is "disingenuous" because the Government has actively attempted to persuade Cannistraro to plead guilty and cooperate. Opp. Brief at 29.
A claim for ineffective assistance of counsel may be grounded on the fact that defense counsel was under investigation by the prosecution at the same time he was representing the defendant. See, e.g., Briguglio v. United States, 675 F.2d 81 (3d Cir. 1982). In Briguglio, a habeas corpus petition was filed on the ground that at the time the defendant entered a guilty plea, his defense counsel was under a grand jury investigation by the same district attorney's office. Id. at 82. The court recognized that petitioner had "raised a clear possibility of 'actual conflict,' 'actual effect on the adequacy of representation,' and 'prejudice,'" but declined to decide the issue because the record was devoid of a hearing on the issues. Id. at 83.
While the conflict of interest arising from the grand jury investigation of Pollack alone may not be a basis to disqualify Pollack, this conflict of interest together with the conflict of interest arising from Pollack's knowledge of facts underlying some of the charges in the Second Superseding Indictment and the conflict of interest arising if Lugo testifies, warrant the disqualification of Pollack. The Motion to Disqualify is granted.
B. Alternatives to Disqualification
Pollack argues severance of the trial pursuant to Rule 14 of the Federal Rules of Criminal Procedure is a viable alternative which would preserve the right of Cannistraro to counsel of choice. Opp. Brief at 14-15. Pollack argues severance would cure any appearance of impropriety of his involvement in the obstruction of justice charges. Id. Pollack argues the delay caused by substituting counsel, alone, will require severance of trial in order to protect Bertoli's right to a speedy trial. Id. at 32. Pollack also argues severance will avoid the additional costs which Cannistraro will incur in hiring counsel to become familiar with the abundance of facts and legal issues. Id. at 31.
Rule 14 of the Federal Rules of Criminal Procedure provides: "If it appears that a defendant is prejudiced by a joinder of offenses or of defendants in an indictment . . ., the court may order . . . separate trials of counts, grant a severance of defendnats or provide whatever other relief justice requires." Fed. R. Crim. P. 14.
Although the request for severance is made under Fed. R. Crim. P. 14, Rule 8 of the Federal Rules of Criminal Procedure merits consideration. Rule 8 permits joinder of offenses and defendants.
Joinder of offenses and defendants promotes economy of judicial and prosecutorial resources, as well as the public interest in avoiding expensive and duplicative trials. United States v. Lane, 474 U.S. 438, 449, 88 L. Ed. 2d 814, 106 S. Ct. 725, reh'g denied, 475 U.S. 1104, 89 L. Ed. 2d 907, 106 S. Ct. 1507 (1986); United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987); United States v. Jackson, 649 F.2d 967, 973 (3d Cir.), cert. denied, 454 U.S. 1034, 70 L. Ed. 2d 479, 102 S. Ct. 574 (1981). When distinct offenses have both a logical and temporal relationship, joinder permits the Government to present its evidence in an efficient manner. Such evidentiary overlap "strongly counsels in favor of joinder." United States v. McDonnell, 699 F.Supp. 1348, 1351 (N.D. Ill. 1988) (citing United States v. Shue, 766 F.2d 1122, 1134 (7th Cir. 1985), cert. denied, 484 U.S. 956, 98 L. Ed. 2d 376, 108 S. Ct. 351 (1987)).
This rationale applies with equal force to the joinder of defendants. United States v. Dickens, 695 F.2d 765, 778-79 (3d Cir. 1982), cert. denied sub nom, 460 U.S. 1092 (1983).
When, as here, the literal requirements of Rule 8 are met, a presumption arises in favor of joinder. See United States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987) (Rule 8(b) "can, and should, be 'broadly construed in favor of initial joinder'. . . .") (quoting United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.), cert. denied, 417 U.S. 976 (1974)). Indeed, there is a presumption against severance because it is "assumed that closely related charges are being tried together. . . . " United States v. Velasquez, 772 F.2d 1348, 1355-56 (7th Cir. 1985), cert. denied, 475 U.S. 1021, 89 L. Ed. 2d 323, 106 S. Ct. 1211 (1986); see United States v. Serubo, 604 F.2d 807, 819 (3d Cir. 1979); United States v. Wofford, 562 F.2d 582, 585 (8th Cir. 1977) ("Ordinarily, if defendants are jointly indicted and similar evidence from the related series of events is used to convict each defendant, the defendants should be tried together."), cert. denied, 435 U.S. 916, 55 L. Ed. 2d 507, 98 S. Ct. 1471 (1978).
If, however, offenses or defendants have been improperly joined, severance is required as a matter of law under Rule 8. United States v. Andrews, 765 F.2d 1491, 1496 (11th Cir. 1985) ("Misjoinder under Rule 8(b) is prejudicial per se. . . ."), cert. denied sub nom., 474 U.S. 1064 (1986); United States v. Bledsoe, 674 F.2d 647, 654 (8th Cir.) ("Misjoinder of defendants is inherently prejudicial."), cert. denied sub nom., 459 U.S. 1040 (1982); Vastola, 670 F.Supp. 1244, 1261 (D.N.J. 1987) (citing United States v. Somers, 496 F.2d 723, 729 (3d Cir.), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974)), aff'd in part, rev'd in part, 899 F.2d 211 (1990).
When a number of offenses are joined in one indictment or multiple defendants are jointly charged with a single offense, "some prejudice almost necessarily results." Vastola, 670 F.Supp. at 1261 (quoting Cupo v. United States, 359 F.2d 990, 993 (D.C. Cir. 1966), cert. denied, 385 U.S. 1013, 17 L. Ed. 2d 549, 87 S. Ct. 723 (1967)). This level of prejudice, however, is permissible so long as the technical strictures of Rule 8 are met. Thus, Rule 8(b) is generally satisfied if the indictment charges a single conspiracy. United States v. Cole, 717 F.Supp. 309, 317 (E.D. Pa. 1989), aff'd,, 958 F.2d 365, 1992 U.S. App. LEXIS 4382 (3d Cir. 1992); United States v. Di Pasquale, 561 F.Supp. 1338, 1347 (E.D. Pa. 1983), aff'd, 740 F.2d 1282 (3d Cir. 1984), cert. denied, 469 U.S. 1228, 84 L. Ed. 2d 364, 105 S. Ct. 1226 (1985).
Cannistraro does not contest joinder under Rule 8. Rather, he argues joinder would be unduly prejudicial under Rule 14. Severance under Rule 14 is within the discretion of the trial court. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied sub nom, U.S. , 112 S. Ct. 340 (1991); United States v. Boyd, 595 F.2d 120, 125 (3d Cir. 1978).
Rule 14 authorizes a trial court to sever counts or defendants where, despite an indictment's technical compliance with Rule 8, joinder would result in a "manifestly unfair trial." Vastola, 670 F.Supp. at 1261 (citing United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981)). A defendant bears a heavy burden when he or she moves for severance under Rule 14. See Eufrasio, 935 F.2d at 568; United States v. Sandini, 888 F.2d 300, 305 (3d Cir. 1989), cert. denied, 494 U.S. 1089 (1990); United States v. De Peri, 778 F.2d 963, 983 (3d Cir. 1985), cert. denied sub nom., 475 U.S. 1110 (1986); United States v. Di Pasquale, 740 F.2d 1282, 1293 (3d Cir. 1984), cert. denied, 469 U.S. 1228, 84 L. Ed. 2d 364, 105 S. Ct. 1226 (1985). Mere allegations of prejudice are insufficient to meet this burden. A defendant "must demonstrate 'clear and substantial prejudice.'" Gorecki, 813 F.2d at 43 (quoting United States v. Sebetich, 776 F.2d 412, 427 (3d Cir. 1985), cert. denied, 484 U.S. 1017, 98 L. Ed. 2d 673, 108 S. Ct. 725 (1988)); United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir. 1986). A showing of prejudice cannot rest on the fact that "all evidence adduced is not germane to all counts against each defendant." Eufrasio, 935 F.2d at 568 (citing Sandini, 888 F.2d at 307). "'Neither a disparity in evidence nor the introduction of evidence more damaging to one defendant than another entitles the seemingly less culpable defendant to severance.'" Sebetich, 776 F.2d at 427 (quoting United States v. Simmons, 679 F.2d 1042 (3d Cir. 1982)).
In determining whether to sever a trial, the "court should balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants." Eufrasio, 935 F.2d at 568 (citing De Peri, 778 F.2d at 984). Joint trials "conserve [public] funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial." Bruton v. United States, 391 U.S. 123, 143, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Moreover, "joint trials generally serve the interest of justice by avoiding inconsistent verdicts and . . . advantages which sometimes operate to the defendant's benefit." Richardson v. Marsh, 481 U.S. 200, 210, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987).
Significantly, the "public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of defendants charged with a single conspiracy." Eufrasio, 935 F.2d at 568. The general rule is that defendants jointly indicted should be jointly tried. Id. ; Sandini, 888 F.2d at 306; Sebetich, 776 F.2d at 427.
In support of the request for severance, Cannistraro relies on the possibility that Pollack would be required to testify for or against Bertoli in Bertoli's case and would not be required to testify for or against Cannistraro. As previously discussed, however, Pollack's knowledge of the events underlying transfer of Centurion funds is relevant to Cannistraro's case as well. See supra, pp. 18-19. Moreover, it appears the Indemnity Agreement will be introduced in Cannistraro's case. Accordingly, even if the Government and Cannistraro do not call Pollack in Cannistraro's case, in light of the fact that Pollack signed the Indemnity Agreement, his presence will create an appearance of impropriety to the jury.
Moreover, both Cannistraro and Bertoli have been indicted on the same RICO, conspiracy to violate RICO and securities laws charges. The charges have been classified as complex and involving novel issues of law. The trial is projected to last two to four months.
Severance of the trial will, therefore, result in a gross waste of judicial resources, time and effort. The substantial public interest in judicial economy as well as the inability to eliminate the appearance of impropriety in Cannistraro's case, outweighs any prejudice to Cannistraro as a result of the disqualification of Pollack.
2. Waiver of Conflicts of Interest
Pollack also argues Cannistraro is prepared to waive any conflict of interest that may arise. Opp. Brief at 32. Specifically, Pollack argues Cannistraro is willing to waive cross-examination of Lugo if he testifies. Id. at 24, 26, 28; Oral Arg. Tr. at 4-5. Pollack argues Cannistraro also has agreed to waive any conflict of interest arising from the independent grand jury investigation of Pollack. Id. at 30.
As discussed, the Supreme Court has recently stated a trial court need not accept a defendant's waiver of a conflict of interest. 486 U.S. at 162-63. Cannistraro's level of education is not at issue here, as he is educated and intelligent individual. Indeed, at oral argument, counsel to Pollack represented Cannistraro had read all of the submissions of the Government and reviewed them with independent counsel as well Pollack. Oral Arg. Tr. at 10, 13-16. Counsel to Pollack represented that Cannistraro was, therefore, apprised of the problems associated with his choice of counsel.
The issue, however, is the ability of Cannistraro to make an objective decision unclouded by the emotional aspects associated with criminal charges. As recognized in Wheat : S
A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them.I
486 U.S. at 163.
This is a complex case and the dynamics of the trial are, to be sure, unpredictable. In light of the complexity of the case and the magnitude of the potential conflicts of interest in this case, waiver is inappropriate.
For the reasons set forth above, the Motion to Disqualify is granted. An order accompanies this opinion.
Dated: 12 May 1992