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United States v. Chinnici

United States District Court, D. Vermont

July 17, 2018

UNITED STATES OF AMERICA
v.
JOHN CHINNICI Defendant.

          OPINION AND ORDER RE: CURCIO HEARING (Doc. 33)

          Christina Reiss, District Judge United States District Court

         Defendant John Chinmci is charged with unlawfully obstructing, delaying, and affecting commerce and the movement of articles and commodities in commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. This charge arises out of the January 11, 2016 alleged armed robbery committed by two masked men of two gas station employees on their way to deposit approximately $1, 700 at the Citizen's Bank branch in Bennington, Vermont.

         On June 20, 2018, the government filed a motion for a hearing pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982) with regard to possible conflicts of interest involving two anticipated government witnesses, Scott Galusha and Amy Stone. (Doc. 33.) The court granted the Office of the Federal Public Defender (the "FPD"), which previously represented Defendant and currently represents Ms. Stone, leave to file an amicus brief in which it argued that it did not have an actual or a potential conflict of interest in this matter.

         Defendant is represented by Ernest M. Allen, III, Esq. The government is represented by Assistant United States Attorneys Barbara A. Masterson and Joseph R. Perella.

         At the July 12, 2018 Curcio hearing, Defendant waived any conflict of interest resulting from his defense attorney's former representation of Scott Galusha. Mr. Galusha was not present to waive any objection he may have to his former counsel cross-examining him at trial.

         In contrast, Defendant does not agree to waive any actual or potential conflict with regard to the FPD's representation of Ms. Stone. Defendant argues that, as his former counsel, the FPD is in a position to use information it gleaned from its former representation of him against him at trial. In addition, he argues that the FPD essentially encouraged Ms. Stone to cooperate, thereby delivering Ms. Stone as a witness to the government contrary to Defendant's best interests. Defendant asks that Ms. Stone be excluded as a witness at trial on this and other grounds.

         The FPD argues that it has not breached any duties owed to Defendant as a former client. Having represented Defendant eleven years ago in an unrelated matter, the FPD asserts that there is no likelihood that any prior client confidences could be used against him.[1] The government concurs with the FPD's position and asks the court to find that there is no conflict of interest that precludes Ms. Stone's testimony.

         I. Factual Proffer.

         The government proffers that Amy Stone will testify that in January 2016, she sold firearms on behalf of a third party, for which she made approximately $ 100 per transaction. In one such transaction, Ms. Stone sold a firearm to an individual named "John" whom she met through John's cousin, Vanessa. Ms. Stone described John as "physically large with tattoos on his face and/or neck" and recalled that "John thanked her profusely after buying the gun, explaining that he had just been released from jail and was unable to buy a firearm." (Doc. 33 at 2.) The next day, Ms, Stone again met with John and Vanessa, and John asked to buy ammunition, but Ms. Stone did not sell any to him.

         Ms. Stone is represented by Assistant FPD Elizabeth Quinn. In 2006, FPD Michael L. Desautels represented Defendant when he was prosecuted for stealing firearms from a licensed firearms dealer, conspiracy to exchange firearms for crack cocaine, and being a felon in possession of a firearm. During this representation, Defendant pled guilty to being a felon in possession of a firearm. Prior to sentencing, on July 9, 2007, FPD Desautels was removed as counsel for Defendant, and, on July 11, 2007, Attorney Allen was appointed to represent Defendant. Thereafter, Attorney Allen represented Defendant at sentencing and through the conclusion of his case.

         II. Conclusions of Law and Analysis.

         Defendant argues that there is a conflict of interest with regard to Ms. Stone's representation by the FPD because she is a government witness represented by his former counsel. The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. CONST, amend. VI. Under the Sixth Amendment, a criminal defendant is entitled to "the right to select and be represented by one's preferred attorney[.]" Wheat v. United States, 486 U.S. 153, 159 (1988). Notwithstanding this right, "the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Id.

         The defendant's right to representation by counsel includes the right to representation by conflict-free counsel. See United States v. Perez, 325 F.3d 115, 125 (2d Cir. 2003) ("The right to the effective assistance of counsel also includes the right to be represented by an attorney who is free from conflicts of interest.") (citing Wood v. Georgia, 450 U.S. 261, 271 (1981)).

[A]lthough a criminal defendant can waive [his] Sixth Amendment rights in some circumstances, that right to waiver is not absolute, since "[f]ederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and ...

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