United States District Court, D. Connecticut
POST-CURCIO HEARING RULING
VICTOR
A. BOLDEN UNITED STATES DISTRICT JUDGE
On
September 17, 2018, this Court held a hearing to determine
whether two of the defendants in this multi-defendant
criminal case, Joel Cordero and Gabriel Cordero
(“Defendants”) were waiving their right to be
represented by separate counsel-and therefore to have
conflict-free representation-knowingly and intelligently.
See United States v. Curcio, 680 F.2d 881, 888 (2d
Cir. 1982) (when a trial court detects a potential conflict,
it must “alert the defendants to the substance of the
dangers of representation by an attorney having divided
loyalties, ” and, if the defendant wishes to continue
to be represented by the attorney with a potential conflict,
trial court must “assess whether the request is, as to
each defendant, knowing and intelligent”).
On July
18, 2017, Defendants were both arraigned on Count One of the
Indictment for Conspiracy to Distribute and to Possess with
Intent to Distribute Heroin and Fentanyl in violation of 21
U.S.C. §§ 841(b)(1)(A)(vi). ECF No. 29.
Joel
Cordero was arraigned on several additional counts: Count
Twelve, Possession with Intent to Distribute Heroin in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(i), and 18 U.S.C. § 2; Counts Thirteen and
Fourteen, Possession with Intent to Distribute and
Distribution of Heroin in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C), and 18, U.S.C. § 2; Count
Fifteen, Possession with Intent to Distribute and
Distribution of Heroin in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C); Count Twenty, Possession with
Intent to Distribute Heroin in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(i), and 18 U.S.C.
§ 2; and Count Twenty-Four, Possession of a Firearm in
Furtherance of a Drug Trafficking Crime in violation of 18,
U.S.C. §§ 924(c)(1)(A) and 924(c)(2).
Gabriel
Cordero was arraigned on a different set of additional
counts: Count Seven, Possession with Intent to Distribute and
Distribution of Heroin and Fentanyl in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C); Count Eight,
Possession with Intent to Distribute and Distribution of
Heroin in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); Count Nine, Possession with Intent to
Distribute and Distribution of Heroin and Fentanyl in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); Count Ten, Possession with Intent to Distribute
and Distribution of Heroin in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C); Count Eleven,
Possession with Intent to Distribute and Distribution of
Heroin in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C), and 18 U.S.C. § 2. Count Sixteen,
Possession with Intent to Distribute Heroin in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i), and 18
U.S.C. § 2; Count Eighteen, Possession with Intent to
Distribute Heroin in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A)(i), and 18 U.S.C. § 2; Count
Twenty-One, Possession with Intent to Distribute Heroin in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); Count Twenty-Two, Possession of a Firearm in
Furtherance of a Drug Trafficking Crime in violation of 18
U.S.C. §§ 924 (c)(1)(A) and 924(c)(2); and Count
Twenty-Three, Possession with Intent to Distribute Heroin in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C).
Both
defendants entered a plea of not guilty and remain in custody
at this time.
Several
months later, Mr. Calcagni entered an appearance in January
2018 on behalf of Joel Cordero. ECF No. 152. Gabriel Cordero
remained represented by a federal public defender, Ross
Daniel Thomas. On June 5, 2018, however, Gabriel Cordero
moved to have Mr. Thomas withdraw as his attorney and replace
him with another attorney from the Criminal Justice Act
(“CJA”) panel. ECF No. 230. The Court granted
that motion on June 25, 2018. ECF No. 234. Michael Gerard
Dolan, Esq. was then appointed from the CJA panel to
represent Gabriel Cordero.
On July
15, 2018, Mr. Calcagni entered a new appearance in the case
on behalf of Gabriel Cordero. ECF No. 240. Mr. Dolan did not
object or otherwise move with respect to Mr. Calcagni's
appearance on his client's behalf.
A
district court in the Second Circuit has an obligation first,
when alerted to a potential conflict of interest, to
“investigate the facts and details of the
attorney's interest to determine whether the attorney in
fact suffers from an actual conflict, a potential conflict,
or no genuine conflict.” United States v.
Levy, 25 F.3d 146, 153 (2d Cir. 1994). If that
investigation reveals a conflict so severe that “no
rational defendant would knowingly and intelligently desire
the conflicted lawyer's representation, ” the court
must disqualify the lawyer. Id. If, however, the
investigation reveals a “lesser or only a potential
conflict-such that a rational defendant could knowingly and
intelligently desire the conflicted lawyer's
representation” the court should hold a hearing under
Curcio to “obtain directly from the defendant
a valid waiver of his right to a non-conflicted
lawyer.” Id.; see also Curcio, 680
F.2d at 888-90.
The
Court determined that Mr. Calcagni's potential conflict
in his representation of Defendants to be a “lesser or
only a potential conflict” and therefore scheduled a
Curcio hearing to determine whether Mr.
Calcagni's representation of both defendants created an
actual or potential conflict of interest and, if so, whether
Defendants knowingly and intelligently waived their right to
conflict-free representation under the Sixth Amendment. ECF
No. 278; see United States v. Kliti, 156 F.3d 150,
153 (2d Cir. 1998) (purpose of Curcio hearing in the
face of “an actual or potential conflict of
interest” is to determine whether the “defendant
will knowingly and intelligently waive his right” to
conflict-free representation); Curcio, 680 F.2d at
884 (“[A] criminal defendant has not only a
constitutional right to an attorney who has no conflict of
interest but also a right-of constitutional dimension,
although not absolute-to counsel of his own
choosing.”).
Gabriel
Cordero testified through an interpreter, outside of the
presence of his brother, Joel Cordero. The Court found, based
on his testimony, that he was knowingly, intelligently and
voluntarily waiving his right to conflict-free
representation. Joel Cordero then testified without the aid
of an interpreter. The Court again found, based on his
testimony, that he was knowingly, intelligently and
voluntarily waiving his right to conflict-free
representation.
Mr.
Calcagni also submitted notices of advice and waiver of
conflict of interest signed by both Defendants, dated July 3,
2018. ECF Nos. 285-86. Defendants were also informed by the
Court about the potential that Mr. Calcagni's role as
both of their attorneys could create a conflict if they
decided to take different positions about how to proceed
later in the case. The Court is satisfied that Defendants
understood the nature of this potential conflict and waived
the right to conflict-free representation with their eyes
wide open.
The
Court also explained to Defendants that it could appoint new
counsel, if necessary. After speaking with him, the Court
determined that Defendants each had the capacity to make the
decision to waive their rights to conflict-free
representation. Both then waived their right to conflict-free
representation and chose to continue to be represented by Mr.
Calcagni.
The
Court therefore has determined that Gabriel Cordero and Joel
Cordero knowingly, intelligently, and voluntarily decided to
waive their rights to conflict-free representation and wish
to be represented by Mr. Calcagni. See Levy, 25 F.3d
at 153 (“If the court's inquiry reveals that ...