UNITED STATES EXPLAINS TACOPINA~S CONVERSION TO A WITNESS AGAINST KERIK

o

J


81' IIA.HD

u.s. DepartmeDt

of Justice

United states Attorney Southern District of New York

united St.t88 District CourthauS4
Nhit.

300 ~narrqpa~ Street
E'lAin$, ~w

rork

l06()J

December Honorable Stephen C. Robinson United states District Judge United states Courthouse 300 Quarropas Street White ~lains, New York 10601
.. : D'bit.cl Sf:.t•• v. • • .l:'DUd ,8. .ltii!rU,

12, 2007

07 Cr. 1027 (Sea) Dear Judge Robinson:
in Opposition to the Government's r<l:otion to Disqualify ("The Breen Memorandum" or "Breen Mem.") • Despite its length, the

We write to reply to the defendant's

Memorandum of Law

)

Breen Memorandum is short on facts and la~ demonstrating why Mr. Breen should not be disqualified. If anything, as set forth below, the Breen Memorandum -~ based, in part, on gross In_iseharacteiri'=:ations' of 'the la,iIf '-- further dembn,$trate;g: wby· Breen'e'dfsquailficatidrt~is ul'iquest1.onabIYnec.ssary ..
I. No Di.C!o"..zy I. WaJ:'rant.ecl Bac.'lIIl. Tb. TJDd:1*put.d Ii"&ct. Show na1:. Mr. a:r..n I. Both A. Witne.11I And. An Ach'oe.te In This lfatt:.r.

)

While Mr. Breen repeatedly asks for discovery, hearings and the like in connection with the Government's Curcio motion, the undisputed facts demonstrate beyond any doubt \tlhatsoever that he is both a witness and an advocate in this matter. States Attorney
As set

District Attorney's Office statement regarding the renovations to the Riverdale Apartment as well as damning admissions concerning a loan taken by the defendant and the use to which the loan proceeds were put; 2) The defendant specifically authorized Tacopina to m~ke those
1

E>thibit 1 ("the In Dec(:!mber2004,

Elliott B. Jacobson, submitted herewith as Jacobson Affirmation'" of "Jacobson Aff."):
Mr. Tacopina oonveyad to

forth

in the AffirltLation

of Assistant

t1ni ted

the Bronx County ("BCDAO") a falae- exculpatory

1}

o
statements to the BCDAO; 3) On February 7, 2005, Tacopina, again with authorization from the defend,ant, repeated the false elCculpatory statement regarding thl~ apartment renovations to New York City Department of Investigations ("NYCDOI'I') Deputy Commissioner Walter Arsenault; 4} .i~fter Mr. Breen became part of the defendant's legal team, the defendant repeated the false account conoerning the apartment r'l!-novations as well as the admissions regarding the loan to B.lreen in Tacopina' s presence and authorized them to convey that infl:,rmation to the BCDAO/NYCDOI prosecutors/investigators conduct tnq the investigation; and 5) On March 8, 2006, at a meeting at the BCDAO attended by members of the District Attorney' 5 staff, Ars.!mault, Tacopina, and Breen, Tacopina repeated the false account; concerning the apartment renovations. Those facts implicat~~ Breen as a wi tnes's in this matter and m.andate his disqualificcrtion.

J

J

)

In an effort to secure a fact-finding hearing that would amount to little more than a fishing expedition providing discovery prematurely to the defeml!la, Mi. Breen desperately gz:asps at straws. He argues that ':1. hearing is necessary claiming the Government's summary of facts f.s inconsist@nt because '''at the December 6 oral argument, the gove!'mnent stated that someone from the Bronx District Attorney's Office has a 'distinct ~ecollection' that Mr. Tacopina said the renovations cost around $50,000 and that Mr. Kerik paid fot· them," Breen MeIn. at 15, without stating in haec verba "and no one else paid for them," id.l This, accoxding to Breen, lea'ires open the fanciful hypothesis that someone else paid the balance of the renovations coats -- $255,000 -- ~ithout the defendant's knowledge. See id. E"irst, the clear implicat.ion from any plain reading of what the Government stated at oral iargument is that the defendant and the defendant alone paid for thl! renovations. Moreover, as th~ Jacobson Affirmation makes cleai~, Arsenault, the individual adverted to at .the oral argwnent wh,:) distinctly recalls what wae
lMr. Breen misstates the record!~ The Government did not state that "'someone from. the Bronx nistrict Attorney"s Office haa

2007 at

"amongst the people we spoke to,'" -"" including members of the Bron;x: District Attorney's Office and a representative of the NYCDOI[Arsenault] .... "one person .J. [}I,rsenau;! tJ has a distinct recollection that thJ substance of the statement with respect to the renovations (, made at a discussdon at the ,BCDAO where Breen was a participant, w-=,s] that they WE!r.e about $50,000 and that Kerik paid for them.,) Transcript of' proceedings of December 6,
15.
2

a 'distinct

recollection'

.....•

"

The record

reflects

that

o
said at the Bronx District Attorney's Office during the March 8, attended by, 'among others, Breen, .informed us that: {O]n or about February 7, 2005, he met with Tacopina at the offi1oes of the NYCDOI. Deputy Commissioner Arsenault further informed us that, during that meeting Tacopina advised him that the total cost to the defendant in renovating the Riverdale Apartment was between $30,000 and $50,000, that the defendant paid for the renOVations, ilDd that .ao on. .1•• pdd! 'i!or aDY _part: o~ f:.h. r.aOV'af:,ion~o.'t.. Mr. Tacopina has confirmed that he made the above st:atements to Arsenault and that the information he had conveyed to Arsenault ha.d been provided to him by the defendant for the express purpose of conveying it to personnel at the N,YCOOI conducting i ts investi9at~ion.... Deputy Commissioner Arsenault [j::urther]informed us that on or about March 8, 2006 he attended a meeting at the aCDAO. Al:'senault further informed us that the meet.Lnq was also attended by members of tbe BCDAO, Mr. Tacopina, and Mr. Breen. Arsenault also further informed us that during the meeting Tacopina repeated the substance of his Fe~ruary 7 proffer.
Mr.

J

2006 meeting


)

Jaeobson Aff. '.If 9,11 are no inconsistencies factual hearing.

{emphasis supplied}. Accordingly, there at all, let alone one that would warrant

a

at: that ... 't:L.a:g. Breen knows 'I:hatwere he to admit that at that meeting Tacopina repeated the false account regarding the apartment renovations -- or were he to deny that that occurred -he would concede his status as an Irnporrt arrt witness in this matter. Accordingly, Breen's sd Lence about what was said at the meeting speaks volumes about his conflict. 2
•• J.d

lfot-.b.ly" tdU~..Job: • Sr... :t!J.~" .a .'fidav1.1:: .in f:b:L • .. t:t:.r 1.a wlUcla b. add:C. part1.c1p.:f:;:l.J:2g .tD t:lItt H'azd1 S-, 2006 ... t1DW .cfvertad to above, 111•• :t.t":LII~V1.f: 1.•• .f.~_t: ... to a.t

.....

2As part of an effort to play down the conflict under which he labors, Mr. Breen also paints a ~omewhat misleading picture of his role in representing the defendant in the Bronx. Thus, Breen (continued ••. )

3

)

court

Beyond thatt the defense has submitted no affidavitt affirmation or statement that cont:radicts anything in the· Jacobson Affirmation. Hearings, as this Court well knows, are held to resolve disputed issues of fact necessary to the r.esolution Qf a legal issue. Here I' no facts have been put in issue because neither Mr. Breen noz the defendant have refuted any of the pertinent facts as set !Eorth above. Accordingly, no fact-finding hearing or discovery :iLs warranted prior to the
I

s ruling on the instant

motLon,

The unoontradicted facta as set forth above and the relevant law as set forth below show that it is time for Mr. Breen to s'tep'aside as the defendant' 5 counsel. If he will not do so ~oluntarily, then, most resp~:~ctful1y, the Court should order him to do so.

)

_... are makeweight, without any legall force, and represent nothing less than a thinly-veiled attempt t.o exclude highly relevant, probative, and damaging evidence iIlI a flawed attempt to keep Breen on as the defendant's counsel. The evidence in question should be admitted, and the Government should not be hamstrung at trial iri order to ca~$r to the defendant's choice of counsel.

disqualification by arguinq that the statements on a number of grounds. All of thcn!>e arguments

critical

Because Mr. Breen knows that he is a witness to the statements in question, hE!1 has attempted to obviate his

are inadmissible -- as shown below

)

:2 ( •••

argument one trlould think

Government's

Mr. Tacolpina.who negotiated the plea agreement, including the allocution" it was Mr. Tacopina who signed the plea agreement, and it W:3,9 Mr. Tacopina who stood with Mr. Kerik during the plea allocution and who spoke on the record. Indeed, Mr. Breen was on trial on a case in this District in early June.# Breen Mem. at 5. Not only is that statement at odds with what Breen informed the G(~vernment -- namely, that he, not Tacopina, provided most of the legal representation in the Bromt -- it also glaringly omits that ~h~n Tacopina gave his oral notice of appearance at the Bronx guilty· plea, he stated: "For Mr. Kerik Joseph Tacopina, with Paul DeMila and Ken [BJreen." states: \. t was in fact [I] Curcio Motion; Exhibit 1 at 2.
he was not leven 4 there.

continued)

To listen to Breents

J

)

Initially, Mr. Breen advancea a number of arguments to tolhy in his V'iew -- the statel:nents in question are privileged. All of his arguments ,i1re entirely without merit.

as

)

Mr. Breen first claims that the Government obtained the statements improperly. Sreen argu.i~s that the Government should have asked a. court Or special masb~~r to review the statements for privilege before they were disclosed or, that at the very lea.st a taint team within the U.S. Attorneyts Office should have done so. Breen also complains that the Government spoke tro Mr. Tacopina despite the fact that in a March 7, 2007 letter to this Office .. e h "unambiguously stated th.at Mr. Kerj"k intended to assert his attorney-client privilege and attorney work product protection," Breen Hem. at 7, and that the Govel:'nment subsequently spoke to Mr. Tacopina without noticing the defendant. Breen's claim is entirely fatuous. As set forth in the Jacobson Affirmation, the Government learned of the statements in question in the first instance not from Mr. Tacopina, but from the investigators and prosecutors to whom those statements had been made. In other ' words, the statements had already been published to third parties before we spoke ~ith Tacopina. In such circumstances -- and as demonstrated below -- thQ statement~ were clearly not privileged. All the Government did vis-A-vis Ta'c:opina was to haivi9'hiM C!onfirm that he made the statements in qUestion to the prosecutors and investigators from whom we obtained them and that the defendant authorized him to mak~ those stateml2lnts to those third parties. No case, Sitatute, regulation or any other law requires the . Government· to seek the Court's inte:rvention or to utili%ea taint: team before receiving patently non-privileged information in these circumstanceSt and there is absolutely nothing improper about the way in which the Governmel:lt proceeded hera. Mr. Breen's March 7 letter -- although :ILt id' not and could not have d placed any legal restrictions on th.!~ Government, in any event -was not disregarded because the GovHrnment never made inquiry into privileged conversations. Finally, the Government had no legal obligation to give notice to t~he defendant that it was interviewing Tacopina any more than it was obligated to provide' notice with respect to its interview of any othax witness during a grand jury investigation. In shozt , there was absolutely nothing \oIrong with the manner in whlch the Government obtained the statements in qUeation, and the suggestion that there was i9 entirely devoid of substance.
5

J

)'

the

that privilege

attorney-client

Mr. Breen's

claim that tl~lestatements are protected by is el1npty. The principles governing are clear:
privilege

")

that any such privilege must be '~st:"rictly construed." University of Pennsylvania v. E.E.O.C.t 493 U.S. 182, 189 (1990) (citations omitted); United States v. Nixon, ~,18 u.S. 683 (1974) (Evidentiary privilages are disfavcllced because "they are in derogation of the search for truth't). Accordingly, because it i~ the defendant who seeks to shield the information herer he bears the burden to demonstrate that the infor.mation is privileged. The Second Circuit has describe~ the privilege thus: ~(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the· client, (6) are at his instance pennanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived~ ~I I~rnited States v. KoV'ell, 296 E".2d 919, 921 (2d Cir. 1961) tinterl~al quotation marks and citations omitted). Because the privilege is fact-based, defendants must make this showing as to each communication with respect to which they assert the pr.:lvilege. uni ted Sta tea v, Brennan, 938 F. Supp. 1111, 1130 (E...N.Y. 1996), rev'd on other D grounds, 183 F.,3d 139 {2d Cir. 1999.11.
be protected· communication 1::0 hie: lawyer, however, cannot privilege if thE:~ client intended that the communications would be communicated to a third party by the lawyer. As the Tenth Ci rcui t explai.ned in Uni ted Sta ties v. Bump, 605 F.2d 548, 551 (1979):
by the

privilege. United States v. Schwi..!12mer, 892 F.2d 237, 244 (2d Cir. 1989) ~ von Bulow v. von Billow .. 811 F.2d 136 146 (2d Cir. 1987). Because "'testimonial ex:clu~~.iona:ryrules and privileges contravene the fundamental principJ..1e that 'the public . • .. has a. right to every man's evidence,'" the Supreme Court has emphasil.ed
1

The burden of establishing the existence of an attorney-client privilege rests upon the individual asserting

the

)

A client's

When a matter is cc:mununiccl.ted to the lawyer with the intention or undexat andi.nq it is to be repeated to another! tt.e content of the statement is not within th.e privilege.
Government of an alibi

Xn Bump, the defendant,

defense

through his attorney, had notified the and documents supporting that
6

)

defense. The Government investigation was able to disprove the defense. The Circuit Court upheld cross examination of defendant about his conversation with his la';.;yer regarding the alibi defense: In this case Bump's atto:cney qav-e information acquired from his client to the Government. Bump makes no sholll'ingh~:tt t the lawyer's disclosures were without his consent, or that he communicated the Lnrozmat Icn to t:he attorney "W'ith the intentton it he kept secret. The burden of proving a communication is privile~ir,ed is on the person asserting the privilege. omitted). courts have made similar rulings E.g., United States v. Oloyede, 982 F.2d 133, 144 (4th Cir. 1993} (information that clients gave attorney intending- that he use it to make UIS filings is not privileg~d); .un1ted States v, Lawless, 709 F. 2d j185, -286-87 (7tl'l Ci:r:. 1983) (attorney could not resist testifying about books, p~pers and records client gave him in order to prepare tax returns); United States v. Rivera, 837 F. Supp. 565, 569-70 (S.D.N.Y. 1993) (no privilege for ~nfor.mation clients gave attorney intending he convey it to the INS). The lack of confidentiality surrounding the .eQ=.uni~ations in thi~ .:::::a;se the f.a,c,t that Tacop.in~ and· Breen and ws.:r:.it·(a.uthorize(i t·o dlsclos·e the stat.-.ments in·. questioh could not·; be more clear. First, Tacopina has stated that he was specifically authorized by the defen.dant t o make the statements in qu.estion to the relevant prosecutorlal/investigative authorities, and the defendant has ::lE!ver disputed or refuted that fact. Second, the circumstances under which the statements were t made -- an attorney relating his cl:lLents version of events to prosecutors/investigators -- ·clearly suggest that the defendant authorized his attorney to make the statements on his behalf. And third, the defendant -- as the ~:~videnceat trial will show -made almost identica.l statements to IWhite House officials vetting him for the position of Secretary of the Department of Homeland security as well as to the cont ract or who performed the renovations on the Riverdale Apartmemt (in yet another attempt to obstruct justice and conceal his illegal activity by c9aching a witness with a false a.ccount of what. had occurred) .
Tacopina with the expectation that they would be published to

)

~.

Id. at 551 (citation al."ound the country.

,)

In short, the statements The statements

at issue were communicated not privileged,

to or,

third parties.

were therefore
7

J

in the alternative, the authorized disclosure of the communications at issue clearly amounts to a waiver of the privilege, even if one existed in the first instance~ In any event, the defendant has come nowh'9re close to meeting .h:L. burden
of showing that the statements werlSl privileged. 3.
Any claiaeCl p~ivileq. exCJ~t1oD..

J

i. <Ilritiat:.d ])y tIM C!~.iJM-~r.ud

the statements concerning the apar1:~ment renovations were privileged in the first instance and that the privilege was not waived, ·the statements would still be admissible under the crimefraud exc~ption to the pri;rilege. 'The law pertaining to the crime-fraud exception, as set forth below~ is clear.

Finally,

assuming

-- contrary

to fact and law -- that

)

First, c::oromunicationsmade to a.n attorney are excluded from the privilege where there is .probable cause to believe that the particular communication with counee l, or attorney work product was intended in some way tQ facilitate or to conceal criminal activity. In Re Richard Roet 68 F.3d 384 38, 40 (2d Cir. (1995); see also United State~' v. Davis 1 F.3d 606 (71:1\ Cir. 1993) (where defendant represented to the prosecutor through his· attorney that he had fully complied· with a grand jury subpoena "'hen he had not (and in fact had withheld a critical document), the attorney-client privilege had been breached and attorney could be called as a government witness at trial).3 JThe law is \oIell-settled that i.t is not necessary that the in question have been a kn~:)wingparticipant in the crime or fraud in quest Lon, In· re Grand ,.Jury· Subpoena Duces Tecum Dated September 15; 1983, 731 F.2d 103.2, 1038 (2d Cir. 1984) ("Such· communications are properly .i!xcluded from the scope of the privilege even if the attorne:y is unaware that his advice is sought in furtherance of such an improper purpose"); United States v. Chen, 99 F.3d 1495, 1504 ,:9th Cir. 1996) (same). Even where the attorneys are "untolittingpawns," the exception applies because \\ he case law dealing wi~h the crime/fraud exception in [tJ the attorney-client context make it transparently clear that the
attorney client's
(Violette),

attorney for advice that will serve him in commission of a fraud will have no help from the law ..•. Nor does the loss of the privilege depend upon the showing of a conspiracy, upon proof that client and attorney are involvel:ll in equal guilt. The
(continued 8

United

intentions control." In re! Grand Jury Proceedings 183 F.3d 71,79 (1st Ci.t. 1999) (citing Clark v. states~ 289 u.s. 1,. 15 (1933) ("A client who consults an

.

... )

J

....

..-'

)

Second; it is clear beyond peradventure thajt the Government has demonstrated probable cause to believe that the defendant's communications to his counae I regarding the apartment renovations. were intended to facilitate and conceal criminal activity. The defendant told Mr. 'Tacopina -- who later repeated what the defendant had told him to the BCDAO/NYCDOl prosecutors and investigators ... that the valul!~ of the renovations to the Riverdale Apartment were approximat.ely $50, 000 and that he alone paid for them. The Indictment alleges that $255,000 worth of renovations to the Riverdale Apartment were paid for by John Doe. #1, John Doe 12, and XYZ. As the Second Circuit has stated: uWhile by no means conclusivs, the issuance of an indictment is certainly probative of the likely validity of its charges ...• " United states v. Cannone, 528 F.2d 296, 302 and n.6 (2d Cir. 1975) (holding that indictment nec~!~ssarily involved a findinq by grand jury of probable cause to believe that ·the qharged crime' had been committed.) Since ·the grcmd jury by its Indictment has already found probable cause to believe that the defendant1 e statements were patently false -- ':Ind false about a pivotal issue in the case -- the Government has d.emonstrated by the Indictment alone that the defendant's statemel'l.1::.s obstructive and thus were subject to the crime-!raud except Lon, Beyond t.hat., the defendant pleaded guilty in the Bronx to accepting $165,000 in the form of apartment renovations from XYZ. se« Government' 5 Curcio motion; Exhibit 1 at 7-10. Accordingly, the defendant's own words in open court put the lie to his prior statements regarding the apartment renovations and demonstrate probable cause -- indeed, one might argue, proof beyond a rea:Slonabledoubt -- that his earlier statements to Bronx and City investigators were false and obstructive. LastlYt in addition to being false and obstructive, the statements concerning the apartment renovations that were conveyed to the Bronx/City pro:i~ecutora/investigators are subject to the crime-fraud exception because they served to facilitate and conceal the honest servic~s fraud charged in counts One through Three. In fact, as the Government pOinted out defendant's

attorney may be innocent, and still the guilty client must let the truth corne out"); United States v. Ballard, 779 F.2d 287, 292 (5th Cir. 1986) (exception. attaches \\when the lawyer becomes either the accomplice or the unwitting tool in a continuing or planned wrongful act"); United State's v. calvert, 523 F.2d 895, 909 (8th Cir. 1975) (explaining that ~~ t is the client's [1] purpose which is controlling,. and it matters not that the attorney was ignorant of the client',~ purpose") .
9

l( ••• oontinued)

J

)

)

at the oral argument on December 6, the Indictment specifically alleges that the defendant sought to conceal the corrupt agreement concerning the apartme~t renovations by making false statements to the state grand jury and to local officials investigating that matter. Accordlngly, the statements at issue are not only relevant, they are prc)of of concealment -- a eri tical element of the honest aervf.ces crimes charged in the Indict~ent. Because there is more than probable cause to believe that that is the case,. the atat.emerrt are, without question, s subject to the crime-fraud except Lon ,

)

Aware that his privilege a~gument is me~itless, Mr. Breen further argues that this Court should preclude any testimony about the statements in question because -- according to him -- such evidence is unnecesnary and cumulative. According to the defense, the evidence is of marginal relevance because it does not prove~up the charges in the Indictment and is unnecessary because it is cumut attve of other similar evidence. These claims are meritless. In advancing this argwner:I.t: Mr. Breen raises a host of legal issues which would require the parties to litigate fully the defendant,.s claims that: (1) the Indictment is barred by the statute of limitations and (2) that the defendant's efforts to obstruct the state investigation aI:e not legally a paJ;t of the charged conspiracy. This Court should decline to decide those issues at this early staq6 of the· proceedings. If non-conflicted counsel wishes to advance those claims, the Government will respond and ekplain why such claims are meritless, and this Court may then rule on the issues at the appxopz La t e time. The Court is not obligated to rule on the defendant's pretrial motions to dismiss the Indictment prior to dec:iding whether defense counsel labors under a conflict. Further, the short ans~er to the defendant's claims is that the relevant charges are within the Statute of Limitations, and the statements relating to the apartment renovations are plainly relevant to those charges. The defendant's efforts to conceal the unlawful benefits (apartment renovations) that he received from XYZ continued during t:he pendency of XYZI s permit applications be£ore agencies of New York City and up until the conclusion of the state investigaticm. Accordingly, the Indictment was plainly timely brought. MoreQver, as alleged in paragraph 20 of the Indictment, it IiII'as part of the conspiracy charged in Count One that the defendant and others: engaged in a
10

)

)

variety of acts designed to conc@al the corrupt accepted. Those acts included the following:
(f) KEIUK,. John Doe

payments

he

#11, and ,John Doe #2 made false statements about, and ot.11,erwise failed to disclose, the corrupt payments to federal, state and local government age:l1.cies nd officials, a a state grand jury, the media and the public: KERIK attempted to cause and cause~ witnesses to make false statements to the NYCOOI and other local law enforcement ofJicials investigating his receipt of corrupt paymentsr and otherwise attempted to obstruct a ~!Itate grand jury investigation into his rf:~ceipt of said payments
A

(g)

)


)

Thus the proffered evidence is highly relevant proof squarely within paraqraphs 20{f) and (g) of the Indictment, and there is no basis for its exclusion •
B@cause the evidence in q[llestion in undoubtedly highly probative ,of the charges in the Indictment, Mr. Breen next argues· -- at least with respect to the false statements concerning the apartmerit renovations -- that the EI~1idenceshould be excluded because it is cwnulative of other s;:Lmilarconcealment/false exculpatory evidence. Even assuming arguendo that that is so, it by no means follows that the Gov'errunent should be depriv-ed of this important evidence simply because its intr9duc~ion would necessitate defense counsel's disqualification.' 1'hat is particularly So here where the defendant will no doubt hotly dispute that he obstructed the state investigation and/or that his lawyert'lmade the ob:structive statements in question.

The Government is entitled to show not only that the defendant concealed the benefits he receiv@d from John Doe #1, John Doe #2, and XYZ, but it should be permitted to show the lengths to which he went to conceal those benefits. It should be able to demonstrate to the jury that he did so repeatedly, over a protracted period of time, and with not one, but at least two separate attorneys before separate atat e investigative agencies. Moreover, as the Court suggested at the December 6 oral argument, the most powerful evidence of t.his scz-t would be that coming from the, mouths of the defendant',a formel::' counee l ." 4Beyond that, the trial in this case may be a year or more The Gov@rnment has nQ way of knowing which of its (continued ... )
11

away.

)

.)

In shot't, Mr. Breen cannot have it both ways; he cannot dispute the evidence of obstruction/concealment on one hand and then claim that evidence of obstruction/concealment coming fl;om Tacopina's mouth or his is merely ClUInulative. Given that it is the Government's burden to prove thie defendant guilty beyond a reasonable doubt, the Government' ahou Ld not, as the Second Cireui t held in Locascio, "be unfa:trly impaired so that an accused can continue with conflictflild counsel." Locascio, 6 F. 3d
924, 934.

Finally, the defendant's statements concerning the loan from John Doe :i6 and the use of thel proceeds of that loan to purchase the Riverdale Apartment, liI1hich statements wera conveyed to th~ prosecutors/investigators by Tacopina, are highly relevant .to the false loan application in CClunt Eight. Indeed, as we stated in our Curcio motion, they a,re tantamount to a confeSSion on Count Eight. S

c.

ft ••

ta~l'1t.

a%'.

DOt:

i~i

•• nbl. pl ..

d.i8lcu •• ion •.

)

Finally, aware that the st:atements made by Mr. Tacopina to Bronx and City investigators --those made: by Tacopina alone and 'those repeated by Tacopina in Mr. Breen's presence -- are not privileged and are highly relevant, Breen next claims that they are inadmissible because they are plea discussions barred by Rule 410 and case law. That claim is ba:S1ed on blatant misstatements of the law.

4( ••• continued) witnesses will be available come tr,:lal and should not be precluded from calling relevant "IoIitnesses at trial merely because they are the only ones available at that time. Again, since none of us can predict the future, nascent conflicts should be nipped in the bUd. See Wheat, 486 U.S. at 162-63.

5The admission of these statements would also require Mr. Breen'.$ disqualification because th~~ly were repeated to him in Tacopina/s presence for the purpose of their conveying that information to the Bronx/City prosecutors/investigators. Whether OJ:' not those particular statements t..I'ere thereafter reiterated to third parties, they are still not privileged, see United StatlM v. Bump, 605 F.2d at 551 (a matter oommun.lcat ed to lawyer with intention or understanding it is to be repeated to another not within the privilege); and Breen is a witness to them.
12

Initially, we note that j:~he statements at issue were not plea discussions. Rather, they were statements made denying the defendant's guilt,6 and are thuG entirely outside the ambit of Rule 410. United States v. Barxow, 400 ·F.3d 109 (2d tiro 2005) and United States v. Levy, S.'l8 F.2d 896 (2d Cir. 197a) are instructi ve in this regard. The L~:Hi'Y Court held that: .
)

)

any consideration whateVE!:r from the prosecutor _.•. (T) he lan~l'uageof Rule 11(e) (6), to which (Fed. R. Evid.) Rule 410 has been conformed, is ci3:pable of bein.g read expansively to include admissions at the earliest stage of an invElstigation. Such an interpretation Vlould have, a radical effect in immunizing admissions and. it is apparent that none of the draftsmen ha.d. any such intention. 2 Weinstein's Evidence P 410(07), at 410-40 to 410~41. We think that this view of the Rule is correct .••. Plea bargaining implies an offer to plead guilty upon condition. The offer 'by the defendant must , in some way, express the hope that a conceaed.on to reduce the punishment "W"i1l come to pass. A silent hope, if uncoromunicated, l;jfives the o·fficer or prosecutor no chance to reject a conf~ssion he did not seek. A corrt razy rule would permit the accused to gra:n.t retrospectively to himself what is akin t,:, a use immunity. Even statements voluntarily made after Miranda Warnings would be later objected to on the purported ground that they were made in anticipation of a guilty plea since reconsidered. A balanced system of criminal
6E~~n the statements regarding the loan from John Doe '6 -although highly inculpatory on the O~unt Eight, the false loan

Here we deal with adm.iss~ ens made, not during .. the course of formal p l.ea bargaining, but as part of an apparent effort by the defendant to help himself without pausing to request

application count -- were part of an effort to deny the defendant's guilt. By showing that he had taken a loan to pay for the apartment, the defendant waSI trying to convince prosecutors/investigi\tors that the money used fo:r the purchase and renovations to the apartment was his,. thereby concealing the roleot John Doe #1, John Doe #2 and. XYZ in renovating his al?artment. 13

)

)

justice should not be made to function terrain.
Levy

in such a swampy subsequently

at 901 (citations omitted). ~I~he Blflrrow court confirmed the narrow reach of Rule 410:

)

)

.... the under lying purpoae of Rule 410 is to promote plea ne90tiation~!~ by permitting defendants to talk to prosecutors without sacrificing their abilit~l~to defend themselves if no disposition agreement is reached. See Fed. R. Evid. 410 Advisory Committee's Note (1972) .... Because Rule 410 is an exception to the ge:neral principle that all relevant evidence is admissible at trialr see Fed. R. Evid. 402, its lirnitations are not to be read broadly ....

Barrow at 116 (quotation marks and citation omitted).
To be sure, plea discussions should be encouraged and defense attorneys' participation in them should not necessarily be chilled by the prospect of havin9 their 'tolordscome back to haunt thern. .But neither that concept nor Rule 410 gives defendants or their attorneys the right to come into a prosecutor's office and without any fear of untoward consequences make patently untrue statements that at once eonceal ong-oing criminal conduct 'and also obstruct justice. ~.t proffers, shc:iuldbe encourag~d and false proffers deterred. 'The: Federal Rules of Criminal Procedure and the case law thereunder should not be construed so as to give defendants in criminal casas license to commit vicarious obstruction and other critnes~
But, more to the point, even if the statement at issue here could properly be characterized as plea di.cussions, they would still not be excludable under Rule 410. In his desperation to keep these highly probative and damning statements from the jury (and at once maintain his position as the defendant's counsel), Mr. Breen states: "The alleged attorney statements fall squarely withing the scope of Hule 410. Indeed, Rule 410 explicitly protects statements in plea discussion [sic] .vat!: where they do not result in a plea of quilty.1I Braen Mem. at 26 (emphasis supplied). The defense has obviously misread the Rule and consequently misstated its appli.cability. In fact, in pertinent part Rule 410 only exclude,s from evidence "any statement made in the course of plea discussions with an attorney for the prosecuting authority which do Dot result in a plea of guilty or which result in ~ plea of guilty later withdrawn."

14

)

Fed. R. Evid. 410(4) (emphasis supplied). What Breen neglects to mention is that the Rule does not excrude such statements when they do result in guilty pleas not laterW"ithdrawn, as was the case here. Onder Federal Ruie of Ev:l~dence 402, '\'I.All rele"'l7ant evidence is admissible, except as c:)therwise provided by ... these rules •••• " Fed .. R. Evid. 402. SJ.J:Ica.~. 410 do •• .not exe~u • dt.CfU.ioJU wh.f.eb: r •• 121 t .:La gI:I':U ty p~.a., .suc:.b d:t.cua.:l.oJU, :1..£ r.~"'&Dt: --. •• .1.act.itd t:.h •• t::.-t.lhlDt:. 1D qu•• t10D 1..ndab1:t.b~y .are -- are pl • .:t.a.1y adm.1. 1bl.. •• .:b.r.,. t:h. dt.cua • .1~ r •• u.lt:ad .:La gu:L~ty Par :t,z:all. 4N:c.1udfng t:Il4t .t.t....at• .ira qu•• tion, t:b. pert:.i:DiQ3t: ~edar ..~ ~I~, ••• b.Qw f:llat: tbey are, 1d.t:hout:

.p~."

pl.....

".r.", ••

~.tima,

.cfm1.... :Lbl ••

The defendant's argument that United States v. Valencia, 826 F.2d 169, 172 (2d eil:'. 1987) supports a conclusion. that the admission o.f the statements in question would unfairly deny the defendant the counsel of b:ls choice is equally unavailing. Valenc.!a· is entirely CI.:Lstinguishable from the case at bar. In fact, if anything Valer:lcia argues for the adrttission of the statements. In Valencia, the defendant's attorney made arguments to the prosecutor as to why the defendant should be released on bail. One reason for setting bail, he argued, was the defendant's innocence. The attorne~' then argued specific facts underlying that claim of innocen~e. The Government later obtained evidence that contradicted the attorney's account of what had occurred, and sought to USIr;! the attorney's statement.'3 as evidence to show the defendant's ccnecd.ousne ss of guilt and/or as impeaching' evidence if the defendant. testified. The district court denied the Government'.'3 applil::ation, and on appeal the tha.t the trial court had abused its discretion in suppressing this evidence. The case: at bar is I:::ompletely different from Valencia fox sever·al reaSons. '
Second Circuit affirmed, merely findling that it could not say

First, the Second Circuit stated in Valencia that ~the Government's appeal stands or falls on whether [the District Court) erred in declining to ccnaf.der the statements admissible under Rule 801 (d) (2) (D) (regarding ~!~tatements made by an agent within the scope of his agency), and it specifically declined to .rule on whether the statements would have been admissible under Rule B01(d) (2) (C) (regarding authorized admissions) because the Government had not made a showing that the d~fendant had authorized his client to make the stjitements in question. Here,

15

)

the GO'ITernment has demonstrated that the defendant attorney to make t.he statements. See Jacobson Aff. i! 8-10. And the defendant has offered no evidence ,to the contrary. The Valencia court stat~i)d:
by

authorized

contrast,

his

)

)

In the context of some e"l;ridentiary issues, we have recognized that the trial judge is in the best position to wei~lrlh competinq interests in deciding WhE!!ther or not to admit certain evidence.... Tho1.llgh some provisions of the Federal Rules of E::vidence are precise, permitti.ng little, if any" room for the exercise of trial court d.iscretion in their application~ we think thEI trial judge must be accorded cone Ldexab l,e dis;cretion in determining' the applicati.on of Rule SOl (d) (2) to statements of an attol;ney offered by the prosecutor against a criminal defendant. Valencia at 173 (internal quotation marks and citations omitted). It stands to reason a fortiori that the trial judge must be given considerable discretion to admit st,atements pursuant to Rule 801 (d) (2) (C) . (relating to authorized admissions, a subset of ~ule SOled) (2), statements the admissibIlity of which was explicitly not addressed in Valencia}. Second, the Valencia court was deciding whether statements it essentially character:l;ed as. plea discussions withiri the ambit of Rule 4;1.0 should b~' adtnitted in the same case where the defendant wa.s still conte,~3ting his guilt. By contrast, in the case at bar, the Govermnent 11dll be introducing stat~ments made by Mr. Tacopina in a case Wher1!~ the defendant ultimately pleaded guilty and Rule 410'9 axc Iusd cna do not apply. Accordingly, the Valencia court's concern about Rule 410 and the policy implications for plea discusoions underlying the Rule are not at issue here.
Third, the Valencia court ,stated that the district court had not abused its discretion in ke~pin9 out the statements because "the Government's claim to the statements [was] not strong. The statements [were} not offered to show an element of the offense, a use that would directly prove the Government's case and expedite the trial." Vale.r.lcia at 173. Here, by : , contrast and as demonstrated above, the defendant's statements conveyed by Mr. Tacopina go directly to proving elements of the Gotrernment~s case. A substantial part of the honest services fraud charged in Counts One through Three of the Indictment involves the def.endant's efforts to conceal from th@ City the

16

fact that he had received benefits (appzoxdmatieLy $255, 000 in apartment renotrations) from John Doe #1, John Doe 41:2,and XYZ at a time when they were seeking appr()val to do municipal-regulated business. In fact, the defendant'lil concealment of this conduct by providing false statements to the eronx grand jury and state and local inV'sstigators inquiring- :I.nto this matter is specifically alleged as part of thE:! criminal conduct herein. See Indictment 20(f), (g). What betbe,r proof of concealment and these particular allegations in th~~~ Indictment than the defendant's own attorneys' vicarious lies to the investigators here, including investigatC?rs front 'the NYCDOI an agency ot the very entity -- New York City __ thill,'t the defendant is charged with scheming to defraud; reqardin~1' the value of the zenovau Lons and who paid for them. 7 The statemlS!nts regarding the loan from John Doe # 6 -_ i. e., that the deferldant took a loan from John Doe *6 in order to make the downpayment on the Riverdale Apartment -are, as we have previously stated, tantamount to a: confession to Count Eight, the false loan applica.tion .count. Accordingly, the Government's claim to this evidence is extremely strong.

''I

I

Finally, there is no concern here# as the Valenci~ suggested in that case, that an attorney's statements, they are not transcribed, might lead to a dispute as to what precisely was said. Mr. Tacoplna, the BCDAO and the NYCDOI are all unanimous as to what Tacopi:na said concerning the zenovat.Lona to the Riverdale Apartm1ent, namely; that the renovations w~re valued at approximately $50,000 and that Kerik paid for them·.h,imsslf. Nor has the qefens. pl['esente(j any. 61Viden,ce what.so.ver aontrad:Cet.1ng'tlmat· T~cdPinain fabt said what the Go"U"ernment rep'resents he said at the meetings in question. And, to the extent Mr. Breen would at.t empt to prove that Tacopina had not said such things _~ something he has declined to do despite the fact that he 5ubmitted an affidavit as an adjunct to his memorandumof law and despite t:~le fact that he. was present at the March B, 2006 meeting where Tac'Jpina repeated these statements -- it would only make him an exculpatory witness further warranting his disqualification. court since
admission

AccordinglYI nothing in ~!lencia, precludes the of the statements in evidEmce or warrants their

7It is noteworthy that -- as thiS! evidence will show at trial XYZapplications for permits from the New York City Department of Sanitation (\INYCDOS") to operate a fill material transfer station were still under considerat.f.on by the Business Integrity Commission and the NYCDOS hilst the:se false statements were w being made to the NYCDOI the defe:ndant's attorneys. by

17

)

)

exclusion (and the concomitant wea.ltening of the Government's case) just so Mr. Breen can retain his position as the defendant; s counsel. Given the importa.nce of the statements to the Governments' case, Valencia art;1ues for their admission and Breen's concomitant disqualificati~:>n.
III. Th. Court Should Decline ~o J!~cctapt Any Wai.".c By Tb.. D.:t.ndant: bd. ~. D.ten •• SU~lrp.t.iOD. 'That Th. COQ.~l.:l.ct C~
S. Cll~"'.

Given that the statement~:1 in question are not privileged, highly relevant, and pl,ainly admissible, Mr. Breen next asserts that any conflict that may arise from the introduction of the statements in question may be remedied by simply not mentioning to the jury that Breen ttlas the attorney who was present. Breen's proposed simplistic remedy does not come close to eliminating the conflicts under which he labors. The conflicts arise because are~n was SI,n actual witness' to the defendant's efforts to .obat ruct; thEI' ~:tate court investigation and was part of the defendant's conce et.ed efforts to' conceal ongoing criminal activity -- concealment activity that is charged as part of the Instant Indictment·. .Br-.n "I~{t:.h.%' agre •• rit:h t:.b.e
)

Go"..J::mIta4t: dtzz ••••• t:bat: f:.h•• UtlaCI,%'.:f..zad ~aJ. •• .nd Cc:QlO'.a.l.:lDsr .tat_ne. ~ macr., o;r lI. cU.qut.lI, .t:hat t.h.y _zoe made. S.tt:b.r ..ay Sr.en .i. au acf:uaJ. w:ttn ••• to t:J2. c.:r.1me.

In his submission~ Mr. Bxeen stubbornly refuses to'say whether he agrees wi·th, dispute!!, ox' even has any reoollection of the false statements. Such qamesmanship 'does little to clarify the pretrial waters through which the Court must navigate in an ' effort to determine how Breen's conflict will play out at trial. This lack of clarity gives 'heightenlsd significance to the Supreme Courtt s observatibns in Wheat: "t.he likelihood and dimensions of nascent conflicts of interest are notoriQusly hard to predictU especially in the murky pre-trial m:mtext where relationships between the parties are not clearly defined. Wheat, 486 u.s. at 162. Breen's failure to enlighten t:he Court or the Government on 1) his recollection of the meetings he attended; 2) ~hether and how he will cross examine witnesses to those meetings; and 3) what arguments he ~ill make to the ::Iuryabout events he witnessed precludes any possibility that this Court could obtain a knowing loIaiver and pennit Breen's represent<ilt~onof the defendant to continue subj ect to prophylactic me~1ilsura$.
t.h.

I1b.c~

c:...

Where, ... .h.~, c:CtUJa.~ .:L~I. enf:&Dg~~ .:t.a f:.b. f,aot;. o~ .uch t:ha f: he would, l¥'cnt r.IIlIbai.z::t:L.ag .. 8 t:r.:La.1 CO'lm •• ~ ~ an W161fDrD ri £0% the oIll,0cu..d," h. .hould b.

t:n....

18

)

r.gUdl •• .s o~ the ~"!"l2d.a.nt'. ri~l.iDgD • .s. to wa.i".. v. Jones, 381 F.3d at 121 ellf [the defense attorney} turns out to be an actual or unsworn 'W'itness in defendant's trial, this would be actual grounds for disqualification") . Further, it i:s: not only the defendant who may be harmed. " [W]hen an attorney is an unsworn witness •.• the detriment is to the government, sil:lce the defendant gains an unfair advantage and to the cour+, since the fact finding process is impaired. Waiver by the defendllnt is ineffective in curing the impropriety in such situations I' since he is not the party prejudiced." Locascio, 6 F.3d 924~ 934.
d1..qua.l:L:t:L.cI
See United States

A directive to the partiti~S not to mention Mr•. Breen's participation in the false profferl!J would simply not address the conflict. It would not address, f.:>r instance:, (1) the question of whether the defendant will be d.i~prived of an important exculpatory wi tnes!!!: if in fact Bre~m disputes the testimony of the Government's witnesses; (2) la1:~er claims by the defendant that Breen/s failure to testify on, his behalf was motivated by Breen' B desire (a) to remain invo11ir,ed in a lucrative and high profile case or (b) assuming Breen purports to lack a recollection of the etrents surrounding the proffers, that such lack of recollection was motivated by his desire to avoid personal embarrassm~nt or embarras51ment to his firm given that he had an ethical duty to learn the fal.eta (including the representations made to the pz'caecutozs by Mr. Tacopina prior to Breen'13 involvement in the case) bE!lfore he rendered legal ad-u-iee; <3.1., a later claim, ip.v the defendant,thatBr;:~en .did· I1Qt eli.eit ce·rta:1n. teot1:mony from him '-- sh()uld he have: t.stifled ... bacaus@ ..., Breen did nat agree with the defend.ant's version of the facts; (4) the harm to the process if the jury ~ereto learn by some means, perhaps unpredictable at this poimt in the proceedings,. that Breen wa9 present for and participated in some of the false proffers;. and, (5) the potential ha.rm.to the Government of permitting Breen to subtly suggest 'through cross examination or argument that he had personal knowll51dge of the disputed events.
As the Second Circuit heLd in Locascio, an attorney may be constrained from making certain3,rguments on behalf of his client because of his own involvement, or may be tempted to

minimize his own conduct at the expense of his client. Moreover, his-role as adVocate may give his client an unfair advantage, because the attorney can suhtly Impart; to the jury his first-hand knowledge of the events without hav:Lng to swear an oath or be ~ubject to cross examination. rd. at. 933. In short, it would be impossible to police Mr. Breen's croSS examination of Mr.
Tacopina and the state prosecutors
'Ioth05e

investigation

was

19

obstructed, the same.

and the arguments

he. mi:~y make to the jury

concerning

)

Not only does Mr. Breen' ~il proposal to keep the jury in the dark about his involvement in the events charged in the Indictment lack substance, but it is. impractical in the context of this case. This case has and will continue to receive significant media attention. Breen's involvement in the Bronx investigation has already been the subject of widespread press attention •. The Court can of COurso determine generally during jury selection whether any proepective jurors have read media accounts about this case that would impair their impartiality. Probing prospect Lve jurors a.bout thleir knowledge of the la~yers' involvement 1n the case raises a h(:~st of additional issues calculated not to cure the problem but to compound it.

j

Not sUrprisingly, the defense cites little authority for the position that Mr. Breen's C:Qnflict can be waived and remedied by a simple direction froItI. the Court that the parties make no'mention of Breen' a involveRI,ent in the falst! proffers at trial. See Breen Mem. at 20. The lone case relied on by the defense, United States v. Jones, 900 F.2d 512 (2d Cir. 1990), provides precious little to support this claim. In relying on Jones, the defense does not discuss the facts of that case but simply notes in a parenthetical that ~no disqualification [was warranted] based on [a] proffer letter that claimed defendant was innocent; references to attorney's role in preparing the letter never mentioned to the jury." The defendant's parenthetical reflects a serious misreading of both th~ facts and thf!, holding of Jones. Jones did not involve a p:rospectiV"e Wheat-type inquiry made by the court shortly after the indictment was returned. In Jones, the conflict arose in the mil:Jldle of a t·rial when the prosec~tion sought to cross-examine the defendant with a preindictment letter written by defens'l~ courise I to the government proffering what the defendant would say. DUring the defendant's cross-examination,. the prosecutor apparently threatened the defense attorney with an ethical cOll['[plaint for suborning perjury. On cross examination, the defendant admitted the accuracy of the contents of the letter and the.Court concluded that her trial testimony did not conflict with her proffer letter. On redirect, the defendant introduced the proffeJ:: letter with the defense attorney's name redacted to bolster .her claim that the proffer letter was consistent with her testlmony. On· appeal, the Second Circuit rejected her claim that her attorney labored under an
actual

consistent

conflict

with the attorney"

of interest

given ttl~lat her trial

a prof1:'er.
20

testimony

was

)

)

)

This case is a far cry from Jones. Here, the Court is addressing the question of whether Mr. Breen should be disqualifi~d as a result of having been a wItness to patently false exculpatory statements made to the BCDAO and the NYCDOI which are charged in Counts One t hrouqh Three of the Indictment as part of the honest services fraIJ,d. The question is whether Breen is or ought to be called as a witness or \<Ii11become an unsworn witness, as a result of hi'!i representation of the defendant in the Bronx case. Here Breen was an actual witness to the false stat@l'nents that the d~i~fendant caused his lawyers to convey to the BCDAO and the NYCDOI and which he will no doubt contest at tria1. Breen; s conflict: cannot be cured by simply failing to mention his name to the jury. Indeed, his conflict cannot be waived at all.
I'

,

The c:;:ircum.stances presenbed in this case -- where Mr. Breen participated in meetings durtng" which the defendant conveyed false information to him \oId th the direction to communicate such inforntation to prci~secutors/imtesti9ators in ozdez to conceal an ongoing crime -,,give rise to the possibiiity at least that Breen may be viewed as having participated in the preparation of, or been aware of, t.he false proffer or other efforts' to obstruct the investiqati.()n. In a worst-case scenario, this would be a per "se ground for d!isqualification~ Sea Fulton, 5 F. 3d at 613 CO [W] must assume that counsel's e fear of, and desire to avoid, criminal charges, or even reputational damages f~om an unfounded but ostensibly plausible accusation, will affect virtually every aspect of his Qr her representation of the defendant")." The Government reiterates that: we" ha-,reno information at this juncture to sU9,gest that Breen kneW" that the information was false. We note, hO't~"everr hat any lawyer in his t position would and should be concerned that thE! facts as presented by the Government are potentially damaging to his reputation. This concern in a, very real sense could guide Breen's judgement in the vigor with which he pursues cross exami nat.Lon and arguments to the ju.lt:'y. In these circumstances, the risk of reversal is simply too IJreat to permit the defendant to be saddled with a conflicted counsel. Wheat, 486 U.S. at 163 (disqualification is appropriate, notwithstanding waivers of conflict, "where a potential for conflict exists which mayor may not burgeon in~o an actual conflict ~ .. "). Finally, the defendant cannot fairly claim that he would be substantiallY prejudiced by the disqualification of Mr. "Breen. The defense was advised of the conflict nearly eight months prior to the Indictment, and the Government brought the conflict to the Court's attention immediately after the Indictment was returned. Mr. Breen had minimal involvement in 21

)

the negotiation A newly retained

of the state court plea -- O~ so he now claims. attorney will have ample time to familiarize himself with this case and prepare for trial. Thus, this is not a case where the disqualification 'idll work an undue hardship on the defendant. IV.

Oth.z I'actor. W.rran~Sr.... ' a Diaquali:fioatioD.

,
)

defense attorney may not take a pond t Lon at trial evidence contrary to his client's proffer statement does not require his disqualification here because "Mr. Kerik does not intend to repudiate his guilty p Lea in the Bronlt: Breen Mem. at 32, notwithstanding the defendant' ~II public statements that he pleaded guilty in the Bronx beca.USEit"[hel just f-ing wanted [the
I"

United States v. Lauersen, 2000 WL 1693538 (S.D.N.Y.) that

Mr. Breen argues

that

th.i'

Distx:ict

Court's

holding in a or offer

case] to be over.

thought I had done anything wrong. It was just, pay the f-kin' fine, give 'ern their pound. of flesl".I'IP whatever the f-k they' want." Mr. Breen, however, has a.lready indicated that the

I didn't take the pleas because I really

'def~ndant intends to pursue a defense strategy that is wholly at odds with his Bronx plea allocution.. Thus, foreshado~in9 what is to come at trial -- were he the defendant's attorney -- Breen
:says:

As the recipient of discounted reno"V"ations, Mr. Kerik would not nec~s5arily know whether (as the government alleges) a third-party was paying the contractor fOr the amount of the discount, and he certainly would no know the precise amount of the vahle of the rencvat Lons , Breen Mem. at 15. putting aside fo:(' moment the "Tooth FairyN a quality to this purported defense _._ 1. e., that the defendant,. a former New York City Police Commiss.:i.oner, paid appX'oximately $50,.000 towards the renovations of his Riverdale Apartment, was clueless to the fact the actual amount; of the renovations was approximately $300,000, and that SOII[le unknown benefactor had paid the balance without his knowledge _.. 1.t:. df.r.tct~y co.ntracUcf:. hi. _ a.11ocutioJJ in t:.h • .&rona wher~ he acll~nowledged in open court during his guilty plea that "between August 1998 and December
the purposes

f

.

reno~ations to his Bronx apartment ...
of this plea

2000 (the

defendant

J did accept

#1 ane John Doe #2]."

See Government.'s Curcio motion;
22

a vaLuab Le gift· in the form of [iJn an amount valued for $165,000 from [XYZ] owned by [John Doe

Exhibit

1

)

at 7-10.

actual defense

If Breen is already suggesting at this stage" a defense that is totally at odds with the dl!~fendant' s Bronx plea, one can only imagine how far removed from ':~hat plea the defendant's will be corne trial. As we ha~e previously ..• while it is clear that no attorney representing the defendant in this case should be permitted to present evidence or arguments at trial which ,are at odds with the defendant's allocution in the Bronk, [citing Laue1"sen] lit would be pcl~.rticularly unseemly for one of the attorneys who represented the defendant in the Bronx --" e. g., Breen -- to even attempt to do so. "'The institutional interest in the rendition of just verdicts in criminal cases, n see Whe.6lt, 486 U. S. at 160, and that criminal \\proceedings appear fair to all who observed themll id" would be' jeopardized should Breen remain as the defendant's counsel while at once taking positions inconsistent with the defendant's Bronx guilty pleas.

stated:

I>Iillraise a defense Bronx guilty plea provides disqualificat'ion.
3. Tho. IUlbtight

Memorandumchanges

Government's

Curcio motion
that.

at 11. Nothing in the Breen If anythi:ng, Breen's" suggestion that completely at lodds with the defendant's further suppoxt; for his

he

, J&wol:'.kl/ltariklf ••

diapu1:e warrallt. Br..n'.

di.qu.liEi~~t~OQ. . Mr. Breen attempts to bruah aside the $200,000 fee dispute between his former firm, Fulbright & Jaworski, and the defendant as a basis fox: his disqualification. As shown belo,"" nothing in Breen; s argument obviatel:! the need for his disqualification. is our understanding that an agreement in principle has been reached between Fulbright and Kerik.iI Breen Mem. at 33. That:. agreement, however, mayor may never come to pass, and this C01Jt't must make deciaions now "when relationships with parties are seen through a glass .darkly, Whea t: at 162. Moreover, as:suming wi t hout; conceding that that law suit were to settle prior to trial, the settlement would only dispense with one aspect of Breen's oonflict arising from the suit, namely, his having financial interests that are potentially adverse to those of his client. But a settlement
Initially;
II

Mr. Breen says, ~It

23

)

would not address the second concern posed by the lawsuit" namely; Breen's role as an unsworn witness regarding the facts underlying it. That concern would be implicated should putative character witnesses or the defendant he questioned about the those facts.
)

Mr. Breen, apparently b.ltnd to the multiple conflicts under which he labors, states that" ~eveh if the Court were to permit the goverrunent to confront character witnesses for Mr. Kerik with the fact of the lawsuit I' it is not apparent [to him, at least] why Mr. Breen "o1Ould therE:~by be rendered an unsworn witness. Moreover, any potential olonflict that could arise as a result could be waived." Breen Mem. at 33. Breen conveniently overlooks the fact that the Government could ¢.toss-examine both putative character witnesses and the defendant himself not only about the fact of the lawsuit, but about facts underlying the laloil;luit. e would be able to,quest:ion the defendant about the W rather absurd statement that he made through the attorney representing him in the cbril suit 1:.hat the dispute was "the result of an obvious miscomm.unication~' and that Fulbright & Jaworksi (and presumably Breen) billed the defendant fo~ work that the defendant had not, and never would have, authori~ed. Those facts directly implicate Breen. They make him an unsworn witness. And to the extent Breen's position on factual issues in the suit -- for instanee, whether the defendant authorized Breen to do the legal work in question -- differ from what the defendant says is the case -- he wOIUlld be an unsworn witness ag~inst his client, pre~enting an unwaivable conflict. That such a situation would arise is not fanciful. The defendant has already suggested that he will attempt to show at trial that h~ was the recipient of :~255, 000 in apartment renovations from anonymous benefact~n's without his knowledge. In the fee lawsuit,. he is claiming to be the beneficiary of approximately $200,000 in legal feel;1 which he never authorized. To hear the defendant tell it, indi,riduals and entities are constantly expending large sums of t::t,oney on his behalf without his knowledge. The Government has i;ll right to prove that just the opposite is so, and that,· once agairll, directly implicates Breen as a witness and embroils him in a conflict that cannot be
'

waived.

24

)

COilclu.:i.oQ.
)

)

Wherefore, for all of the reasons stated in the Government's Curcio motion, in thi:51 reply, and in the Jacobson Affirmation, the Goverrunent respect.fully requests that the Court make findings of fact as set forth in greater detail in the proposed Order attached hereto as J:;'xhibi2 and that it t disqualify Mr. Breen from representing the defendant in this .matter as further set forth in the proposed Order. Respectfully yours,
MICHAEL

United States Attorney

.r.

GARCIA

By:

'.
(by

cc:
)

Kenneth

Breen,

Esq.

fax and mail)

25

UNITED STATES EXPLAINS TACOPINA~S CONVERSION TO A WITNESS AGAINST KERIK-PART 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

----------------------------------x UNIT80 STATES OF AMERICA
-vAFFIRMATION 07 Cr. 1027 (SCR)

BERNARD B. KERIR, Defendant.

--~-------------------------------K
ELLIOTT B. JACOBSON affh:ms under penalty
t

of perjury as

follows: 1.
I

am an Assistant

Unj,ted States Attorney

("AOSAU) for

in the office of Michael
)

Garcia, the united states Attorney
N ).

the Southern District

of New York ("this Office

2.

AUSA Perry A. Carbone and I are in immediate and have been since its

charge

of this investigation/prosecution inception. 3. Government's I make this

Affirmatil:m

in connection

with the of'Kenneth

Curcio motion seeking disqualification
for the defendant

Breen, Esq. as counsel 4.

in this matter. and belief, contained in

I make this Affirmaticm

on information

the sources of which are: the case file, conversations with Joseph Tacopina,

informat:1.onand documents with AOSA Carbone,

conversations Ross, Esq.

Esq., conv-ersations 'with Michael

(Mr. Tacopina~s attorney), conversations with past and present

Assistant

District Attorneys

in the Bronx County

District

Attorney's J York City

Office

("BeDAO")

and De:puty Commissioner

of the

New

Department

of Investigations

("NYCDOI") Walter

Arsenault.
:)

5.
limited about

Because I am·submitt.ing

this Affirmation
everything adverted

for a
I know
to herein

purpose,
this

I have not includl~d herein
.Any con'I1ersations

investigation.

)

are related 6.
withdrawn

in substance and in pa;l~t.
Shortly after

the del!:endant's nomination
Tacopina,

was
gsq., then

in early

December of 200~11,. oseph J

the defendant's to discuss
substance,

attorney,

met with representatives
:Lt
fltjlr..

of the BCDAO In
BCDAO to the

some of the allegations
and in pertinent part, all

was investigating.
Tacopina told the

)

that the defendant Riverdale Apartment

had paid for

of the the

reno~ations

himself and that

total amount of the
Tacopina

renovat.ions· he had p,a,id for ,was app':I:'~imately$50,000. also ,told the
aCDAO

that.

the defend,!mt
in the

had taken a loan from John
in order Apartment to

Doe #6, a Manhattan make a downpayment

realtor,

amount of $32,000

on the purchase

of the Riverdale 2003.

and

that the loan was repaid 7.
Tacopina based

in the year

The Government

learnecllof the statements that
are adverted to

Mr.

had made to the
with

BCDAO and \rI'hieh the Assistant as a review

above to

on discussions were made,

District of grand

Attorneys jury

whom they
and other

as well

testimony

documentary evidence from I~heBCDAO.

o
8 .. After the defendant
)

pleaded

guilty

in the Bl:'onx

case and during questioned

the· pendency

of this

Office's.

investigation,\ we made above. attorney leading

Mr. Tacopina

concerning

the statements

)

The questioning -- Michael

took place in the presence

of Tacopina's

Ross, Esq. -- who is on~ of New York State's and experts on the law of privileges and work-prodm~t 'privileges.

legal ethicists
)

including

the attorney-client confirmed

Tacopina to the BCDAO. to the

that he had made the above statements

Tacopina

also stated that the infol::1!l'Iation had conveyed he

BCDAO had been provided

to him by the defendant· for the express the

purpose of conveyt nq it the Bronx :prcosecutors conducting investigation. 9. NYCDOI Deputy Commissioner Walter Arsenault

,informed us that on or about February . ,Tacopina .. the offices at

7, 2005, he met with Mr •
Deputy commissioner

of the NYCOlOl.

Arsenault further informed

us that ~uring that meeting

Tacopina

advised him that the tGt~l cost to the de~endant the Riverdale Apartment defendant was beiween $30,000

in renovating that the

and $50,000,

paid for the renovations, costs.

and that no one else ~aid for

any part of the renovation made the above statements

~fr. Tacopina confirmed

that he

to ArsenaJ.:I.l t and that the information to him by the

he conveyed to Arsenault had been provided defendant for the express the NYCDOI conducting

purpose of conveying

it to personnel

at

its investigat.ion.

o
10.
Mr. Tacopina informed us that in 'or about the him in representing the a joint

summer·of 2005, Mr. Breen joined d~fendant
)

in connection

with what had by then become
Tacop:ina

BCDAO/NYCDOI investigation.

further

informed us that repeated to told

over the course of the next year; Tacopina and Breen the substance Tacopina (see' 6 supra)

the defendant

o,f what he had earlier

for the expzaaa purpose of con"eying
prosecutors/investigators

such information

to the Bronx/City

conducting

the investigation.

and 'facopina and Breen met with the on a number of occasions
to

Bronx/City

proseeutors/investigato:cs

discuss

the case. 11.

Deputy Commissioner Arsenault
a meeting

informed

us that

on

or about March 8, 2006 he attended Arsenault

at the BCDAO.

further informed us that the meeting was also attended
and M.t. green.

.~y..mexnbers of· the·, B~t:XAb, Mr. 1:'"cop±llla,
also further repeated the substance 12.

Arsenault

informed us that durinl;r the meeting of his Febru,lxy 7 proffer.

Tacopina
r

Mr. Ta.copina has eon:F.irmedthe information in ! 11 above.

provided by Deputy Commissioner ArsElmault
Dated: White Plains,

New York December 12, 2007

Jacobson

KERIK DEMANDS INFOFJv1ATION CONCERNING TACOPINA'S CONVERSIONTO A WlTNESS AGAINST H1M

benefits, and (b) the John Doe #61oan on financial disclosure reports required by New York
City; and (4) the fact that he had filed a false loan application with a federally insured bank and

committed a crime by doing so." (Ex. D at 4-5.) Again, the Government's Discovery Letter
supports the fact that the information allegedly sought in Counts Ten and Thirteen was identical. In Count Twelve, the government alleges that Mr. Kerik should have made the same disclosures relating to John Does #1-2 and X'{Z as set forth in Counts Ten and Thirteen. (Ex. D at 5.) Although the government does not allege that Mr. Kerik should have made any disclosures relating to John Doe #6 or his loan application, this count is still multiplicitous because it is subsumed both by Counts Ten and Thirteen, Zvi, 168 F.3d at 57 ("Blockburger is not satisfied where the elements of one charged offense are subsumed within another charged offense."). Therefore, Count Twelve is subsumed by Counts Ten and Thirteen. Because Counts

Ten and Thirteen are themselves multiplicitous, om of these charges must be dismissed. VIII. MR. KERlK IS ENTITJ.JED TO DISCOVERY AND A HEARING RELATED TO COMMUNICATIONS BETWEEN MR. TACOPINA AND THE GOVERMENT We respectfully seek discovery and a hearing with respect to the circumstances leading up to, and the details of, Mr. Kerik's then-counsel; Joseph Tacopina, submitting to a government interview and providing documents, all apparently following service of a grand jury subpoena on his law office demanding certain financial records relating to Mr. Kerik. We are aware that the Court has considered related issues, and made certain rulings, in connection with the disqualification of prior counsel. See Memorandum Decision and Order dated Jan. 23,2007 (Docket Entry #l9). But what we seek by this application is information necessary for a different purpose: to determine whether in fact Mr. Tacopina disclosed - and whether the government violated any of Mr. Kerik's rights in obtaining - any client confidences protected by DR 4-101 of the New York Code of Professional Responsibility,
70

22 NYCRR § 1200.19, or any

communications,

information or documents that are protected by the attorney-client privilege

and/or the work product doctrine. The essential facts relevant to. this application - and which we believe to be undisputed are as follows. Mr. Tacopina was Mr. Kerik's counsel in connection with the .aCDAO investigation beginning no later than December 2004. Mr. Tacopina met with the BCDAO and other City investigators and made arguments in Mr. Kerik's defense on several occasions between 2004 and 2006. In the summer of2006, Mr. Kerik pleaded guilty to two unclassified misdemeanors in Bronx Supreme Court. Mr. Tacopina was his lead counsel at that time. On or about March 12,2007, the government caused a grandjury subpoena to be served

on Mr. Tacopina's law office, calling for the production of documents relating to billing records
and other financial information concerning Mr. Tacopina's relationship with Mr. Kerik. (Ex. E (grand jury subpoena, dated Mar. 12,2007).) Thereafter, Mr. Tacopina withdrew from his

representation of Mr. Kerik. On March 21, 2007, Mr. Kerlk's then co-counsel, Mr. Breen, wrote to the government advising, among other things, that "Mr. Kerik intends to preserve his attorney work product protections and attorney-client privilege as to his discussions and other communications with his past and present attorneys, including Joseph Tacopina," (Ex. F at 1

(Mar. 21, 2007 Letter from K. Breen).) We believe that Mr. Tacopina produced documents but never appeared before the grand jury.

Instead, and for reasons that have not been disclosed. Mr. Tacopina subsequently
agreed to be interviewed by the government, perhaps more than once. At the interviewjs], Mr. Tacopina was accompanied by his own counsel. No counsel was present at this/these interviewls] representing Mr. Kerik. Mr. Kerik had no prior knowledge that his fanner attorney
would be giving an interview to the government and was never asked to and never did consent to

71

any such interview.

We are not aware of what if anything was discussed at this/these

interviewls] with respect to the financial relationship between Mr. Tacopina and Mr. Kerik.

While the government has stated in prior papers submitted to this Court that during the
interview[s] it "never made inquiry into privileged conversations," (Ex. Gat 5 (Dec. 12 Letter

from P. Carbone), the government has acknowledged that they asked Mr. Tacopina to "confirm" that he had made certain statements to state prosecutors and investigators concerning the renovations to Mr. Kerik's Riverdale apartment and also asked whether Mr. Kerik "authorized him to make those statements to those third parties" (notwithstanding subpoena that preceded Mr. Tacopina's these subject matters). the fact that the grand jury

interviewls] did not call for any documents relating to

Id. More specifically, the government has stated:

[D]uring the pendency of this Office's investigation, we questioned Mr. Tacopina concerning the statements made [to the Bronx DA] .. . . Tacopina confirmed that he had made the above statements to the BeDAO .... Tacopina further informed us that over the course of the next year, the defendant repeated to Tacopina and Breen the substance of what he had earlier told Tacopina for the express purpose of conveying such information to the Bronx/City prosecutors/investigators conducting the investigation .... Ex. G Jacobson Affirmation ~~ 8, 10 December 12, 2007, Prior to interviewing Mr. Tacopina, we are not aware ofthe government seeking or obtaining any independent determination that the areas about which it intended to inquire were not protected by the attorney-client privilege or work-product doctrine or that its interview of

counsel for the target of its investigation - which elicited information to be used against Mr. Kerik - was otherwise proper. We are also not aware of the circumstances that precipitated Mr.

Tacopina voluntarily agreeing to be interviewed by the government concerning his confidential

communications with Mr. Kerik without a judicial order or subpoena compelling such disclosure.
72

In our discovery letter of July 25, 2008, we asked for the government to produce,

among other things, "[alll documents concerning contacts by the Bronx District Attorney's
Office, the New York Department of Investigation, or the United States Attorney's Office with

Joseph Tacopina, including notes or reports concerning interviews, contacts, communications, proffer sessions.
II

or

(Ex. H.) This called for not only for all documents provided by Mr. Tacopina

to the government, but also all notes and reports of these government interviews, any agreements

or correspondence with Mr. Tacopina relating to these interviews, and an unrcdacted copy of the December 6, 2007 letter the government previously submitted to the Court in response to prior
counsel's application for discovery related to these matters. The government has refused to produce or specifically identify any such information.
Jacobsonj.)

(Ex.

r (Sept.

11, 2008 Letter from E.

We respectfully submit that under the highly unusual circumstances here - where the government subpoenaed a target's attorney's law finn for financial records and then, for reasons that remain a mystery, the attorney apparently agreed to be interviewed by the government about the very different subject areas the government was pursuing as criminal charges - Mr. Kerik is entitled to learn the full circumstances under which the attorney who had been defending him came to be interviewed by the government (including any threats or promises made) as well as the fun range of what the government said to Mr. Tacopina and what Mr. Tacopina disclosed to the government during these interviews. At best, government actions that potentially turn a target's counsel into a witness against their own client are controversial and potentially raise serious constitutional issues. One

need look no further than the U.S. Attorney's Manual, § 9-13.410 (1999), which warns that
"[bjecause of the potential effects upon an attorney-client relationship that may result from the

73

issuance ofa subpoena to an attorney for information adient ....

relating to the attorney's representation

of

all such subpoenas (for both criminal and civil matters) must first be authorized by The Second

the Assistant Attorney General for the Criminal Division before they may issue.l;19

Circuit, in a divided en bane ruling (and reversing the prior panel ruling), has held that while
there are no special requirements for enforcement

of a pre-indictment

grand jury subpoena on a

target's attorney for fee-related information, Roe v, United States (In re Grand Jury Subpoena

Served Upon Doe), 781 F.2d 238 (2d Cir. 1985)~ different rules and restrictions might apply
where "the information privilege." sought is protected by a constitutional, common law, or statutory

Id. at 249-250

C'A

district court; at the pretrial stage, can weigh the public interests -

the probative value of a lawyer's testimony, the need to preserve ethical standards in the legal profession and the integrity of the judicial system - against the accused's choice."). And outside the context of fee information, right to counsel of his

courts have determined

that attorneys not

only may be entitled, but may be obligated. to refuse to answer questions when the government attempts to use a grand jury subpoena to tum a lawyer into a witness against his own client. In

re Terkeltoub, 256 F. Supp, 683, 686 (S.D.N.Y. 1966) (denying "application to compel the
attorney to testify" and finding that the government had not made any "showing of the kind of vital, urgent, and immediate need for unique know! edge that might warrant the extraordinary compulsion the Government

seeks")."

The USAM further directs the AAG to consider a number of factors, including claims of privilege; whether the information can be obtained from alternative sources, and a weighing of the need for the information against the risk the subpoena will lead to counsel's disqualification.
19 20

See also In re Grand Jury Subpoena, 925 F. Supp. 849, 854 (D. Mass. 1995) (quashing on

work-product grounds a subpoena seeking an attorney's "recollection" ofa conversation, citing the "risk" that the attorney would be "required to expose his thought process to opposing counsel and even worse, risk becoming a witness against his client"); United States v. District Council of New York City, and Vicinity of United Brotherhood of Carpenters and Joiners of America, No. 90 Civ, 5722 (CSH), 1992 WL 208284; at *12 (S.lJi.N.Y. Aug. 18, 1992) (explaining that whiJe

74

We respectfully submit that the record on this issue to date raises serious questions - which we believe also require full exploration through discovery and a hearing - as to whether, notwithstanding the government's view to the contrary, Mr. Tacopina's interview communications or work-

with the government crossed the line into protected attorney-client

product. It is of course black-letter law that only Mr. Kerik can waive any privileges that attached to his conversations with his former counsel." Yet the government has represented that

Mr. Tacopina specifically discussed with them that! over the course of a year, "the defendant repeated to Tacopina and Breen the substance of what he had earlier told Tacopina for the express purpose of conveying such information to the Bronx/City prosecutors/investigators conducting the investigation." (Ex. G at Ex. 7 ~ 8 (Jacobson Aff.).) In other words, Mr.

Tacopina discussed with the government not only non-privileged statements that Mr. Tacopina
made in meetings with the BCDAO} but also what Mr. Kerik told Mr. Tacopina and his cocounsel in confidence over the course ofa year's time, and also discussed with the government what he discussed with Mr. Kerik regarding his anticipated communications with the Bronx

prosecutors - topics that typically would be viewed as a confidential conversation between lawyer and client dealing with strategy and advice. See, e.g., United States v. Newell, 192 F.R.D.

"an attorneyj] may possess factual information that is not privileged and that must be divulged," "when a party seeks discovery directly from an attorney ... ~there is more than a strong likelihood that the work product doctrine will be implicated," and further explaining that "[rjequiring an attorney to give his or her personal recollection of ... interviews would create as great or greater threat to disclosing his thoughts, opinions and strategies as would disclosure of his written notes reflecting those interviews"). See Von Bulow v. Von Bulow (In re Von Bulow), 8:28 F.2d 94, 100 (2d Cit. 1987) (the privilege belongs "solely to the client."); see also Republic GMr Co. v. Borg-Warner Corp., 381 F.2d 551, 556 (2d Cir. 1967) ("an attorney is prohibited from divulging confidential communications in the absence of a waiver by his client .... ") (citations omitted); Schnell v, Schnall, 550 F. Supp. 650, 653 (S.D.N.Y. 1982) (no privilege waiver occurred where attorney testified before SEC without having obtained waiver from client).
21

75

587,588-89

(N.D. Ill. 2000) (rejecting government's

argument that attorney notes and

documents relating to client's proffer to the government could not contain privileged information '(since the proffer was intended to be communicated Itothe government," explaining that "it is not

in the least hard to imagine how the discussion about what to proffer could create privi leged
material"). Ifin fact Mr. Tacopina revealed communications or information protected by the

attorney-client privilege or work-product doctrine, Mr. Kerik may be entitled to suppression or other remedies. See also United States v. Martha Stewart, No. 03 CR. 7 t 7 (MGC), 2003 WL 23024461, at "'2 (S.D.N.Y. Dec. 29,2003) (in prosecution for obstruction of justice and making false statements to the SEC, Court rejects argument that crime-fraud exception allows government to access lawyers' notes and memos of client statements that form the basis for false
statement charges and related lawyer statements to government, explaining that "[i'[f the law

were otherwise, every defendant accused of a crime involving the making of false statements to a government a.gency would lose the protection of the attorney-client privilege with respect to

prior statements to his lawyer concerning the same subject matter"). White we appreciate that in
a different context this Court made findings with respect to certain of these categories of communications,

see Order at 9-11 (finding statements to Mr. Tacopina there at issue were not

privileged or confidential and also were admissible pursuant to crime-fraud exception), we
respectfully submit that the Court did not have before it the full factual record that we seek to establish here. Separate and apart from any issues ofprivilege, the facts as we now know them

also raise issues concerning - and require discovery and a hearing to fully understand - whether Mr. Tacopina violated his obligations to Mr. Kerik, see DR 4-101 (lawyer may not reveal "confidence" or "secret" of a client, including "information gained in the professional

76

relationship ... the disclosure of which would be ... likely to be detrimental to the client," except in limited circumstances such as where "required by law" or with the client's full and

knowing "consent"), whether he was induced or pressured to do so by any threats, promises or other actions by the government, and if any of this is true, then whether the appropriate remedy is suppression or something more. See United States v. Stein. No. 07-3042·cr. 3982104, at
>I:

2008 WL

18 (2d Cir. Aug. 28, 2008) ("'When the government acts prior to indictment so as to the pre-indictment actions ripen

impair the suspect's relationship with counsel post-indictment,

into cognizable Sixth Amendment deprivations upon indictment.,,).22 The concerns are heightened - not mitigated - by the fact that Mr. Tacopina was sufficiently concerned about being questioned by the government that he brought with him an attorney to represent his own but not Mr. Kerik's - interests (Ex. G at Ex. 1 ~ 8 Jacobson Aff.)) and that he was interviewed apparently without the compulsion of a grand jury subpoena and outside the structure of the grand jury so that there is no verbatim record of what transpired. Beyond these reasons, we also respectfully submit that the requested information constitutes Giglio impeachment material. It is clear that the government hopes to can Mr. Tacopina as a witness at trial to give testimony that they believe will support their chargesr"

22

In Stein, the court ordered discovery and held an evidentiary hearing before making findings Sixth Amendment right to counsel. United States v, Stein, 435 F. Supp. 2d 330, 352 (S.D.N.Y. 2006) aJ.1"d, 2008 WL 3982104 (2d Cif. Aug. 28. 2008).
on the issue of deprivation of defendants'

23

Specifically, in prior filings with this Court, the government makes it plain that it hopes and

intends to capitalize on its interviews of Mr. Tacopina by calling him as a witness at trial and attempting to use his testimony against Mr. Kerik (I) to prove what the government views as "tantamount to a confession" with respect to Count Eight (December 12~2007 letter at 12) and (2) to argue that he also made other binding admissions that are not hearsay because they were - as Mr. Tacopina apparently specifically confirmed for the government - "authorized" by Mr. Kerik (fd. at 15-17 (discussing United States v. Valencia; 826 F .2d 169 (2d Cir. 1987) and Fed. R. Evid. 80 1(d)(2)(C) and (D)). The government has also stated that in its view "the most powerful evidence" showing Mr. Kerik allegedly concealed his relationship with XYZ and John
77

The information we seek is necessary not only to prepare to cross-examine Mr. Tacopina in the event his testimony is allowed, but also to be able
t(11

thoroughly investigate how he came to

appear to be interviewed by the government, what he was told, what he was asked, what he
disclosed, and why. See United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) (Brady/Giglto

material must be produced "in time for its effective use at trial"),
Finally, discovery is needed because, if Mr. Tacopina is going to offer testimony about what Mr. Kerik authorized him to tell the state prosecutors, such testimony willlikely implicate the balancing test of United States v, Valencia, 826 F .2d 169 (2d Cir. 1987), and the specific and detailed facts and circumstances of the government's questioning of Mr. Tacopina

are directly relevant to the balancing of factors mandated by the Second Circuit. See id. at 17273 ("'care must be exercised in the criminal context in determining under what circumstances attorney statements may be used against a client" "because the routine use of [such] statements .. . risks impairment of the privilege against self-incrimination, and the right to the effective assistance of counsel. ,., For all of these reasons, we respectfully move that the Court order the government to produce "[a]l! documents concerning contacts by the Bronx District Attorney's Office, the New York Department of Investigation, or the United States Attorney's Office with Joseph Tacopina, including notes or reports concerning interviews, contacts, communications) sessions," as well as any agreements or correspondence or proffer the right to counsel of one's choice,

with Mr. Tacopina relating to these

interviews; identify all documents provided by Mr. Tacopina or his office; and produce an un redacted copy of the December 6,2007, letter the government previously submitted to the

Court.
Does #1 and #2 "would be that coming from the mouths of the defendant's

former counsel."

December 12,2007 at 11. 78

o
UNITED STAIJ.'BS Dl:STlUCT COURT

SOWDRJI'

UNITED STATIIS 0., .AMB:RICA

--------------------------------x
-v-

DIS'llUC1'

01' NEW YOIUt

--------------------------------x
Upon consideration United States Attorney Assistant Jacobson,

.
of Michael J. Garcia,
by

of the application

for the Southern District o~ New York,
Perry A. Carbone

united states Attorneys requesting

and Elliott B.

that the Court determine
by

whether a conflict of the

of interest is presented defendant,

Kenneth Breen's representation
50,

Bernard B. Rerik, and, if

what action should be

taken; and the defendant, opposed such application; written submissions makes the following 1.

through Kenneth Breen, Esq., having and the Court having considered the of the parties; hereby

and oral arg~:nts

findings of fact and conclusions The Government has proffered

of law:

that it intends

to present eyidence that the defendant attorney Joseph Tacopina admissions Attorney·s
Investigation

-- acting through his false statements and

-- presentlsd

to representatives Office ("BCDAO
It )

from t.he Bronx County District and the New York City Department
the

of

("NYCDOI") during by

couz se of investigations

conducted

those agencies

(hereafter referred

to as tiThe

Alleged Statements");

o
2. The Government has furthel~ proffered that Joseph by the

Tacopina was authorized

to make Th!i!:Alleged

Statements

defendant; 3. pending The Alleged Statements arl!~ hig~ly relevant
admissible

to the

charges and are preliminar1ly admissions

as nonas

pri-v-ileged and authorized
admissions
)

or, in the alternative,
privileges ware

as to which any and all

arguable

waived; 4. committed Given that probable a crime and that cause e~ists that the defendant
the speeific statements

were made to that any there

further the crime, the Court finds in the alternative
privileges attaching

to the staterrumts
by

--

assuming

.!I'guendo

were any -- were vitiated 5.

the cl:~ime-fraud e:xception;

Since Mr. Breen does not dispute that he was a witness
False

to The Alleged possibility

Statenu~n1;s, there

is

at, the very least

the

that he will be called

as an actual witness

~nd will,

in any event, become
6. Mr.

an unsworn wi.t.ness: rises: perhaps to the level serious
of a per

Breen ~s conflict

seconflict

or at least an actual or potentially would knowingly waive; need for the evidence choice;

conflict

that no rational defendant 7.
defendant's

The Government's

outweighs

the

right to have counsel of his The Defendarit' s proposed
inadequate
by

8.
issue is

remedy to the unsworn
gi1il'en

wi tness

particularly

the multiple

conflicts

presented

Mr. Breen's

representation .2

of the defendant;

o
9. Nothing in the redacted p':)rtion of the Government's

ex

parte sealed letter of December 6; 2007 was relied on by the Court in denying the defendant' s D,!~ce:mber , 2007 motion 5 GI:)vermnentI s motion for

discovery

in connection

with the

or in

deciding the motion 10.
the Kenneth

itself.

Breen,

Esq., is disqualified

from representing

defendant

in this

matter.

Dated:

White Plains, ~ew York

December

2007

UNITED STATES DISTRICT

HONORABLE STEPHEN C. ROBINSON

JUDGE:

3