UNITED STATES DISTRICT COURTEASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA:v.:

No. 06-CR-319

-03:(Ronald L. Buckwalter, J.)VINCENT J. FUMO, :

FILED ELECTRONICALLY

Defendant.:RESPONSE OF DEFENDANT FUMO IN OPPOSITIONTO MOTION TO PRECLUDE ADVICE OF COUNSEL DEFENSEThe United States has filed a motion seeking to precludethe defense of advice of counsel as to charges under 18 U.S.C.§ 1519, and to require a hearing outside the presence of thejury prior to allowing the defendant to advance this defense asto other obstruction counts. Doc. 427 (Dec. 31, 2008). Thegovernment’s belated motion changing its position on this matteris grossly unfair. It is also legally unfounded, as applied tothe § 1519 counts, and neither legally sound nor procedurallywarranted as applied to the other counts. For the followingreasons, the motion must be denied.The government’s motion opens with a discussion of the"background" of this issue which conveniently overlooks a coupleof the most important points: First, the prosecutors nowheremention Judge Yohn’s extensive and detailed opinion, filed inthis case on August 29, 2007, following an evidentiary hearingand extensive briefing. See United States v. Fumo, 504 F.Supp.2d6 (E.D.Pa. 2007). It is the law of the case, as established inthat opinion, that the Sprague Firm’s representation of Senator-1-

Fumo during the entire time frame at issue here was ethicallytainted by multiple conflicts of interest, both serious and lessserious. Id. 33-36. In this regard, the Court to a largeextent adopted the position that the government had advocated.Second, until the government’s New Year’s Eve filing, the prose-cution never claimed that an advice of counsel defense might notbe unavailable. Quite the contrary, at the hearing on conflictof interest, the prosecutors sought Sprague’s removal from thecase, in part, precisely because the defendant might decide toraise an advice of counsel defense which would make attorneySprague and his partners into witnesses (either for or againsttheir client, or some of each). If no such defense applied tothe charges in this case, then the prosecutors could not havemade that argument when it served their purposes in June andJuly 2007.For these reasons, the defendant is in no way estopped orbound by what was said on his behalf, in court or otherwise, byan attorney saddled with conflicts of interest, at least onmatters to which that conflict is pertinent.1While in manycases a defendant can waive an attorney’s conflicts (as JudgeYohn also held), such waiver is only valid when knowingly andintelligently made (again, as Judge Yohn held). There is no _____________________1This reason, among others, also explains why the government ismistaken in its motion (Doc. 452, filed Jan. 9, 2009) seeking touse as evidence at trial against Senator Fumo assertions thatSprague may have made to the prosecutors and/or agents in early2004 and mid-2006 (or, more likely, agents’ recollections,characterizations, and understanding of those assertions) aboutweaknesses in the government’s case and the nature of thedefense that would be presented.-2-

basis to think -- indeed, every reason to think otherwise --that a full and fair disclosure to Senator Fumo and a waiver byhim of Sprague’s conflicts occurred prior to the making of thestatements about advice of counsel referenced in the govern-ment’s motion. AUSA Zauzmer raised this very issue in argumentbefore Judge Yohn: "Now[,] they’ve said in their papers ...[that there will be n]o advice of counsel defense[,] but arethey conflicted in giving that advice?" N.T. (7/10/07), at 18-19. Accordingly, none of those statements are attributable tothe defendant now, much less are they in any way binding.Judge Yohn seemed to recognize the same issue when he wrotein cautious and tentative terms, in the August 2007 opinion:"Counsel for Fumo has stated that, at this time, they do notintend to present an advice of counsel defense." 504 F.Supp.2dat 19. Judge Yohn clearly did not take the Sprague Firm’sposition as final, authoritative or binding.The government, on the other hand, should be held judi-cially estopped from changing its position now on the avail-ability of the advice of counsel defense. See Zedner v. UnitedStates, 547 U.S. 489, 126 S.Ct. 1976, 1987-88 (2006) (rejectinggovernment’s particular invocation of judicial estoppel againstdefendant in criminal case); In re Teleglobe CommunicationsCorp., 493 F.3d 345, 377 (3d Cir. 2007) (explaining doctrine).For example, the prosecutors asked on September 12, 2007, thatJudge Yohn advise Senator Fumo, in relation to his proposedwaiver of conflict, that:An advice of counsel defense may be presented where,as here, a person is charged with intentionally-3-