Wednesday, July 3, 2019

The Jewelry Of Denial

A felony conviction drew automatic disbarment from the New York Appellate Division for the Second Judicial Department

On May 25, 2018, the respondent was convicted, upon a jury verdict, in the United States District Court for the Eastern District of New York, before the Honorable Eric A. Vitaliano, of (1) conspiracy to alter records for use in an official proceeding, in violation of 18 USC §§ 1512(k) and 3551 et seq., and (2) alteration of records for use in an official proceeding, in violation of 18 USC §§ 1512(c)(1),(2) and 3551 et seq. As revealed in the indictment, the respondent was convicted for his role in a scheme to defraud the Port Authority of New York and New Jersey. More specifically, he was charged with destroying invoices and sales receipts issued from a jewelry store so that they could not be used in a grand jury investigation.

The federal crime has a New York state equivalent

We conclude that the respondent’s conviction of the federal felony of alteration of records for use in an official proceeding under 18 USC § 1512(c)(1) is essentially similar to the New York felony of tampering with physical evidence under Penal Law § 215.40(2) (see Matter of Kluger, 102 AD3d 168; Matter of Coren, 76 AD3d 285). By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

The case was summarized by the Office of the United States Attorney for the Eastern District of New York.

The evidence at trial established that between March 2013 and April 2015, Servider learned that his client Vincent Vertuccio, who secretly controlled the activities of a construction company called Crimson Corp. (Crimson), was the subject of a grand jury investigation.  Several law enforcement agencies, including the IRS, were investigating the flow of funds from Crimson to businesses that had supplied goods and services to Vertuccio.  Vertuccio had not reported those goods and services as taxable income on his federal personal income tax return.  After a grand jury subpoena was served on the jewelry store where Vertuccio purchased jewelry with Crimson funds, Servider and Vertuccio agreed to falsify the jewelry store receipts and invoices by removing any mention of Vertuccio’s name.   

The underlying criminal case had a conflicts issue

From indictment, Servider was represented by Michael Rosen until Attorney Rosen's most untimely death in July of this year. Michael Rosen was a lion of the Bar of this Court. His work is that of legend. His knowledge, his skill, his integrity, and his simple human decency are of cherished memory. Servider lost a talented and highly experienced lawyer; the Eastern District lost a mensch and one of its wonderful amici.

His chosen replacement

When Servider appeared on October 13, in a stunning move, he sought to retain Attorney Froccaro.

Froccaro represented the co-defendant who had pled guilty and was awaiting sentencing. He was prepared for the conflicts hearing. 

Attorney Froccaro came to the hearing loaded for bear; fully prepared to allocute Curcio waivers from both Servider and Vertuccio. Separate and independent Curcio counsel had privately met with their respective Curcio clients prior to appearance. Each defendant indicated that they understood their risks each might confront as a result of Attorney Froccaro's joint representation of them. Preliminarily, and before any Curcio allocution in open court, they indicated that they knowingly and voluntarily were prepared to accept those risks and waive any potential conflict or right to undivided loyalty resulting from the joint representation. All that was necessary for a successful Curcio waiver in ordinary circumstances was in place. What was missing were the ordinary circumstances.

To start, at all times relevant to the criminal conspiracy for which both defendants stood charged, Servider represented Vertuccio as an attorney — they were lawyer and client. The unlevel playing field does not end there. Servider and Vertuccio are before the Court in remarkably different postures. Ably represented by Attorney Froccaro, Vertuccio has already pled guilty to a charge of conspiracy to obstruct a grand jury investigation. See ECF Dkt. No. 116, supra at 2. Servider plans to go to trial proclaiming his innocence of being Vertuccio's co-conspirator. At the end of the road, Vertuccio will be sentenced for his crime. If convicted, so will Servider. In between, though, Attorney Froccaro will be gathering facts and confidences from both defendants that, based on his tactical decisions, whether Attorney Froccaro elects to use or refrain from using certain information, can come back to haunt either or both of his clients. Attorney Froccaro finds himself in this crucible not merely because he represents codefendants named in the same conspiracy but because he represents one defendant who acknowledges the existence of the conspiracy and his guilty involvement in it and the other who effectively denies that there was a conspiracy at all. It is a matter of joint representation, but hardly one of joint defense. These extraordinary circumstances differ from the cases cited by Attorney Froccaro, where potential conflicts were found waivable in the more ordinary circumstances those cases presented.

The road from here through trial, and beyond, where, at least Vertuccio will be sentenced, is fraught with peril. In prosecutions charging joint conduct, whether at trial or at sentencing, the shifting of blame and assessing culpability based on comparative roles is of utmost significance. For example, even if Servider were to be acquitted, Attorney Froccaro would not be able to use confidences gleaned from Servider that minimized Vertuccio's role at a Fatico hearing. On the flip side, the government's proof of conspiracy will most assuredly feature Vertuccio's role in it. It is not likely that Attorney Froccaro will be able to eliminate or, should there be a conviction, create a record that minimizes Servider's role without doing so at Vertuccio's expense...

Put succinctly, a trial court has its own independent interest in ensuring that the criminal trial proceeds fairly and justly, both as a matter of internal procedure and the public's interest in the integrity of the judicial process itself. That obligation works hand in glove with its duty to ensure that counsel acts ethically. For all of those reasons, the Court disqualified Attorney Froccaro as Servider's attorney and, at the time of its bench ruling, directed Servider to choose other qualified counsel.

(Mike Frisch)

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