James Froccaro has represented Vertuccio, who pled guilty in April 2017 and is awaiting sentence. Co-defendant Servider, who is also an attorney, was represented by Michael Rosen-"a lion of the Bar of this Court" (slip op. 2)-from the indictment until Mr. Rosen's death in July 2017. Servider was given time to retain new counsel. "[I]n a stunning move" (id.), he appeared on October 13 and sought to retain Mr. Froccaro.

The court scheduled a hearing on the potential conflict pursuant to  United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), and instructed both Vertuccio and Servider to consult independent counsel about the matter. The government moved to disqualify Attorney Froccaro from representing Servider. At the hearing  Curcio counsel stated that they had discussed the pitfalls of joint representation with their respective clients, who waived any conflict.

The court granted the disqualification motion from the bench. This memorandum opinion followed.

As Judge Vitaliano noted, Servider has a Sixth Amendment right to counsel of his choice, and potential conflicts can often be waived. But these are not the "ordinary circumstances" where waivers can be accepted. The court pointed to a number of factors. For example:

"Servider plans to go to trial proclaiming his innocence of being Vertuccio's co-conspirator." Slip op. 7. Vertuccio faces an eventual sentencing. If convicted, Servider does as well. Attorney Froccaro would have to gather facts and confidences from both defendants and decide what information to use in each case. This process "can come back to haunt either or both of his clients." (Id.) One of his clients acknowledges the conspiracy; the other effectively denies it. It is therefore "a matter of joint representation, but hardly one of joint defense." (Id.)

In a conspiracy prosecution such as this, "whether at trial or sentencing, the shifting of blame and assessing culpability based on comparative roles is of utmost significance." Here, the road ahead for counsel is "fraught with peril." Slip op. 8-9.

More practically, how does Mr. Froccaro cross-examine witnesses or make arguments to the jury without shifting blame to Vertuccio?

Then, at Vertuccio's sentencing, would he contradict the arguments he made at Servider's trial? And how, at that sentencing, could he argue (even if it were true) that Vertuccio's conduct resulted somehow from legal advice he got from Servider?

In short, "with their current postures at opposite poles," the likely clash of interests is "real and palpable." Slip op. 8. If both defendants are sentenced, Mr. Froccaro would have "the impossible task" of "showing that each client is less culpable than the other." Slip op. 9.

The court ended with a reminder that it has its "own independent interest" in the "integrity of the judicial process itself." Slip op. 9-10.

Violent Offenders-Sentencing, Incapacitation, and Lack of Alternatives to Incarceration

By joint decision issued in  United States v. Rivera, 16 CR 323-002,  United States v. Folks, 16 CR 323-005, and  United States v. Cruz, 16 CR 323-004 (EDNY, Dec. 7, 2017), Judge Weinstein explained the sentences imposed on three defendants with alleged gang affiliations who had pleaded guilty to brandishing a firearm in furtherance of a crime of violence, 18 U.S.C. §924(c)(1)(A)(i-ii).

In a detailed review of academic and other research, Weinstein explored "incapacitation"-denying a convicted party the physical means to commit further crime-as a penological justification for incarceration. Where incapacitation once included removal of body parts associated with crimes of conviction (hands for pick-pockets, genitals for sex offenders), its current meaning in the United States concerns measures that range from closely-supervised probation at one extreme to death sentences at the other, with incarceration occupying the broad middle of the field. Courts in the United States regard incapacitation as a major goal of incarceration, in contrast to nations such as Germany and The Netherlands, which view incarceration principally as an opportunity for rehabilitation. Slip op. 19-21. But under the "evolving constitutional framework" illustrated by  Graham v. Florida, 560 U.S. 48 (2010), and  Miller v. Alabama, 567 U.S. 460 (2012), "a sentence must be proportional to the severity of the crime and the culpability of the actor. Incapacitation cannot be the sole purpose of a sentence". Slip op. 22.

Studies suggesting that longer incarceration may increase, rather than reduce, recidivism, together with the substantial costs of incarceration, might argue for more aggressive non-custodial programs to help younger offenders avoid a return to gang life. Such programs, however, are not generally available to those convicted of violent crimes. Slip op. 22-28.

The mandatory minimum for defendants' pleas was 84 months. Defendant Rivera was sentenced to 90 months, followed by five years' post-release supervision. Defendant Folks (the only defendant who did not personally possess a firearm during the robbery) received 84 months' custody. Defendant Cruz (the only defendant with a substantial prior criminal record) received 96 months, followed by five years' post-release supervision. Slip op. 30-33.

While Rivera and Folks showed potential for rehabilitation, that would require structure and support that is not presently available. Therefore, "[t]he comparatively lengthy sentences in this case are made necessary by mandatory minimums, but also by the finding that the available alternatives to incarceration or diversion programs are either insufficient or unavailable for violent defendants." Slip op. 4.

Judicial Disqualification

In  Residents and Families United to Save Our Adult Homes v. Howard Zucker, M.D., 16 CV 1683 (EDNY, Nov. 22, 2017), Judge Garaufis denied the motion of plaintiffs, who are residents and owners of adult homes, seeking recusal based on comments made by the judge in prior litigation.

Garaufis has presided over litigation pertaining to adult homes for 14 years, starting with litigation originally commenced in 2003 and settled in 2013. During the course of the earlier litigation, Garaufis issued a 210-page opinion finding a violation of Title II of the American with Disabilities Action and §504 of the Rehabilitation Act. After additional litigation, including an appeal, the parties reached a settlement agreement that the court continues to oversee. The owners of adult homes did not participate in the prior case and were not parties to the settlement.

According to plaintiffs, the following comments made during the prior litigation required recusal: (1) a statement that the adult homes were motivated by financial concerns when they appealed the earlier judgment; (2) a reference to a 2002 New York Times article that portrayed some New York City adult homes in a negative light; and (3) a suggestion that the mental health professionals employed by the adult homes might have a conflict of interest when counseling the residents on whether to transition into the community.

Recusal was not warranted here. Under 28 U.S.C. §455(a), a judge must avoid even the appearance of impartiality, but judicial rulings and opinions based on facts formed during the course of judicial proceedings are not a valid basis for recusal. Even critical, disapproving or hostile judicial remarks cannot form the basis for recusal, unless they arise from an extrajudicial source and "reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Slip op. 3. Unless this standard is met, disqualification is prohibited. If a claim of bias fails to meet the requirements of 28 U.S.C. §455(a), it also fails under both the Due Process Clause and Canon 3C of the Code of Conduct for United States Judges.

Plaintiffs further contended that Garaufis could not preside over the litigation impartially, because plaintiffs' challenge to state regulations would undermine the settlement agreement that Garaufis had approved. But the court stated its commitment to reaching the correct legal result in this litigation without regard to any effect on the settlement agreement.

Garaufis addressed two additional grounds for recusal. Contrary to plaintiffs' argument, appointing a guardian ad litem for the residents did not raise a question about the court's impartiality. Rather, when one plaintiff contradicted allegations made on his behalf, Garaufis appointed a guardian ad litem to protect the rights of the individual plaintiffs.

Plaintiffs also claimed bias stemming from the fact that the judge's wife had been a board member of a non-profit organization that worked with the mentally ill, and Garaufis had attended a benefit for the entity. This was not a basis for recusal because the connection was disclosed on the record in 2007, the judge attended the event as a spouse, and the non-profit entity was not a party and would not gain financially from the outcome of the case. Slip op. 17-19.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.