USA v. Bongiovanni, et al.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
PETER GERACE, JR.,
Defendant.
19-CR-227
23-CR-37
DECISION & ORDER
The government has moved to disqualify Eric Soehnlein, an attorney
representing the defendant, Peter Gerace, Jr. That motion implicates both Gerace’s
“Sixth Amendment right to effective assistance of counsel, and [this Court’s]
independent interest in the integrity of [this] legal proceeding and the assurance of a just
verdict.” United States v. Fulton, 5 F.3d 605, 612 (2d Cir. 1993) (citing Wheat v. United
States, 486 U.S. 153, 160 (1988)). But as weighty as those issues are, there is far
more at stake in this motion and in this case. In fact, it is not hyperbole to say that the
rights of all defendants in this District and beyond to the effective assistance of
counsel—and by extension this Court’s obligation to preserve the fairness of its criminal
proceedings—are at issue here.
To decide the government’s motion, the Court must determine whether
Soehnlein’s representation of Gerace presents a per se conflict of interest that cannot
be waived. More specifically, the Court must analyze whether there is a reasonable
possibility that Soehnlein committed a crime when he put the names of two witnesses
on the defense witness list. On that question, this Court holds, as a matter of first
impression, that a defense attorney’s putting the name of an individual who has been
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disclosed in the government’s discovery on a witness list—regardless of the intent
behind it—is as a matter of law not obstruction of justice under 18 U.S.C. § 1503.
Rather, such conduct constitutes “lawful, bona fide, legal representation services in
connection with or anticipation of an official proceeding” and is therefore protected by
the safe harbor of 18 U.S.C. § 1515(c).
To hold otherwise would create an inherent conflict in the representation of every
criminal defendant. Rather than ask the question that they are duty-bound by the
Constitution to consider—What is in my client’s best interest?—defense attorneys would
have to ask a second question: What if the government thinks I have a corrupt motive
for making this decision? In the moment when the attorney pauses to ask that second
question, the defendant’s Sixth Amendment right disintegrates because the attorney is
now thinking about himself or herself instead of the client. And that runs counter to the
obligation of providing zealous representation free from conflict or constraint.1
1 There is a second set of allegations involving allegedly falsified affidavits
submitted to the Court. Those allegations raise classic obstruction of justice issues,
regardless of whether the perpetrator is defense counsel. And those allegations might
therefore create an unwaivable conflict of interest if they involve Soehnlein. But the
government does not allege that Soehnlein had any involvement in that conduct.
Instead, the government suggests that he may be a witness regarding those allegations.
Based on the papers submitted and the representations of Soehnlein through his
counsel, this Court finds that there is no reasonable possibility that Soehnlein has any
information about those affidavits that is not covered by the attorney-client privilege.
See Discussion, Section II, infra. This Court therefore rejects the government’s
contention that there is a reasonable possibility that Soehnlein will be called as a
witness against Gerace on that issue.
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Accordingly, this Court finds that Soehnlein does not have a per se conflict, and
the government’s motion to disqualify him is denied.2
BACKGROUND
This case began in October 2019 with the indictment of Gerace’s co-defendant,
Joseph Bongiovanni, a former DEA agent who was accused, inter alia, of conspiracy to
distribute controlled substances and taking bribes. Docket Item 1.3 In February 2021,
Gerace was added as a defendant in a second superseding indictment that charged him
with conspiring to defraud the United States, bribing a public official, maintaining drug-
involved premises, conspiring to distribute controlled substances, and conspiring to
commit sex trafficking. Docket Item 89.
2 In making this decision, this Court acknowledges that the safer move—from the
perspective of insulating itself from reversal on appeal—would be to grant the
government’s motion. See United States v. Cain, 671 F.3d 271, 294 (2d Cir. 2012)
(observing that “it is unsurprising that” the two “post-Wheat cases in which we reversed
a trial court’s decision with respect to disqualification . . . arose in the context of a
defendant’s post-conviction challenge to the district court’s refusal to disqualify the
convicted attorney”); see also id. at 295 (“It thus appears that, although we have
considered challenges to the disqualification of counsel on the basis of a per se conflict
in at least four cases since Wheat, we have never concluded that the trial court abused
its discretion in disqualifying a conflicted attorney.”). But this Court’s duty is to do what
is right, not what is safe—a duty that is heightened on an issue as important as this one.
And to the extent the government continues to pursue its investigation into the alleged
“orchestrated” recusal notwithstanding this Court’s conclusion that the conduct at issue
is as a matter of law not criminal, it does so at its own peril. The per se conflict
question—which the government created and which the goverment has the power to
eliminate—is a close one. Although this Court firmly believes that it is making the
correct decision, the Second Circuit may disagree, putting any conviction of Gerace in
jeopardy.
3 Unless otherwise noted, docket citations are to case number 19-cr-227, and
page numbers in docket citations refer to ECF pagination.
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In March 2023, Gerace was indicted in a separate case and charged with
tampering with a witness and distributing cocaine. See Case No. 23-cr-37, Docket Item
1. After the second indictment was issued, the Honorable John L. Sinatra, Jr.—who at
the time was the judge presiding over both cases—ordered that Gerace be detained
pending trial. Case No. 23-cr-57, Docket Item 7. Judge Sinatra rejected Gerace’s and
Bongiovanni’s requests for a severance and consolidated the indictments. Docket
Items 434 and 442.
Judge Sinatra scheduled the joint trial of both defendants to begin on June 21,
2023. Docket Item 324; see Docket Item 434. In May 2023, however, Bongiovanni’s
attorney moved to withdraw due to health issues. Docket Item 476. Judge Sinatra
granted that motion, appointed new attorneys to represent Bongiovanni, and
rescheduled the trial to begin on August 14, 2023. See Docket Item 484. Gerace then
moved to reopen his detention hearing and for pretrial release, Docket Item 501, but
Judge Sinatra denied that motion, Docket Item 504.
On June 20, 2023, Gerace—who at that time was represented by Soehnlein and
attorney Steven M. Cohen—filed his witness list, which included the names of 286
witnesses. Docket Item 529. Judge Sinatra held a status conference several days later
to address three of those witnesses. Docket Item 536; see Docket Item 660 at 4. The
first of the three witnesses turned out not to raise any issues. See Docket Item 660 at
4.
With respect to the remaining two witnesses, Judge Sinatra stated that 28 U.S.C.
§ 455(b)(5)(iv) “mandates a non-waivable recusal by me . . . if either one of those two is
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likely to be called as a material witness at trial.” Docket Item 660 at 4. Judge Sinatra
then asked why the defense had listed those witnesses. Id. at 4-5. Cohen responded:
If you are asking whether I intend to call them, we have to see how the case
plays out. 	I don’t know yet, but, certainly, the [g]overnment felt it was
important enough to question about these three individuals—we’ll say the
two individuals. And they are on my list[,] and they have to stay there[,] and
whether I use them depends upon the case that the [g]overnment puts on.
Id. at 5. Several minutes later, Cohen reiterated: “Many of those witnesses are there
as a reservation of rights to call them, if the need should arise. And I do reserve my
rights to call them should the need arise [depending on] how the case pans out.” Id. at
8.
Judge Sinatra then observed that “the statute require[d him] to evaluate whether
they [we]re likely to be called as material witnesses,” and he directly asked Gerace’s
counsel whether they were likely to be called as material witnesses. Id. In response,
Cohen said that one of them was “likely to be called” and the other was “a possibility.”
Id. at 8-9. Judge Sinatra expressed his view that the placement of the witnesses on the
list “appear[ed] to be gamesmanship.” Id. at 10. He concluded, however, that “because
the statutory test [wa]s met by . . . Cohen’s proffer, [Judge Sinatra was] duty bound to
recuse.” Id. at 11.
Soehnlein then asked to approach the bench. Id. He said that he was “was
concerned about [Judge Sinatra’s] comments about gamesmanship and so [he]
want[ed] to make the record crystal clear on that point.” Id. at 12. Soehnlein then
explained:
With respect to [one of the two witnesses], a number of allegations the
[g]overnment has made in this case ha[ve] to do with . . . Gerace’s
relationship with law enforcement, payment of money to law enforcement
for alleged improper purposes. 	He does have a relationship with several
members of law enforcement. He has a particularly close relationship with
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that individual, that is included in payment of money for various things,
various charitable contributions and things of that nature. 	As a defense
attorney and a trial practitioner, that is a very important thing to bring out in
front of a jury and I think it’s important. I wanted the record to be made clear
and I wanted Your Honor to understand that the decision to include that
name wasn’t taken lightly.
Id.
The case then was reassigned to this Court. Docket Item 537. Less than a week
later, on June 26, 2023, Soehnlein moved to withdraw as counsel for Gerace. Docket
Item 541. All counsel on both sides indicated that they had no objection, see Docket
Item 558, and this Court granted Soehnlein’s motion, Docket Item 559. The Court
scheduled trial to begin on October 23, 2023. See Docket Item 558.
On July 15, 2023, Cohen filed a letter stating that Gerace was “terminating [their]
professional relationship” and did “not have another lawyer lined up to take this case.”
Docket Item 567. This Court held a status conference and ordered further submissions
from Cohen. See Docket Item 568. Following those submissions, the Court ordered
Cohen to assist Gerace in finding new counsel and to report back as to whether the new
attorney was able to begin trial on October 23, 2023.4 See Docket Item 580.
The Court also gave Gerace until August 8, 2023, to move for reconsideration of
Judge Sinatra’s detention order. See id. Gerace filed that motion, Docket Item 585,
and the government responded, Docket Item 591. On August 15, 2023, Gerace replied
and submitted affidavits in support of his reply. Docket Item 604.
4 Because Gerace was incarcerated and Cohen indicated that Gerace was
having difficulty communicating with prospective counsel, the Court instructed Cohen to
facilitate those communications. See Docket Item 581 at 11-12. But mindful of the
conflict that arose because of Gerace’s terminating Cohen, the Court asked Cohen only
to assist Gerace in “get[ting] in contact with lawyers”; the Court did not ask or order him
to find counsel for Gerace. See id. at 12-13.
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On September 6, 2023, this Court held a status conference to address Gerace’s
representation. Docket Item 622. Cohen indicated that at Gerace’s request, Soehnlein
and another attorney, Mark Foti, had agreed to represent Gerace. Docket Item 626 at
3. Soehnlein and Foti, who both were present in court, then asked that the trial be
adjourned until February or March 2024 to give them time to prepare. Id. at 7. The
Court asked about Soehnlein’s prior withdrawal, and Soehnlein assured the Court that
the issue that had prompted his withdrawal had been “resolved.” Id. at 17-18. The
Court then rescheduled jury selection to begin on January 8, 2024. Id. at 22-23.
But on November 21, 2023, that plan unraveled when the government moved, ex
parte, to disqualify Soehnlein. Docket Item 666. The next day, Gerace filed an
emergency motion for disclosure, Docket Item 667, and this Court held a status
conference about a week later, Docket Item 678. After the Court observed that Gerace
needed to have some idea of what the allegations were before he could respond,
Docket Item 679 at 3-4, the government agreed to submit a redacted version of the
disqualification motion to the defense, id. at 18.
The Court reviewed the government’s submission and held another status
conference on December 1, 2023. Docket Item 686. After an ex parte discussion with
the government, the Court proposed on the record that the government withdraw its
motion to disqualify and submit a new motion that included only the facts relevant to
disqualification. See id. The Court explained that if the government declined that
invitation, the Court would provide its own redacted version of the original
disqualification motion to the defense. See id.
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About two weeks later, the government moved to withdraw its original motion,
Docket Item 689, and the Court granted the motion to withdraw, Docket Item 692. The
government then filed a revised and superseding motion to disqualify. Docket Item 691.
In that motion, the government argues that “[t]here is a reasonable possibility that”
Soehnlein “engaged in criminal conduct” when he “exploit[ed] . . . the federal recusal
statute to orchestrate Judge Sinatra’s recusal” by putting two relatives of Judge Sinatra
on the witness list for Gerace’s trial.5 Id. at 3, 5. The government further argues that
“[e]ven if . . . Soehnlein’s conduct was not criminal, he is a subject or witness relative to
criminal conduct” involving (1) the alleged conspiracy to orchestrate Judge Sinatra’s
recusal and (2) allegedly false affidavits that were submitted to this Court in support of
Gerace’s motion for release in August 2023. Id. at 3. This Court set a briefing schedule
on the revised motion and canceled the January 8, 2024, trial date. See Docket Item
698.
Bongiovanni then moved to sever his trial from Gerace’s. Docket Item 697. The
government indicated it had no objection to severance so long as Bongiovanni’s trial
could commence in early February. Docket Item 700 at 2. This Court granted
Bongiovanni’s motion and scheduled Bongiovanni’s trial for February 12, 2024. Docket
Item 709. That trial proceeded as planned, see Docket Item 762, ending in a partial
verdict and mistrial in early April, see Docket Item 867.
5 The submissions in support of and in opposition to the government’s
disqualification motion have been filed under seal as they contain sensitive information.
Because it is important that this decision and order be filed publicly, the Court
deliberately recounts the facts underlying the motion at a high level, providing only the
detail necessary to explain its decision.
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In the meantime, this Court appointed attorney Kevin Spitler as Curcio counsel
for Gerace. Docket Item 715; see United States v. Curcio, 680 F.2d 881, 890 (2d Cir.
1982). After meeting with Spitler, Gerace, through his trial counsel, responded to the
government’s revised motion to disqualify. Docket Items 771 and 773.
Gerace contends that “[t]here is no conflict—per se or otherwise—that would
warrant disqualification of . . . Soehnlein.” Docket Item 771 at 6. Among other things,
Gerace argues that Soehnlein is protected by the safe harbor provision of the
obstruction of justice statute, which provides that “[t]his chapter does not prohibit or
punish the providing of lawful, bona fide, legal representation services in connection
with or anticipation of an official proceeding.”6 Id. at 35 (quoting 18 U.S.C. § 1515(c));
see id. at 36 (“The government’s motion omits any discussion of this statutory safeguard
because a fair reading of 1515(c) eviscerates the [g]overnment’s ability to establish the
mens rea element of a[n] 18 U.S.C. § 1503 violation.”).
The government replied. Docket Item 798. Among other things, the government
suggests that Soehnlein could be prosecuted for putting names on the witness list if he
had “mixed motives” for doing so. Id. at 12-16. In other words, the government says
that if Soehnlein put the names at issue on the witness list both to ensure that they
could testify at trial and to get Judge Sinatra to recuse himself, a jury could conclude
that Soehnlein committed a crime. See id.
6 Gerace also submitted an ex parte supplement to his response. Docket Item
773. This Court allowed Gerace to file that submission ex parte because it reveals
“deep details about the defense[’s] trial strategy.” See id. at 2.
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The defense then moved to make a sealed transcript part of the record for the
motion. Docket Item 805. This Court granted that motion and heard oral argument on
the government’s revised motion to disqualify. Docket Item 824.
In addition to hearing legal argument from the government and the defense
(primarily through counsel for Soehnlein), this Court questioned Gerace’s Curcio
counsel, who indicated that he had “discussed this matter with . . . Gerace on two
occasions.” Docket Item 825 at 42. Curcio counsel told the Court that Gerace had
“indicated to [him that Gerace] wishes that . . . Soehnlein continue as his counsel.” Id.
The Court then asked Curcio counsel: “And you think [Gerace has] made a reasoned
decision that you have no basis to disagree with?” Id. at 43. Curcio counsel
responded: “That is correct, Your Honor.” Id. The Court also asked Gerace directly
whether what Curcio counsel had stated was correct, and Gerace responded that it
was. Id.
Following the oral argument and the colloquy with Curcio counsel and Gerace,
the Court reserved decision. See Docket Item 824. On April 12, 2024, this Court
issued an order excluding time under the Speedy Trial Act for an additional two weeks
under 18 U.S.C. § 3161(h)(7)(A). See Docket Item 865 at 1 (finding that “[b]ased upon
the complex and weighty issues presented by the motion, . . . the interests of justice in
a continuance override the defendant’s and the public’s interests in a speedier trial”).
Ten days later—with only four days left for this Court to decide the motion—the
government filed an unsolicited supplemental letter brief addressing in detail several
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issues that had been discussed at oral argument more than five weeks earlier.7 Docket
Item 886.
LEGAL PRINCIPLES
I. 	OBSTRUCTION OF JUSTICE STATUTORY FRAMEWORK
Chapter 73 of Title 18 of the United States Code prohibits obstruction of justice.
See 18 U.S.C. §§ 1501-21. Relevant here, 18 U.S.C. § 1503(a) provides that
“[w]hoever corruptly . . . influences, obstructs, or impedes, or endeavors to influence,
obstruct, or impede, the due administration of justice, shall be [guilty of a crime].” That
section—often referred to as the “omnibus clause” of the statute—serves as a “catchall,
prohibiting persons from endeavoring to influence, obstruct, or impede the due
administration of justice.” United States v. Aguilar, 515 U.S. 593, 597-98 (1995). To fall
under the omnibus clause, “the act must have a relationship in time, causation, or logic
with the judicial proceedings.” Id. at 599 (citations omitted). “In other words, the
endeavor must have the ‘natural and probable effect’ of interfering with the due
administration of justice.” Id. (quoting United States v. Wood, 6 F.3d 692, 695 (10th Cir.
1993)).
Simply influencing the administration of justice is not sufficient: Lawyers do that
whenever they argue that a judge should decide an issue or sentence a defendant one
way or another. See United States v. Fasolino, 449 F. Supp. 586, 587 (W.D.N.Y. 1978)
7 Because that supplemental brief was unsolicited and submitted so late, this
Court considered rejecting it. But on balance, the Court decided that given the
importance of the issues raised in the government’s motion to disqualify, the better
course was to consider the submission and address its arguments.
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(rejecting the contention “that the word ‘corruptly’ [in section 1503] means any endeavor
to influence [a] jurist” and noting that probation officers, attorneys, and defendants all
are invited to recommend a sentence to a sentencing judge, which cannot “be
construed as corruptly endeavoring to influence the . . . judge”); see also United States
v. Cueto, 151 F.3d 620, 632 (7th Cir. 1998) (“It is true that, to a certain extent, a
lawyer’s conduct influences judicial proceedings, or at least attempts to affect the
outcome of the proceedings. However, that influence stems from a lawyer’s attempt to
advocate his client’s interests within the scope of the law.”). Instead, the act must have
been done “corruptly.”
Thus, the conduct prohibited by section 1503(a) “consists of an actus reus and a
mens rea.” United States v. Sampson, 898 F.3d 287, 299 (2d Cir. 2018). “The actus
reus is ‘endeavor[ing] to influence, obstruct, or impede, the due administration of
justice.’” Id. (alteration in original) (quoting 18 U.S.C. § 1503(a)). “The mens rea is
acting ‘corruptly,’—that is, with ‘a specific intent to obstruct a federal judicial or grand
jury proceeding.’” Id. (internal citation omitted) (quoting United States v. Schwarz, 283
F.3d 76, 109 (2d Cir. 2002)); see also 2 Modern Federal Jury Instructions-Criminal
¶ 46.01 (2023) (defining “corruptly” as “having the improper motive or purpose of
obstructing justice”).
The obstruction of justice statute “does not prohibit or punish the providing of
lawful, bona fide, legal representation services in connection with or anticipation of an
official proceeding,” however. 18 U.S.C. § 1515(c). That provision—section 1515(c)—
often is referred to as the attorney “safe harbor.” See, e.g., United States v. Simels, 654
F.3d 161, 174 (2d Cir. 2011). And while the “lawyer-criminal” can be held liable for
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obstruction of justice, United States v. Cintolo, 818 F.2d 980, 990 (1st Cir. 1987), the
safe harbor prevents the criminalization of a lawyer merely for doing his or her job, see
United States v. Kloess, 251 F.3d 941, 948 (11th Cir. 2001) (“Section 1515(c) provides
a complete defense to the statute because one who is performing bona fide legal
representation does not have an improper purpose. His purpose—to zealously
represent his client—is fully protected by the law.”).
The caselaw addressing the attorney safe harbor is limited. The Eleventh Circuit
has held that section 1515(c) is an affirmative defense that the defendant must raise but
that, once it is raised, the government must “prove[] beyond a reasonable doubt that the
defendant’s conduct did not constitute lawful, bona fide legal representation.” Id. at 949
(emphasis added). The Ninth Circuit likewise has stated that section “1515(c) provides
a complete defense to obstruction of justice.” United States v. Kellington, 217 F.3d
1084, 1098 (9th Cir. 2000). A court in the Fourth Circuit has gone even further and held
that section 1515(c) is not merely an affirmative defense but an element of an
obstruction offense that the government must both plead in the indictment and prove at
trial. United States v. Jackson, 926 F. Supp. 2d 691, 717 (E.D.N.C. 2013) (holding that
“where an attorney . . . is charged with an obstruction offense . . . , the government must
expressly allege as an element of the offense in the indictment that the defendant in
engaging in the conduct alleged was not ‘providing lawful, bona fide, legal
representation services in connection with or anticipation of an official proceeding’”
(quoting 18 U.S.C. § 1515(c))).
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The Second Circuit has not yet weighed in on this question.8 But regardless of
who bears the burden of pleading the applicability of section 1515(c), the prevailing
caselaw suggests that, once raised, it is the government’s burden to prove beyond a
reasonable doubt that the lawyer was not providing bona fide legal services. See
Kloess, 251 F.3d at 949; Kellington, 217 F.3d at 1098.
II. 	THE LAW OF PER SE CONFLICT
“The right to the effective assistance of counsel . . . includes the right to be
represented by an attorney who is free from conflicts of interest.” United States v.
Perez, 325 F.3d 115, 125 (2d Cir. 2003). “This right may be violated if the attorney has
‘(1) a potential conflict of interest that result[s] in prejudice to the defendant, or (2) an
actual conflict of interest that adversely affect[s] the attorney’s performance.’” Id.
(alterations in original) (quoting United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994)).
“An attorney has an actual, as opposed to a potential, conflict of interest when, during
the course of the representation, the attorney’s and defendant’s interests diverge with
respect to a material factual or legal issue or to a course of action.” Id. (quoting
Schwarz, 283 F.3d at 91). “An attorney has a potential conflict of interest if ‘the
interests of the defendant may place the attorney under inconsistent duties at some
time in the future.’” Id. (quoting United States v. Kliti, 156 F.3d 150, 153 n.3 (2d Cir.
1998)).
8 As the government observes in its supplemental submission, the Second Circuit
has suggested in dicta that the safe harbor provision constitutes a “defense,” but it “has
not directly decided the issue.” Docket Item 886 at 3; see Simels, 654 F.3d at 174
(referring to section 1515(c) as “the safe harbor defense”); United States v. St. John,
267 F. App’x 17, 22 (2d Cir. 2008) (summary order) (declining “to decide whether
[section] 1515(c) is a complete or an affirmative defense”).
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If a district court learns about a defense attorney’s “possib[le] . . . conflict of
interest,” it must first “determine[] whether the attorney has an actual conflict, a potential
conflict, or no conflict at all.” Id. (citing Levy, 25 F.3d at 153). “If the court discovers no
genuine conflict, it has no further obligation.” Id. If, however, the court finds an actual
or potential conflict, it must determine whether that conflict can knowingly and
voluntarily be waived. Id.
“When a defendant’s right to choose the counsel he wants ‘conflicts with the
right to an attorney of undivided loyalty, the choice as to which right is to take
precedence must generally be left to the defendant.’” United States v. Arrington, 941
F.3d 24, 39 (2d Cir. 2019) (quoting Perez, 325 F.3d at 125). Thus, if “the court
determines that the ‘attorney suffers from a lesser [actual] or only a potential conflict,’
then it may accept a defendant’s knowing and intelligent waiver of his right to conflict-
free counsel and permit the defendant to be represented by the attorney of his choice.”
Perez, 325 F.3d at 125 (alteration in original) (quoting Levy, 25 F.3d at 153); see also
id. at 126 (“[C]ourts will not ‘assume too paternalistic an attitude in protecting the
defendant from himself,’ and although the defendant’s choice of counsel ‘may
sometimes seem woefully foolish’ to the court, the choice remains his.” (quoting United
States v. Curcio, 694 F.2d 14, 25 (2d Cir. 1982))). But there is an exception to the rule:
“When a lawyer’s conflict, actual or potential, may result in inadequate representation of
a defendant or jeopardize the federal court’s institutional interest in the rendition of a
just verdict, a trial judge has discretion to disqualify an attorney or decline a proffer of
waiver.” Fulton, 5 F.3d at 612 (citing Wheat, 486 U.S. at 162-63).
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The Second Circuit has “held that there is an ‘actual or constructive denial of the
assistance of counsel,’ and, as such, a per se violation of the Sixth Amendment in two
limited circumstances: whe[n] defendant’s counsel was unlicensed, and when the
attorney has engaged in the defendant’s crimes.” Id. at 611 (citations omitted); see id.
at 613 (“Where a government witness implicates defense counsel in a related crime, the
resultant conflict so permeates the defense that no meaningful waiver can be obtained.
In such a case, we must assume that counsel’s fear of, and desire to avoid, criminal
charges, or even the reputational damage from an unfounded but ostensibly plausible
accusation, will affect virtually every aspect of his or her representation of the
defendant.”). For example, the Second Circuit has found a per se conflict where the
defendant’s counsel committed crimes with the defendant’s possible co-conspirator,
United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984), and where both the
defendant “and lead trial counsel allegedly imported heroin in concert with [a co-
conspirator],” Fulton, 5 F.3d at 611.
The Second Circuit also has affirmed orders disqualifying attorneys who were
likely to be called to give grand jury testimony against a client. For example, in United
States v. Cain, “[t]he government alleged that Cain had been involved in influencing . . .
a witness against Cain in a parallel state court prosecution[] to provide perjured
affidavits recanting statements that he had made that inculpated Cain.” 671 F.3d 271,
292 (2d Cir. 2012). Because Cain’s defense attorney “also represented Cain in the
state case” and “had possessed the affidavits and provided them to state prosecutors
(who in turn provided them to the federal prosecutor), the government sought [the
attorney’s] testimony to establish that the affidavits had been in Cain’s possession and
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that Cain had intended that they be filed in an official proceeding, an element of the
offense.” Id. The attorney was subpoenaed to testify before the grand jury, and Cain’s
Curcio counsel “expressed the view that because [the attorney’s] testimony would be
used to establish an element of the offense, any conflict was unwaivable.” Id. After the
magistrate judge agreed and disqualified Cain’s counsel, the Second Circuit affirmed,
finding that it could not “say that the district court abused its discretion in concluding that
the risk that [the attorney] would become a witness against his client was sufficient to
justify his disqualification.” Id. at 295.
Similarly, in United States v. Jones, “the government represented that [Jones’s
defense attorney] and others at his law firm were likely to become the subjects of a
grand jury investigation based on the possibility that they were passing information
between” Jones and another accused drug dealer, whom the attorney also represented.
381 F.3d 114, 120 (2d Cir. 2004). The Second Circuit explained that “[t]his criminal
investigation of [the attorney] . . . would be a per se unwaivable conflict whether or not
[the attorney] immediately withdrew from his representation of [the other accused drug
dealer] because of [the attorney’s] self-interest in avoiding criminal charges.” Id.
That being said, “the per se rule does not apply any time a court learns that an
attorney may have committed a crime; the attorney’s alleged criminal activity must be
sufficiently related to the charged crimes to create a real possibility that the attorney’s
vigorous defense of his client will be compromised.” Fulton, 5 F.3d at 611.
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DISCUSSION
There are two sets of allegations at play here: the “orchestrated” recusal and the
false affidavits. The Court will address each in turn.
For the reasons that follow, this Court finds that even if there is a conflict—actual
or potential—in Soehnlein’s continued representation of Gerace, it is not an unwaivable
per se conflict.9
I. 	THE “ORCHESTRATED” RECUSAL
The government asserts that there is a reasonable possibility that Soehnlein
committed a crime by putting two names on Gerace’s witness list that Soehnlein knew
would cause Judge Sinatra to recuse himself. Docket Item 691 at 33-63. Based on an
audio recording that the government obtained, the government posits that “a factfinder
could determine . . . that at least one purpose animating the witness list’s construction
was to obtain a [different] judge.” Id. at 38 (emphasis added). “In that vein,” the
government says, “a factfinder may determine that . . . Judge Sinatra’s recusal was an
end looking for a means, i.e., a relative encompassed under 28 U.S.C. § 455(b)(5)(iv),
as opposed to the collateral consequence of a legitimate defense strategy.” Docket
Item 691 at 38; see also id. at 40 (“In sum, a factfinder could determine that,
notwithstanding . . . Soehnlein’s representations to the contrary, the defense team’s
9 This Court will schedule a status conference to discuss the question of whether
Soehnlein has a potential or lesser actual conflict that requires a full-blown Curcio
hearing and, if necessary, will order further briefing on that question. Gerace, through
counsel, has made clear his view that “[t]here is no conflict.” Docket Item 771 at 33.
But the government has not yet had an opportunity to address whether there is still a
conflict in light of this Court’s analysis of the safe harbor provision.
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goal from conception of the witness list was to obtain a different judge by manufacturing
Judge Sinatra’s recusal.”).
The government concedes that one of the two names at issue on the witness list
“appeared in the Jencks material the government supplied” but claims that its inclusion
on the list was “not in a way that would plausibly support a character defense.” Id. at
41. And there is no dispute that the government produced FBI 302 forms for both
witnesses in the discovery that it provided to the defense.10 See Docket Item 825 at 16-
17; see also Docket Item 771 at 12, 44-45. So there is no question that defense
counsel did not create the names from whole cloth or simply name relatives of Judge
Sinatra who had nothing to do with the case.
This Court finds that based on the fact that the names of these witnesses were
disclosed in the government’s discovery, the defense had a legitimate purpose for
putting them on the list: “reserv[ing Gerace’s] right[] to call them should the need arise”
depending on the evidence the government ended up presenting at trial.11 Docket Item
660 at 8. Moreover, the defense has provided an even more precise—and on its face
legitimate—reason why the witness whose Jencks material was disclosed might be able
to provide material testimony favorable to the defendant. See Docket Item 771 at 4-5.
10 The government takes issue with Cohen’s statements to Judge Sinatra in
which Cohen incorrectly stated that the names of both witnesses appeared in the
Jencks material. See Docket Item 660 at 5; Docket Item 691 at 9-10. Regardless of
those statements—which were not made by Soehnlein—there is no dispute that the
names of both witnesses appeared in the discovery material that the government
provided and that one appeared in the Jencks material.
11 The question of whether a lawyer’s putting a completely irrelevant witness on a
witness list in an effort to get a judge to recuse can constitute obstruction of justice is
not before this Court, and, therefore, the Court need not and does not opine on it.
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So the question before this Court is a simple one: Can defense counsel be criminally
prosecuted for listing potential witnesses who might give testimony favorable to the
defendant when the government believes that the real reason for listing them was to
gain the recusal of the presiding judge?
If defendants are to have the zealous representation of counsel unfettered by
worries about counsel’s own legal liability, that question can have only one answer. If
lawyers are to be free to make decisions based on their clients’ best interests and not
on counsel’s own interest in avoiding investigation—and perhaps criminal charges—
there can be no doubt about that answer. If the right to counsel has enough substance
to withstand the unbridled ability of prosecutors to use their charging discretion to stack
the deck, that answer must be no. And under the law, it is.
A. 18 U.S.C. §§ 1503(a) and 1515(c)
Start with the statute that the government says is the basis of its investigation of
counsel. Section 1503(a) casts a broad net, including anyone who “corruptly . . .
influences”—or tries to influence—“the due administration of justice.” But by definition,
prosecutors and defense counsel influence—or try to influence—the administration of
justice every day; indeed, their job is to do just that. So what separates good lawyering
from criminal conduct is one word: “corruptly.”
Now, some conduct by lawyers clearly crosses the “corrupt” line. For example,
no one would argue that a lawyer can suborn perjury by a witness, see United States v.
Lonich, 23 F.4th 881, 907 (9th Cir. 2022); or falsify an affidavit, see United States v. St.
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John, 267 F. App’x 17, 20 (2d Cir. 2008) (summary order);12 or destroy evidence, see
Kellington, 217 F.3d at 1088, 1098-99; or intimidate or bribe a witness, see Simels, 654
F.3d at 174. A lawyer who does any of those things commits a crime even if he does
them on behalf of a client.
But because opinions may differ on whether some things are “corrupt”13—and
perhaps because of the powerful discretion that prosecutors have to decide whether to
investigate and charge crimes—the statute gives lawyers a safe harbor:
“[P]roviding . . . lawful, bona fide, legal representation services in connection with or
anticipation of an official proceeding” falls outside the scope of the statute. 18 U.S.C.
§ 1515(c). So if there is an objectively bona fide reason for taking a certain strategic
action on behalf of a client, a lawyer who takes that action—even a lawyer who the
12 The Second Circuit’s decision does not recount the facts of this case, but the
indictment alleges that the defendants—a lawyer and a private investigator—conspired
to obtain false affidavits. See Superseding Indictment, United States v. St. John, No.
7:02-cr-1503 (S.D.N.Y. Sept. 4, 2003), 2002 WL 34681933.
13 Indeed, this Court questions whether an attorney’s desire to obtain a judge
who the attorney believes will be better for his client qualifies as a “corrupt” motive. Of
course, an attorney could not obtain the recusal of a judge by transgressing the rules of
professional responsibility. Cf. United States v. Rankin, 870 F.2d 109, 109-10 (3d Cir.
1989) (finding that indictment sufficiently alleged obstruction of justice against the
defendant and his siblings for submitting false affidavits accusing a judge of misconduct
in support of a recusal motion). But at the same time, lawyers are obligated to consider
all the ramifications of their strategic decisions for their clients—and arguably, that
includes whether a certain action will cause a judge to recuse himself or herself.
Indeed, a lawyer could opt not to call a witness who might cause the recusal of a
favorable judge and that undoubtedly would be a valid strategic decision. And at oral
argument this Court suggested that by filing or failing to file related case forms that
would result in the assignment of a case to a certain judge, the government might have
engaged—or at least might have created the “reasonable possibility” that it engaged—in
judge shopping. See Docket Item 825 at 10-13. In any event, this Court need not
decide that question here because even assuming that the motivation of causing
recusal was “corrupt,” the presence of a legitimate purpose triggers the protection of the
safe harbor.
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government might think has a “corrupt” motive—cannot be prosecuted. And the reason
for the safe harbor is simple: Without it, a defense attorney would have to think twice
before pursuing a strategy that for some reason the government might think had a
“corrupt” motive. See Brief of the National Ass’n of Criminal Defense Lawyers, Amicus
Curiae, on Behalf of Defendant-Appellee, United States v. Kloess, 251 F.3d 941 (11th
Cir. 2001) (No. 00-13080), 2001 WL 34644491, at *15 (“To fulfill its constitutional role,
the defense bar must not be afraid of its shadow—or the shadow of a prosecution [for
obstruction of justice]. The defense bar cannot be expected to act without the
enervating fear of being second-guessed, unless its members are granted the benefit of
the doubt.”).
The conceptual distinction between the broad “[o]mnibus” or “catchall” clause of
the statute, see Aguilar, 515 U.S. at 598, and the protection of its “safe harbor,” Simels,
654 F.3d at 174, is the subjective versus the objective. The statute criminalizes acts
taken with a subjectively corrupt purpose. But to protect lawyers doing their jobs, the
statute carves out an exception for objectively legitimate strategy. Indeed, as this Court
observed at oral argument, if that were not so, then the safe harbor would be circular
and meaningless: Any act done “corruptly” would have no “lawful, bona fide” purpose
and therefore would not be protected; or, from the opposite perspective, any legal
services provided for a “lawful, bona fide” purpose would not be “corrupt” by definition.
See Docket Item 825 at 46.
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B. The Government’s Position
The government would conflate those two standards and render the safe harbor
anything but. In fact, the government explicitly invites this Court to find that an attorney
can be prosecuted for making a strategic decision on behalf of a client that on its face
has a legitimate purpose if that decision also has an ulterior “corrupt” motive. See
Docket Item 798 at 12-16. To accept that invitation, this Court would have to find that
an attorney who has a “mixed motive” for taking a run-of-the-mill legal action on behalf
of his client—for example, placing a relevant witness on a witness list—risks
prosecution for obstruction of justice.14 And accepting that invitation would be both
wrong and dangerous.
The government correctly cites caselaw for the generally unobjectionable
proposition that a “defendant’s unlawful purpose to obstruct justice is not negated by the
simultaneous presence of another motive for his overall conduct.” See Docket Item 798
at 14 (quoting United States v. Smith, 831 F.3d 1207, 1217 (9th Cir. 2016)); see also
United States v. Howard, 569 F.2d 1331, 1336 n.9 (5th Cir. 1978) (explaining that
section 1503 criminalizes conduct “only if the offending action was prompted, at least in
part, by a ‘corrupt’ motive” (emphasis added) (citing United States v. Fayer, 523 F.2d
661, 663-64 (2d Cir. 1975))). But none of the cases upholding a “mixed motive”
14 The government also suggests that Soehnlein made misleading statements to
Judge Sinatra about the defense’s purpose for putting the witnesses on the list following
Judge Sinatra’s comment about potential “gamesmanship.” See Docket Item 691 at 41.
As an initial matter, based on this Court’s review of all the submissions—including
Gerace’s ex parte submission detailing the defense’s trial strategy—this Court finds that
there is no reasonable possibility that Soehnlein’s statements were knowingly false or
misleading. But even assuming they were, Soehnlein’s statements could not have
“orchestrated” the recusal, as Judge Sinatra already had decided to recuse himself
when Soehnlein made them.
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prosecution implicate the attorney safe harbor. See Docket Item 771 at 54 (Gerace’s
observing that “[i]n each of the cases cited by the government, there is no objective
‘good faith’ or ‘non-corrupt’ basis for the conduct of defense counsel”). And for that
reason, the government’s argument and the authority it cites in support miss the mark.
Therefore—as a matter of first impression—this Court holds that an attorney is
protected by the safe harbor provision if he or she has an objectively legitimate reason
for making a strategic decision on behalf of a client regardless of whether there is a
“mixed motive” for that decision. Indeed, the very purpose of the safe harbor is to
protect attorneys who have lawful reasons for the actions they take on behalf of a client,
and any other holding would threaten the Sixth Amendment right to counsel for every
criminal defendant. Cf. Greta Fails, The Boundary Between Zealous Advocacy and
Obstruction of Justice After Sarbanes-Oxley, 68 N.Y.U. A NN . S URV . A M . L. 397, 430
(2012) (explaining that “[t]he fear of potential prosecution for conduct that was
previously considered legitimate advocacy on behalf of their clients creates a divided
loyalty between [lawyers’] personal livelihood and the representation of their clients, and
incentivizes lawyers to look out for themselves”). And this Court further finds that
placing the names of individuals identified in discovery on a witness list to reserve the
defendant’s right to call them should the need arise at trial is without question protected
as an action with an objectively legitimate reason.
C. 	The Implications of the Government’s Position
At oral argument, the government opened with a quote by Justice Sutherland—
one that is framed and hangs in the lobby of the United States Attorney’s Office in
Buffalo: “The United States Attorney is the representative not of an ordinary party to a
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controversy, but of a sovereignty . . . whose interest . . . in a criminal prosecution is not
that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S.
78, 88 (1935); see Docket Item 825 at 4. That is a noble aspiration, and the Court has
no reason to believe that the prosecutors assigned to this case were not trying to follow
it here. But what the government apparently fails to appreciate is that defense attorneys
have a fundamentally different role than prosecutors.15 In the words of Justice White:
[D]efense counsel has no comparable obligation to ascertain or present the
truth. 	Our system assigns him a different mission. 	He must be and is
interested in preventing the conviction of the innocent, but, absent a
voluntary plea of guilty, we also insist that he defend his client whether [the
client] is innocent or guilty. 	The State has the obligation to present the
evidence. 	Defense counsel need present nothing, even if he knows what
the truth is. He need not furnish any witnesses to the police, or reveal any
confidences of his client, or furnish any other information to help the
prosecution’s case. 	If he can confuse a witness, even a truthful one, or
make him appear at a disadvantage, unsure or indecisive, that will be his
normal course. Our interest in not convicting the innocent permits counsel
to put the State to its proof, to put the State’s case in the worst possible
light, regardless of what he thinks or knows to be the truth. 	Undoubtedly
there are some limits which defense counsel must observe but more often
than not, defense counsel will cross-examine a prosecution witness, and
impeach him if he can, even if he thinks the witness is telling the truth, just
as he will attempt to destroy a witness who he thinks is lying. In this respect,
. . . as part of the duty imposed on the most honorable defense counsel, we
countenance or require conduct which in many instances has little, if any,
relation to the search for truth.
United States v. Wade, 388 U.S. 218, 256-58 (1967) (dissenting in part and concurring
in part) (footnotes omitted).
15 This Court wants to make clear that its criticism is not directed at this trial team
for bringing the motion to disqualify. On the contrary, this Court agrees that the
decisions of others in the United States Attorney’s Office to investigate the so-called
orchestrated recusal obligated the trial team to bring these issues to the Court’s
attention.
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The government pays lip service to this concept, stating that it “appreciates that
defense lawyers must zealously advocate for their clients.” Docket Item 691 at 65. But
its arguments belie that claim.
As an initial matter, conspicuously absent from the government’s 70-page
opening brief is any mention of the attorney safe harbor provision.16 See Docket Item
691. In its reply, the government acknowledges the safe harbor—as it must—but
suggests that attorneys can be prosecuted if they have “mixed motives” for a strategic
legal decision in the course of representing a client. See Docket Item 798 at 12-16.
That suggestion is nothing short of terrifying.
As Justice White thoughtfully observed, the obligation to zealously advocate for a
client is the same whether the client is innocent or guilty. What is more, even if the
lawyer knows that the client is guilty, that obligation does not change. Indeed, one
could argue that what Justice White says is the very job of a defense attorney
representing a guilty client includes “influenc[ing], obstruct[ing], or imped[ing], the due
administration of justice.” See 18 U.S.C. § 1503(a). To do that job, defense attorneys
16 When questioned about this omission at oral argument, the principal author of
the brief stated that she “missed the [s]afe [h]arbor [p]rovision” and that “[i]t was not an
attempt to conceal anything from the Court.” Docket Item 825 at 8-9. This Court has no
reason to doubt the representation that this attorney made as an officer of the Court,
and the Court appreciates the candor of her admission. But as the Court observed at
oral argument, the government’s failure to cite a crucial statute reinforces the Court’s
concern about getting into lawyers’ minds to investigate whether a legal action was
taken corruptly. See id. at 9 (THE COURT: “[I]f the sides were flipped here, and the
defense had the ability to bring a prosecution against the government for corruptly
influencing the Court, [do] you think that . . . it’s beyond question that the defendant
couldn’t bring that prosecution?”).
Moreover, this Court has serious concerns about the fact that in a brief accusing
a well-respected member of the bar of a crime, no supervisor at the United States
Attorney’s Office noticed the omission of a legal provision that could absolve him.
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must constantly walk the tightrope of zealously advocating for their clients while staying
within the bounds of ethics and professional responsibility. And they must be able to
rely on the fact that so long as they do that, they cannot be threatened with prosecution.
Otherwise, a zealous prosecutor might investigate the attorney for, in Justice White’s
words, “confus[ing] a witness, even a truthful one,” or “cross-examin[ing] a prosecution
witness, and impeach[ing] him if he can, even if he thinks the witness is telling the
truth.”17 See Wade, 388 U.S. at 257-58.
At oral argument, this Court posed a hypothetical: Suppose a defense attorney
has two witnesses, identical in every way, but one will prompt the recusal of a judge
who the attorney does not think is good for his client. If the attorney puts that witness
on the list, has that attorney committed a crime? The government answered that “it’s a
question of fact that ultimately would be up for a grand jury to decide. The law says
yes.” Docket Item 825 at 15; see id. at 29 (“THE COURT: Let me go back to the
question that I asked though. If a lawyer has a legitimate reason to put somebody on a
witness list, but in the lawyer’s heart of hearts, the only reason that he is putting that
person on the witness list is to get rid of the judge, has the lawyer committed a crime
that is not protected by the [s]afe [h]arbor? [THE GOVERNMENT]: I think the lawyer
has engaged in conduct meriting an investigation . . . . ”). As this Court remarked at oral
argument, that is “downright scary.” Id. at 25.
17 A philosophy professor might well be able to make a convincing argument that
such lawyering is indeed “corrupt.” The point is that unless the harbor is truly safe,
there is no limit on the discretion of prosecutors to tilt the playing field by instilling worry
in their opponents.
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What if the hypothetical were slightly different? What if one of the two
hypothetical witnesses was ever so slightly better for the defendant, but that witness
would compel the judge to recuse? Whom should the lawyer put on the list? The
correct answer, of course, is the witness who is better for the client. But if that might
make the lawyer a subject or target of a federal criminal investigation, a reasonable
attorney might well be tempted to put the slightly worse witness on the list.
In this Court’s view, preventing that kind of hesitation is the purpose of section
1515(c). Put another way, the safe harbor protects defense attorneys from being
accused of obstructing justice merely for doing their jobs. Indeed, the safe harbor was
enacted because of concerns about prosecutors using their power to harass members
of the defense bar. See 132 CONG. REC. H11291 (Oct. 17, 1986) (“The Subcommittee
on Criminal Justice has received complaints of prosecutor[s’] harassing members of the
defense bar. Vigorously and zealously representing a client, however, is not a basis for
charging an offense under the obstruction of justice chapter. Section 50(2) therefore
amends 18 U.S.C. [§] 1515 to provide specifically that the lawful, bona fide provision of
legal representation services does not constitute an offense under any of the
obstruction of justice offenses in 18 U.S.C. [chapter] 73.” (statement of Rep. Berman)).
The government suggests that a reading of section 1515(c) that does not permit
a “mixed motive[]” prosecution “would effectively immunize from scrutiny all but the most
unscrupulous members of the bar.” Docket Item 798 at 13. But that is the point of
section 1515(c).18 The only lawyers who should fear prosecution for strategic choices
18 Moreover, criminal prosecution is not the only way that lawyers are scrutinized.
Lawyers who do not abide by the professional rules of conduct are subject to attorney
discipline and damage to their reputations.
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they make in representing their clients are those who engage in conduct that is without
question criminal—for example, falsifying affidavits, see St. John, 267 F. App’x at 20;19
intimidating witnesses, see Simels, 654 F.3d at 172-75; falsely promising clients that the
attorney could bribe government officials to drop the charges against the client, see
United States v. Fisch, 2021 WL 2396435, at *2 (S.D. Tex. Mar. 12, 2021); concocting a
representation to prevent a witness from testifying, see Cintolo, 818 F.2d at 995; and
the like.20
In its supplemental letter submission, the government doubles down on its
position, arguing that “whether the witness names were found in the discovery materials
is of no consequence.” Docket Item 886 at 3 n.2. Rather, the government says, “[t]he
issue is whether the identified witnesses were actually material to . . . Gerace’s
defense.” Id. (emphasis added). In other words, “the issue”—in the government’s
view—is not whether “Gerace could place Judge Sinatra’s relatives on his witness list
owing to their identification in discovery” but whether that was in fact the defense team’s
primary reason for doing so.21 See id. at 2 (“The issue of the actual materiality of the
19 See note 12, supra.
20 The government’s suggestion that “the appropriate stage” at which this Court
should concern itself with the safe harbor is “trial,” Docket Item 798 at 16, fails to
appreciate the chilling effect of a federal investigation—not to mention an indictment—of
an attorney for merely doing his or her job.
21 The government also frames the issue as “whether . . . Gerace and/or his
attorneys lied to Judge Sinatra to force his Honor’s recusal and delay proceedings.”
Docket Item 886 at 2. Based on the parties’ submissions, the Court sees no reasonable
possibility that the defense team “lied” about the possibility that at least one of these
individuals was “likely” to be called as a material witness in Gerace’s trial. But in any
event, as noted above, the defense has given an objectively legitimate explanation for
why these witnesses may be material if the need arises to call them, and no more is
required.
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witnesses to . . . Gerace’s defense exists independent of whether . . . Gerace and his
attorneys had a ‘legitimate reason’—i.e., presence in the discovery—‘to put the person
on the witness list.’”).
This Court disagrees. On the contrary, the issue is precisely whether Gerace’s
defense team had an objectively legitimate reason for putting the witnesses on the list.
And if they did—as this Court finds is the case here—that is the end of the inquiry.
When an attorney takes some action on behalf of and for the benefit of a client in a
pending case, then as long as there is an objectively lawful and legitimate purpose for
that action, the attorney can take it without fear of personal prosecution. Stated another
way, the safe harbor prevents the government, this Court, or anyone else from inquiring
into a lawyer’s purported ulterior motives for an objectively legitimate decision.22
D. The Caselaw
Typically, prosecutions of lawyers for obstruction of justice fall into three
categories:
First, lawyers are prosecuted for obstruction violations in the context of a
large underlying criminal scheme in which the lawyers were intimately
involved for their own personal gain and actively obstructed a proceeding
to cover their tracks. 	These prosecutions focus on lawyers’ personal
actions and their personal involvement in criminal schemes like fraud and
money laundering, not necessarily their advocacy on behalf of their clients.
22 This conclusion applies with equal force to government lawyers, even though
they do not share the same vulnerability to prosecution as the defense. This Court has
noted several examples of instances in which, if the sides were flipped, the government
could be accused of having a corrupt ulterior motive. See Docket Item 825 at 6-11, 36.
The Court gave those examples not to accuse the government of “bad faith”—as the
government complains in its supplemental letter submission, Docket Item 886 at 6-9—
but to prove a point: All lawyers’ strategic decisions are at times vulnerable to a
suspected corrupt motive. And that is why the safe harbor must protect them all—those
who have the discretion to begin a criminal investigation and prosecution and those who
do not.
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Second, 	lawyers 	are 	prosecuted 	for 	obstruction 	violations 	when 	an
underlying crime in which the lawyers were involved is difficult to prove and
it is easier for prosecutors to meet their burden of proof on the obstruction
charge. Third, lawyers are prosecuted for obstruction of justice on its own,
not connected to any underlying crimes, when they clearly leap over the line
from zealous advocacy into criminal behavior. 	For example, lawyers who
bribe or threaten witnesses are unmistakably vulnerable to prosecution.
Fails, supra, at 414-15 (footnotes omitted). In all those scenarios, “lawyers’ ethical
duties align with their legal obligations,” and there is no ambiguity as to the line between
zealous advocacy and criminal conduct. Id. at 415.
The parties do not cite—nor has this Court found—any case that addresses the
precise question presented here: whether an attorney who takes an objectively
legitimate legal action on behalf of a client for a suspicious reason can face prosecution
under section 1503. That likely is because such a prosecution has rarely, if ever, been
brought.
Indeed, in most cases involving a lawyer’s criminal activity, the safe harbor
provision is almost superfluous: Either the conduct was corrupt and illegal, or it was a
bona fide legal service; it could not be both. See, e.g., St. John, 267 F. App’x at 22
(finding no clear error in district court’s failure to instruct the jury on the safe harbor
because “the jury was instructed that it necessarily had to find that the defendants
knowingly conspired to pursue an unlawful purpose” and “[t]his instruction, by definition,
excludes the possibility of bona fide legal advice constituting criminal behavior”); Fisch,
2021 WL 2396435, at *2 (rejecting claim of ineffective assistance of counsel for failing to
raise the safe harbor at trial, finding that “Fisch’s defense counsel had no basis to
pursue what would have been a futile defense”); see also Lonich, 23 F.4th at 907
(finding that safe harbor did not protect lawyer who “urged [his client] to testify” to facts
that were “either outright false, seriously misleading, or both” regarding a fraudulent
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financial scheme that the government alleged the lawyer was involved in).23 Or the
conduct at issue is not a typical task of a lawyer, but the lawyer argues that it
nonetheless constituted a bona fide legal service. See Kellington, 217 F.3d at 1089
(lawyer charged with obstruction of justice for following his client’s instruction to have a
third party destroy evidence prior to the client’s fugitive court proceeding).24
23 The government notes that the lawyer in Lonich “insisted that, in his view, his
instructions were consistent with the truth.” Docket Item 886 at 1-2. According to the
government, this suggests that it is permissible to inquire into a lawyer’s motivations for
taking a certain action in representing a client. See id. But Lonich did not involve a
question of mixed motive for taking an objectively legitimate legal action or conduct that
fell close to the line between proper advocacy and attorney misconduct. Indeed, the
Ninth Circuit acknowledged that “[l]awyers of course have some latitude in helping
clients frame their anticipated testimony in a light most favorable to them, consistent
with the truth” but found that the conduct at issue in that case went well beyond that.
Lonich, 23 F.4th at 907. What is more, in Lonich, there was a factual question as to
whether the defendant was even acting as a lawyer when he committed the acts at
issue. See id. (finding that “even assuming he had an attorney-client relationship with
House or a legal relationship with 101 Houseco (an entity created to perpetuate a
fraud), a rational jury could find that Lonich’s recorded conversations with House go far
beyond ‘lawful, bona fide’ legal advice” (emphasis added)).
24 The government relies on Kellington for the proposition that “‘in the prosecution
of a lawyer for conduct stemming from his or her representation of a client,’ the
government may use evidence—including expert testimony on the lawyer’s ethical
obligations—‘to establish the lawyer’s intent and state of mind.’” Docket Item 886 at 1
(emphasis omitted) (quoting Kellington, 217 F.3d at 1098). But unlike this case,
Kellington did not involve any objectively legitimate legal action. On the contrary, as
noted above, the lawyer in Kellington sought to use evidence of his ethical obligations to
absolve himself of an act that common sense suggested was corrupt. Indeed, although
the district court initially granted Kellington a judgment of acquittal, the Ninth Circuit
reversed, finding that “[i]t strain[ed] credibility well past the breaking point to assert that
Kellington did not know and appreciate the connection between the immediate burning
of documents and the fugitive federal court proceeding on Monday.” United States v.
Kellington, 139 F.3d 909 (9th Cir. 1998).
Moreover, what the lawyer did in Kellington—tell a third party to destroy some
documents—could not have had a bona fide purpose in connection with the lawyer’s
role as a lawyer. In other words, the lawyer either told the third party to destroy the
documents to help the client’s case (in which case the request to destroy the documents
was complicit in the destruction of evidence with no bona fide, legitimate purpose in
connection with the lawyer’s representation of the client) or the documents had nothing
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This Court has found one case, however, that is instructive. In United States v.
Stevens, an attorney was charged with obstructing a proceeding in violation of 18
U.S.C. § 1512, falsifying and concealing documents in violation of 18 U.S.C. § 1519,
and making false statements in violation of 18 U.S.C. § 1001. 771 F. Supp. 2d 556, 559
(D. Md. 2011). “The charges arose out of Stevens’[s] response to an inquiry by the
United States Food and Drug Administration (‘FDA’) into . . . alleged off-label promotion
[by Stevens’s client, GlaxoSmithKlein (‘GSK’)] of the anti-depressant drug Wellbutrin
SR[.]” Id. More specifically,
The United States allege[d] that Stevens obstructed the FDA’s investigation
by withholding and concealing documents and other information about
GSK’s promotional activities for Wellbutrin, including for unapproved uses,
while representing to the FDA that she had completed her response to its
inquiry, and that Stevens falsified and altered documents in order to impede
the FDA’s investigation of GSK. 	In particular, the [g]overnment allege[d
that] Stevens withheld slide sets used by speakers at GSK promotional
events that promoted off-label use of Wellbutrin and withheld information
regarding compensation received by attendees at promotional events. The
[g]overnment [also] allege[d] that Stevens signed and sent to the FDA six
letters containing materially false statements regarding GSK’s promotion of
Wellbutrin for off-label uses.
Id. (internal citations omitted).
The case went to trial before the Honorable Roger W. Titus, a United States
District Judge in the District of Maryland. At the close of the government’s case,
Stevens moved for a judgment of acquittal under Federal Rule of Criminal Procedure
29(a). See Transcript of Oral Argument at 3, United States v. Stevens, No. 8:10-cr-
to do with the case (in which case the request to destroy the documents was not
connected in any way with the lawyer’s role as lawyer). Either way, the safe harbor was
inapplicable.
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0694 (D. Md. May 11, 2022), ECF No. 190 (“Stevens Transcript”). Based on the safe
harbor, Judge Titus granted the motion on the charge of obstructing justice.25 Id. at 6.
Judge Titus began by noting that most of the evidence presented at trial was
information that is normally protected by the attorney-client privilege. Id. at 3. Those
documents had been produced, however, under an order issued by a magistrate judge
in the District of Massachusetts invoking the crime-fraud exception. Id. Judge Titus
commented that “[w]ith the 20/20 vision of hindsight, and that’s always the place to be in
terms of wisdom, the Massachusetts Order was an unfortunate one” and “access should
not have been granted.” Id. at 5. In any event, Judge Titus continued, those
documents
show that this was a [lawyer] that was not engaged to assist a client to
perpetrate a crime or fraud. Instead, the privileged documents in this case
show a studied, thoughtful analysis of an extremely broad request from the
[FDA] and an enormous effort to assemble information and respond on
behalf of the client.
The responses that were given by the defendant in this case may not have
been perfect; they may not have satisfied the FDA. 	They were, however,
sent to the FDA in the course of her bona fide legal representation of a client
and in good faith reliance of both external and internal lawyers for [GSK].
Id. Based on that assessment, Judge Titus granted Stevens’s motion on the obstruction
charges. Id. at 6 (concluding that section 1515(c) “is an absolute bar” and “on the basis
of this record[,] . . . no reasonable juror could conclude otherwise beyond a reasonable
doubt”).
In reaching his decision, Judge Titus made several comments that are relevant
here. He first noted that “the [s]afe [h]arbor [p]rovision is designed specifically to protect
25 The court also granted Stevens’s Rule 29 motion with respect to the false
statement counts but on different grounds. See Stevens Transcript at 6-10.
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an attorney who is acting in accordance with the obligation that every lawyer has to
zealously represent his or her client[s] and place their position in the most favorable
possible light.” Id. Indeed, Judge Titus said, “[t]hat is the obligation of a lawyer as
pointed out in the proceedings in Congress when 1515(c) was adopted.” Id. At that
time, “[t]he Subcommittee on Criminal Justice had received complaints of prosecutors
harassing members of the defense bar” and wanted to make clear “that vigorously and
zealously representing a client is no[t] a basis for charging an offense under the
[o]bstruction of [j]ustice chapter.” Id.
Judge Titus added that
there are serious implications for the practice of law generated by this
prosecution. Lawyers can never assist a client in the commission of a crime
or a fraud, and that’s well established. 	Lawyers do not get a free pass to
commit crimes. I have presided over other trials of lawyers and have sent
some to jail.
. . .
However, a lawyer should never fear prosecution because of advice
. . . given to a client . . . , and a client should never fear that its confidences
will be divulged unless its purpose in consulting the lawyer was for the
purpose of committing a crime or a fraud.
There is an enormous potential for abuse in allowing prosecution of an
attorney for the giving of legal advice. I conclude that the defendant in this
case should never have been prosecuted and she should be permitted to
resume her career.
The institutional problem that causes me . . . great concern is that while
lawyers should not get a free pass, the Court should be vigilant to permit
the practice of law to be carried on, to be engaged in, and to allow lawyers
to do their job of zealously representing the interests of their client[s].
Anything that interferes with that is something that the court system should
not countenance.
Id. at 9-10.
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The First Circuit’s decision in Cintolo also lends some insight. In that case, an
attorney was charged “with one count of conspiracy to obstruct justice, 18 U.S.C.
§§ 371, 1503, and two substantive counts of obstruction of justice, 18 U.S.C.
§ 1503.” Cintolo, 818 F.2d at 983. The government alleged that Cintolo had conspired
with Gennaro Angiulo to obstruct justice “by befouling the proceedings of a federal
grand jury investigating the criminal activities of the Angiulo gang.” Id. at 984.
“According to the indictment, Cintolo set out to accomplish this nefarious end through
the use of his position as attorney of record for Walter LaFreniere, a witness before the
grand jury, to acquire information about the ongoing investigation for Angiulo’s benefit.”
Id. “The indictment further charged Cintolo with knowingly assisting Angiulo in his
efforts to inhibit LaFreniere, after the latter had been granted immunity, from testifying
truthfully before the grand jury, or from cooperating in any way with the investigation.”
Id. (emphasis added).
At trial, Cintolo “testified that, although he was aware of Angiulo’s involvement in
illegal businesses, he had not acted with the intent corruptly to obstruct or impede
justice while representing LaFreniere.” Id. at 989. Rather, “he claimed to have been
cooperating—or pretending to cooperate—with Angiulo solely to enhance his ability to
counsel his true client (LaFreniere).” Id. “The jury obviously disbelieved these
assertions and drew a different set of inferences.” Id. Ultimately, “[a]fter a lengthy trial,
the jury found [Cintolo] guilty on the conspiracy count, but not guilty on the substantive
obstruction counts.” Id. at 983.
On appeal, Cintolo again argued “that his authentic motive in pursuing [his]
perilous course of conduct was to obtain information from Angiulo that would assist him
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37
in representing the interests of LaFreniere.” Id. at 989. Cintolo urged the First Circuit to
accept this explanation notwithstanding the jury’s rejection of it. Id.
In a thoughtful opinion, the First Circuit noted that “[a]s important a role as
defense counsel serve—and we do not minimize its importance one whit—the
acceptance of a retainer by a lawyer in a criminal case cannot become functionally
equivalent to the lawyer’s acceptance of a roving commission to flout the criminal law
with impunity.” Id. at 990. In the First Circuit’s view, Cintolo’s “suggestion that the jury
be precluded, as a matter of law, from drawing its own (reasonable) conclusions as to
why any defendant—or, more narrowly put, a lawyer-defendant—committed acts not
unlawful in and of themselves would do enormous violence to the statute and play
unwarranted havoc with its enforcement.” Id. at 991; see id. at 996 (“emphatically
reject[ing] the notion that a law degree, like some sorcerer’s amulet, can ward off the
rigors of the criminal law”).
Importantly, however, the Cintolo court noted that “[t]he question of whether an
attorney who does no more than file motions, make court appearances, and the like—
however dilatory they may seem, however much they may slow the progress of a grand
jury probe—can ever be subject to [section] 1503 liability for such conduct alone, is not
before us.” Id. at 995. Indeed, the First Circuit observed, “[w]e recognize the dangers
that are present if prosecutors can be allowed to inquire into motive in such confined
circumstances, and we respect the importance of allowing defense counsel to perform
legitimate activities without let or hindrance.” Id. (emphasis added). The First Circuit
did “not see [Cintolo’s] case, however, edging into that forbidden terrain.” Id. (emphasis
added).
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Likewise, in Cueto, the Seventh Circuit affirmed the conviction of a lawyer who
had “corrupt[ly] endeavor[ed] to protect [an] illegal gambling operation and to safeguard
his own financial interest.” 151 F.3d at 631. Among other things, the indictment alleged
that the defendant, Amiel Cueto—who was not the attorney of record—“corruptly
endeavored to influence, obstruct, and impede the proceedings in federal district court
by preparing and filing and urging defense counsel to prepare and file false pleadings
and court papers in connection with the racketeering case.” Id. at 629.
The Seventh Circuit rejected the contention that lawyers are immune from
prosecution for illegal activities conducted through the guise of litigation and held that
“the omnibus clause of [section] 1503 may be used to prosecute a lawyer’s litigation-
related criminality.” Id. at 632. “Although we appreciate that it is of significant
importance to avoid chilling vigorous advocacy and to maintain the balance of effective
representation,” the Seventh Circuit explained, “we also recognize that a lawyer’s
misconduct and criminal acts are not absolutely immune from prosecution.” Id.
The court noted, however, that “[i]t is undisputed that an attorney may use any
lawful means to defend his client, and there is no risk of criminal liability if those means
employed by the attorney in his endeavors to represent his client remain within the
scope of lawful conduct.” Id. at 631. And crucially, like the First Circuit in Cintolo, the
Seventh Circuit stated: “We respect the importance of allowing defense counsel to
perform legitimate activities without hindrance and recognize the potential dangers that
could arise if prosecutors were permitted to inquire into the motives of criminal defense
attorneys ad hoc.” Id. at 634 (emphasis added). The court concluded that the facts
before it—a lawyer protecting his own financial interest in an illegal gambling operation
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39
by filing and urging defense counsel to file false pleadings and court papers—did “not
create that avenue of inquiry” and emphasized that its “conclusion [wa]s limited to the
specific facts of th[at] case.” Id.
What the Court gleans from this admittedly sparse caselaw is that while lawyers
cannot use their J.D.s to escape prosecution for criminal conduct, it is equally important
that a lawyer not risk prosecution for conduct that is objectively within the bounds of the
rules of professional responsibility. This is even more crucial in the context of criminal
defense where the client’s Sixth Amendment right is at stake. In order for criminal
defense attorneys to keep a singular focus on their clients’ interests—as the
Constitution requires—they must not fear prosecution based on an action that some
prosecutor might think has a secret, ulterior motive.
The case before this Court is precisely the type of case about which the courts in
Cintolo and Cueto cautioned.26 It is a case in which criminal liability hinges on the
government being “permitted to inquire into the motives of criminal defense attorneys”
for an action that they had a reasonable justification—and arguably an obligation—to
take. See Cueto, 151 F.3d at 634; Cintolo, 818 F.2d at 995; see also Stevens
Transcript at 10 (“There is an enormous potential for abuse in allowing prosecution of
an attorney for the giving of legal advice.”).
Allowing prosecution of defense counsel in this type of case “would chill the
client’s right to receive objective unbiased advice by placing the lawyer who advocates
26 Interestingly, neither Cintolo nor Cueto dealt explicitly with the safe harbor—in
Cintolo, presumably because the provision had not been enacted at the time of the
defendant’s trial. In both cases, the courts were merely analyzing the applicability of
section 1503 to attorneys’ conduct. But those courts’ warnings are all the more glaring
in the light of the safe harbor provision.
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an aggressive strategy, but not one who advocates a collaborative strategy, in legal
jeopardy.” Brief of Amicus Curiae New York Council of Defense Lawyers in Support of
Petitioner, Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (No. 04-368),
2005 WL 435901, at *3.27 Moreover, it would “create[] the risk that the unscrupulous
defendant (the one most frequently in need of legal representation) will at some point
turn around and attempt to use his attorney’s advice against the attorney.” Id. at *15.
That prospect is particularly troubling given that most, if not all, seasoned defense
27 In United States v. Arthur Andersen, LLP, the Fifth Circuit affirmed the
conviction under 18 U.S.C. § 1512(b)(2) of Arthur Andersen, LLP—an accounting and
consulting firm—in connection with the dramatic demise of the Enron Corporation. 374
F.3d 281, 284 (5th Cir. 2004); see 18 U.S.C. § 1512(b) (“Whoever knowingly uses
intimidation, threatens, or corruptly persuades another person, or attempts to do so, or
engages in misleading conduct toward another person, with intent to . . . cause or
induce any person to[] (A) . . . withhold a record, document, or other object, from an
official proceeding; [or] (B) alter, destroy, mutilate, or conceal an object with intent to
impair the object’s integrity or availability for use in an official proceeding . . . shall be
[guilty of a crime].”). The Fifth Circuit held that “[s]ection 1512(b)(2) does not require
that the defendant act willfully, and does not provide that a defendant may be convicted
only if the defendant knows his conduct is unlawful.” Arthur Andersen, 374 F.3d at 299.
According to the Fifth Circuit, “one could act with an improper purpose even if one did
not know that the actions were unlawful.” Id. at 299-300.
The Supreme Court granted certiorari, and the New York Council of Defense
Lawyers filed a powerful amicus brief arguing that even though the case did not involve
lawyers, the implication for criminal defense attorneys would be profoundly dangerous.
Brief of Amicus Curiae, Arthur Andersen, 2005 WL 435901. Among other things, the
Council of Defense Lawyers argued that for a variety of reasons—including the circular
language of the statute and the lack of case law interpreting it—the presence of the safe
harbor did “not allay the concerns that the construction adopted below would criminalize
advice and conduct by attorneys acting as zealous advocates.” Id. at *9-10.
Ultimately, the Supreme Court reversed the Fifth Circuit and held that “[o]nly
persons conscious of wrongdoing can be said to ‘knowingly . . . corruptly persuad[e].’
And limiting criminality to persuaders conscious of their wrongdoing sensibly allows
[section] 1512(b) to reach only those with the level of ‘culpability . . . we usually require
in order to impose criminal liability.’” Arthur Andersen, 544 U.S. at 706 (alterations in
original) (quoting Aguilar, 515 U.S. at 602).
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attorneys have had the experience of zealously representing a client who ultimately is
convicted—either at trial or by pleading guilty—and who subsequently files a habeas
petition accusing the attorney of misconduct. And “[i]n that event”—if a mixed-motive
prosecution is allowed—“all that would stand between the attorney and criminal
investigation is the judgment of a prosecutor.” Id.
For all those reasons, this Court finds that Soehnlein’s actions are protected by
the safe harbor provision, and, for that reason, there is not a reasonable possibility that
he committed a crime in submitting Gerace’s witness list. Therefore, even if there is a
conflict of some sort, there is no per se unwaivable conflict.
II. 	THE ALLEGEDLY FALSE AFFIDAVITS
There is no question that an attorney’s submitting false affidavits to a court can
constitute obstruction of justice. Indeed, that is precisely the type of act that the safe
harbor does not protect.28 The question, then, is whether there is a reasonable
possibility that Soehnlein had some involvement in or knowledge of the alleged conduct
such that his interests are adverse to those of his client.
28 Submitting a false affidavit has no objectively lawful, bona fide purpose. So if a
lawyer does that, the question is whether the lawyer knew the affidavit to be false and
therefore acted corruptly. Because filing the false affidavit had no objectively lawful,
bona fide purpose, the safe harbor provision would not preclude inquiry into the lawyer’s
state of mind. Cf. Cueto, 151 F.3d at 632 (“There is a discernable difference between
an honest lawyer who unintentionally submits a false statement to the court and an
attorney with specific corrupt intentions who files papers in bad faith knowing that they
contain false representations and/or inaccurate facts in an attempt to hinder judicial
proceedings.”). And if there was a dispute about whether or not the affidavit was false,
the question in a context like the one presented here would be whether there was a
reasonable possibility that the affidavit was false; if so, the lawyer’s disqualification likely
would be required.
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The government conceded at oral argument that it has no evidence that
Soehnlein was involved in submitting the allegedly false affidavits. See Docket Item
825 at 30-31 (THE COURT: “What evidence do [you] have that . . . Soehnlein was
involved in that, or would be a witness to it, given the fact that he had already left his
representation of . . . Gerace when those affidavits were prepared? [THE
GOVERNMENT]: So, involved in it, Judge, I would say that I can think of right now[,]
none.”). The government instead argued that there is “a reasonable possibility that
[Soehnlein] was a witness to events surrounding [the false affidavits]” because “he
rejoined the representation of Mr. Gerace, who very likely was involved in the decisions
to pursue the false affidavits.” Id. at 31. But as this Court noted at oral argument—and
as the government acknowledged—any conversations after the fact between Soehnlein
and Gerace about criminal activity in which Gerace had participated are protected by
the attorney-client privilege. See id. at 31-32; see also SEC v. Collector’s Coffee Inc.,
338 F.R.D. 309, 316 (S.D.N.Y. 2021) (explaining that “the crime-fraud exception does
not apply simply because privileged communications would provide an adversary with
evidence of a crime or fraud. Instead, the client communication or attorney work
product in question must itself be in furtherance of the crime or fraud.” (alterations
omitted) (quoting In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995))).
So the government is left with the argument that there is a reasonable possibility
that Soehnlein had conversations with Gerace about Gerace’s intent to submit false
affidavits even though Soehnlein withdrew two months before the affidavits were
submitted and more than a month before the events to which the affidavits referred.
Simply put, that is not plausible, let alone a reasonable possibility.
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This conclusion is bolstered by the representations to the Court by Soehnlein’s
counsel and by Curcio counsel for Gerace, both of whom have assured the Court that—
based on what they know—there is no conflict. See Docket Item 825 at 41-43; cf. Cain,
671 F.3d at 292 (affirming disqualification of defense counsel after Curcio counsel
“expressed the view that . . . [the] conflict was unwaivable”).
Thus, this Court finds that there is not a reasonable possibility that Soehnlein will
be called as a witness against Gerace with respect to the allegedly falsified affidavits.
CONCLUSION
On the sixtieth anniversary of the Supreme Court’s decision in Gideon v.
Wainwright, 372 U.S. 335, 345 (1963), United States Attorney General Merrick Garland
observed that “[c]riminal defense attorneys put the government’s case to the test,” and
“[i]n so doing, they make every part of our system fairer, more equal, and more just.”
Merrick B. Garland, U.S. Att’y Gen., Remarks at the Office of Access to Justice’s
Gideon Celebration (Mar. 17, 2023).29 Indeed, Garland added, “only the presence of
counsel zealously defending their clients’ rights can ensure public confidence in the
legitimacy of judicial proceedings, regardless of their outcome.” Id. But in order to
zealously advocate for their clients—as the Constitution demands—lawyers must not
fear prosecution for legitimate strategic decisions. A criminal defense lawyer can ask
only one question in making a legitimate strategic decision: Is this the best thing for my
client?
29 Available at https://www.justice.gov/opa/speech/attorney-general-merrick-b-
garland-delivers-remarks-office-access-justices-gideon.
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It is not undue drama to say that if a lawyer can be prosecuted for obstruction of
justice based on “mixed motives” for an objectively bona fide legal action taken on
behalf of a client, that will create a conflict for every defense attorney’s representation of
every client. Lawyers should not have to worry that their objectively legitimate strategic
decisions will lead to a criminal investigation whenever the government perceives a
nefarious motive. This Court’s holding today seeks to ensure that they do not have to.
And in doing so, the Court safeguards defendants’ Sixth Amendment right to conflict-
free counsel.
In sum, for all the reasons stated above, this Court finds that there is not a
reasonable possibility that Soehnlein has committed or witnessed a crime. There is no
per se conflict, and, therefore, the government’s motion to disqualify, Docket Item 691,
is DENIED.
SO ORDERED.
Dated: 	April 25, 2024
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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