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UNITED STATES v. BENDETTI

September 3, 1980

UNITED STATES of America
v.
Paul BENDETTI, Dennis Mastro, Peter DeLamos, and James Vito Montemarano, Defendants



The opinion of the court was delivered by: LACEY

MEMORANDUM OPINION

On October 10, 1979, six defendants in the above-captioned matter were arraigned before this court. On the motion of Elliott H. Vernon, Esq., Oscar B. Goodman, Esq., was specially admitted to this district in order that he be permitted to represent three of the defendants: Paul Bendetti, Dennis Mastro and Peter DeLamos. After all of the defendants were arraigned, pursuant to United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973), I conducted an inquiry concerning the advantages, disadvantages and conflicts of interest arising from Mr. Goodman's joint representation of the three.

 This Hart v. Davenport hearing was conducted on October 10, 1979. Tr. 14 et seq. I thoroughly covered the dangers and risks of multiple representation. Each defendant, Id. 39, indicated he wanted Goodman to represent him during the pretrial stage.

 Significantly, I pointed out the dangers in three defendants, charged as here with conspiracy, having the same counsel. Id., 19-20. Goodman responded that he was aware of the problem and said:

 
. . . it would be my intention, your Honor, that if this court would permit me to remain in the case that at the time of trial each of the defendants would be represented by separate counsel.

 Tr. 20, lines 16-19.

 Goodman held out to me that as an attorney from Las Vegas he was able to provide the defendants during the pretrial stage expertise other counsel lacked:

 
. . . I have found throughout the years that gentlemen who are associated with Las Vegas, who are represented by attorneys who do not come from Las Vegas, when those gentlemen are charged with cases involving Nevada law, involving casinos, involving skimming, involving hidden ownership, that the attorneys who don't live there have done their clients a disservice by taking those cases because they're unable to relate to the jury the atmosphere and the flavor of Las Vegas and how business is done there.
 
I would respectfully suggest to the court that with these gentlemen having independent counsel at the time of trial that certainly they would be entitled no less at this point in time to have a Nevada attorney who is familiar with Nevada rules and regulations and laws go through the pretrial matter . . . .

 Id. 28, lines 2-16.

 This intimation of expertise, accompanied by Goodman's reiteration of his recognition that each defendant should have independent counsel at trial, led me to conclude that hearing by permitting him to represent the three defendants (Bendetti, Mastro and DeLamos) at the arraignment. I stated:

 
. . . based on all I've heard I will make a finding, a Hart v. Davenport finding that as I indicated in the Garofola opinion given the limits that are imposed upon my ability to inquire at this point I cannot say that there is a conflict in interest between the three defendants represented by Mr. Goodman. And, therefore, I will permit him to stay in the case.

 In view of the extensive recordings counsel indicated were involved, I set a liberal motion schedule and a tentative trial date in January 1980.

 At the conclusion of the October 10 hearing, Frederick Polak, Esq., the attorney for the United States, stated he would file a formal notice of disqualification directed at Goodman. This led to another hearing, on November 5, 1979.

 Polak there stated that he had been hampered in discussing immunity and cooperation with Goodman's clients because of the multiple representation; Tr. of November 5, 1979, 3; that Goodman represented an unindicted co-conspirator; that government information, made available to Goodman, indicated that his own clients saw themselves differing in their degrees of culpability; that it was impracticable to allow Goodman to make all the pretrial motion decisions and thus "lock in" the independent trial counsel Goodman had recognized would be necessary; and that the case was a complicated one, covering three years, over 100 overt acts, with the probability of numerous unforeseen developments during pretrial and trial. Id., 3-6. Polak concluded:

 
We believe that the longer Mr. Goodman is in the case the longer these defendants will be affected. To act now will save potential continuances, mistrials, perhaps appellate attacks, and permit an individual attorney representing each one of these defendants to review the discovery materials fully and make an independent determination of what motions they can make in the defendant's best interest.

 Id. 6.

 Goodman once again emphasized his expertise in connection with "the Nevada situation," and that he "should be permitted to remain in the case if for no other reason at least until such time as the validity of the wiretaps is challenged." Id. 13.

 Once again we noted his understanding that Bendetti, DeLamos and Mastro would "have independent counsel representing their interests at the time of trial." Id. 13. Goodman did not file a sworn denial of Polak's affidavit averring he, Polak, had discussed with Goodman granting immunity to one of his clients in return for getting his cooperation against the others. Id. 16-17. There was, however, this exchange:

 
THE COURT: All right. I take it-and you told me that you have taken up with them the necessity that they will have to have separate counsel at trial.
 
MR. GOODMAN: Absolutely.
 
THE COURT: And they're agreeable to that?
 
MR. GOODMAN: They are. I wouldn't let them do it any other way.

 Id. 17.

 Thereafter I dictated the following into the record:

 
I have read Court Exhibit 1 and Court Exhibit 2 (these were sealed at Goodman's request) and . . . I just cannot perceive how in the face of, A, the delicacy of the problem; B, the law as it stands today, and given the trend for tomorrow and everything we've covered at the last Hart hearing; and finally what's in these Court Exhibits 1 and 2, how Mr. Goodman wants to stay in this case. Compounding all of the problems that we have is the fact that Mr. Goodman himself acknowledges that he can't try this case for three defendants, and each one has been so advised by him and each one has agreed that they would get separate counsel at trial.
 
Now, what's the consequence of that? I have been told in the papers submitted to me this is a case of unusual complexity. Figures like thousands of hours of tapes have been thrown around this courtroom. I can perceive without exercising much imagination that when Mr. Goodman finally decided it was time to bow out and bring in trial counsel what would then happen? . . . Trial counsel would say, "We can't be ready. This is a case of unusual complexity. There are thousands of hours of tapes that we're going to have to listen to. There are thousands of documents in Nevada and here that we're going to have to examine. Judge, our clients have a Sixth Amendment right to have counsel represent them who are familiar with the case. And while we have a great deal of respect for Mr. Goodman, his reputation has preceded him here, nonetheless we have to do this job independently."
 
Now, if Mr. Goodman wants to stay in this case as sort of a general counsel for these three defendants, founded upon his knowledge of the peculiar features of the case that he feels enable him to serve the three people so well, he's going to have to do this as well. Each one now is going to have to get separate counsel and then the assessment can be made by each of the individual counsel as to the extent to which Mr. Goodman can remain in the case representing the three defendants.
 
And on that basis, Mr. Goodman, I will permit you to remain in the case.
 
MR. GOODMAN: Very good.
 
THE COURT: On any other basis I will not be ...

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