United States District Court, D. Vermont
OPINION AND ORDER RE: CURCIO HEARING (Doc.
Christina Reiss, District Judge United States District Court
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.
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.
is represented by Ernest M. Allen, III, Esq. The government
is represented by Assistant United States Attorneys Barbara
A. Masterson and Joseph R. Perella.
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.
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.
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. 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.
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.
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
Conclusions of Law and Analysis.
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.
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