Petition for Writ of Certiorari — Christunas v. United States
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Supreme Court of the United States
* October Cerm, 1995 «
KENNETH CHRISTUNAS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
i
p—_
_
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ee A Ae
> AND APPENDIX <
DOMNICK J. SORISE
Counsel of Record
33830 Harper Avenue
Clinton Township, Michigan 48035
(810) 415-1200
Attorney for Petitioner
Interstate Brief & Record Company, a division of North American Graphics, Inc.
1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230
ee Sa rN
i
QUESTIONS PRESENTED FOR REVIEW
I.
DID THE JUDGE COMMIT REVERSIBLE ERROR BY NOT DIS-
QUALIFYING DEFENSE COUNSEL WHO WAS BURDENED BY A
CONFLICT OF INTEREST WHICH PREVENTED SUBSTANTIAL
IMPEACHMENT OF A KEY GOVERNMENT WITNESS BY PUBLIC
RECORDS ?
I.
WAS DEFENDANT EFFECTIVELY DENIED HIS RIGHTS
TO TESTIFY AND PRESENT A VIABLE DEFENSE BY THE
JUDGE'S REFUSAL TO CONTINUE BIFURCATED TRIAL PRO-
CEEDINGS (WHICH HAD PREVIOUSLY BEEN GRANTED TO CO-
DEFENDANTS), AND/OR BY INEFFECTIVE ASSISTANCE OF
COUNSEL?
teenie
ape
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ......ccccccccseccccoseosess. i
a i iv
pO RAI ici. votes ]
ko, RCE: TARE Ses ea SS gee er ]
CONSTITUTIONAL PROVISIONS 00........ccccccccccccocscoscoseecesees. ]
DEATEMEIOT OP THEE CASE oo occ cocicscccecsccbecosecceionce...... 2
REASONS FOR GRANTING WITH WRIT:
I. THE JUDGE COMMITTED REVERSIBLE ERROR BY
NOT DISQUALIFYING DEFENSE COUNSEL WHO
WAS BURDENED BY A CONFLICT OF INTEREST
WHICH PREVENTED SUBSTANTIAL IMPEACHMENT
OF A KEY GOVERNMENT WITNESS BY PUBLIC
WPI allieetcdckccsadceenirs itcenedebsoctinscobecsdcocccsc.o.oe.e. 7
ll. DEFENDANT WAS EFFECTIVELY DENIED HIS RIGHTS
TO TESTIFY AND PRESENT A VIABLE DEFENSE BY
THE JUDGE'S REFUSAL TO CONTINUE BIFURCATED
TRIAL PROCEEDINGS (WHICH HAD PREVIOUSLY
BEEN GRANTED TO CO-DEFENDANTS), AND/OR BY
INEFFECTIVE ASSISTANCE OF COUNSEL. ........ccscec0s-e. 17
SUMMARY AND CONCLUSION .00.0..0..cccccccccsscscscsssseseecceseses 25
APPENDIX:
ORDER DENYING PETITION FOR REHEARING —
United States Court of Appeals, Sixth Circuit
I aii ekiese cid Sil, cdc A-1
OPINION AFFIRMING CONVICTIONS AND SENTENCES —
United States Court of Appeals, Sixth Circuit
Oa» SC RACER a 7A Ra rane A-2
ORDER GRANTING DEFENDANTS’ REQUEST FOR BIFUR-
CATED TRIAL AND ORDER AFFIRMING MAGISTRATE’S
FEBRUARY 19, 1993 ORDER DENYING MOTION FOR
SEVERANCE — United States District Court, ED
J 9 . |S are A-14
iv
Page(s)
EXCERPTS FROM TRANSCRIPT OF JURY TRIAL:
Discussion Re: Susan Sancho (3/15/93) ............. A-18
Discussion Re: Susan Sancho (3/16/93) ............ A-25
Discussion Re: Susan Sancho [Separate Record]
COLTS) ecvisrstiniiicibcciscmnitiimarehtdab demi A-26
Discussion Re: Susan Sancho (3/18/93) ............. A-40
Discussion Re: Susan Sancho (3/29/93) ............. A-49
Defense of Withdrawal (4/5/93) .......ccccccccseeeceeeees A-57
Motion for Bifurcated Trial, and Court Ruling
COG. saitisccsensnsilgaeteicaaasnneias A-62
TABLE OF CITATIONS
Cases:
Chambers v Mississippi, 410 US 284 (1973) ................ 22
Clark v United States, 289 US 1 (1933) .......cceeeeeeeeeees ll
Cuyler v Sullivan, 446 US 335 (1980) .............00.... 7, 8, 10
Estelle v Williams, 425 US 501 (1976) ..............ccceee 23
Ferguson v Georgia, 365 US 570 (1961) ........ ee. 22
Glasser v United States, 315 US 60 (1942) oe 7
Hoffman v Lecke, 903 F2d 280 (4th Cir 1990) ............ 12
Holloway v Arkansas, 435 US 475 (1978) ....c.scscssssseeseene 7
Se Ble CNET, BIS TS Ta CA wissen decisis snacsinsesinienicaies 22
Johnson v Zerbst, 304 US 458 (1938) 0... eeeeeeeee 17
McMann v Richardson, 397 US 759 (1970) ...............0.. 7
Rock v Arkansas, 483 US 44 (1987) .......cccceccesseeeseeeeee 22
Shaffer v United States, 362 US 511, 516 (1960) ........... 19
Strickland v Washington, 466 US 668 (1984) ........... 7, 24
United States v Causey, 834 F2d 1277
CORED GRE ROPE P. csckisiseidine cinch chstteichnctncaccGethcomnscns 18, 21
United States v Crane, 499 F2d 1385 (6th Cir 1974) ... 18
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Page
United States v Fahey, 769 F2d 829
Se i IE ciecasdscolininokaasbchinchicdlocinakicsnsiguapancivlanss 4% 9, 15
United States v Fulton, 5 F3d 605 (2d Cir 1993) ..... 9, 10
United States v Guess, 745 F2d 1286 (9th Cir 1984) ... 19
United States v lorizzo, 786 F2d 52 (2d Cir 1986) ... 9, 15
United States v Joshi, 896 F2d 1303 (CA 11 1990) ...... 23
United States v Joshua, 976 F2d 844 (CA 3 1992) ....... 22
United States v Lowry, 971 F2d 55 (7th Cir 1992) .. 9, 16
United States v Sivils, 960 F2d 587 (6th Cir 1987) ..... 18
United States v Swift, 809 F2d 320 (6th Cir 1987) ...... 19
United States v United States Gypsum Co., 438 US
ae Bh Sg, | SRR Reo ee NR TE OER PORTE 22
United States v Walker, 772 F2d 1172 (5th Cir 1985) .. 23
Vincent v Parke, 942 F2d 989 (6th Cir 1991) .......000..... 19
Wheat v United States, 486 US 153 (1988) ..........0.... 9, 13
Wood v Georgia, 450 US 261 (1981)... eeeeeeeeeees 7
Zafiro v United States, 113 SCt 933 (1933) .......0...... 17, 18
Statutes:
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OF RM URES dlcinicteatatssscsctasabaianincnuiiccksusigeeaiaicunuceel 2
Be Rad EI eicistercs cack tin tobe ils cidtascsnsinbicsnsiaisacslombeobciaah 2
Ae CID Wiis schadoicvhnc chncspalsnddescacabisbdbec sta icodaeaceced 2
Be MAE HI afartedivaspbcnceodcecabuicsvecaacedtuesscelacisamee daubeieeeete 2
We MUACHE, Soest cucs incase cpuertstsconniontd ecasanpcalensahicedounabedanbaaieins 2
Sa MN WHE toga oushnncncanpcaaban cs atpeincsatiniainch cstendssomsiantoucaeiia 2
a Re UE wih hichaside bic as dence Aisle teausalassadabatasnvianeetnnseiscacs 2
Be SE tin dyadic cand tanaeniblssiudcatabhiinn bocahiaienoadse: 2
Rule:
Federal Rule of Criminal Procedure 14 .................. 17, 18
No.
In The
Supreme Court of the Hnited States
* October Term, 1995 +
ee
KENNETH CHRISTUNAS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
—— ee
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
mon
OPINIONS BELOW
The opinions of the district court (Eastern District of
Michigan, Southern Division), and the United States
Sixth Circuit Court of Appeals are unreported, and are
contained herein at Appendix A-75 and A-2, respectively.
JURISDICTION
The United States Sixth Circuit Court of Appeals
denied relief in an opinion entered March 8, 1995, and
denied rehearing in an order entered on April 12, 1995.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS
United States Constitution, Amendment V provides in
pertinent part:
“No person shall ... be compelled in any crim-
inal case to be a witness against himself ... be
2
deprived of life, liberty, or property, without due
process of law... ”
United States Constitution, Amendment VI provides in
pertinent part: 2
“In all criminal prosecutions, the accused shall
enjoy the right ... to have compulsory process
for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense.”
STATEMENT OF THE CASE |
On April 13, 1992, a grand jury in the Eastern District,
Southern Division of Michigan, returned an eight-count
indictment against Defendant-Appellant Kenneth
Christunas and eleven others. A seven-count super-
seding indictment was issued on July 16, 1992. Defend- |
ant was charged in all counts: count one alleged
conspiracy to possess and distribute marijuana through
about 1983 to May, 1991, with criminal forfeitures (21
USC 846, 841(a)(1); 853); counts two, three and four
alleged possession with intent to distribute marijuana
(21 USC 841(a)(1); 18 USC 2); count five alleged con-
spiracy to launder monetary instruments (18 USC 1956,
371); count six alleged conspiracy to import marijuana
(21 USC 952, 963); and count seven alleged continuing
criminal enterprise (21 USC 848).
On March 9, 1993, jury trial began before Hon. Paul V.
Gadola. Defendant was tried with five co-defendants, his
brothers David and James, his brother-in-law Arthur
Ricky Brayman, Robert Johnson, and Herbert Micou.
The remaining co-defendants plead guilty, and did not
testify as government witnesses. During trial, the gov-
ernment dismissed count four (X 4)'. On April 4, 1993,
1 Transcript volumes are identified by a roman numeral or the
names of the proceeding, followed by the page number. Documents
are identified by title, subject matter, and/or date.
—————— es
3
Defendant was convicted on counts one, two, three, five,
six, and seven (XV 7-10).
in an opinion dated September 15, 1993, Defendant’s
motion for judgment of acquittal was granted on count
five, and denied on count seven.
On December 14, 1993, Defendant was sentenced to
292 months in prison on count seven, with concurrent
terms of 240 months on counts two, three and six.
Count one was dismissed as a lesser included offense of
count seven (Sent 40-44).
Defendant filed a timely appeal as of right, main-
taining among other issues that the trial judge erred by
not disqualifying defense counsel who was burdened by
an actual conflict of interest, and effectively denied
Defendant his rights to testify and present a viable
defense by refusing to continue bifurcated trial proceed-
ings. In an unpublished opinion filed March 8, 1995, a
panel of the United States Court of Appeals for the Sixth
Circuit affirmed Defendant’s convictions and sentences.
(App A-2). In an order filed April 12, 1995, the panel denied
Defendant’s timely petition for rehearing. (App A-1).
Before trial, the magistrate denied a motion for sever-
ance filed by Defendant Kenneth Christunas and three
co-defendants. The magistrate also denied an earlier
motion for severance filed by Co-Defendants J. Christunas
and Brayman, who had sought a severance and subse-
quent trial to assert the defense of withdrawal, but did
suggest bifurcation of trial proceedings. The district
judge, upon request of both groups of defendants and
over government objections, granted bifurcation as sug-
gested by the magistrate (I 6-16).
Also before trial, the government informed Defend-
ant’s attorney that Susan Sancho, a prior client, would
be a witness, and Defendant’s attorney informed the
government that “he could be a potential witness” (TIIl
14-15) (App A-46-A-47). This matter was not brought to
the court until after direct examination of the second
A
witness (I 241-151) (App A-18-A-25), and was not re-
solved until the fifth day of testimony (V 5-16) (App
A-49-A-57).
The government called 22 witnesses in its case in
chief. Patrick Ogle (I 104), Robert “Pete” Michelson (lll
77), John Fredrikson (IV 164), and Susan Sancho (VIII 10)
were informants who offered direct testimony, pursuant
to plea, sentence, and other agreements, implicating
Defendant and others in marijuana distribution dating
back to the early 1980’s. These and other witnesses tes-
tified that Defendant had purchased, or participated in
purchases of marijuana, in Florida and Texas for ship-
ment to Michigan.
Susan Sancho had obtained, through Defendant’s
attorney and upon a claim of innocent spouse, a
$ 30,000.00 settlement after the death of her husband,
Gary Sancho, in drug forfeiture proceedings, and testi-
fied that she did not want Defendant’s attorney ques-
tioning her about any discussions (Il 237-238) (App
A-28-A-29). Defendant declined to waive his right to
cross-examine Mrs. Sancho about the forfeiture proceed-
ings, and the judge approved an arrangement where
another lawyer would cross-examine Mrs. Sancho about
the forfeiture proceedings without reference to Defend-
ant’s attorney, and Defendant’s attorney would not be
a witness (I 241-251; II 5-7, 231-263; Ill 5-19; V 5-16) (App
A-18-A-25; A-25-A-26; A-26-A-40; A-40-A-49; A-49-A-57).
Mrs. Sancho offered testimony implicating Defendant in
marijuana trafficking, claiming an extensive knowledge
which predated the drug forfeiture proceedings by
some 10 years (VII 10-12, 29-31). On cross-examination,
Mrs. Sancho claimed little knowledge or recall of the
forfeiture proceedings and her innocent spouse defense
and settlement, and outside counsel was unable to
impeach Mrs. Sancho’s claimed knowledge by use of
public records (VII 51-53, 77-79).
o>
Sata Nag ta heat
5
Testimony of other informants identified Defendant as
a source of supply, the person in charge, and a bulk
buyer of marijuana (lll 24-30; V 135-136; IV 195-204) by
hearsay statements allegedly made by co-conspirators
(X 32-50), and implicated Defendant and others in a
scheme to purchase and retrofit for marijuana importa-
tion an ocean-going freighter which was seized by United
States Customs before being outfitted (VIII 32-48).
The government also presented a number of bank
employees to show that Defendant and others obtained
safety deposit boxes, and that cash was found in one
box upon opening a closed box in 1988 (VII 10-141; VIII
16-32). The last government witness was IRS Agent
Edward Fontanive (VIII 84), whose testimony indicated
that Defendant’s reported income never exceeded
$19,000.00, and was lower, from 1975 to 1984, but
increased to $300,000.00 in 1985, and remained over
$ 100,000.00 in 1986 and 1987.
At the close of the government's case, attorneys for
Co-Defendants J. Christunas and Brayman asked to with-
draw their request for bifurcation, along with the
defense of withdrawal (VIII 145) (App A-57-A-58). The
judge allowed these co-defendants to do so and to rest
without presenting the defense of withdrawal (IX 41-43),
and both were acquitted of the charged conspiracy (XV
14-18).
In turn, Defendant’s attorney asked the judge to
extend bifurcated proceedings to Defendant in order to
allow him to present the defense of withdrawal (VIII
146) (App A-58). Counsel stated that Defendant was pre-
pared to testify as indicated in previously filed sever-
ance pleadings, and to admit that he was involved in
marijuana distribution in the early 1980's, became fright-
ened by an arrest in Florida in December, 1985, discon-
tinued his involvement, and communicated his
withdrawal to other members, including his family (VIII
146-147) (App A-58-A-59). Counsel argued that “All the
reasons that were offered on behalf of the other Defend-
6
ants at the beginning of trial, | think, obtain in the case
of Mr. Christunas” (IX 9) (App A-64), and sought “the
same opportunity” (IX 7) (App A-63). Defense counsel
candidly explained that the government case “went in
stronger than | thought”, and compelled him to re-
evaluate the defense position (IX 8, 13) (App A-64, A-67).
The government objected, and the judge denied Defend-
ant’s request for continuation of bifurcated proceedings
(VIII 142-151; IX 5-38) (App A-57~A-61; A-62-A-84). Defend-
ant rested without testifying or presenting witnesses (IX
145), and the jury convicted as charged (XV 7-10).
The particular facts relevant to each issue raised in
this petition will be presented in the course of the
arguments.
Defendant now timely petitions this Court for writ of
certiorari under 28 USC Sec 1254(1).
7
REASONS FOR GRANTING THE WRIT
THE JUDGE COMMITTED REVERSIBLE ERROR BY NOT DIS-
QUALIFYING DEFENSE COUNSEL WHO WAS BURDENED BY
A CONFLICT OF INTEREST WHICH PREVENTED SUBSTAN-
TIAL IMPEACHMENT OF A KEY GOVERNMENT WITNESS BY
PUBLIC RECORDS.
The “Sixth Amendment right to counsel exists, and is
needed, in order to protect the fundamental right to a
fair trial.” Strickland v Washington, 466 US 668, 684
(1984). This constitutional guarantee encompasses two
correlative rights: the right to effective assistance of
counsel, McCann v Richardson, 397 US 759, 770-771
(1970), and the right to counsel's undivided loyalty,
Wood v Georgia, 450 US 261, 272 (1981). Hence, counsel
has “a duty to avoid conflicts of interest”. Strickland v
Washington, supra at 466 US 688.
To establish a Sixth Amendment violation based on a
conflict of interest, defendant must show: (1) counsel
actively represented conflicting interests, and (2) an
actual conflict of interest adversely affected the lawyer’s
performance. Cuyler v Sullivan, 466 US 335, 348-350
(1980). Unlike a challenge to counsel's competence, pre-
judice is presumed upon such a showing. Strickland v
Washington, supra at 466 US 692.
Since Glasser v United States, 315 US 60, 70 (1942), this
Court has refused “to indulge in nice calculations as to
the amount of prejudice” once an actual conflict has
been shown. United States v Fahey, 769 F2d 829, 834 (Ist
Cir, 1985); Cuyler v Sullivan, supra 446 US 349-350. This is
the rule of law because “the evil — it bears repeating —
is in what the advocate finds himself compelled to
refrain from doing”. Holloway v Arkansas, 435 US 475,
490 (1978).
8
This case invloves an issue of restrained advocacy
based on dual loyalties: Defendant’s trial attorney, N.C.
Deday LaRene, had previously represented an indi-
vidual, Susan Sancho, whom the government chose to
call as a witness. (1 245-251; Il 5-7, 231-263; Ill 5-19; V 5-16;
Vill 10-85) (App A-20-A-25; A-25-A-26, A-26-A-40; A-40-
A-49; A-49-A-57).
Throughout his appeal to the Sixth Circuit, Defendant
maintained, pursuant to Cuyler v Sullivan, supra, that trial
counsel actively represented conflicting interests, and
that an actual conflict of interest affected trial counsel's
performance. The Sixth Circuit opinion did not dispute
Defendant’s showing of an actual conflict of interest
adversely affecting his defense, but rather acknow-
ledged that:
“Ken Christunas’ counsel, N.C. Deday LaRene, had
an actual conflict of interest in that he had previ-
ously represented Susan Sancho and her hus-
band Gary Sancho in contesting a civil forfeiture
of their home based on her husband’s drug
dealing.” Opinion at 9 (footnote omitted; empha-
sis added) (App A-10).
However, the opinion went on to limit trial counsel’s
conflict to testifying as a defense witness regarding his
former client and the current government witness:
“Susan Sancho was to be, and was called, as a
government witness. LaRene brought the poten-
tial conflict to the attention of the court, initially
pointing out that he would not be able to testify
on Christunas’ behalf with respect to Susan
Sancho’s testimony, unless he withdrew as
Christunas’ counsel.” Opinion at 9 (App A-10).
From this limited perspective, the opinion had no diffi-
culty in summarily concluding that Defendant “waived
any claim of ineffective assistance of counsel based on
LaRene’s failure to withdraw as counsel”, relying solely
9
on United States v Lowry, 971 F2d 55 (7th Cir, 1992).
Opinion at 9-10. (App A-10-A-11).
Defendant submits that the foregoing view is erro-
neous and ignores significant facts and circumstances
of the case, and as a result conflicts with this Court’s
decision in Wheat v United States, 486 US 153, 159-160
(1988), and circuit court decisions such as United States
v Fahey, supra at 769 F2d 835; United States v lorizzo,
786 F2d 52, 54, 57-58 (2d Cir, 1986).
In essence, Wheat, supra at 486 US 159-160, instructs
that “the Sixth Amendment right to choose one’s own
counsel is circumscribed in several important respects”
and that “But no such flat rule [waiver cures any prob-
lems] can be deduced from the Sixth Amendment pre-
sumption in favor of counsel of choice.” This is so
because the federal bench has independent duties and
mutiple interests:
“,.. 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 he prefers.’ Moreover, federal courts have
‘an independent interest in ensuring that crim-
inal trials are conducted within the ethical stan-
dards of the profession and that the legal
proceedings appear fair to all who observe
them.’ [Wheat]. /d. at 160; 108 SCt at 1698. When
a lawyer’s conflict, actual or potential, may result
in inadequate representation of a defendant or
jeopardize the federal court’s institutional
interest in the rendition of a just verdict, a trial
judge has discrection to disqualify an attorney
or decline a proffer of waiver. /d. at 162-63, 108
SCt at 1698-99.” United States v Fulton, 5 F3d 605,
612 (2d Cir, 1993).
Here, the conflict was admitted actual, and was not lim-
ited to the problem of offering contradictory testimony,
10
but extended to the right of full and effective cross-
examination. Indeed, Defendant’s firmly stated position
at trial was that the cross-examination of Susan Sancho
should not exclude the prior drug forfeiture proceed-
ings or her innocent spouse claims. (Ill 8-9) (App A-42-
A-43).
This position was not knowingly, intelligently, or
voluntarily waived by Defendant. Rather, it was lost
through attrition and momentum occasioned by the fol-
lowing circumstances at trial.
The record indicates that on February 1, 1993, the
government informed Defendant’s attorney that Mrs.
Sancho would be a witness, and Defendant’s attorney
informed the government that “he could be a potential
witness” (Ill 14-15) (App A-46-A-47). Defendant was
apparently informed of the situation “in advance of
trial”, but the matter was not brought to the court until
after jury selection, opening statements, and direct
examination of the second witness, on March 15, 1993
(I 241-251) (App A-18-A-25). See, Cuyler v Sullivan, supra
at 446 US 347. The matter was not concluded until
March 29, 1993 (V 16) (App A-57), after the government
had presented at least three of its key witnesses —
Patrick Ogle (1 169), Robert “Pete” Michelson (Ill 77), and
John Frederikson (IV 164).
Herein lies much of the problem — the matter was
not even addressed until trial, when all parties gained
an interest in continuing because of the investment of
time, effort and resources. In United States v Fulton,
supra at 5 F3d 612-613, defendant argued “that his
waiver is invalid because the district court abused his
discretion in not disqualifying trial counsel after the
allegations were aired and the conflict became
apparent” during trial. The Court agreed, stating:
“... we certainly appreciate that the able district
judge in this case was caught by surprise — a
situation the government should have prevented
11
by the simple expedient of informing the district
judge of the allegations in advance of trial.” /d. at
612-613.
The judge in this case struggled with the issue, at
first not seeing the problem and asking defense counsel
to make inquiry of Defendant (I 248-251) (App A-22-
A-25). The judge revisited the issue the next morning,
believing “there are still some remaining problems” and
wanting “an opportunity to address that whole situation
before Mrs. Sancho was called” (II 5-7) (App A-25-A-26).
Later in the day, Susan Sancho was examined on a sepa-
rate record, with the judge finding “Mrs. Sancho has
indicated to the Court's satisfaction that she considered
you, Mr. LaRene, to be her attorney at the time of these
forfeiture proceedings” (II 235-239) (App A-27-A-30),
which were based on drug trafficking (1 248; III 5) (App
A-22-A-23; A-40-A-41). Mrs. Sancho had obtained, upon a
claim of innocent spouse, a $30,000.00 settlement after
the death of her husband Gary Sancho, and testified
that she did not want attorney LaRene questioning her
about any discussions or meetings (II 237-238) (App
A-28-A-29).
The judge quickly concluded that counsel could not
cross-examine or be a witness regarding “the contacts
and the communications that you had with her during
the handling of her legal business” (II 241-242) (App
A-31-A-32). But see, Clark v United States, 289 US 1 (1933).
However, counsel indicated that there were other conver-
sations which would not be privileged “because of the
presence of third parties”, and that he wanted to ques-
tion Mrs. Sancho about her claim of innocent spouse in
the forfeiture pleadings “avoid[ing] the issue of who the
lawyer was” (II 243-245) (App A-32-A-34). The judge rec-
ognized that the proposed cross-examination had sub-
stantial value, and serious problems.”
2 “I think it’s pretty clear that — that were you to get into
that matter of — in an attempt on cross-examination to
(concluded on page 12)
AC IRR EL Co CE A LE Sem
12
Defendant thereafter indicated that he wanted to
confer further with counsel, and the judge encouraged
him to seek advice from independent counsel (II 250-
251) (App A-37-A-38). Defendant was given the next day,
an off-day, to do so (II 251) (App A-38). Before this pro-
ceeding concluded, defense counsel suggested “one of
the options that may be available is to have another
lawyer come in to represent Mr. Christunas for pur-
poses of cross-examination of Mrs. Sancho ... regarding
the pleading in question”, but had second thoughts
because the jury might “learn in the course of that, that
I had in fact represented her and Gary Sancho” (Il 252-
253) (App A-38-A-39). This suggestion became the end
result, but it did not remedy the conflict, and had fore-
seeable adverse effects on the representation of
Defendant. See, Hoffman v Lecke, 903 F2d 280 (4th Cir
1990) (Where the presence of counsel without a conflict
did not overcome the deficiency of counsel with a con-
flict of interest).
At the next court date, Defendant’s position was
asserted by trial counsel:
“MR. LARENE: Mr. Christunas and | have come to
the conclusion that it is — would be appropriate
— well, that the cross-examination should be
conducted — the cross-examination of Mrs.
Sancho that might — that would touch upon her
position taken in the — in the resolution of the
forfeiture case should be conducted — should
be a part of the cross-examination.
(continued from page 11)
show that she had at one time at least taken a position at a
time she was represented by you — she had adopted a
position at that point that she knew nothing about any nar-
cotics dealing by her husband and then presumably here
now gives some testimony of a different character, I think
you'd be in a — really impossible situation.” (Emphasis added)
(Il 246) (App A-35).
13
Mr. Christunas wishes me to continue as his
attorney and does not wish to waive his right to
conflict-free representation in order to have me
continue as his attorney and does not wish to
have me avoid the area of cross-examination that
we discussed.
However, he has also consulted with Mr. Robert
Morgan? who is in court today, who is a lawyer, a
member of the bar of this court, and consulted
with him at some length, and we propose — and
it is acceptable to Mr. Christunas as a way to
resolve, in our view, the — the issue and the
conflict now before the Court — that Mr. Morgan
will — or should be permitted to conduct the
cross-examination of Mrs. Sancho regarding the
forfeiture case.” (Ill 8-9) (App A-42-A-43).
Defendant’s position obviously precluded attorney
LaRene from testifying as a defense witness, and
attorney Morgan from access to any documents within
the scope of the attorney-client privilege, and Defendant
was so advised immediately (1 9-15).
The judge also inquired of attorney Morgan, who
requested time for preparation, including “to review the
civil forfeiture file” (III 15) (App A-47). The judge granted
the request, expressed uncertainty and took the matter
under advisement until March 29, 1993, but continued
with the testimony of other government witnesses (Ill
17-19) (App A-48- A-49). At no time during this pro-
ceeding was it stated that attorney Morgan would not be
able to use the Sancho “civil forfeiture file” for impeach-
ment, which was at the heart of Defendant's position.
See, Wheat v United States, 486 US 153, 163 (1988).
In the interim, the government presented two of its
key witnesses, Michelson (lll 77) and Fredrikson (IV 5).
3 Attorney Morgan was representing attorney LaRene on a
pending indictment in the same courthouse (V 15-16) (App A-56-
A-57).
14
Defendant was waist-deep into the trial on March 29,
1993, when the judge returned to the matter (V 5-9)
(App A-49-A-52). For the first time it was indicated by
defense counsel that attorney Morgan would not intro-
duce documents from the “civil forfeiture file” for
impeachment of Mrs. Sancho (V 10) (App A-53). Even
the judge blinked (V 11-12) (App A-53-A-54).*
Mrs. Sancho thereafter offered testimony implicating
Defendant in marijuana trafficking, claiming an extensive
knowledge which predated the drug forfeiture proceed-
ings by some ten years (VII 10-12, 29-31). However, on
cross-examination, Mrs. Sancho claimed little knowledge
or recall of the forfeiture proceedings and her innocent
spouse defense and settlement.®
4 “THE COURT: In other words, it’s your understanding
that he would seek to introduce the — the agreements?
MR. LARENE: No, no. I don’t —
THE COURT: No?
MR. LARENE: No. he — he will not seek to introduce
the documents themselves, just cross-examine her about
their existence. The reason that he won't introduce the doc-
uments is because they bear my signature, and we think
that it is inappropriate to put before the jury the fact that I
represented her and thereby put into issue my credibility or
my conduct as her lawyer.” (V 11-12) (App A-53-A-54).
5 “Q And you knew there was a complaint filed in federal
court, in United States District Court, here in Detroit, in
the Federal building, a complaint for them to keep your
hore. You knew that, didn’t you?
A_ I know they were trying to take the home. That’s all I
know.
Q They were trying to. That’s all you know? You don’t
know if there were any papers filed, that there was a law-
suit, that was assigned to a judge? You don't know anything
about that?
A There was a sticker on the door of our house.
Q Well, and you saw some — some papers, at some
point in time, didn’t you, a complaint to forfeit, a law docu-
ment filed in court? You saw some papers, did you now?
(concluded on page 15)
15
In United States v Fahey, supra, at 769 F2d 835, the
First Circuit indicated that a proposed or tendered
“waiver doesn't foreclose the possibility that an actual
conflict could have adversely have affected the ade-
quacy of representation.” In United States v lorizzo,
supra at 786 F2d 57-58, the Second Circuit rejected gov-
ernment arguments for waiver concerning “earlier repre-
sentation of the government's key witness in a related
state proceeding” because:
“The decision to forgo inquiry was thus made
solely to protect the interests of defense
counsel.
Supreme Court decisions require us to reverse
the convictions in such circumstances.” { foot-
note omitted]
Such applies to, and should obtain, in this case because
the judge stated and realized “Mr. LaRene could be
treading on treacherous ground” (I 249) (App A-23);
“there is a serious problem here” (II 244) (App A-33);
“you'd be in a — really impossible situation” (Il 246)
(App A-35); and, “I may come to the conclusion that it’s
necessary to take other action” (Ill 18) (App A-49).
(continued from page 14)
A I don’t recall.
Q You don't recall?
A. No. (VII 51)
*x* * *
Q Would it be fair to say that, in connection with that
lawsuit, your position was that you were an innocent spouse?
You didn’t know anything about the marijuana business?
A I’m just confused. Would you repeat that, because
I'm getting tired?
Q All right. Would it be fair to say that, in connection
with that lawsuit, about the Wahrman house, your position
in that lawsuit was that you were an innocent spouse? You
didn’t know anything about the marijuana business? Was
that your legal position in that case?
A. I’m not sure.” (VII 78)
16
The Sixth Circuit’s total reliance on United States v
Lowry, supra at 971 F2d 61, is misplaced because even there
the Court emphasized that conflict-waiver issues are:
“. . .fact-intensive, and we must thoroughly
examine the facts and circumstances of the case,
‘including the background, experience, and con-
duct of the accused.’ Johnson v Zerbst, 304 US
458, 464; 58 SCt 1019, 1023; 82 LEd 1461 (1938).”
Lowry, Id. at 57, 62 n6, was a unique case in many
respects, including facts of a massive fraud which “read
like the plot outline of a prime time movie to be shown
during television’s sweeps week”, and a defendant who
“was fifty-eight years old at the time of the trial, had the
equivalent of two years of college, had taught at two
business colleges, and had run his own mail-order and
printing business since the mid-1960’s”.
Here, the record is not only devoid of such critical
facts on the one hand, but affirmatively shows on the
other hand that Defendant “does not wish to have me
[trial counsel] avoid the area of cross-examination that
we discussed” (Ill 8-9) (App A-42-A-43). While Defen-
dant may have previously waived trial counsel as a
defense witness (I 9-15), he made no waiver regarding
the subject matter and content of cross-examination,
regardless of the attorney involved (ill 8-9) (App A-42-
A-43). It is surprising that the district judge counte-
nanced any restriciton on Defendant's rights to con-
frontation in light of the fact that he had previously
granted substitute counsel’s request for a continuance
to prepare and “to review the civil forfeiture file” (III 15-
19) (App A-47-A-49). It was more than suprising to
Defendant who was “whipsawed” by another restriction
and the continuation of trial, and between waiving his
right to a conflict free attorney or his right to full cross-
examination. Defendant had neither in the end.
Since this Court is obliged to “indulge in every rea-
sonable presumption against waiver of fundamental
aE EE
17
rights”, Johnson v Zerbst, 304 US 458, 464 (1938), and
this record indicates that such a waiver was not prop-
erly made or accepted, Defendant's petition for writ of
certiorari should be granted.
DEFENDANT WAS EFFECTIVELY DENIED HIS RIGHTS TO
TESTIFY AND PRESENT A VIABLE DEFENSE BY THE
JUDGE'S REFUSAL TO CONTINUE BIFURCATED TRIAL PRO-
CEEDINGS (WHICH HAD PREVIOUSLY BEEN GRANTED TO
CO-DEFENDANTS), AND/OR BY INEFFECITVE ASSISTANCE
OF COUNSEL.
Rule 14 of the Federal Rules of Criminal Procedure
affords the district judge the discretion to “provide
whatever other relief justice requires” with respect to
severance and related requests. In Zafiro v United States,
133 SCt 933, 938 (1993), this Court further provided the
district judge with the discretion for “the tailoring of
the relief to be granted”.
In an oral opinion (I 6-16) and a written opinion on
March 15, 1993 (App A-14), the district judge in this case
granted a bifurcated trial, as suggested by the magistrate, ®
6 “Under the partial bifurcation envisioned by the under-
signed, all six defendants would proceed to trial at the
same time before the same jury. The government would
present all of its proofs against all six defendants. At such
time as the prosecution rests, defendants Kenneth Chris-
tunas, David Christunas, Robert Johnson and Herbert
Micou would be invited to put forward any proofs that
these four defendants choose to present. After these defen-
dants have rested, and the government had been given its
chance to present rebuttal evidence, the jury would be
instructed and final arguments would be presented
regarding the guilt or innocence of these four defendants
only. Following the return of jury verdicts with regard to
these four defendants, the Court would reconvene the trial
before the same jury panel and permit defendants James
Christunas and Arthur Brayman to present their proofs.
This would give these two defendants an opportunity to
(concluded on page 18)
18
to Co-Defendants James Christunas and Arthur Brayman,
who had sought a separate and subsequent trial in
order to assert the “available” defense of withdrawal
based on the “likely” testimony of Defendant Kenneth
Christunas. In doing so, the judge could “identify no
prejudice that will inure the government as a result of
bifurcation”, and found this remedy would “not be
unduly burdensome or confusing to the jury.” (App A-
14). The judge also took specific note of the fact that
trial would involve “co-defendants who are to another
close family relations”, finding in essence that without
severance or bifurcation, the defense of withdrawal
would result in family members “aiding the prosecution
in its case”, or being “unduly pressured either into testi-
fying or into not testifying” (App A-16).
The judge was careful to provide the jury with prelim-
inary instructions regarding bifurcated proceedings pur-
suant to government request (I 12, 20-23), and not to
mention the defense of withdrawal upon stipulation of
all parties (I 15).
By rule and rulings, decisions regarding severance are
committed to the sound discretion of the trial court.
Fed R. Crim P. 14; Zafiro v United States, supra, at 113 SCt
938. Those challenging the trial court on appeal! must
show an abuse of discretion, by a burden described as
“heavy” and “very significant”. United States v Sivils, 960
F2d 587, 594 (6th Cir, 1992); United States v Causey, 834
F2d 1277, 1288 (6th Cir, 1987). These propositions are
firmly established, and aptly demonstrated by United
States v Crane, 499 F2d 1385 (6th Cir, 1974), where the
(continued from page 17)
attempt to secure the possibly favorable testimony of
defendant Kenneth Christunas.
“Based on the foregoing analysis, IT IS ORDERED that
the motion is DENIED without prejudice to the filing of a
request for bifurcation for consideration by the trial
judge.”
19
Court expressed general disapproval of bifurcated trial
proceedings, but declined to reverse. See also, Vincent v
Parke, 942 F2d 989, 993, 1000-1001 (6th Cir 1991).
In United States v Swift, 308 F2d 320, 323 (6th Cir,
1987), the Sixth Circuit ruled that “after January 1, 1987,
we hold that a severance motion will be deemed waived
if it is not renewed at the end of the evidence.”
(emphasis added). This ruling was derived in part from
United States v Guess, 745 F2d 1286, 1289 (9th Cir, 1984),
cert denied, 469 US 1225 (1985), where the Court stated
that: “The failure to renew the motion as prejudicial evi-
dence unfolds ‘cannot serve as insurance against an
adverse verdict.” (citations omitted). Indeed, in Shaffer
v United States, 362 US 511, 516 (1960), this Court held
that the trial court itself “has a continuing duty at all
stages of the trial to grant severance if prejudice does
appear.”
In this case, the trial testimony presented circum-
stances for reconsideration, and the defense attorneys
brought matters to the judge following the testimony of
the last government witness (VIII 142-151; IX 5-38) (App
A-57-A-61; A-62-A-84). Attorneys for Co-Defendants J.
Christunas and Brayman asked to withdraw their
request for bifurcation, along with the defense of with-
drawal (VIII 145) (App A-57-A-58). The judge allowed co-
defendants J. Christunas and Brayman to rest without
presenting the defense of withdrawal (IX 41-43), and
both were acquitted of conspiracy charges. (XV 14-18).
In turn, Defendant's attorney asked the judge to con-
tinue to bifurcated proceedings in order to allow
Defendant “to present the defense of withdrawal” (VIII
146) (App A-58). Counsel stated that Defendant was pre-
pared to testify as indicated in severance pleadings, and
to admit that he was involved in marijuana distribution
in the early 1980's, became frightened by an arrest in
Florida in December, 1985, discontinued his involve-
ment, and communicated his withdrawal to other mem-
bers, including his family, well before the statute of
20
limitations period for indictment (VIII 146-147) (App
A-58-A-59). Counsel emphasized that Defendant would
testify, and that bifurcated proceedings were necessary
“to protect Mr. Christunas’ constitutionally protected
right to testify” (IX 19) (App A-71). Counsel flatly stated,
and the judge clearly understood, that Defendant
“would not advance this defense of withdrawal at a joint
trial” (VIII 149) (App A-60), arguing that Defendant
“cannot fairly be asked to offer his own defense at the
expense of his brothers” (IX 9) (App A-64). Counsel
argued that “all of the reasons that were offered on
behalf of the other defendants at the beginning of the
trial, | think, obtain in the case of Mr. Christunas” (IX 9)
(App A-64), and sought “the same opportunity” (IX 7)
(App A-63).
Defendant's attorney candidly explained that he did
not have “a great deal of taste for the defense of with-
drawal”, but that government case “went in stronger
than | thought”, to which the government replied “from
a qualitative standpoint, that may be true, but in terms
of the nature and substance .. . that had been known
to defense counsel well in advance of trial” (IX 13) (App
A-67). Counsel indicated that these and other circum-
stances compelled him to re-evaluate the defense position:
“And if | advised him wrongly in the first
instance, I suppose that’s possible. It seems to
me maybe | did, and I should have anticipated
what this case was going to be like, and | should
have told him right from the beginning that this
was the defense we should use. And | should
have presented it to the jury. I should have done
all that, but I didn’t, and now at the eleventh
hour, | must to the best I can and that’s what I’m
trying to do.” (IX 8) (App A-64).
The government “very strenuously” objected to the
defense request as “what appears to be a manipulation
by the defense team” (VIII 50; IX 11-18) (App A-65-A-71).
21
The judge denied Defendant’s request for continua-
tion of bifurcated proceedings (IX 24-38) (App A-74-
A-84). In doing so, the judge stated that his original
ruling on bifurcation had “really stretched a point”
because “there had not been provided an assurance
that the testimony would be given” (IX 32-33) (App
A-80-A-81). While recognizing that Defendant's attorney
may have underestimated the strength of the govern-
ment case (IX 37-38) (App A-83-A-84), and that “an
entire switch and reversal of strategy and tactics” were
“possible”, the judge nevertheless concluded that the
request for continuation of bifurcated proceedings was
“a sort of a crass attempt to manipulate the — the
Court in this particular instance, and the Court is not
going to countenence it.” (IX 38) (App A-84), adding that
the government would be prejudiced (IX 36) (App A-83)
and Defendant had not met the tests of United States v
Causey, supra (IX 38) (App A-84).
The Sixth Circuit rejected this issue in summarily
fashion:
“After the government had presented its case-in-
chief, Ken Christunas requested that the trial be
bifurcated so that he could present a withdrawal
defense. The district court denied the motion,
basing its determination primarily on the
grounds that Christunas had not satisfied the
test of United States v Causey. See, 834 F.2d at
1287. Having carefully reviewed this record, we
find that the district court did not abuse its dis-
cretion in making this determination.” Opinion at
10 (App A-11).
The refusal and rejection of the lower courts were
clear error because the reasons and concerns for the
initial bifurcation remained the same — the right to pre-
sent an avaiable defense without unfair prejudice or
undue pressures (I 10-11). The procedures were still in
place, and could have been easily adjusted (X 74).
Counsel had only requested that the “same opportu-
22
nity” (IX 7) (App A-63) be extended to Defendant, upon
whose testimony bifurcation had originally been based
and obtained (1 10). By refusing to continue or extend
bifurcation to Defendant, the trial judge ignored and
infringed upon Defendant’s constitutional right to tes-
tify, and effectively denied Defendant his constitutional
right to present a defense.’ See, Rock v Arkansas, 483
US 44, 49-53 (1987), (“In fact, the most important wit-
ness for the defense in many criminal cases is the
defendant himself”); /n Re Oliver, 333 US 257, 273 (1948);
Ferguson v Georgia, 365 US 570 (1961); Chambers v Mis-
sissippi, 410 US 284, 302 (1973).
The various requirements outlined in United States v
Causey, supra, at 834 F2d 1287, should not have been
rigidly applied because bifurcation is “less drastic, a
remedy short of severance” (IX 13-14) (App A-67-A-68,
not requiring near duplication of judicial procedures
and resources. In United States v Joshua, 976 F2d 844,
843 (CA 3, 1992), the Court concluded that bifurcated
trial proceedings struck “an appropriate balance
between the concern about prejudice to the defendant
and considerations of judicial economy”.
Moreover, Defendant was asserting his rights to tes-
tify and present a defense (IX 8, 19) (App A-64, A-71), as
opposed to contending that “if tried in a separate pro-
ceeding one of the co-defendants would have given
excuplatory testimony”. United States v Causey, supra at
834 F2d 1287. In United States v United States Gypsum
Co., 438 US 422, 464-465 (1978), this Court indicated that
“Affirmative acts inconsistent with the object of the con-
spiracy and communicated in a manner reasonably cal-
culated to reach co-conspirators have generally been
regarded as sufficient to establish withdrawal or aban-
donment.” (citation omitted).
7 Defendant rested without testifying or presenting witnesses
(IX 145), as previously indicated by counsel (VIII 149) (App A-60).
ni jullie: bas ait Pare Soe
See eS PUN ge <4 3
23
The characterization, first by the government (VIII
150) (App A-61) and then by the judge (IX 36, 38) (App
A-83, A-84), of the defense request as manipulative was
unwarranted, and also ignored counsel’s basic and con-
stitutional obligation to effectively represent Defendant
and present the best available defense, along with
counsel's specific and continuing duty to bring sever-
ance matters to the court’s attention upon development
or at the close of the government’s case. In Estelle v
Williams, 425 US 501, 512 (1976), this Court stated that
“the vast array of trial decisions, Strategic and tactical,
which must be made before and during trial rests with
the accused and his attorney.” In United States v Joshi,
896 F2d 1303, 1306 (CA 11, 1990), a defense request for
bifurcation was not made until the close of the govern-
ment, and was only occasioned by the desire of co-
defendants to testify and allegations that the
co-defendants “might offer perjurious testimony impli-
cating Joshi”. The Court, in affirming the convictions of
the co-defendants, upheld the trial court's use of bifur-
cated proceedings which had been requested by
defendant in order for his case to be heard by the jury
without being prejudiced by the anticipated testimony
of his co-defendants.
Here, the judge could not, and did not, fault attorneys
for Co-Defendants J. Christunas and Brayman for
reversing trial strategy at the close of the government's
case, which the judge described as “not as strong as
they might have anticipated” (IX 37) (App A-83). Where
the government's case comes in much stronger than
anticipated (IX 7, 37) (App A-63, A-83), no less of an
Opportunity should obtain for another to present the
best available defense.
Defendant was severely prjudiced by not being
afforded the opportunity “to explain truthfully much of
the very damaging evidence that has come in in the last
few days” (IX 8) (App A-64). See, United States v Walker,
772 F2d 1172, 1179 (5th Cir, 1985) (“Where the very point
24
of a trial is to determine whether an individual was
involved in criminal activity, the testimony of the indi-
vidual himself must be considered of prime impor-
tance”.) Bifurcation for the defense of withdrawal would
have eliminated much of the direct testimony impli-
cating the Defendant because the evidence predated the
statute of limitations (1 190, 204-204, 209, 226; III 78, 85,
105, 116, 119, 124, 130, 133, 137, 141, 153, 156; IV 165, 168,
196-198, 202, 208, 222-223; V 145; VI 261; VIII 32-34).
Alternatively, it is submitted that Defendant’s trial
counsel, who was provided with “complete discovery”,
according to the government, “well in advance of trial”,
made serious errors which were prejudicial to Defend-
ant’s defense, and deprived him of a fair trial, because
counsel admittedly “should have anticipated what this
case was going to be like”, and “told him {Defendant}
right from the begining that this [withdrawal] was the
defense we should use” (IX 8) (App A-64). Strickland v
Washington, 466 US 668, 687 (1984).
One way or the other, Defendant’s petition should be
granted because he was denied his rights to testify and
present a viable defense.
25
SUMMARY AND CONCLUSION
For the above reasons, this Honorable Court should
grant Petition for Writ of Certiorari, reverse Defendant's
convictions, and remand for new trial.
Respectfully submitted,
By: /s/ DOMNICK J. SORISE
Counsel of Record
33830 Haper Avenue
Clinton Township, Michigan 48035
(810) 415-1200
Dated: July 7, 1995
A-1
APPENDIX TO PETITION FOR CERT IORARI
ORDER DENYING PETITION FOR REHEARING
(United States Court of Appeals — Sixth Circuit)
(Filed April 12, 1995)
(UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENNETH
CHRISTUNAS, Defendant-Appellant — Case No: 94-1070)
BEFORE: JONES and BATCHELDER, Circuit Judges;
BECKWITH,* District Judge.
Upon consideration of the petition for rehearing filed
by the defendant,
It is ORDERED that the petition for rehearing be, and it
hereby is, DENIED.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green,
Clerk
* The Hon. Sandra S. Beckwith, U.S. District Court for the
Southern District of Ohio, sitting by designation.
A-2
OPINION AFFIRMING CONVICTIONS AND SENTENCES
NOT RECOMMENDED FOR FULLTEXT PUBLICATION
Sixth Circuit Rule 24 limits citation to specific situations. Please see
Rule 24 before citing in a proceeding in a court in the Sixth Circuit.
If cited, a copy must be served on other parties and the Court.
This notice is to be prominently displayed if this decision is reproduced.
(United States Court of Appeals — Sixth Circuit)
(Filed March 8, 1995)
(UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HERBERT
MICOU, ROBERT JOHNSON, DAVID CHRISTUNAS, and KENNETH
CHRISTUNAS, Defendants-Appellants — Nos. 93-2161/2163/
2162, 94-1070; ON APPEAL FROM THE UNITED STATES DIS-
TRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN)
BEFORE: JONES and BATCHELDER, Circuit Judges;
BECKWITH," District Judge.
PER CURIAM.
Defendants appeal their convictions and sentences on
charges of conspiracy to distribute marijuana. For the
reasons stated herein, we AFFIRM the decision of the
district court.
L
On April 13, 1992, twelve persons, including Appel-
lants in this case, Herbert Micou, Robert Johnson, David
Christunas and Kenneth Christunas, were indicted for
conspiracy to distribute marijuana and related charges.
Six of the charged defendants pled guilty prior to trial.
Trial against the remaining six defendants began on
March 15, 1993.
The government called 22 witnesses in its case in
chief. Among the witnesses and evidence presented
* The Hon. Sandra S. Beckwith, United States District Court
Judge for the Southern District of Ohio, sitting by designation.
A-3
were the following. Missouri State Highway Patrol
Officer Wade Stuart testified tiiat on June 18, 1990 he
stopped a vehicle driven by Patrick Ogle. Patrick Ogle
consented to a search of the trunk where 200 pounds of
marijuana was found. Patrick Ogle agreed to cooperate
with the police and make a controlled delivery to
Michigan. Ogle testified that upon arrival in Detroit he
checked into a motel and called David Christunas. David
Christunas came to the motel and left in the car Ogle
had driven from Texas.
Michigan State Police officers observed Christunas
drive from the motel to Herbert Micou’s home where
the vehicle pulled into the garage and the door was
shut. About forty minutes later the vehicle left the resi-
dence. Shortly thereafter officers stopped the vehicle
and found only 100 pounds of marijuana still in the
trunk. Christunas was arrested.
Police officers executed search warrants for both
Micou’s and Christunas’ residences. At Micou's home,
officers seized approximately 100 pounds of marijuana,
three firearms, and about $13,000 cash. At David
Christunas’ residence, officers seized three firearms, a
pound of marijuana, and approximately $293,000 cash.
Lawrence Zakalowski and Susan Sancho testified that
Ken Christunas was Gary Sancho’s? supplier of mari-
juana. Several bank employees testified with regard to
safety deposit boxes that Ken Christunas had at various
Detroit area banks. In one of these safety deposit boxes,
$74,000 was found, after it had been opened by bank per-
sonnel when Christunas failed to make rental payments.
Several witnesses testified that Defendant Ken Chris-
tunas would purchase marijuana in Florida for shipment
to Michigan. Robert Michaelson testified that in 1983-84,
he loaded marijuana into vehicles in Florida and he had
seen David Christunas in Florida about four times
‘ Gary Sancho is the deceased husband of Susan Sancho.
A-A
during that period. John Fredrickson testified that in
1985-86 he drove quantities of marijuana between
Florida and Michigan and Michigan and Texas. Carole
Bowen testified that she began a broker-supplier rela-
tionship with David Christunas, using John Frederickson
and Thomas Christunas as drivers for transporting
marijuana from Texas to Michigan.
On April 14, 1993, the jury returned guilty verdicts
against the four appellants; Arthur Ricky Brayman and
James Christunas were acquitted. Appellants received
the following sentences: Micou — 97 months for con-
spiracy to distribute marijuana; Johnson - 210 months
for conspiracy to distribute marijuana; David Christunas
- 182 months for conspiracy to distribute marijuana and
possession with intent to distribute marijuana; Ken
Christunas - 292 months for operating a continuing
criminal enterprise and 240 months for possession with
intent to distribute marijuana and conspiracy to import
marijuana.
Defendants have now appealed and raise numerous
issues. We find that none of the issues raised, however,
warrants reversing any determination of the district
court.
II.
A.
Micou first argues that reversible error occurred
when certain evidence and testimony was admitted at
trial. We disagree.
This court reviews the district court’s decisions to
admit or exclude testimony or other evidence for an
abuse of discretion. United States v. Bonds, 12 F.3d 540,
554 (6th Cir. 1993); United States v. Rios, 842 F2d 868,
872 (6th Cir. 1988), cert. denied, 488 U.S. 1031 (1989).
Moreover, Federal Rule of Criminal Procedure 52(a)
instructs this court that in reviewing this case, “[a]ny
A-5
error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded.” We first
find that the district court did not abuse its discretion
in admitting evidence of the firearms at trial. We further
find that even if the district court had abused its discre-
tion in admitting this evidence, it is clear that given the
substantial other evidence against Micou, the admission
of this evidence was at most harmless error. See United
States v. Baro, 15 E3d 563, 568 (6th Cir.) (extensive trial
testimony supporting evidence of defendant's guilt
made admission of tainted evidence harmless error)
(citing Chapman v. California, 386 U.S. 18, 23-24 (1967)),
cert. denied, 115 S. Ct. 285 ( 1994).
Micou next argues that a Statement by Fredrickson
concerning the registration of a 1985 Lincoln Town Car
into which Fredrickson had loaded Marijuana was inad-
missible hearsay. We find that even if this testimony did
constitute hearsay, other evidence made its admission
harmless error. The government introduced evidence
that Micou had purchased a 1985 Lincoln Town Car.
Fredrickson legitimately testified that he had loaded the
marijuana into a 1985 Lincoln Town Car. Approximately
100 pounds of marijuana and $ 13,000 in cash were
found in Micou’s house.
B.
Micou and David Christunas argue that the district
court erred in denying their motion to dismiss the
indictment without holding an evidentiary hearing.
Whether to hold an evidentiary hearing on an issue is a
matter within the court's discretion. This court reviews
matters within the discretion of the district court for an
abuse of discretion. United States v. Frost, 914 F2d 756
(6th Cir. 1990). The district court did not abuse its dis-
cretion in denying Micou and David Christunas’ motion
to dismiss the indictment for violation of the Double
Jeopardy Clause, without holding an evidentiary
hearing, because the defendants’ assertions of fact, even
if true, did not entitled them to relief.
A
The Double Jeopardy Clause is not implicated when a
conviction for a substantive crime is followed by a pros-
ecution for conspiracy to commit that substantive
crime. See United States v. Felix, 112 S. Ct. 1377 (1992) (“a
substantive crime, and a conspiracy to commit that
crime are not the ‘same offense’ for double jeopardy
purposes”). The district court did not abuse its discre-
tion in denying an evidentiary hearing on this issue.
.
As his final issue, Micou argues that evidence of the
items seized from his residence! on June 19, 1990,
should have been suppressed because the search war-
rant under which the items were seized lacked probable
cause. In summary, the affidavit underlying the search
warrant stated that the affiant had received a tip that a
car under surveillance contained marijuana; a trained
dog had detected narcotics in the trunk of the car; a
person came to the motel in one car, then left in the
suspect car; the suspect car was then driven to Micou’s
residence and parked in the garage that was attached to
the house. Based on this information a judicial officer
issued a search warrant for Micou’s residence. Micou
does not argue that this information does not support a
finding of probable cause. Instead, he argues that had
the judicial officer been informed that the car had sub-
sequently left Micou’s house that the judicial officer
would have found the probable cause to be lacking. The
argument is without merit. When new circumstances
bring into question the original finding of probable
cause, the officers seeking the warrant must bring new
information to the magistrate’s attention. United States v.
Bowling, 900 F2d 926, 993 (6th Cir.), cert. denied, 498
U.S. 837 (1990). If, however, this court finds that a neu-
tral magistrate would still have found probable cause to
exist had she been apprised of the new information,
1 [Printer’s Note: footnotes renumbered here as in original
opinion.] The bags of marijuana, three firearms and $ 13000 cash.
A-7
then the fruits of the warrant are not to be suppressed.
See id. at 933-34. In the instant case, the additional facts
that would have been brought to the magistrate’s atten-
tion included the fact that a later stop of the car that
left Micou's residence revealed that half of the mari-
juana in the car had been removed. We find that know-
ledge of additional facts in this case would not have
dispelled probable cause.
D.
Defendant Johnson raises two issues: whether the dis-
trict court erred in denying his motion for severance,
and whether certain closing arguments of the prose-
cutor amounted to reversible error. We find no error on
the part of either the district court or the prosecutor.
At the close of the government’s case-in-chief,
Johnson's counsel stated that Johnson wished to pre-
sent a defense of withdrawal from the conspiracy, and
based on his desire to Present this defense, he
requested bifurcation.? Johnson's counsel also stated
that Ken Christunas would testify on behalf of Johnson
if bifurcation were granted. The district court denied
Johnson's motion for severance. This court reviews a
district court's grant or denial of a motion for severance
for an abuse of discretion. United States v. Moreno, 933
F2d 362, 369 (6th Cir.), cert. denied, 112 S. Ct. 265 (1991).
We find that the district court Properly applied this
court's teaching in United States v. Causey, 834 F.2d 1277,
1287 (6th Cir. 1987) (quoting United States v. Butler, 611
F.2d 1066, 1071 (5th Cir.), cert. denied, 449 US. 830
(1980)), cert. denied, 486 US. 1034 (1988), in denying
Johnson's motion for severance.
“ At the same time, Ken Christunas also requested that the trial
be bifurcated so that he could present a withdrawal defense.
3 In the joint trial, Ken Christunas stood on his Fifth Amend-
ment privilege against self-incrimination, and did not take the
stand.
A-8
Also at issue is a statement by the prosecutor con-
cerning accountability. The statement did not amount
to an improper effort to arouse the passion and preju-
dice of the jury that would warrant reversal of defen-
dants’ convictions. In United States v. Solivan, 937 F.2d
1146 (6th Cir. 1991), the prosecutor had commented to
the jury “I’m asking you to tell her and all of the other
drug dealers like her that we don’t want that stuff. .. .”
Id. at 1152. In the instant case, the prosecutor made no
reference to other drug dealers, but only addressed the
conduct of the defendants. As such, the statement was
no more than “an innocuous reference to the commu-
nity or societal needs to convict guilty person.” /d. at
1155.
E.
In addition, David Christunas argues that the district
court erred (1) in denying his motion to suppress evi-
dence seized at his residence, and (2) in enhancing his
base offense level by applying U.S.S.G. § 2D1.1(b). We dis-
agree.
Christunas argues that the affidavit underlying the
warrant failed to establish probable cause to search his
residence. A reviewing court accords great deference to
a lower court’s independent determination of probable
cause. /llinois v. Gates, 462 U.S. 213, 236 (1983); Massa-
chusetts v. Upton, 466 U.S. 727 (1984). This court will
reverse such determinations only if they are clearly
erroneous. United States v. Williams, 962 F.2d 1218 (6th
Cir.), cert. denied, 113 S. Ct. 264 (1992). We find that the
district court’s holding that the affidavit adequately
established probable cause is not clearly erroneous.
The evidence seized from David Christunas’ residence
included three firearms, a .357 Magnum revolver, a
Beretta 6.35 caliber pistol and a Hopkins and Allen
Arms revolver, which were found in a locked gun cab-
inet. In sentencing David Christunas, the district court
adopted the government’s recommendation to enhance
A-9
David Christunas’ base offense level by two levels pur-
suant to USSG. § 2D1.1(b). That guideline provides that
when calculating the base offense level for unlawful traf-
ficking or possession of drugs, if a dangerous weapon,
including a firearm was possessed. the base offense
level is to be increased by 2 levels. U.S.S.G. § 2D1.1(b)
(1993). Application Note 3 to this guideline explains that
the enhancement “should be applied if the weapon was
present, unless it is clearly improbable that the weapon
was connected with the offense. For example, the
enhancement would not be applied if the defendant,
arrested at his residence, had an unloaded hunting rifle
in the closet.”
This court reviews the district court's finding of facts
for clear error, but reviews application of the guidelines
to those facts de novo. United States v. Garner, 940 F2d
172, 174 (6th Cir. 1991). In deciding to enhance Chris-
tunas’ sentence pursuant to USSG. § 2D1.1(b), the dis-
trict court carefully weighed the testimony regarding
the firearms and determined that the presence of the
-357 Magnum revolver and the Beretta 6.35 caliber pistol
with a clip loaded with eight live rounds was consistent
with protection of either drugs or the proceeds of drug
activities or funds to be utilized to purchase drugs. The
district court was not clearly erroneous in its conclu-
sion. We find that in the absence of a showing that it
was Clearly improbable that these weapons were con-
nected with Christunas’ drug trafficking activities, the
district court’s application of U.S.S.G. § 2D1.1(b) to
enhance Christunas’ sentence was appropriate.
FE
Kenneth Christunas raises several issues on appeal.
We find that none of the issues warrant reversal of his
conviction or sentence.
Ken Christunas argues that the district court erred in
not disqualifying his defense counsel who had an actual
conflict of interest. After full consideration, we find that
A-10
the circumstances of this case do not support this
argument.
Ken Christunas’ counsel, N.C. Deday LaRene, had an
actual conflict of interest in that he had previously rep-
resented Susan Sancho and her husband Gary Sancho‘
in contesting a civil forfeiture of their home based on
her husband’s drug dealing. Susan Sancho was to be,
and was, called as a government witness. LaRene
brought the potential conflict to the attention of the
court, initially pointing out that he would not be able to
testify on Christunas’ behalf with respect to Susan
Sancho’s testimony, unless he withdrew as Christunas’
counsel. Christunas waived any claim of ineffective
assistance of counsel based on LaRene’s failure to with-
draw as counsel.
We are persuaded by the well-reasoned opinion of the
Seventli Circuit that has addressed this issue. In United
States v. Lowry, 971 F.2d 55 (7th Cir. 1992), the court
held that defendant had forfeited his claim that his
attorney’s actual conflicts of interest deprived him of
effective assistance of counsel when he waived the con-
flicts in order to retain his attorney. /d. at 63. The court
explained:
This is not to say that Lowry’s waiver completely
bars any ineffective assistance claim, but it does
bar any claim based on Schick’s alleged conflicts
of interest. To hold otherwise would be to
render the waiver meaningless; a defendant
would lose nothing by waiving his right and
sticking with counsel who had a conflict, since
he could always allege “ineffective assistance” if
convicted. ... We have no doubt that Lowry
clearly understood the dangers of counsel with a
conflict, his rights, and his options, and that he
4 Gary Sancho was killed before the conclusion of the civil for-
feiture proceedings.
I
A-11
made a knowing and intelligent waiver. That
choice is binding.
Id. at 63-64. We find it appropriate to apply this ratio-
nale to the instant case, and we hold that the district
court did not err in accepting Christunas’ waiver of his
attorney’s conflict of interest.5
After the government had presented its case-in-chief,
Ken Christunas requested that the trial be bifurcated to
that he could present a withdrawal defense. The district
court denied the motion, basing its determination pri-
marily on the grounds that Christunas had not satisfied
the test of United States v. Causey. See 834 F2d at 1287.
Having carefully reviewed the record, we find that the
district court did not abuse its discretion in making this
determination.
Ken Christunas also argues that several evidentiary
rulings of the judge and certain arguments of the prose-
cutor, injected error, caused prejudice, and warrant a
new trial. We disagree.
Christunas argues that the district court erred in
admitting certain hearsay statements as exceptions to
hearsay under Federal Rule of Evidence 801(d)(2)(E)
which allows statements offered against a party that
5 We note that Christunas’ efforts to argue that the holding of
the Second Circuit in United States v. Fulton, 5 F.3d 605 (2d Cir.
1993), should apply to the instant case is misplaced. In that case,
the court did hold that the defendant’s waiver of his counsel’s con-
flict of interest was invalid because the district court abused its dis-
cretion in not disqualifying trial counsel after the conflict became
apparent. 5 F.3d at 612. In that case, however, the conflict that
emerged was that defendant’s co-conspirator, a government witness,
testified that defendant’s lead trial counsel had engaged with him in
heroin trafficking. The court found that this allegation, which it
treated for purposes of the constitutional analysis as true, revealed
a per se violation of defendant’s Sixth Amendment right to effective
assistance of counsel. Jd. In the instant case, however, the conficit
of interest is not a result of defense attorney’s criminal involvement
in defendant’s criminal activities, and thus no per se violation is
present.
A-12
were made by a co-conspirator of the party during the
course and in furtherance of the conspiracy. Christunas
argues that the contested statements were not made in
furtherance of the conspiracy. This court reviews a dis-
trict court’s determination of whether proffered evi-
dence constitutes hearsay de novo. United States v. Levy,
904 F2d 1026, 1029 (6th Cir. 1990), cert. denied, 498 US.
1091 (1991). Upon review of the record, we agree with
the district court’s determination that the statements
could be construed as being made in furtherance of the
conspiracy. Furthermore, we note that even if the
admission of these statements had been error, in light
of all the evidence presented at trial, we find that such
errors would have been harmless. See Fed. R. Crim. P.
52(a); Murphy, 763 F2d at 209-10.
We further find that it was not an abuse of the dis-
trict court’s discretion to admit Christunas’ tax returns
into evidence, nor did certain statements in the prose-
cutor’s closing arguments create prejudice warranting a
new trial.
Ken Christunas properly made a motion under Fed-
eral Rule of Civil Procedure 29, seeking acquittal as to
the criminal enterprise count against him on the ground
that the government had failed to prove the essential
element that Christunas occupied the requisite manager-
ial position with respect to five or more persons, as
alleged in the indictment. He appeals the district court's
denial of his motion.
“It is well settled that the test to be applied by a trial
court in determining a defendant’s motion for acquittal
pursuant to Rule 29 of the Federal Rules of Criminal
Procedure is taking the evidence and inferences most
favorably to the government, if there is such evidence
therefrom to conclude that a reasonable mind might
fairly find guilt beyond a reasonable doubt, the issue is
for the jury.” United States v. Overmyer, 867 F.3d 937, 938
(6th Cir.), cert. denied, 493 US. 813 (1989). “An appellate
court, in reviewing the trial court’s decision regarding a
A-13
Rule 29 motion, applies the same principles to the
record it has before it.” /d. Taking all the evidence in the
light most favorable to the government and giving the
government the benefit of all inferences that may be
drawn from that evidence as this court is required to
do, we find that there was sufficient evidence for the
jury to convict Christunas of managing an criminal
enterprise. |
In sentencing Ken Christunas, the district court
adopted the recommendation of the probation depart-
ment and held Christunas responsible for 25,310 pounds
of marijuana, resulting in a base offense level of 36.
Christunas argues that his base offense level should
have been set no higher than 34 because the evidence
at trial demonstrated that the weight calculations relied
upon by the district court were fatally flawed by the
propensity of the witness, Robert Michaelson, to over-
estimate by a factor of approximately twenty per cent.
We review the district court’s factual findings which
underlie the application of a guideline provision for
clear error. United States v. Zimmer, 14 F3d 286, 289 (6th
Cir. 1994); Garner, 940 F.2d at 174. The district court
must determine the quantity of drugs attributable to a
defendant by the preponderance of the evidence. United
States v. Moss, 9 F3d 543, 552 (6th Cir. 1993). Having
reviewed the record, we find that the district court’s
findings of fact on this issue are not clearly erroneous,
and its determinations are supported by a preponder-
ance of the evidence.
III.
For the foregoing reasons, we AFFIRM the convictions
and sentences of the four defendants.
A-14
ORDER GRANTING DEFENDANTS’ REQUEST FOR A BIFURCATED
TRIAL AND ORDER AFFIRMING MAGISTRATE’S FEBRUARY 19,
1993 ORDER DENYING MOTION FOR SEVERANCE
(United States District Court —
Eastern District of Michigan —
Southern Division)
(Dated March 15, 1993)
(UNITED STATES OF AMERICA, Plaintiff, v. JAMES
CHRISTUNAS and ARTHUR BRAYMAN, Defendants — CASE
NO. 92-80338; HONORABLE PAUL V. GADOLA)
The court has reviewed the magistrate’s February 19,
1993 order denying the motion of defendants James
Christunas and Arthur Brayman requesting severance
from the trials of Kenneth Christunas, David Christunas,
Robert Johnson and Herbert Micou and the pleadings
appealing therefrom. The court finds that the magis-
trate’s ruling is not clearly erroneous. Therefore, the
order shall be affirmed.
The magistrate’s February 19, 1993 ruling also re-
commends that upon motion by defendants James
Christunas and Arthur Brayman, this court should allow
a bifurcated trial:
At such time as the prosecution rests, defend-
ants Kenneth Christunas, David Christunas,
Robert Johnson and Herbert Micou would be
invited to put forward any proofs that these four
defendants choose to present. After these defen-
dants have rested, and the government has been
given its chance to present rebuttal evidence,
the jury would be instructed and final arguments
would be presented regarding the guilt or inno-
cence of these four defendants only. Following
the return of jury verdicts with regard to these
four defendants, the Court would reconvene the
trial before the same jury panel and permit
A-15
defendants James Christunas and Arthur
Brayman to present their proofs. This would give
these two defendants an opportunity to secure
the possibly favorable testimony of defendant
Kenneth Christunas.
Magistrate’s Opinion and Order, at 3-4.
In their objections to the magistrate’s February 19,
1993 order, defendants James Christunas and Arthur
Brayman request that, in the event the court affirms the
magistrate’s order denying severance, the court adopt
the magistrate’s recommendation of bifurcation. In its
response to the defendants’ objections, the Government
argues that bifurcation would be unduly burdensome,
especially because the trial, as it is presently planned,
will already be bifurcated between the issue of defen-
dants’ guilt and the issue of in rem forfeiture of certain
property of defendants. The court finds that bifurcation,
or rather “trifurcation” (as such will result) of this trial,
as suggested by the magistrate, would not be unduly
burdensome or confusing to the jury.
In US. v. Joshi, 896 F2d 1303, 1306-09 (11th Cir. 1990),
the United States Court of Appeals for the Eleventh Cir-
cuit held that birfurcation of a criminal trial for the pur-
pose of allowing the guilt of certain defendants to be
decided upon by the jury before the jury heard the
damaging testimony of a co-defendant testifying in his
own defense, is not improper. In Joshi, as in the case at
hand, the trial court denied a motion for severance and
then acceded to the request of defense counsel to pro-
ceed with a bifurcated trial.
Rule 14 of the Fed. R. Crim. Pro. recognizes that
joinder, even when Proper under Rule 8(b), may preju-
dice either a defendant or the Government. Thus, the
rule provides:
[i]f it appears that a defendant or the govern-
ment is prejudiced by a joinder of ... defendants
... for trial together, the court may order an
A-16
election of separate trials of counts, grant a sev-
erance of defendants or provide whatever other
relief justice requires.
Fed. R. Civ. Pro. 14 (emphasis added). Rule 14 leaves the
determination of risk of prejudice and any remedy that
may be necessary to the sound discretion of the dis-
trict courts. Zafiro v. U.S., 113 S.Ct. 933, 939 (1993). Mutu-
ally antagonistic defenses are not prejudicial per se. /d.
at 938. Even if they were, “Rule 14 does not require sev-
erance merely because some prejudice is shown; rather,
it leaves the tailoring of the relief to be granted, if any,
to the district court’s sound discretion.” /d. at 938
(emphasis added).
In the case at hand, the court is faced with co-
defendants who are to one another close family rela-
tions. The assertion of the affirmative defense of with-
drawal from the conspiracy on the part of James
Christunas and Arthur Brayman will, without severance
or bifurcation, result in these defendants aiding the
prosecution in its case against their brother and rela-
tive, Kenneth Christunas. Kenneth Christunas has indi-
cated a willingness to testify in the second half of a
birfurcated proceeding at which the guilt of his brother
James Christunas and his relative, Arthur Brayman,
would be at issue; testifying in a non-bifurcated pro-
ceeding on behalf of these defendants as to their with-
drawal, could require Kenneth Christunas to incriminate
himself before the jury by admitting that a conspiracy
did indeed exist.
In addition to the court’s concern that the defendants
might, by virtue of their close family relation to one
another, be unduly pressured either into testifying or
not testifying, the court finds that this is a complex
case involving markedly different degrees of culpability
and that therefore the risk of prejudice is further
heightened. Zafiro, 133 S.Ct. at 938. Defendants James
Christunas and Arthur Brayman are facing a single
A-17
count of conspiracy to distribute marijuana whereas
defendant Kenneth Christunas is facing seven counts,
including conspiracy to import marijuana from outside
the United States and engaging in a continuing criminal
enterprise. Thus, the evidence presented against Ken-
neth Christunas will be substantially greater than the
evidence presented against James Christunas and
Arthur Brayman, and it will subject Kenneth Christunas
to the possibility of much greater punishment.
For the foregoing reasons and because the court can
identify no prejudice that will inure to the Government
as a result of bifurcation (or trifurcation), the court will
grant defendants’ request to bifurcate as per the magis-
trate’s February 19, 1993 order. Per the Government's
request, the jury will be duly informed and instructed,
prior to the commencement of the presentation of evi-
dence, as to the details of the trifurcated proceeding.
Therefore, it is hereby ORDERED that the magistrate’s
February 19, 1993 order denying defendants’ motion for
severance is AFFIRMED.
It is further ORDERED that the magistrate’s recommen-
dation that upon motion of defendants, a bifurcated
(and in effect, a trifurcated) trial be conducted and is
hereby ADOPTED as per the magistrate’s order, and
defendants’ motion pursuant thereto is hereby
GRANTED.
SO ORDERED.
/s/ PAUL V. GADOLA
UNITED STATES DISTRICT JUDGE
Dated: 3/15/93
A-18
EXCERPTS FROM TRANSCRIPT OF JURY TRIAL
(United States District Court —
Eastern District of Michigan —
Southern Division)
(UNITED STATES OF AMERICA, Plaintiff, v. CHRISTUNAS, ET
AL., Defendants — No. 92-80338; Hon. Paul V. Gadola)
DISCUSSION REGARDING SUSAN SANCHO
[TRANSCRIPT VOLUME I, PROCEEDINGS OF MARCH 15, 1993]
(241) * * * MR.LARENE: Judge, there is a—a
matter that we probably should take up before we start
with the jury tomorrow morning: Sue Sancho — if we're
going to reach Sue Sancho and Larry Zakalowski
tomorrow.
THE COURT: What —
MR. LARENE: Is that right, Mr. Cares? You expect to?
MR. CARES: Expecting.
MR. LARENE: Yes. Then I think we should take some-
thing up with the Court in the morning before court, so
whatever is convenient — eight o'clock?
UNIDENTIFIED ATTORNEY: Oh, no. Eight?
THE COURT: Well, I’m here by that time.
MR. LARENE: Well, it doesn’t have anything to do with
anyone else. What — I! used to represent — | represented
Gary Sancho, and | represented Sue Sancho, who will be
a witness. Gary Sancho will not be a witness, and | think
we need to make — for everybody's sake — but it really
doesn't affect any other counsel — well, Mr. Howard it
does (242) because he worked for Stan and Larry
Zakalowski — the — the clients are prepared to waive
any potential conflict, and I’m prepared to make repre-
sentations about what | will not cross-examine about.
THE COURT: Well, can’t you put it on the record?
MR. LARENE: Oh, | can now. | just thought you wanted
to leave.
A-19
THE COURT: Right now if you've got — if you can do
it in the next five minutes.
MR. LARENE: I can barely say my name in five min-
utes, but years ago I represented Gary Sancho.
THE COURT: You know yourself better than I.
MR. LARENE: I've known myself longer.
I represented Gary Sancho and his — in a criminal
investigation back in the mid to — the mid-eighties
when he was arrested in 1988 in Monroe.
I don’t have a problem with the witness being
excused. I mean, this has nothing to do with him.
THE COURT: You — Mr. Ogle, you can step down
from the witness stand. Remember you shouldn't dis-
cuss your testimony with anybody because you're right
in the midst of — of it at this point, so —
THE WITNESS: Yes, sir.
THE COURT: — don't have any conversations with
anyone at all about your testimony.
(243) THEWITNESS: Yes, sir.
THE COURT: Just come back to court tomorrow and
continue.
(Witness excused at 4:25 p.m.)
MR. LARENE: When Mr. Sancho and Mr. Zakalowski were
arrested under circumstances that will come out
tomorrow, I believe that Juan Mateo represented Gary
Sancho in the state criminal proceedings and Jim
Howarth — we all share office Space — represented Larry
Zakalowski. As a result of the arrest and investigation,
there was a civil forfeiture — federal civil forfeiture action
instituted against the — the marital home of Gary Sancho
and Susan Sancho in which I represented both of them.
I filed on their behalf, among other things, a — an
Answer and affirmative defenses in which it was alleged
by Ms. — on behalf of Susan Sancho that she was an
innocent spouse: that is, that she had no knowledge of
Gary Sancho's drug trafficking activities.
I — subsequently Gary Sancho was murdered. |
worked a settlement of the forfeiture case out in which
A-20
the federal government agreed to pay Mrs. Sancho — |
believe it was 30 or $35,000 representing her — her —
THE COURT: Her equity in the house?
MR. LARENE: — her equity in the house —
THE COURT: Okay.
(244) MR.LARENE: — and at one point almost imme-
diately after Gary Sancho’s death, Susan Sancho said to
me — and not in a privileged conversation because
there were other persons with whom I did not have an
attorney/client relationship present — that she believed
that one of three people was — were responsible for
her husband’s death. One of those people was Ken
Christunas.
I should add — and just so that they’re not — so we
all understand that Ken Christunas has since taken and
passed a polygraph on his lack of involvement or know-
ledge of — or in any of [sic] way of Gary Sancho’s
death, and that has been —
MR. CARES: I don’t know what — | don’t know what —
MR. LARENE: Well, that’s been — Judge, that’s not
coming before the jury.
THE COURT: Okay.
MR. LARENE: I think you know it. Mr. — Mr. Cares has
a copy of the report.
I just want that clear.
THE COURT: All right. So she made this comment to
you that she —
MR. LARENE: Right. She — she’s — all right. That —
THE COURT: — suspected that —
(245) MR.LARENE: Yes.
THE COURT: — Mr. Kenneth Christunas was involved —
MR. LARENE: Right.
THE COURT: -— in her husband's death. All right.
MR. LARENE: | — I could —
THE COURT: So —
MR. LARENE: — conceivably cross-examine her,
although I do not intend to — cross-examine her about
her motive — potential motive or bias against Ken Chris-
tunas based on her at least one-time belief that she was
A-21
— that he might have been responsible for or involved in
her husband's death. I’m not going to do that.
I'm also not going to make myself available as a
witness.
THE COURT: Is anybody going to do that?
MR. LARENE: No. No, sir.
THE COURT: I’m looking at all of defense counsel.
MR. LARENE: In — in addition —
THE COURT: The subject isn’t going to come up at
all, then, right?
MR. LARENE: That is not, but because — one of the
reasons that — one of the reasons that it’s not is
because | don’t want to make myself a witness. There
are other tactical considerations there, in addition to
which I do propose to ask (246) her about her making a
claim at being an innocent spouse. However, again | do
not — I will — I do not want to frame that inquiry in
such a way as to make myself a witness, and again | will
not make myself a witness if she denies that. Because
Ken Christunas has the right to have me as a witness as
well as the right to have me as a lawyer, he has chosen
he would rather have me as a lawyer than as a witness,
and he waives any claim that he might have to later
assert that | was ineffective in my representation of him
because | did not withdraw.
THE COURT: Are you talking about her — about the
possibility of cross-examining her as to whether she
was really an innocent spouse? | don't —
MR. LARENE: Well, if she — sure. Her statement —
her statement to her attorney —
THE COURT: You were the attorney that took that
position on her part, were you not?
MR. LARENE: Based on her —
THE COURT: Got her a $35,000 settlement with the
government —
MR. LARENE: Based on her representation.
THE COURT: — on the basis that she was — on the
basis that she had at least a — a substantive or sub-
Stantial argument that she was in fact —
A-22
MR. LARENE: That's right.
(247) THECOURT: — innocent.
MR. LARENE: That'’s right.
THE COURT: All right.
MR. LARENE: I would cross-examine —
THE COURT: Well —
MR. LARENE: — her about that in this as — on the
basis of the — of the public record — | mean, if the
Court will let me, on the basis of the public record that
she — that the claim or answer that was filed on her
behalf as an — as a party in a lawsuit.
If she denies that or if she says that wasn’t — she
never said that — it was just something that was
written — I — I could otherwise perhaps appear as a
witness or give testimony that she did in fact say that;
she did in fact direct that to be said on her behalf; she
did in fact claim she had no knowledge of Gary
Sancho's —
THE COURT: Well, she didn’t say it, apparently. She
filed pleadings to that effect, didn’t she?
MR. LARENE: Yes, sir.
THE COURT: Well —
MR. LARENE: All I’m saying is — okay. Well —
THE COURT: I don't —
MR. LARENE: The government had raised some
questions.
THE COURT: What do you expect me to do? I’m not
sure, (248) Mr. LaRene —
MR. LARENE: Well, what I expect —
THE COURT: — I’m just not sure what — what it is
you're proposing to do when Mrs. Sancho gets on the
witness stand and — as a government witness here.
MR. LARENE: I’m proposing, among other things, to
say that the — to answer questions about the — the
filing of the lawsuit, that a lawsuit was filed against the
home, that she defended that lawsuit on the basis that
she didn’t know anything about Gary Sancho’s —
THE COURT: Oh.
THE COURT: — drug trafficking. That's all.
A-23
I'm not going to ask her what she said to me or anything
like that, although I could if I were not the lawyer —
THE COURT: All right.
MR. LARENE: — if | were not Ken Christunas’s —
THE COURT: All right, Mr. Cares, what’s your position
on that? Assuming that that’s the extent of it, that — that
she has filed pleadings that — in which she maintains
that she had, at least at that time, no knowledge of her
late husband's involvement in illegal drug trafficking?
MR. CARES: If in fact she is responsible for the plead-
ings — and I — I guess I would have to see the plead-
ings because this could — this could — Mr. LaRene
could (249) be treading on treacherous ground here
because through the course of questioning, it may
become apparent that there was representation —
through his questioning of her, it may become apparent
that he is attacking her credibility personally.
MR. LARENE: That's exactly what I do not want to do,
and | understand the treacherous ground. That’s why
I'm talking to the Court now, because — for two rea-
sons: one, because I — | want the Court to be aware
that this is coming and also because to the extent that |
have to pull back from my cross-examination about the
— of the woman or to not make myself a witness or to
not make myself — my — put my credibility in issue, |
may be doing less cross-examination that I would under
other circumstances, and | discussed this with Ken
Christunas. He understands that I'm — I’m — | have to
hold back in order to not do something improper and
not make myself a witness in a case in which I am the
lawyer, and | — | thought I was — I was in part
responding to concerns voiced by government counsel,
that we have a record in which it’s clear, so that should
there be — in the unlikely event there should be a con-
viction, no one can later say that | was — I was
somehow ineffective or — or less than diligent in my
duty to Mr. Christunas in not withdrawing in the case
so | could testify as — or be available to testify as a
witness against this woman's testimony. That's all.
A-24
(250) THECOURT: Mr. Cares?
MR. CARES: I think I understand now. I think — |
think he is having his client Ken Christunas waive any
potential conflict of interest, and if that’s his intent,
then I agree that’s proper.
THE COURT: All right. Would you inquire of Mr. —
MR. LARENE: Well — Mr. Christunas, would you stand
up?
You understand that — | — I hope you know me well
enough to understand what we're talking about even if
no one else does.
DEFENDANT K. CHRISTUNAS: Yes, I understand.
MR. LARENE: And you understand that there’s — that
I cannot put myself in the position — because I’m your
lawyer, | can’t put myself in a position where I am acting
or inserting myself as a witness regarding the testimony
of Susan Sancho.
DEFENDANT K. CHRISTUNAS: Yes, I understand.
MR. LARENE: And I have explained that to you and
told you I would quit the case aid be your — and not
be your lawyer but rather be your witness, and you
said, for some reason, you'd rather have me as your
lawyer.
DEFENDANT K. CHRISTUNAS: Yes, I did.
THE COURT: That indeed is your position even
though —
(251) DEFENDANT K. CHRISTUNAS: That is my position.
THE COURT: — that — that, of course, mandates that
— that Mr. LaRene will not be in a position then to
establish that, in effect — that Mrs. Sancho made some
false representations to the Court concerning her
knowledge.
DEFENDANT K. CHRISTUNAS: Yes, sir.
THE COURT: All right.
MR. LARENE: I still intend to attempt a cross-
examination.
THE COURT: Yes.
MR. LARENE: That’s all 1 wanted to —
A-25
THE COURT: All right. All right. That apparently clari-
fies the matter and settles it.
Anything further?
All right. We'll see you at 8:30 tomorrow morning,
then.
DISCUSSION REGARDING SUSAN SANCHO
[TRANSCRIPT VOLUME II, PROCEEDINGS OF MARCH 16, 1993]
(5) * * * THECOURT: I havea preliminary inquiry.
Of course, we're involved now in the cross-examination
of Mr. Ogle. At what point in the proceedings does the
government proposed to call Mrs. Sancho to the stand?
MR. CARES: Depending on — depending on how
things progress today, the government would call her
today. She will be available for testimony today, but it’s
hard to tell how quickly we're going to move along.
THE COURT: All right. I’ve got a memorandum that
was furnished to me. After our session yesterday, | had
some unresolved questions in my mind concerning the
— the situation as exists with Mr. LaRene having previ-
ously been her legal counsel, and Ms. Elliott, my law
clerk, did some research on the matter last night, and
she has just handed to (6) me a memorandum and
copies of a number of cases that she felt dealt with this
particular situation. | have not had an opportunity to
review those materials as yet, but just my cursory
glance at the memo indicates that — at least my law
clerk thinks that there are still some remaining prob-
lems, so I just wanted to make Sure that we had an
opportunity to fully address that whole situation before
Mrs. Sancho was called to the witness stand.
MR. LARENE: Is that the Garcia line of cases dealing
with —
THE COURT: I don’t know. I’ve just got it right here.
MR. LARENE: I'm sorry. Yes.
A-26
THE COURT: Well, she cites a U.S. v. Falzone or
Falzone case, 766 Federal Supplement 1265 from the
Western District of New York; U.S. v. Curcio, 680 F2d 881,
from the Second Circuit, 1982; and she also makes some
reference to the Code of Professional Responsibility,
Canons 4 and 9.
The case you mentioned —
MR. LARENE: Garcia is a Fifth Circuit Case. It’s — it’s
— | believe it probably is mentioned in Curcio. If not, I'll
get it.
We can talk about it now, or we can talk about it later,
as the Court chooses.
THE COURT: Well, let’s not delay the —
(7) MR.LARENE: Fine.
THE COURT: — the jury, but I just wanted to mention
to you that I want to go into that matter before —
MR. LARENE: Yes, sir.
THE COURT: — Mrs. Sancho comes to the witness
stand.
MR. LARENE: Yes, sir.
THE COURT: Are we ready to proceed?
oe @& 2
DISCUSSION REGARDING SUSAN SANCHO
[TRANSCRIPT VOLUME II, PROCEEDINGS OF MARCH 16, 1993]
—SEPARATE RECORD-
(Jury not present)
(234) * * * COURT RECORDER: Court is now recon-
vened. Please be seated.
THE COURT: All right. Counsel for all the parties are
present. The jury has been excused for the day, and
we'll take up the matter of — the procedural matter
regarding the proposed testimony of Mrs. — is it Susan
Sancho?
MR. CARES: Yes. In fact, Susan Sancho is in the court-
room right not.
A-27
THE COURT: All right.
MR. HOWARD: Your Honor?
THE COURT: Yes.
MR. HOWARD: Before we proceed, | represent Robert
Johnson, and we're not involved in this in any way. If we
so desire, may we be excused? It’s just all of the issues
in no way bear on — on — in our case.
THE COURT: Well, | would prefer that everybody
remain in the courtroom until we get this — I don't
know exactly where this is going —
MR. HOWARD: Fine, Judge.
(235) THECOURT: — and I would prefer that every-
body remain.
MR. CARES: At this point, should | call her as a
witness?
THE COURT: Yes.
MR. CARES: Would you stand right there, and the
Judge will administer the oath?
THE COURT: Mrs. Sancho, will you raise your right
hand?
SUSAN SANCHO, Government's Witness, sworn.
THE COURT: Please take the witness stand.
Direct Examination
BY MR. CARES:
Q. Would you please state your name and spell it?
A. Susan Sancho. S-u-n — S-u-s-a-n S-a-n-c-h-o.
Q. Okay. At one time, were you married to Gary
Sancho?
A. Yes, I was.
Q. And was Gary Sancho arrested sometime in
March of 1988?
A. I believe so.
Q. In March of 1988, were you and Gary Sancho
living at a house located on Wahrman Street?
A. Yes, we were.
Q. That was in Romulus?
A. Yes.
A-28
Q. After Gary’s arrest, were certain legal actions
instituted (236) in which the government was
attempting to forefeit your house?
ae {
Q. In that forfeiture proceeding, were you a party?
A. I don’t understand what you mean.
Q
A
>
Had you — who — who owned the house?
Gary and I.
Q. You owned it together. Is that right? Is that a
“yes”?
A. Yes.
Q. In this forfeiture action, did you and your hus-
band consult an attorney?
A. My husband did have an attorney.
Q. Okay. Who was your husband's attorney?
A. Deday LaRene.
Q. Did you have an attorney?
A. I didn’t think I need [sic] one, but I guess it would
be Deday LaRene.
Q. Okay. This forfeiture action, did you talk with any
attorney about your position — you, Susan Sancho,
your position concerning your house? Did you talk with
an attorney about that at all?
A. No.
Q. Did you talk with Mr. LaRene about it at all?
A. Gary did, you know, talked the most because he
always (237) took care of everything.
Q. Okay. You said Gary talked the most. Were you
present when Gary talked with the attorney?
A. Sometimes. Yeah, most of the time.
Q. So most of the time, you were present when Gary
talked to the attorney? Is that a “yes”?
A. Yes.
Q. And in these discussions with the attorney, did
you feel that you were represented by Mr. LaRene as
well as Gary?
A. I wasn't arrested, but I don’t know.
Q. But you knew or you believed that the govern-
ment was trying to forfeit the house that you and Gary
owned. Is that correct?
A-29
A. Yes.
Q. Okay. Just in terms of the forfeiture, did you feel
that you were represented by Mr. LaRene?
A. I guess so.
Q. And in these meetings that — in which you — at
which you were present, did you make any statement to
Mr. LaRene about the forfeiture of your house?
A. Not that I recall except for after Gary died.
Q. After Gary died, what?
A. You know, after Gary was — you know, after Gary
died, then, you know, the house was up in the air, and
so that’s — I don't know how to explain it to you.
(238) Q. So after Gary died, did you talk with Mr.
LaRene about the forfeiture proceedings?
A. I asked him what was going on with the house.
Q. Okay. Did you feel that he was your attorney at
that time?
A. Yes, I guess.
Q. Was there ultimately a settlement in which you
got your house back or at least got some money back
for your house?
A. Yes.
Q. What was the settlement?
A. I think it was 30,000 or something like that.
Q. Were you aware that certain legal papers were
filed on your behalf in this forfeiture proceeding?
A. I don't know. |
Q. Were you shown any legal papers by anyone?
A. Not that I can recall.
Q. Would you be willing to have Mr. LaRene question
you about the meetings at which you were present
when the forfeiture of your house was discussed?
A. It’s been a long time, so I don't really remember
that much.
Q. Okay. The question is would you be willing to
have Mr. LaRene question you about those meetings.
A. No.
MR. CARES: Your Honor, I’m not sure where to go
(239) from here. Perhaps the Court has some questions.
A-30
THE COURT: Well, she’s — | think that Mrs. Sancho
has indicated to the Court’s satisfaction that she con-
sidered you, Mr. LaRene, to be her attorney at the time
of these forfeiture proceedings. Although apparently it
was her husband Gary who retained you, it would
appear that the house was — well, certainly at least she
had a dower interest and probably was a joint owner of
the — of the real estate or an owner by — tenant by
entireties —
MR. LARENE: There were — there was an issue —
THE COURT: — of the real estate.
MR. LARENE: There was an issue about that that was
involved in the forfeiture proceeding —
COURT RECORDER: Get to the microphone, please.
MR. LARENE: — but it was clear to me that I was
acting as Mrs. Sancho’s lawyer in connection with the
forfeiture proceeding.
THE COURT: So there’s no question in your mind
either —
MR. LARENE: No question at all.
THE COURT: — that you were not only Mr. Sancho’s
attorney in the forfeiture proceeding but also Mrs.
Sancho’s attorney.
MR. LARENE: No question at all.
THE COURT: All right. And I take in the course of
(240) those proceedings, you filed certain pleadings —
MR. LARENE: Yes, | did.
THE COURT: — which you prepared and —
MR. LARENE: After discussions with Mr. and Mrs.
Sancho —
THE COURT: All right.
MR. LARENE: — and I ultimately resolved the case
after discussions first with Mr. and Mrs. Sancho and
then, after Mr. Sancho’s death, with Mrs. Sancho.
THE COURT: The case was concluded sometime after
Mr. Sancho’s demise, | take it.
MR. LARENE: That's correct.
THE COURT: All right. And ultimately there was a set-
tlement reached with the government in that — in that
A-31
forfeiture action, and | take it from the testimony here
and also on the representations which were made here
in court yesterday, Mrs. Sancho received from the gov-
ernment a — a cash settlement representing her equity
or at least to satisfy her claims to an equity in the — in
the house, and it’s been variously indicated that the set-
tlement was 30,000 or $35,000. .
MR. LARENE: It was either thirty or $33,000.
THE COURT: Thirty or $33,000.
MR. LARENE: Yes.
THE COURT: All right. Now Mrs. Sancho has indicated
to us here today on the witness stand that she’s not
(241) willing to have you cross-examine her regarding
the — the matters that you discussed with her and the
— and the work that you did with her in that forfeiture
action.
MR. LARENE: I understand that.
THE COURT: All right.
MR. LARENE: | —
THE COURT: So the situation is, it seems to me — it
seems to me clear that you're in a — it seems to me
that you're in a position where — you really are not in a
position to cross-examine her regarding those matters
that were — information that you obtained and the con-
tacts and the communications that you had with her
during the handling of her legal business.
MR. LARENE: I agree.
THE COURT: You agree with that.
MR. LARENE: Yes.
THE COURT: All right. And yesterday it was indicated,
I think, in court that — that — that Mr — your client
Mr. —
MR. LARENE: Christunas.
THE COURT: — Christunas preferred to have you as
his lawyer rather than as your witness, but it seems to
me again that under the circumstances, you could not
be a witness in any event.
MR. LARENE: I could not be a witness so — well, |
(242) could not be a witness in any event.
A-32
THE COURT: Because of the position —
MR. LARENE: That’s correct.
THE COURT: — taken by Mrs. Sancho, and —
MR. LARENE: That is correct.
THE COURT: — Mr. — Mr. Christunas has indicated
that it’s all right with him — I’m going to ask him some
more questions about this in due course, but he’s indi-
cated that it’s — that it’s all right with him if you were
not a witness —
MR. LARENE: There — there are —
THE COURT: — regarding the matters of your dealing
with Mrs. — Mrs. Sancho, and however, | just conclude
that you couldn't be a witness anyway.
MR. LARENE: Judge, there are — as I indicated to you
in court yesterday, there were conversations that | had
with both Mr. Sancho, Mrs. Sancho and the two of them
together in which other persons were present, and
without going into the detail of any of those conversa-
tions, | would think that because of the presence of
third parties, they would not be — they would not be
privileged. However, I think that’s the area in which Mr.
Christunas was waiving my availability, if you will, as a
witness.
THE COURT: Well, | don’t know whether that would
be barred or not, but it just seems to’me that it’s a
very —
(243) MR.LARENE: Yes, sir.
THE COURT: — it’s a very tenuous situation here —
MR. LARENE: Absolutely.
THE COURT: — whether other people were present
or not because of the fact that you were acting as her
legal counsel at that time in a matter contested
between herself and — and the United States govern-
ment.
MR. LARENE: I —1I understand that, and I do not pro-
pose to make any inquiry touching upon my conversations
with her, whether I think they were privileged or not.
THE COURT: All right. Well, let me just — I suppose
we ought to ascertain — assuming that — what would be
A-33
your intention, then, regarding your cross-examination of
Mrs. Sancho?
MR. LARENE: To be gentle.
THE COURT: Well, I understand that.
MR. LARENE: That’s not what you meant, I know.
I — | think, given the — what Mrs. Sancho has said
today, that there is probably no way in which I can
explore the matter of the filing of the claim and affirma-
tive defense which is —
THE COURT: | think — that’s my conclusion.
MR. LARENE: Yes. | —
THE COURT: I read the — the cases that — that Ms.
Elliott found, and it seems to me that they're — they're
(244) rather compelling. They're not, either one of them,
from this district or from this circuit, but they seem to
indicate that there is a serious problem here and that —
MR. LARENE: What I had originally proposed to do by
way of an inquiry would be to have asked Mrs. Sancho
the same questions that I would have asked any witness
whose lawyer had filed a document on her behalf and
to avoid — to avoid the issue of who the lawyer was
that signed the document or filed the document on her
behalf. My thought was that I would —
THE COURT: Okay. Before we get into that, it seems
to me we ought to know what — what the questions are
that —
MR. LARENE: Well —
THE COURT: — you would have proposed to put to
here.
MR. LARENE: May I have the document?
I think given her answers today, I probably cannot —
I probably can’t formulate any meaningful questions, but
if the Court will, | would hand — I'll hand up the — or |
can just — maybe it’s better if I recite for the record
what the —
THE COURT: All right.
MR. LARENE: The complaint for forfeiture was filed
against the premises on Wahrman Road. It alleges — the
complaint alleges in paragraph three — I’m — | quote:
A-34
“That on or about March 15, 1988, the defendant
Real (245) Property was used or intended to be used
to facilitate violations of Title 21, US. Code. This prop-
erty was used to store and facilitate the unlawful dis-
tribution of a controlled substance, marijuana and
hashish, and is forfeitable under title 21, U.S.C., Sec-
tion 881(a)(7).
“By way of example, on March 15, 1988, agents of
the Drug Enforcement Administration and officers of
the downriver area narcotics organization in an
undercover capacity made a controlled buy of 32
pounds of marijuana taken from the defendant prop-
erty by Gary Sancho. Gary Sancho was subsequently
arrested and agreed to a consent search of the
defendant residence. Upon executing the search war-
rant at the defendant residence, agents found mari-
juana and hashish.”
In the Answer to Complaint filed on behalf of Mr. and
Mrs. Sancho, the claimants to the property, I signed — |
signed the Answer, and paragraph three thereof states:
“Claimants deny the allegations of paragraph three
of Plaintiff’s complaint for the reason that they are
not true.”
And I further signed as attorney for the claimants Affir-
mative Defense of Susan L. Sancho which reads as follows:
“Further, claimant Susan L. Sancho asserts as an
(246) affirmative defense that forfeiture of this real
property of which she is a tenant in the entireties
would be improper and in violation of rights secured
to her by the Fifth Amendment to the United States
Constitution for the reason that the complaint herein
does not allege nor will the government be able to
show nor is it indeed — nor is it indeed a fact that
she was in any way involved in or aware of any of the
allegedly unlawful activity upon which this forfeiture
is premised or that she countenanced or consented
to any such alleged activity.”
A-35
I think given Mrs. Sancho’s statements today that she
really didn't know what was being filed on her behalf —
and | can’t effectively cross-examine her about the docu-
ment without — without running afoul of the — of the
claim of privilege.
THE COURT: I believe that’s true. I think it’s pretty
clear that — that were you to get into that matter of —
in an attempt on cross-examination to show that she
had at one time at least taken a position at a time she
was represented by you — she had adopted a position
at that point that she knew nothing about any narcotics
dealing by her husband and then presumably here now
gives some testimony of a different character, | think
you'd be in a — really an impossible situation.
MR. LARENE: I think it would —
(247) THECOURT: | don't think it would be at all
even remotely permissible for you to go into that
matter with her.
MR. LARENE: It — it might — now — well, I think it
may also require a skill greater than I possess, frankly,
to walk between those raindrops.
THE COURT: All right. Now, that leaves — that leaves
— that leaves Mr. Christunas’ situation that I want to —
I think that we need to enlarge on a little more fully in
light of the language of the cases that I've cited to you
and which I presume by now you've examined.
MR. LARENE: Hm-hmm. Yes, sir.
THE COURT: Mr. Cares, you’re on your feet. Do you
have something you —
MR. CARES: May — may this witness be excused?
THE COURT: Yes.
I don’t think there’s any reason that you need to stay
in the courtroom now. Thank you very kindly, Mrs.
Sancho.
And I assume that you'll notify her when she’s to
return to court, then, right?
MS. TODD: Right.
THE COURT: All right.
(Witness excused at 4:17 p.m.)
A-36
THE COURT: All right. Are we ready to — to proceed
a little further here, then, at this point?
(248) MR.LARENE: I suppose.
THE COURT: All right. I’m going to address your
client at this time, Mr. Kenneth Christunas.
Mr. Christunas, you were here yesterday, of course,
when this matter initially came up, and you’ve been
here during the colloquy that we’ve had here in court
with — with Mrs. Sancho, and also you've heard the
comments made by your attorney Mr. LaRene, correct?
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: So you're fully aware of the situation
that exists.
I just want to advise you, of course, that you do have
the absolute right during the course of this trial to sep-
arate and conflict-free representation. Do you under-
stand that, sir?
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: Now, I want to just indicate to you that
there is a problem here tr-that your attorney, Mr.
LaRene has taken the position and I think properly so
that he cannot — he cannot cross-examine Mrs. Sancho
regarding a position that she may have taken and appar-
ently did take in the forfeiture action involving her
home, a position that she was unaware of any involve-
ment of Mr. Sancho in any narcotics trafficking activi-
ties. Now, | assume she’s here as a government witness
(249) because she’s going to testify to some knowledge
of his activities in that regard. Your attorney is in the
position where he cannot pursue that — that matter
with her. Do you full [sic] understand that, sir?
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: So if he continues as your legal counsel,
then because of that conflict — that is, the conflict that he
has between his position as your defense counsel in this
trial and his position as the — as the attorney who coun-
seled and advised and represented Mrs. Sancho in the for-
feiture proceedings brought against her and the property
by the government — you really will not have the advan-
A-37
tage of his ability to cross-examine her regarding what
may be a — an inconsistent position that she takes now
as compared with the position she took in the forfeiture
action. Do you understand that, sir?
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: So — and as | have previously told you,
you do have the absolute right to — to separate and
conflict-free representation, and there is, therefore, the
problem that arises. It’s a problem that’s inherent in
your being represented by an attorney who — and |
don’t say this in a critical manner, but an attorney that
because of the situation that’s arisen has divided
responsibilities or divided loyalties. In other words, he
has a responsibility to Mrs. Sancho (250) as his client in
that matter and a responsibility which does not end
now merely because the forfeiture proceeding is over,
and he also has a responsibility that he owes to you —
a heavy responsibility he owes to you as your defense
counsel in — in these criminal proceedings. Do you
understand that fully, sir?
DEFENDANT K. CHRISTUNAS: Yes, sir..
THE COURT: All right. Now, | — have you had the
opportunity to — to confer thoroughly with — with Mr.
LaRene concerning this entire problem?
DEFENDANT K. CHRISTUNAS: No, sir.
THE COURT: You have not.
DEFENDANT K. CHRISTUNAS: No, sir.
THE COURT: All right. Is it your desire to — to have
that opportunity to fully and thoroughly consult with
Mr. LaRene concerning this problem?
DEFENDANT K. CHRISTUNAS: Yes, sir.
THE COURT: All right. Well, | want to give you that
opportunity. I also want to encourage you to seek
advice from independent counsel regarding this matter,
and I want to also allow you a reasonable time to make
your decision as to whether you want to have Mr.
LaRene continue to represent you under the restrictions
in his representation that are now apparent. Do you
understand that, sir?
A-38
DEFENDANT K. CHRISTUNAS: Yes, sir.
(251) THECOURT: All right. So 1 am encouraging you
to, first of all — to consult with independent counsel. |
am also encouraging you to — to take the time to fully
and thoroughly review the matter with Mr. LaRene as
well, and I want to give you a reasonable period of time
to reach a decision as to how you want to proceed in
this matter, and we do not have a session scheduled in
this trial for tomorrow: that is, for Wednesday, March
the 17th. We’re going to convene again on March the
18th at 8:30 in the morning. Do you believe that in the
interim, between now, 4:20 p.m. on Tuesday, March 16th
and 8:30 in the morning on March the 18th, you'll have
sufficient time to consult with independent counsel and
to fully and thoroughly discuss and review this matter
with Mr. LaRene and — and make your determination?
DEFENDANT K. CHRISTUNAS: Yes, sir.
THE COURT: All right. Well, | think that will be the
best course for us to follow under these unusual cir-
cumstances.
MR. LARENE: Yes, sir.
THE COURT: All right. Any — anybody else have any-
thing else to add on the record at this point?
MR. CARES: Not as to this issue, but there’s a sort of
corollary with Mr. Howarth, and I don’t know — | don't
— it’s not nearly as sticky. In fact, I don’t even know
that it’s sticky at all.
(252) Agent Lawrence Zakalowski will be testifying,
who at one point was represented by Mr. Howarth. |
don’t know — | don't anticipate that Mr. Zakalowski will
offer any testimony against Mr. Howarth’s current client.
If there’s anything that needs to be — be resolved in
that respect, Mr. Zakalowski is here. I don’t know that
we need a waiver. Maybe we could err on the side of
caution.
THE COURT: Well, all right. If he’s here, | guess we'd
better go into that matter as well.
(Pause in proceedings at 4:24 p.m.)
A-39
MR. LARENE: May — while we’re — we have a
moment —
THE COURT: Go ahead.
MR. LARENE: — we were just having a conversation
here, and it seems to me, based on my rudimentary know-
ledge of the case law, that one of the options that may be
available is to have another lawyer come in to represent
Mr. Christunas for purposes of cross-examination of Mrs.
Sancho so that — if — if — if Mrs. Sancho is to be
cross-examined regarding the pleading in question. I’m
not asking for a ruling on that at this point. I’m just
offering that as one thing that — that we’re thinking
about.
It strikes me, however, that — it seems almost
inevitable that if anyone cross-examines her about the
position taken in the pleading given her answers, that
the (253) pleading, if it’s to be admitted, would be
admitted as a representative admission or statement or
— and it would — the jury would learn, I would think,
unless — well, would learn in the course of that, that |
had in fact represented her and Gary Sancho.
So as | say, I’m not asking for a ruling. | thought |
might — rather than springing it on you —
THE COURT: Well, we've still got that situation
because, of course, we've got all these other attorneys,
and —
MR. LARENE: Yes. Well, the thing — my —
THE COURT: I have no idea what the substance —
MR. LARENE: The only other —
THE COURT: — of her testimony is or —
MR. LARENE: Yes.
THE COURT: — or which — which, if any, of these
defendants are — well, obviously —
MR. LARENE: Well, I can tell you, Judge —
THE COURT: — the testimony involves somebody out
there, or she wouldn't be here, but —
MR. LARENE: I can tell you it — her testimony
touches almost exclusively on Ken Christunas. However,
it may also touch on Herbert Micou. The problem with
A40
that, | suppose, with Mr. — is that Mr. Mateo at one
point, | believe, represented Gary Sancho in criminal —
state criminal proceedings; (254) did not represent the
witness.
Well, it’s a smali town, Judge.
THE COURT: Getting smaller all the time.
MR. LARENE: We have fifteen people, and they keep
bumping into each other.
x &
(262) * * * THECOURT: All right. well, then we've
only got the one situation, and that’s Mr. Kenneth Chris-
tunas and his relationship with Mr. LaRene, and | pre-
sume that we'll — you'll have those contacts —
MR. LARENE: Yes, your Honor.
THE COURT: — Mr. Christunas, you'll have the con-
tacts with Mr. LaRene —
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: — a chance to discuss this in depth and
at length with him between now and next Thursday
morning, March the 18th, and you'll also have that
opportunity to do what I’ve suggested and encouraged
you to do, and that is to get some indepenednt counsel
to also review the matter for you.
DEFENDANT K. CHRISTUNAS: Yes.
(263) THECOURT: Okay?
All right. With that, then, is there anything else to go
on the record before we adjourn for the day?
MR. LARENE: No, sir.
DISCUSSION REGARDING SUSAN SANCHO
[TRANSCRIPT VOLUME III, PROCEEDINGS OF MARCH 18, 1993]
(5) * * * THE COURT: All right. When we — we're,
of course, in the absence of the jury.
You can be seated.
A-41
When we adjourned on Tuesday, March 16th, we had
taken some testimony outside the presence of the jury
from Susan Sancho, the widow of Gary Sancho, and a
lady who had previously been represented in a forfei-
ture proceeding brought against — originally against
her and her late husband by the government in which
they sought forfeiture of the marital home on the basis
that it had been used in certain drug trafficking activi-
ties, and of course the — the problem arose that Mrs.
Sancho had been represented in those forfeiture pro-
ceedings by Mr. LaRene who is representing Mr. Ken
Christunas in these proceedings, and there was the —
the definite (6) possibility that during cross-examination
of Mrs. Sancho, who is a government witness in this
matter, that — that defense counsel would want to go
into the matter of the — of the forfeiture case in which
apparently it was the position asserted by her through
her legal counsel Mr. LaRene that she had no knowledge
of or participation in any drug-trafficking activities
which, if that were her position at that time, would be
apparently contrary to certain testimony which the gov-
ernment expects her to offer here in that | assume she’s
called here on the basis that she’s aware of her hus-
band’s involvement in drug trafficking and in his rela-
tionship with, I assume, certain of these defendants.
At the time we adjourned, I had advised Mr. Ken
Christunas of his constitutional right to conflict-free
representation. | also instructed him as to the problems
which were inherent in being represented by an
attorney with a conflict of interest or divided loyalties,
and | don’t — as | have said before, I don't say that criti-
cally of — of Mr. LaRene. It sounds like a perjorative
statement, but it’s not intended to be that. It’s just as a
matter of fact the way the situation arose, and | also
inquired of Mr. Christunas whether he wanted the
opportunity to confer in depth and at length with Mr.
LaRene concerning this situation, and | encouraged him
to do so, and I also encouraged him to seek advice from
independent counsel and granted him a reasonable (7)
A-42
time to make his decision as to what he wanted to do
under these circumstances in which it appears that Mr.
LaRene is — does have this situation where he both
represents Mr. Christunas in the — in these criminal
proceedings and also represented Mrs. Sancho, a gov-
ernment witness in this case, in defending a forfeiture
action brought against her and her late husband.
Now, Mr. Christunas, you have, I take it from represen-
tations made to me in chambers earlier this morning,
had some discussions — some additional discussions
with Mr. LaRene concerning this entire situation?
DEFENDANT K. CHRISTUNAS: Yes, | did, your Honor.
THE COURT: And were those discussions conducted,
as I've indicated, at length and in depth concerning this
entire problem that has arisen here?
DEFENDANT K. CHRISTUNAS: Yes, they were, your
Honor.
THE COURT: All right. And | understand — perhaps
Mr. LaRene would want to indicate to me his interpreta-
tion of those discussions. Then | can ask you whether
that’s your understanding as well.
MR. LARENE: Mr. Christunas and I have come to the
conclusion that it is — would be appropriate — well,
that the cross-examination should be conducted — the
cross-examination of Mrs. Sancho that might — that
would touch upon (8) her position taken in the — in the
resolution of the forfeiture case should be conducted —
should be a part of the cross-examination.
Mr. Christunas wishes me to continue as his attorney
and does not wish to waive his right to conflict-free rep-
resentation in order to have me continue as his
attorney and does not wish to have me avoid the area
of cross-examination that we discussed.
However, he has also consulted with Mr. Robert
Morgan who is in court today, who is a lawyer, a
member of the bar of this court, and consulted with
him at some length, and we propose — and it is accept-
able to Mr. Christunas as a way to resolve, in our view,
the — the issue and the conflict now before the Court
A-43
— that Mr. Morgan will — or would be permitted to
conduct the cross-exam — the entire cross-examination
of Mrs. Sancho, including such cross-examination of
Mrs. Sancho regarding the forfeiture case.
Is that correct?
DEFENDANT K. CHRISTUNAS: Yes, that is correct.
MR. LARENE: And I have also explained to Mr.
Christunas that it is conceivable that I could offer some
testimony as to non-privileged communications, non-
privileged because perhaps they were in the presence
of third parties which [sic] whom | did not have an
attorney-client relationship or the like, regarding Mrs.
Sancho’s role or statements made in (9) connection
with the civil — civil case but that obviously if | cannot
— if I am to continue to be his lawyer, I could not also
appear as a witness.
Mr. Christunas was aware of this fact before trial —
this potential before trial — several weeks before trial,
and then and now he is willing to waive any right he
may have to call me — he might have otherwise had to
call me as a witness so that he can instead have me as
his lawyer.
Is that correct, Mr. Christunas?
DEFENDANT K. CHRISTUNAS: Yes, your Honor, that is
correct.
THE COURT: Do you understand, Mr. Christunas, that
while Mr. LaRene is barred by the Rules of Evidence and
various ethical considerations from disclosing any confi-
dential communications he may have had with Mrs.
Sancho within the attorney-client relationship, there may
be other matters that became known to him through his
representation of her — that is, conferences that may
have been attended by other parties, for instance — that
would not be covered by the attorney-client privilege. Do
you understand that? In other words —
DEFENDANT K. CHRISTUNAS: Yes, I do, your Honor.
THE COURT: — he — on those matters, he would be
a qualified witness.
DEFENDANT K. CHRISTUNAS: Yes, I do, your Honor.
A-44
THE COURT: And is it your understanding — is it —
(10) it’s your understanding, | take it, that — that he is
not going to be a witness in this matter. Is that correct?
DEFENDANT K. CHRISTUNAS: Yes, that is my under-
standing, your Honor.
THE COURT: Even though he might be able to offer,
notwithstanding the attorney-client privilege, some tes-
timony that would tend to impeach or discredit Mrs.
Sancho’s testimony for the government in this case.
DEFENDANT K. CHRISTUNAS: Yes, your Honor. We dis-
cussed it in detail.
THE COURT: And are you willing to proceed under
those circumstances with Mr. LaRene continuing as
your legal counsel in this case and with Mr. Morgan
coming into the case only for the purpose of cross-
examining Mrs. Sancho?
DEFENDANT K. CHRISTUNAS: Yes, | am, your Honor.
THE COURT: All right. Mr. LaRene?
MR. LARENE: I was going to add that I have discussed
the case with Mr. Morgan and in fact have turned over a
file of materials regarding the cross-examination of Mrs.
Sancho to Mr. Morgan. | have not, however, and will not
have any discussions with Mr. Morgan regarding any
confidential or other communications that | have had
with Mrs. Sancho whatsoever. | have only disclosed to
him the fact of my representation, and I have discussed
with him and would continue to discuss with him non-
privileged matters regarding (11) conversations with
others — for example, the United States attorney who
was handling the forfeiture case — and I have not
included in my file of any documents which are even
remotely within the scope of the privilege, and | will not
share with him any documents which I acquired in the
scope of the privilege.
THE COURT: You're representing that you will not —
you have not and will not disclose to Mr. Morgan not
only privileged matter between yourself and Mrs.
Sancho which, of course, | would in any event —
MR. LARENE: Right.
:
eT eg
A-45
THE COURT: — know that you would not disclose as
an officer of this court and a member of the bar of this
court, but you also are not going to reveal non-privi-
leged matter that transpired between yourself and Mrs.
Sancho?
MR. LARENE: | — that is correct. | — | think that it
is —
THE COURT: So Mr. Morgan won't have that at his —
MR. LARENE: Well, yes.
THE COURT: — for his purview and in preparation
for his cross-examination of Mrs. Sancho.
MR. LARENE: He — he will not. My judgment is that
that will not impair his ability to prepare to cross-
examine the witness, and since | cannot in good con-
science be certain what conversations | may have had
with her in the presence, (12) for example, of third par-
ties and not in the presence of third parties, | just
thought that it was best to err on the side of caution. If
I thought that there were any such conversations which
| could disclose to him and he could use, | — | would
have, but I — I just don’t think that that is — that there
is any such material that I could comfortably do, and |
just think in light of everything, that it’s best that I err
on the side of caution.
THE COURT: Mr. Christunas, you've heard those com-
ments of Mr. LaRene, have you not?
DEFENDANT K. CHRISTUNAS: Yes, I have, your Honor.
THE COURT: And is that satisfactory to you?
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: Do you understand that he’s not going
to — Mr. LaRene, your attorney in this matter, is not
going to reveal or release to Mr. Morgan matters that
transpired between himself and Mrs. Sancho. Not only is
he not going to reveal any matters that are privileged —
that is, any confidential communications between the
two of them — but he’s also not going to reveal any —
any — communications, contacts between them, infor-
mation that passed between them that are not privi-
leged because, for instance, they occurred in the
A-46
presence of other parties. Do you understand he’s not
going to give that — any of that to Mr. Morgan to assist
him in preparing for cross-examination of Mrs. Sancho?
(13) DEFENDANT K. CHRISTUNAS: Yes, I do, your
Honor.
MR. LARENE: I should add, | also think that if we — if
I follow that procedure, all — the Court and all parties
can be assured that any cross-examination of — that
Mr. Morgan may attempt regarding the dealings that Ms.
Sancho may have had with her lawyer unnamed will not
be based on any questionable information.
THE COURT: Do you understand that you would have
a constitutional right to have that information, the non-
privileged information, in the hands of your attorney
Mr. Morgan so that he could utilize it in his cross-
examination of Mrs. Sancho?
DEFENDANT K. CHRISTUNAS: Yes, | do, your Honor.
THE COURT: And nevertheless, you're willing to — to
waive that right?
DEFENDANT K. CHRISTUNAS: Yes, I am, your Honor.
THE COURT: All right. Mr. Morgan?
MR. MORGAN: Yes, sir.
THE COURT: Would you just piease place on the
record your understanding and your position of your
role in this matter?
MR. MORGAN: Good morning, your Honor. Robert
Morgan.
My understanding is, as represented both by Mr.
LaRene and Mr. Christunas, and | have discussed this
matter, (14) I believe, at length substantially and com-
pletely with Mr. Christunas, and {’m — and I’m confident
that he understands all of the various ramificatioris.
THE COURT: All right. And so you do expect — if Mrs.
Sancho is called to the stand to testify as a government
[sic] in this matter, you expect to conduct the cross-
examination of — of her on behalf of Mr. Ken Chruistunas.
MR. MORGAN: Yes, I do, your Honor.
THE COURT: All right. And you — and you've been
apprised, certainly, of the limitations that you'll have to
A-47
deal with in that cross-examination in that you will not
have the benefit of even the non-privileged information
from Mr. LaRene who is the — the attorney of record
for Mr. Christunas in this trial.
MR. MORGAN: Yes, sir, | understand.
THE COURT: All right. Okay.
Mr. Cares, does the government want to make a state-
ment regarding the status of this entire matter?
MR. CARES: I just want to place something on the
record.
THE COURT: Yes.
MR. CARES: Just so the record is clear — and | believe
Mr. LaRene will acknowledge — is this issue did not just
arise now. On February Ist, I discussed with Mr. LaRene
that Susan Sancho would be a witness, and he immedi-
ately told (15) me about the potential conflict, that he
could be a potential witness, and I’m sure that he has
talked with his client about that in advance of trial, and |
— | would just want that to be acknowledged.
MR. LARENE: That — that is correct. Mr. Cares and |
did discuss it at that time, and I did in fact, as I believe
Mr. Christunas has already acknowledged, discuss it at
that time.
THE COURT: Is that correct, Mr. Christunas?
DEFENDANT K. CHRISTUNAS: Yes, your Honor, it is.
THE COURT: All right. Well, Mr. Morgan, as | under-
stand it, you — you feel you're not prepared at this
time to proceed to cross-examine Mrs. Sancho if and
when she appears as a government witness. Is that
correct?
MR. MORGAN: That's correct, your Honor.
THE COURT: And I take it you want the opportunity
to review her grand jury testimony which consists of
some forty pages, as it was indicated to me?
MR. MORGAN: Well, I would like to review her grand
jury testimony. I'd like to, after reviewing her testimony,
consult with Mr. Christunas for as long as appropriate.
In (16) that regard, I'd like to review the civil forfeiture
file, and obviously I'd like to get some sense of the testi-
A-48
mony that precedes or has preceded Ms. Sancho, so as
well as —
THE COURT: Testimony — testimony that —
MR. MORGAN: The earlier testimony in the trial.
THE COURT: All the earlier testimony?
MR. MORGAN: Well, I’m not going to request a tran-
script. I'd just like to, | — I guess, become acquainted
with —
THE COURT: All right.
MR. MORGAN: — what has transpired thus far as it
may impact on cross-examination —
THE COURT: All right.
MR. MORGAN: — and | don't think I could do that cer-
tainly today or — or tomorrow.
THE COURT: Ms. Sancho herself testified briefly out
of the presence of the jury on Tuesday, and | would sug-
gest that you’d probably want to — that was very brief
testimony. You might be able to satisfy yourself by
merely listening to the tape of that — of that testimony.
MR. MORGAN: We've already ordered the transcript —
THE COURT: Okay.
MR. MORGAN: — and | understand that it will be
available shortly.
THE COURT: All right.
(17) Well, in light of the — of this situation which
the Court finds to be a diffucult one, I’m going to, first
of all, request that — and I| understand there’s no diffi-
culty with this — request that Mrs. Sancho’s testimony
if she is called to the witness stand in this matter be
deferred to a later date. As you know, we're in — we're
to continue with the jury today, March 18th, and
tomorrow, March 19th, but then next week, the entire
week I'll be trying a case in Chicago, and we won't be
resuming until a week from next Monday, which would
give them — give you, Mr. Morgan, about ten or eleven
days to prepare. She wouldn't be on the stand, then,
earlier than — what would be the date? it would be the
lst of April, I guess, wouldn't it?
MR. MORGAN: 29th, I believe.
A-49
THE COURT: No. 29th is — the 29th is — well, wait a
minute. Let me see.
MR. LARENE: March 29th, I believe is the —
THE COURT: Yes, that’s correct. Yes. We'll be back in
session. I'll be gone for the week of Monday, March
22nd, through Friday, March 26th, in Chicago, and then
the trial will resume on Monday, March 29th, so she
won't be called to the stand before March 29th under
those — under these circumstances.
Is that satisfactory to the government?
MR. CARES: Yes, sir.
(18) THECOURT: All right. Okay.
Will that — does that give you adequate time, then,
to prepare for cross-examination?
MR. MORGAN: Yes, sir, it does.
THE COURT: All right. Okay.
Now, I’m going to take this entire matter under advise-
ment. | — I want the opportunity to conduct some addi-
tional research. It’s a delicate situation, as | think
everybody recognizes, and | — I’m not certain at this
point that — that I’m going to accept and approve this
proposed procedure. | may come to the conclusion that
it’s necessary to take other action under the — under
the circumstances, and therefore I'll take this under
advisement until March the 29th. All right?
MR. MORGAN: Yes, sir.
DISCUSSION REGARDING SUSAN SANCHO
[TRANSCRIPT VOLUME V, PROCEEDINGS OF MARCH 29, 1993}
(5S) * * * THE COURT: We've had the preliminary
matter involving the — the situation concerning the
proposed testimony of — of Mrs. Sancho. Just to again
place on the record the situation that exists in that
regard, she has been subpoenaed to appear here as a
government witness, and it’s my understanding that her
A-50
testimony would implicate a defendant or defendants in
this case and would regard her late husband Gary
Sancho’s participation in a marijuana trafficking opera-
tion with Mr. — at least Mr. Kenneth Christunas, one of
the defendants in this case.
We have a situation in which she and her late hus-
band were defendants in a forfeiture action brought by
the government which concerned their marital home. It
may have concerned other assets, but at least it con-
cerned their marital (6) home, with the government
having asserted the position in that litigation that the
home was either used in the course of narcotics traf-
ficking or was acquired with the proceeds of narcotics
trafficking, and I’m not sure which, but in any event, it
was the government's position that it was subject to for-
feiture. In those proceedings and apparently while those
proceedings were pending, Mr. Sancho died, and then
later there was a settlement reached between the gov-
ernment and Mrs. Sancho in which she received some
thirty to $35,000 in a cash settlement from the govern-
ment for her equity in the — in the home, and I — and
it’s the Court’s understanding and | think it’s well known
to all the attorneys and to the defendants, including Mr.
Kenneth Christunas, that in those proceedings, Gary
Sancho and his wife — what's her first name? | can't
recall it offhand.
MR. CARES: Susan.
THE COURT: — Susan Sancho were represented by
Mr. Deday LaRene who, of course, is the attorney of
record for Defendant Keith Christunas in these proceed-
ings. That situation raised the possibility of a conflict of
interest on the part of Mr. LaRene in that he of course
owes a duty of loyalty to Mr. Kenneth Christunas — his
attorney in this proceedings and also, of course, acted
as attorney/counselor in a confidential relationship with
Mrs. Sancho with regard to the forfeiture action in
which she was his client and in which he (7) did partici-
pate in the negotiation of the settlement which resulted
in her receiving this sum of thirty to $35,000 cash.
A-51
The Court — it has been indicated to the Court that,
as I've said previously, that her testimony may well
implicate Mr. Christunas and her late husband in a mari-
juana trafficking operation. This would be a — this —
such testimony then may very well be in conflict with
the position asserted by her or her attorney — and/or
her attorney Mr. LaRene in the forfeiture proceedings in
which it was, so | am informed, her position that she
had no knowledge of any activity of her husband Gary
Sancho in — with regard to marijuana trafficking, that
she in effect was an innocent party insofar as her
interest in the marital home was concerned, and there-
fore that the government should not have the right to
take that home from her in the forfeiture proceedings.
Mr. LaRene is in the situation under those circum-
stances certainly of being unable to — to testify to
those matters which were — involved a confidential
relationship between himself and Mrs. Sancho and cer-
tainly could not reveal any confidential communications
in the past between the two of them during those pro-
ceedings. Mrs. Sancho has appeared on the witness
stand here out of the presence of the jury and has indi-
cated that she was not willing to waive her privileged
[sic] under the attorney-client relationship: that is, her
right to (8) confidentiality of the relationship between
herself and Mr. LaRene.
The — while there are other matters in which con-
ceivably Mr. LaRene could be a witness and that —
those matters would relate to communications made or
Statements made by Mrs. Sancho which were not confi-
dential — that is, were made in the presence of other
parties — Mr. LaRene has assured the Court that he
does not intend to be a witness in these proceedings,
so we have a situation in which he will not be testifying,
as | understand it, even as to those matters that may
not be privileged between himself and Mrs. Sancho.
I have inquired of Mr. Christunas on the record on a
prior occasion in this matter, and at that time I advised
him of his right to conflict-free representation in this
A-52
matter. I also instructed him as to the problems that
were inherent in his being represented by an attorney
with divided loyalties. | inquired as to whether he had
had the opportunity to discuss the matter at length and
in depth with Mr. LaRene. He indicated at that time that
he had not had that opportunity at that point, and |
also encouraged him to seek advice from independent
counsel, and he indicated that he wished to take advan-
tage of that opportunity to seek advice from indepen-
dent counsel, and also I allowed him a reasonable time
to make his decision regarding the matter, and he’s, of
course, had that opportunity at this point.
(9) Now, I’m informed that there has been some
additional discussion concerning this matter and that
Mr. LaRene, with regard to the cross-examination of
Mrs. Sancho, will not be conducting that cross-examina-
tion: rather, that Mr. Christunas will be represented for
that purpose and for that portion of the trial only by
attorney Robert Morgan. Is that correct, Mr. LaRene?
MR. LARENE: Yes, your Honor.
THE COURT: All right. Now — and do! correctly state
that while, of course, it’s clear that you could not testify
as to any confidential communications or confidential
matters between yourself and Mrs. Sancho, it is also
your intention not to be a witness in any event, even as
to matters which are not confidential between yourself
and — and Mrs. Sancho?
MR. LARENE: Yes, your Honor.
THE COURT: All right. Now, Mr. Morgan, then, will be
cross-examining Mrs. Sancho, and what is your under-
standing as to the extent of his cross-examination?
MR. LARENE: Other than the matters which would not
be affected by the forfeiture action, he will, as | under-
stand it, cross-examine Mrs. Sancho about the circum-
stances of the forfeiture based on public records, like
the forfeiture or the answer filed by her, stipulation for
the result — for — for settlement. He will cross-examine
her about the — the documents (10) filed over my sig-
nature on her behalf in which she asserted that she was
A-53
an innocent spouse. He will cross-examine her about
the — the settlement which was reached after her hus-
band’s death, although not referring necessarily to her
husband's death.
He has — | have not told him anything about my con-
versations with Mrs. Sancho or Mr. Sancho, and he may
inquire — I — | can't tell you exactly what questions
that he would ask, but I would assume that he will
inquire — I believe that he will inquire about these doc-
uments in which she takes a certain position or a posi-
tion was taken for her. If she professes not to know the
contents of the documents, I presume that he would
cross-examine her, as any lawyer would any person in
that position, about whether she had ever discussed
the matters contained in the documents with her
lawyer. He will not introduce the documents as evi-
dence. He wi'l not bring out before the jury why her
lawyer was.
If the witness denies having discussed the matters of
position taken on her behalf in the action or in settle-
ment of the action or her receipt or the basis upon
which she receives the $30,000, I guess Mr. Morgan can
—— can go no farther. The jury, of course, is free to
believe or disbelieve her denials, if denials they be.
THE COURT: In other words, it’s your understanding
that he would seek to introduce the — the agreements?
(11) MR.LARENE: No, no. I don't —
THE COURT: No?
MR. LARENE: No. he — he will not seek to introduce
the documents themselves, just cross-examine her
about their existence. The reason that he won't intro-
duce the documents is because they bear my signature,
and we think that it is inappropriate to put before the
jury the fact that | represented her and thereby put into
issue my credibility or my conduct as her lawyer.
Basically, | — just as I've attempted to cross-examine,
for example, Mr. Michelson about documents that were
filed in his case, Mr. — Mr. Morgan will ask the same
kinds of questions that any lawyer would ask any wit-
A-54
ness about any document that was filed in a lawsuit in
which that person was a party on their behalf, and that
may involve questions in which the word “lawyer” or
where — which refer to discussions with lawyers, but
he will ask those questions without benefit of any know-
ledge regarding those conversations and will not
attempt to get into the substance of those conversa-
tions any more than any lawyer could get into any —
the substance of any privileged conversations.
THE COURT: All right. All right.
Mr. Cares, is that your understanding of the situation
in which we find outselves today?
MR. CARES: | It is.
(12) THECOURT: Let me inquire of you, Mr. Cares,
this: is it your understanding that the testimony of Mrs.
Sancho will involve other defendants than Mr. Kenneth
Christunas or only Mr. Kenneth Christunas?
MR. CARES: Just Kenneth Christunas.
THE COURT: All right. Okay.
Mr. Christunas — Mr. Kenneth Christunas, I’m going
to address you now. You've heard all these matters dis-
cussed here this morning. Ils — is your understanding
of what’s to occur now and what — what’s been
arranged and what's going to transpire the same as
what has been indicated here in court by myself and by
Mr. LaRene, your attorney?
DEFENDANT K. CHRISTUNAS: Yes, it is.
THE COURT: All right. Now, I’m going to tell you again
because I want to be very clear that you're aware of
your entire situation.
In a — in a criminal trial, defense counsel’s most
important function, really, is to vigorously cross-
examine the government’s witnesses. However, when
one of the government's witnesses is a former client of
defense counsel, then defense counsel's ethical obliga-
tions may conflict. On one hand, of course, defense
counsel is under a duty to represent zealously yourself;
on the other hand, defense counsel has a duty of confi-
dentiality to his former client, the government witness,
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and to limit cross-examination of the former client mat-
ters in (13) the public record may prejudice the defend-
ant if more searching inquiries are necessary for
a complete evaluation of the testimony against the
defendant.
Here in this situation, we have one in which Mr.
LaRene in any event could not testify as to the — as to
the confidential communications between himself and
Mrs. Sancho because those are absolutely privileged,
but also there will be no testimony adduced from him
regarding any communications or statements made by
Mrs. Sancho which are not privileged: that is, that may
have been made in the presence of — of third parties.
Do you understand that, sir?
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: All right. The — so we have a situation
where, as I have indicated, that the limiting of cross-
examination in this matter may prejudice you to some
extent if a more searching inquiry was necessary.
Alternatively, of course, if the cross-examination was
not limited, then there might be an intrusion into the
former client’s attorney-client privilege, although that
would not necessarily occur under the circumstances
that I’ve outlined here today.
Now, you have had, as I understand it, the full oppor-
tunity now to — to explore this matter at length and in
depth with Mr. LaRene, your chosen attorney. Is that
correct?
DEFENDANT K. CHRISTUNAS: Yes, that’s correct.
(14) THECOURT: All right. And you've also had the
opportunity and you've taken the opportunity to seek
advice from independent counsel. Is that correct?
DEFENDANT K. CHRISTUNAS: Yes, sir.
THE COURT: And is that independent counsel
attorney Robert Morgan?
DEFENDANT K. CHRISTUNAS: Yes, it is.
THE COURT: All right. And have you had — I know
some days have passed how — have you had, in your
opinion, a reasonable time for you to make your decision
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as to how you want to proceed under this entire
situation?
DEFENDANT K. CHRISTUNAS: Yes, I have.
THE COURT: All right. And you’ve — you've heard Mr.
LaRene express the — the position that will be adopted
here in this matter by himself and by Mr. Morgan: that is,
that he, Mr. LaRene, will not be a witness under any cir-
cumstances even as to those matters that are not confi-
dential between himself and Mr. Sancho, and Mr. Morgan
will be somewhat limited in his cross-examination of
Mrs. Sancho. In other words, if — if she denies know-
ledge or denies making any prior inconsistent state-
ment, that he won't be in a position of producing
testimony from Mr. LaRene as to those possible prior
inconsistent statements which she may have made
regarding her knowledge or lack of knowledge of any
marijuana trafficking.
(15) DEFENDANT K. CHRISTUNAS: Yes, I do.
THE COURT: All right. Knowing all these things and
having been advised of all these things, are you agree-
able to this procedure?
DEFENDANT K. CHRISTUNAS: Yes, I am.
THE COURT: All right. And you understand that you
then are, under these circumstances, waiving the — the
constitutional right — to a certain extent, you're
waiving your constitutional right to representation by
counsel who has no divided loyalties whatsoever. Do
you understand that, sir?
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: All right. But it is satisfactory with you
if Mr. Morgan does take over and does conduct the
cross-examination of Mrs. Sancho subject to the stric-
tures and the limitations that have been outlined here
in the courtroom this morning.
DEFENDANT K. CHRISTUNAS: Yes.
THE COURT: All right. Very well. Just a moment.
| should — there’s two other matters | should men-
tion. It’s my understanding that Mr. Morgan has — is —
has — is acting as an attorney in other matters for Mr.
LaRene, and, Mr. Christunas, are you aware of that?
A-57
DEFENDANT K. CHRISTUNAS: Yes, sir, I am.
THE COURT: You're fully aware of that, and that (16)
doesn’t change your —
DEFENDANT K. CHRISTUNAS: No.
THE COURT: — decision in any way?
DEFENDANT K. CHRISTUNAS: No.
THE COURT: Very well. Mr. Cares, do you intend to
instruct Mrs. Sancho that she shall not mention Mr.
Deday LaRene’s name during her testimony?
MR. CARES: I've already told her that on a number of
occasions, but just before she testifies, | will remind her
of that again.
THE COURT: All right. All right.
Does the government have any comment or any — or
wish the Court to make any further inquiry at this
point?
MR. CARES: Not on this issue.
THE COURT: All right. Okay.
x & &
DEFENSE OF WITHDRAWAL
[TRANSCRIPT VOLUME VIII, PROCEEDINGS OF APRIL. 5, 1993]
(145) * * * MR.LARENE: . . . There is this matter
however, the Court ruled at the beginning of trial that
what — the Court was told at the beginning of the trial
that the Defendants James Christunas and Arthur
Brayman intended to present a defense of withdrawal
and this — and they asked the Court to allow them the
bifurcated trial procedure that the Court allowed.
THE COURT: Yes. Yes.
MR. LARENE: I am advised by counsel for those two
Defendants, however, that they no longer wish to pre-
sent the withdrawal defense and are — are going to
withdraw their request for a bifurcated trial.
THE COURT: Can | hear from counsel for those par-
ties on that matter?
A-58
MR. HOWARTH: On behalf of James Christunas, your
Honor, Mr. LaRene is correct that we are not asking for
bifurcation nor will we present a withdrawal defense.
MR. SASSE: That is also correct with respect to
Arthur Brayman, your Honor.
THE COURT: All right.
MR. LARENE: However —
THE COURT: Well, it was an interesting academic
exercise.
(146) MR.SASSE: Well, now you —
MR. LARENE: Well, Judge, it’s not academic.
THE COURT: All right.
MR. LARENE: Because the same — the reason that
those Defendants no longer — now wish to rely on rea-
sonable doubt and eschew the withdrawal defense has
moved me on behalf of Mr. Christunas to make this
request to the Court: I now wish to present the defense
of withdrawal. And I would ask the Court to allow me
the — the bifurcation that it’s previously ruled to be
proper. | can be — | will and I think | ought to be much
more specific.
THE COURT: I think you'd need to be.
MR. LARENE: | guess —
THE COURT: I don’t have much time now —
MR. LARENE: I understand. I — I don’t expect you to
rule today —
THE COURT: — by the way.
MR. LARENE: — but | just wanted you to know that it
was — this is — that this is what was coming.
They — as Itold you originally, Mr. Ken Christunas had
testimony that he could offer and would — and might well
be prepared to offer regarding the early years of the con-
spiracy and the Defendants’ withdrawal therefrom. Mr.
Christunas is prepared to testify and wishes to testify
that — that he was indeed involved with marijuana traf-
ficking (147) activities in the early 80’s. But that after his
arrest in Florida on — in December of 1985, he became
terrified and decided to change his life around. That’s
why for example, he filed — that he filed this 1985 return
A-59
claiming all the money he had made and trying to clean
up his — his act, and clean up his life. And he has
embarked on this — on a — his — his true legal trade of
construction, et cetera. That — that — the business, the
conspiracy if you would, that perhaps he started or was
involved in the starting of may have continued, but it did
so specifically without him, and it did so specifically by
other members of his family, and did so specifically
without his participation, and with his having communi-
cated to his former co-conspirators that he no longer
wished to be involved. And that that, his withdrawal from
the conspiracy occurred substantially before — it would
be April of 1987 which would have be[en] the five year
statute of limitations period that — that would — would
control in the case of this indictment which was returned
in April of 1992. He will not, however, pursue that defense
at a joint trial, because to do so would be obviously and
clearly detrimental to persons — members of his family
who — as to whom there is evidence of part — direct evi-
dence of participation as late as — well, in later years.
He believes but I don’t — this is — I can’t — again |
can't make a contract with this testimony, but he (148)
believes that there would be testimony available for cer-
tain of his — from certain of his brothers, including his
brother Joe and his brother Tom, who would support
this with this defense and — but would do so at — at
the expense of implicating themselves and perhaps
other Defendants who are — who are here on trial. |
have spoken to Ms. Silver who represents his brother
David and again without signing an irrevocable contract,
she is — she has led me to believe that there might be
test — there may well be testimony available from
David Christunas who pled guilty, as the Court knows,
to activities in 1990. That his brother Ken had with-
drawn from any such activities well before that date.
That’s the specific proffer, that’s my specific
argument. I understand this — well, that’s what I’m
going to ask you for when I have the time to ask you
properly.
A-60
THE COURT: Okay. Well, we'll take the matter up at
the appropriate time. | would assume that counsel for
the — for the other Defendants who — whom it has
been indicated to me may — that those other Defend-
ants may wish to testify on behalf of Mr. Kenneth
Christunas defense of withdrawal are aware of the pos-
sible implications of their testimony in that regard,
despite the fact that there may have been verdicts ren-
dered or returned in their cases. | — as | observed pre-
viously when the shoe was on the other foot, the — the
fact that for instance a defendant who now testifies or
(149) chooses to testify in that regard, after having been
convicted, if that’s what happened, gives testimony that
certainly could very well be used against that defendant
in a subsequent proceeding in case there were [sic] a
new trial granted for instance, a reversal of the convic-
tion. So I’m sure counsel will fully advise their client as
to —
MR. LARENE: Yes.
THE COURT: — as to the jeopardy that’s created by
that —
MR. LARENE: Judge, the — the —
THE COURT: — by that situation.
MR. LARENE: With or without the availability of testi-
mony from co-Defendants however, | — Mr. — Ken —
it’s Ken[’s] position that he would not advance this
defense of withdrawal at a joint trial because it would
be —
THE COURT: Oh, I understand — I| understand that’s
his position now. It was the position of the other
Defendants —
MR. LARENE: Yes, sir.
THE COURT: — who asked for the bifurcated trial
previously.
MR. LARENE: Yes, sir.
THE COURT: Any brief comment you want to make?
MR. CARES: Your Honor —
THE COURT: I’m way beyond where | expected to be
(150) meeting with another judge here —
A-61
MR. LARENE: Yes, I’m sorry.
THE COURT: — in preparation for the bench meeting.
But —
MR. CARES: | just — I just very strenuously object for
a lot of reasons for which I will not state now because
of the Court’s scheduling concerns. One is, what
appears to be a manipulation by the defense team on
this case, and | want to get into that in some detail.
THE COURT: All right.
MR. HOWARD: Your Honor, just for the record, my
client, Robert Johnson, has indicated to me that he
desires to with — to evoke the withdrawal defense also.
And | would adopt to the extent applicable in connec-
tion with proofs in that regard, the arguments at least
advanced up to this point by Mr. LaRene.
THE COURT: Well, it does strike me as a bit peculiar
that — frankly that this — that these issues are raised
at this point of the proceedings. I exhaustively went
into this entire matter before we started the trial. And
we did a lot of research on the matter and — and
reached what | considered to be a very deliberate and
considered judgment or decision regarding the matter.
And now I'm confronted with an entirely —
MR. LARENE: Yes, I — I —
(151) THECOURT: — different situation. As | say, it
does strike me as somewhat, shall I say, to put it chari-
tably, intriguing that — that this now is happening at
this trial.
MR. LARENE: | — I will be happy to explain my
actions and my — and defend them at the appropriate
time —
THE COURT: All right.
MR. LARENE: —I think it would be premature now.
THE COURT. All right.
MR. LARENE: But I — it’s all — it all makes perfectly
good sense.
THE COURT: All right. We'll — we'll adjourn until 8:30
tomorrow morning.
Re eo ae Ee eae
A-62
MOTION FOR BIFURCATED TRIAL AND COURT RULING
[TRANSCRIPT VOLUME IX, PROCEEDINGS OF APRIL 6, 1993]
(5) * * * THECOURT: I believe we have the matter
of the request by certain additional Defendants for a
bifurcation of the trial before the Court this morning. At
the time we adjourned yesterday, the Defendants James
Christunas and — and Arthur Brayman, who had been
granted a birfurcated trial in order to expedite and
implement their intention to present the affirmative
defense of withdrawal from the conspiracy at a time
which would implement the provisions of the statute of
limitations, had withdrawn their request for a bifurcated
trial.
But then it was indicated to the Court, of course, that
Defendants Kenneth Christunas and David — no, and
Mr. Johns
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