Appeal from denial by the United States District Court for the Southern District of New York, John M. Walker, Judge, of motions: (1) to dismiss the indictment on the ground that retrial of appellants in light of their mistrial would constitute double jeopardy, and (2) for a hearing with recusal of the district judge.
Pratt and Miner, Circuit Judges, and Re, Chief Judge of the United States Court of International Trade, sitting by designation.
Appellants Pedro Rivera, Sr. ("Pedro"), Sonia Rivera ("Sonia"), and August Laguer were indicted along with Peter Rivera, Jr. ("Peter") and others for their alleged involvement in a conspiracy to distribute heroin, as well as for other narcotics and weapons offenses. In the course of the trial on those charges the district judge granted appellants' motions for a mistrial. Contending that the prosecutor and the judge had engaged in misconduct compelling their mistrial motions, appellants moved to dismiss the indictment on the ground that retrial would constitute double jeopardy. The United States District Court for the Southern District of New York, John M. Walker, Judge, denied appellants' recusal motion and, without holding a hearing, rejected their double jeopardy contentions. This interlocutory appeal pursuant to Abney v. United States, 431 U.S. 651, 662, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977), followed.
After hearing argument by counsel on August 15, 1986, we "reject[ed] appellants' position that a retrial in these circumstances in light of the conduct of the trial judge and the prosecutor would violate their double jeopardy rights". We announced our decision in a summary order filed on August 28, 1986, indicating that this formal opinion would follow. For the reasons stated in that order and herein, we affirm.
Shortly before the scheduled trial date, the district judge received an ex parte affidavit from the assistant United States attorney ("AUSA") responsible for the prosecution of this matter notifying the judge "of potential conflicts of interest which Peter Rivera Jr.'s lawyer in the instant case may have." The affidavit detailed the contents of an interview between the AUSA and a government witness, Gilbert Bonilla, whom the AUSA identified as a worker for Peter's heroin organization. The potential conflict came to light when Bonilla informed the AUSA that he had perjured himself in an unrelated state murder trial in 1983 at the direction of an attorney.
As explained in the affidavit to the district judge, Bonilla told the AUSA that in 1983 he had been selling drugs for Rafael Rivera -- not a party in the present action -- and as collateral for a debt owed to Rafael, had given Rafael a gun. In February of that year, Rafael was charged with a murder committed with that weapon. Bonilla agreed to testify for Rafael, and when he met with Rafael's attorney in court the lawyer asked him to "lie a little bit" by testifying that he owned the gun and that he had left it loaded without warning Rafael at the time he lent it to him. In addition, the lawyer told Bonilla to recant an earlier statement made to the police that Rafael was a drug dealer. After twice rehearsing this script with the lawyer, Bonilla said he testified as coached.
When the AUSA asked for the name of that attorney, Bonilla said he was not certain but he believed it to be "Salaway". This revelation prompted further inquiries by the AUSA, because counsel for Peter in the present action was one Kenneth Salaway. The AUSA's questioning of court personnel involved in the 1983 murder trial revealed that Rafael's attorney in that prior proceeding had been Kenneth Schreiber, Kenneth Salaway's law partner.
Further, the AUSA's ex parte affidavit indicated that another government witness had told of an incident that purportedly had occurred in 1978 at a nightclub called the Latin Palace where, that witness alleged, he and others were snorting cocaine with attorneys Salaway and Schreiber, and that Schreiber had once appeared in court all "coked up". However, because Judge Walker correctly noted later in the trial that all reference to those statements would have been excluded as entirely irrelevant, they need not further concern us on this appeal.
Citing United States v. Cancilla, 725 F.2d 867, 869-71 (2d Cir. 1984), the prosecutor suggested in his affidavit that the above information represented a per se conflict of interest between Peter and his counsel, Kenneth Salaway, and requested "at the very least * * * a pre-trial conference with Mr. Salaway and Peter Rivera, Jr. at which Peter Rivera, Jr. would be advised of the potential conflict and made aware of his options."
One day after receiving the affidavit, Judge Walker held an in camera hearing to probe the possible conflict. In attendance were the AUSA, attorney Salaway, and Peter; none of the other defendants or their counsel was informed of the proceeding. Judge Walker characterized the dilemma confronting Peter as the possibility
that there would be a skewing or a potential for skewing the testimony of this witness on cross-examination, perhaps an incentive on the part of counsel for the defendant not to probe in certain areas or to somehow tailor his questions so as to, in effect, minimize the damage or potential damage that the witness could do to either counsel or counsel's partner. Therefore, the danger of course is that effective representation of the defendant would be jeopardized.
Salaway, on behalf of himself and his partner, denied the allegations made by Bonilla and the other government witness and concluded that he could continue to represent his client effectively. Likewise, Peter informed the court that he wanted Salaway to remain as his lawyer. Nevertheless, at the suggestion of the government, Judge Walker appointed an independent attorney to advise Peter on the ramifications of the potential conflict.
On the following day, after consulting with the independent counsel appointed by the court, Peter again indicated his desire to continue with Salaway as his attorney, and Judge Walker secured a waiver from Peter with respect to any rights implicated by that conflict. The judge allowed the case to proceed in that posture, pending a determination of whether the potential conflict could be waived in light of this court's virtually simultaneous decision in United States v. Iorizzo, 786 F.2d 52 (2d Cir. 1986). In addition, to protect the reputations of attorneys Salaway and Schreiber, the court ordered to be sealed the AUSA's affidavit and the transcript of the two days of hearings.
Codefendants Pedro, Sonia, and Laguer and their attorneys first learned of the foregoing on the first day of trial when, pursuant to 18 U.S.C. § 3500, the government produced Bonilla's prior statements and Salaway discussed the allegations with his co-counsel. After Sonia's counsel indicated that, depending on Bonilla's testimony, he might want to call Salaway as a witness to deny Bonilla's allegations, the court directed the AUSA to make a proffer of Bonilla's testimony on the perjury incident. After further discussion, the judge ordered the affidavit and hearings held in camera unsealed to the parties. Counsel for Pedro, Sonia, and Laguer then requested mistrials on the chance that Bonilla might implicate Salaway, which they alleged would have a spillover prejudicial impact on them. The district judge denied those motions on the theory that any claim of prejudice to the other defendants was then too speculative since Bonilla had not yet implicated Salaway in front of the jury.
In the midst of this colloquy, Salaway informed the judge that Peter was having second thoughts about going forward with Salaway as his counsel. Judge Walker decided to hold Peter's concerns in abeyance until Bonilla's testimony was heard. At that point counsel for Pedro, Sonia, and Laguer renewed their previously denied ...