U.S.

Department of Justice
United States Attorney Eastern District of New York RB:CP:TK F.#2011R00935
271 Cadman Plaza East Brooklyn, New York 11201

July 11, 2011 The Honorable John Gleeson United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: Dear Judge Gleeson: The government respectfully submits this letter to notify the Court of several actual and potential attorney conflicts of interest that have come to the governments attention in the above-referenced continuing criminal enterprise (CCE) prosecution. Jeffrey Lichtman, Esq. represents the lead defendant, James Rosemond (Rosemond). First, Mr. Lichtman is a witness to the obstruction-of-justice scheme charged in Count Thirteen of the superseding indictment. Second, Mr. Lichtman has previously represented one of the cooperating witnesses who is expected to testify against Rosemond at trial. Third, Mr. Lichtman has represented two of Rosemonds current co-defendants, and appeared for one of them at the arraignment on the instant indictment. Fourth, until recently, Mr. Lichtman represented one of Rosemonds co-conspirators in a case in which that defendant is charged with criminal acts that arose from his participation in Rosemonds drug trafficking organization (the Rosemond Enterprise or the organization). Fifth, to prove the existence of the charged CCE, the government will introduce evidence that Mr. Lichtman served as house counsel to the Rosemond Enterprise, representing numerous Rosemond Enterprise members in criminal cases connected to their criminal acts on behalf of the organization. Sixth, Mr. Lichtman has accepted a large amount of cash from Rosemond, to represent Rosemond and others, which the government will introduce as evidence of Rosemonds earnings from the drug trade, as well as Rosemonds attempts to prevent subordinates from providing evidence against him. Seventh, Lichtmans status as a witness to some of the facts that will be introduced at trial will make him an unsworn witness. Eighth, the combination of conflicts creates the appearance of impropriety. 1. Statement of Facts United States v. James Rosemond, et al. Criminal Docket No. 11-424 (S-2)(JG)

On June 30, 2011, Rosemond was charged in a thirteen-count superseding indictment, along with co-defendants Jason Williams, Mario Rosemond, Dennis Graham and Tony Martin. Count One charges Rosemond with operating a CCE, alleging that since 2007, he has served as the principal leader of a drug organization that generated more than $10 million in gross

receipts during a twelve-month period for cocaine distribution. Rosemond and other members of his organization also are charged with cocaine trafficking (Counts Two through Eight) and money laundering conspiracy (Count Nine). Rosemond also is charged with various crimes in connection with the proceeds of his criminal enterprise, including money laundering, engaging in unlawful monetary transactions, and structuring financial transactions to evade currency reporting requirements (Counts Ten through Twelve). Finally, Rosemond is charged with obstruction-ofjustice for attempting to prevent a cooperating witness from reporting Rosemonds crimes to law enforcement agents (Count Thirteen). a. Background to the Rosemond Enterprise

The Rosemond Enterprise was a large-scale, bi-coastal narcotics-trafficking organization headed by Rosemond that shipped cocaine from Los Angeles, California, to New York City and shipped proceeds of narcotics sales back to Los Angeles. From 2007 to June 2011, the Rosemond Enterprise distributed over 1,000 kilograms of cocaine and generated millions of dollars through its narcotics sales. Evidence against Rosemond includes: (1) the statements of numerous confidential sources and cooperating witness who were members of the Rosemond Enterprise; (2) consensually-recorded telephone calls, emails and text messages between Rosemond and members of his organization; (3) Rosemond Enterprise parcels containing large amounts of cocaine and narcotics proceeds that were intercepted by law enforcement officers; (4) financial records, accounting records, telephone records and emails corroborating the statements of the cooperating witnesses; and (5) Rosemond and co-defendant Jason Williams delivering a kilogram of cocaine to a cooperating witness, who at the time was wearing a recording device and being surveilled by agents. According to members of the Rosemond Enterprise, including two cooperating witnesses (CW-1 and CW-2), the organization relied on numerous members on both coasts to ensure a near-continuous flow of cocaine and cash. Rosemond regularly directed CW-1 to take possession of narcotics proceeds in New York and transport those proceeds to the West Coast; he regularly directed CW-2 to take possession and distribute the narcotics that arrived in New York. Both CW-1 and CW-2 have stated that Rosemond personally coordinated cocaine and money shipments. In the summer of 2010, agents in Los Angeles arrested one of the Rosemond Enterprises cocaine suppliers (CW-3) after he was observed attempting to mail parcels containing kilograms of cocaine. CW-3 pled guilty to participating in a narcotics trafficking conspiracy and agreed to cooperate with the government. Among other things, CW-3 stated that over a period of several years, he provided over 100 kilograms of cocaine to the Rosemond Enterprise, some of which Rosemond personally ordered.

b.

Rosemonds Substantial Drug Profits

Trial evidence will show that Rosemond earned substantial cash proceeds as a result of his leadership of the organization. One of Rosemonds money laundering techniques involved converting the cash proceeds of the organization into U.S. Postal money orders. Rosemond structured his purchases of these money orders to avoid generating a report identifying him or other cohorts as the purchaser. IRS agents have examined more than 1,200 Postal money orders issued between 2007 and 2010 that are linked to Rosemond. The money orders were purchased mainly in post offices in Manhattan, Brooklyn, and Queens, and total over $1 million. Rosemond used these money orders to pay his rent, his attorneys in Baltimore, and his sons private school tuition, among many other things. Rosemond also deposited nearly $300,000 of money orders into the bank account of his talent management agency, Czar Entertainment. In addition, interviews with various contractors and vendors who performed work to renovate Rosemond's Brooklyn apartment reveal that Rosemond was in possession of large amounts of cash. Thus far, agents have accounted for over $600,000 cash that Rosemond paid to contractors over a span of approximately two years. The governments proof will also include evidence that Mr. Lichtman has accepted approximately $150,000 in cash from Rosemond, to represent Rosemond and others in criminal matters. (Mr. Lichtman filed the appropriate Forms 8300 for this cash). c. Witness Tampering and Obstruction-of-Justice

As noted above, Rosemond is charged with obstruction-of-justice for attempting to prevent a cooperating witness from reporting Rosemonds crimes to law enforcement agents (Count Thirteen). In the summer of 2010, agents arrested one of Rosemonds cocaine suppliers, CW-3, in California. A California defense attorney (the CA Defense Attorney) represented CW-3 during his initial appearances before the court in California. After CW-3 was transported to the EDNY, CW-1 at Rosemonds direction arranged for a local New York defense attorney (the NY Defense Attorney) to represent CW-3.1 In his initial meeting with the NY Defense Attorney, CW-1 introduced himself as Mike and paid the NY Defense Attorney to represent CW-3 with cash that Rosemond had supplied. At this initial meeting, at Rosemonds direction, CW-1 provided the NY Defense Attorney with a piece of paper containing both questions he wanted the NY Defense Attorney to ask CW-3 and a message that he wanted the NY Defense Attorney to pass along to CW3. The message stated:

CW-1 only began to meet with the government concerning a cooperation agreement after the obstruction-of-justice scheme had concluded. 3

Lastly, stay firm, cuz the quantity is small. They gonna try to trick you to talk but don't. Also, K is not talking. So don't give them more than they already have. CW-1 stated that K is a reference to Rosemonds brother, Kesner Rosemond, an EDNY defendant and member of the Rosemond Enterprise. In December 2010, CW-3 decided to pursue a cooperation agreement with the government and attended a proffer meeting at which prosecutors, agents and the NY Defense Attorney were present. Following this meeting, Rosemond told CW-1 that he possessed information that CW-3 had attended a proffer meeting with the government and ordered CW-1 to confront the NY Defense Attorney at his law office. Rosemond told CW-1 that he wanted to let the NY Defense Attorney know that he knew CW-3 was cooperating and that he was upset that the NY Defense Attorney had failed to alert him about CW-3s cooperation. Rosemond supplied CW-1 with (1) a copy of the NY Defense Attorney's notes from the proffer meeting2 and (2) the date of CW-3's next scheduled meeting with the government. Rosemond then directed CW-1 to try to convince the NY Defense Attorney to withdraw from representing CW-3. As instructed, on the evening of Friday, December 17, 2010, CW-1 visited the NY Defense Attorney and relayed Rosemonds messages to him. When the NY Defense Attorney claimed that he did not know what CW-1 was talking about, CW-1 showed him the proffer notes as proof of CW-3's cooperation. In addition, CW-1 stated that the organization knew of the date of the next scheduled proffer and would know whether CW-3 attended it. Following this encounter, the NY Defense Attorney feared for his safety and that of CW- 3. The next day, Mr. Lichtmans investigator visited CW-3 at the Metropolitan Detention Center. CW-3 advised the government that during this meeting, the investigator asked various questions about Rosemond, which CW-3 understood to be an attempt to see if CW-3 was cooperating. Over that same weekend, Rosemond called CW-3's wife and stated that he was upset to learn of CW-3's cooperation and that he had been under the impression that CW-3 was not going to cooperate with the government. On Sunday, December 19, Mr. Lichtmans investigator made a second jailhouse visit to CW-3, this time accompanied by Mr. Lichtman. According to CW-3, Mr. Lichtman and the investigator again asked various questions, which CW-3 understood to be an attempt to confirm that CW-3 was cooperating. Mr. Lichtman asked CW-3 whether he had attended a proffer session and if investigators had asked about Rosemond. CW-3 tried to avoid answering the questions. CW-3

The NY Defense Attorney has advised prosecutors that the only individual with whom he shared his proffer notes, and the dates of scheduled proffers, was the CA Defense Attorney. 4

also complained about Rosemonds call to his wife, which Mr. Lichtman disputed had occurred. CW-3 also complained that Rosemond had paid for Mr. Lichtman to represent Rosemonds brother, Kesner Rosemond (Kesner) and had secured a good deal for Kesner, whereas Rosemond had supplied CW-3 with the NY Defense Attorney, who had not been able to secure a favorable plea offer for CW-3. CW-3 stated that he was considering getting a new defense attorney. At the conclusion of their conversation, CW-3 believed that Rosemond was willing to provide him with new counsel. Later that day, during a consensually-recorded call with the NY Defense Attorney, CW-1 stated, Honestly, at this point, I'm trying to help a friend [Rosemond] out, I don't even know this n----er like that [referring to CW-3], you understand what I'm saying? CW-1 added, If I were you I'd call Jeff [Lichtman]. CW-1 explained this meant that he had only contacted the NY Defense Attorney as a favor to Rosemond and he had no independent reason to be concerned with the status of CW-3's case because his interactions with CW-3 were extremely limited and that Lichtman would have a better understanding of why Rosemond wanted CW-3 contacted. The government intends to offer this tape into evidence at trial. d. Mr. Lichtmans Prior Representations and Actions as House Counsel to the Rosemond Enterprise

To help prove the existence of the Rosemond Enterprise at trial, the government will establish that Mr. Lichtman served as its house counsel to the Rosemond Enterprise. Mr. Lichtman has represented at least the following Rosemond Enterprise members, as well as Rosemond himself: i. CW-1. Mr. Lichtman represented CW-1 in a prior state criminal case which consisted of handling the arraignment and discussing the case with CW-1. Kesner Rosemond. Mr. Lichtman has appeared as co-defense counsel in this cocaine trafficking case, pending in this District, against Rosemonds brother and co-conspirator, Kesner Rosemond. Kesner Rosemond pled guilty to a charge carrying a 10-year mandatory minimum and is awaiting sentencing. Another attorney currently is acting as lead counsel. Aaron Furgeson. Mr. Lichtman represented this drug trafficking defendant, who was sentenced to 80 months incarceration in this District. Rodney Johnson. Mr. Lichtman represented this defendant on charges of cocaine trafficking in the Southern District of New York. Recently, Mr. Lichtman withdrew from the representation and was replaced by CJA counsel when the government superseded the indictment to add murder charges. Jason Williams. Mr. Lichtman previously represented Jason Williams, a codefendant on the instant indictment, in a prior state firearms-possession case. 5

ii.

iii.

iv.

v.

In addition, it appears that Lichtman has arranged for Williams to be represented in the instant matter by his former associate, Mariel LaSasso. vi. Dennis Graham. Mr. Lichtman previously represented Dennis Graham, a codefendant on the instant indictment, on cocaine trafficking charges in the Southern District of New York. Graham pled guilty and was sentenced to 70 months incarceration. Also, Mr. Lichtman attended Grahams arraignment on the instant indictment, and stated that he and Graham had discussed Mr. Lichtman representing him in this case. Horatio Hamilton. Mr. Lichtman represented Horatio Hamilton, who was convicted of drug trafficking at trial in the Southern District of New York and sentenced to 240 months incarceration. According to a witness, Rosemond paid Mr. Lichtman tens of thousands of dollars in cash to represent Hamilton. Timothy Stackhouse. Mr. Lichtman represented Timothy Stackhouse in a 2004 state drug case. Jonathan Brown. Mr. Lichtman represented Jonathan Brown in a state criminal case.

vii.

viii.

ix.

According to CW-1 and CW-2, the aforementioned criminal cases of Kesner Rosemond, Aaron Ferguson, Rodney Johnson, Dennis Graham, Timothy Stackhouse and Jonathan Brown were all in connection with acts of narcotics trafficking committed at the time the various individuals were members of the Rosemond Enterprise. In addition, in January 2011, Rosemond brought CW-1 to a meeting with Mr. Lichtman where CW-1 was present while Rosemond and Mr. Lichtman discussed the governments investigation. At that meeting, although he was not serving as counsel to CW-1, Mr. Lichtman addressed the governments investigation with respect to CW-1 and the likelihood of CW-1 facing criminal charges. Following the meeting, Mr. Lichtman called CW-1's then counsel in an effort to discuss the matter, and possibly discuss a joint strategy for fighting any potential case brought against CW-1 and Rosemond. 2. Argument a. The Applicable Legal Standard

The Sixth Amendment to the Constitution provides that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense. The accused, however, does not have the absolute right to counsel of his own choosing. See Wheat v. United States, 486 U.S. 153, 159 (1988). As the Supreme Court stated in Wheat:

[w]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. Id. Similarly, although a criminal defendant can waive his Sixth Amendment rights in some circumstances, that right to waiver is not absolute, because [f]ederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Id. The question of disqualification therefore implicates not only the Sixth Amendment right of the accused but also the interests of the courts in preserving the integrity of the process and the governments interests in ensuring a just verdict and a fair trial. See id.; see also United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993). District Courts recognize a presumption in favor of the accuseds chosen counsel, although this presumption can be overcome by a showing of an actual conflict or a serious potential conflict. See Wheat, 486 U.S. at 164; United States ex rel. Stewart v. Kelly, 870 F.2d 854, 856 (2d Cir. 1989). On appeal, the district courts decision to disqualify an attorney will be given substantial latitude and reviewed only for an abuse of discretion. Wheat, 486 U.S. at 163-64. There are many situations in which a District Court can determine that disqualification of counsel is necessary. The most typical is where the District Court finds a potential or actual conflict in the chosen attorneys representation of the accused, for example, because of the counsels prior representation of a witness or co-defendant. See Stewart, 870 F.2d at 856-57. Courts also have found disqualification necessary where the governments proof at trial will include evidence that the attorney served as house counsel to a criminal organization, United States v. Gotti, 771 F.Supp. 552 (E.D.N.Y. 1991), or where the chosen counsel is implicated in other allegations against the accused. United States v. Arrington, 867 F.2d 122, 129 (2d Cir. 1989). 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: (1) where defendants counsel was unlicensed; and (2) where defendants counsel engaged in criminal conduct related to the charges for which the defendant is on trial. See Solina v. United States, 709 F.2d 160, 168-69 (2d Cir. 1983) (unlicensed counsel); United States v. Fulton, 5 F.3d 605, 611-13 (2d Cir. 1993) (defendant could not waive actual conflict where government witness implicated defense counsel in a related crime). The per se rule applies when an attorney is implicated in the crimes of his or her client since, in that event, the attorney cannot be free from fear that a vigorous defense should lead the prosecutor or the trial judge to discover evidence of the attorneys own wrong doing. Fulton, 5 F.3d at 611 (citing Bellamy v. Cogdell, 974 F.2d 302, 307 (2d Cir. 1992)); see also United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984) (attorney implicated in defendants crimes). However, the per se rule does not apply any time a court learns that an attorney may have committed a crime; the attorneys alleged criminal activity must be sufficiently related to the charged crimes to create 7

a real possibility that the attorneys vigorous defense of his client will be compromised. Fulton, 5 F.3d at 611; United States v. Aiello, 900 F.2d 528 (2d Cir. 1990). The reasons for this rule are obvious. If the allegations are true, the attorney may fear that a spirited defense could uncover convincing evidence of his guilt or provoke the government into action against him. See United States v. Cancilla, 725 F.2d 867. Moreover, the attorney is not in a position to give unbiased advice to his client about such matters as whether to testify or to plead guilty and cooperate, since such testimony or cooperation from the client may unearth evidence against the attorney. See id. at 870; see also Fulton, 5 F.3d at 612 (when a government witness makes allegations that he has direct knowledge of wrongdoing [on the attorneys part], there is necessarily a reasonable possibility that the allegations are true since the government thinks well enough of the witnesss credibility that it asks the jury to find the defendant guilty beyond a reasonable doubt based, in part, upon the witnesss testimony.). However, even if the attorney is demonstrably innocent and the government witnesss allegations are plainly false, the defense is impaired because vital cross-examination becomes unavailable to the defendant. Ordinarily, a witnesss blatantly false allegations provide a rich source for cross-examination designed to cast doubt on the witness's credibility. However, when the allegations are against the defendants attorney, this source cannot be tapped because the attorney cannot act both as advocate and witness. See Rule 3.7(a) of the New York Rules of Professional Conduct (NYRPC), previously found in Disciplinary Rule (DR) 5-102(A) of the New York Code of Professional Responsibility. In questioning a witness concerning his allegations against the attorney, the attorney effectively becomes an unsworn witness. See, e.g., United States v. Iorizzo, 786 F.2d 52, 57 (2d Cir. 1986)(trial counsel had actual conflict of interest when he had represented governments key witness in prior case and, therefore, he could not impeach the witnesss credibility with respect to the substance of the prior testimony); United States v. McKeon, 738 F.2d 26, 34-35 (2d Cir. 1984) (counsel properly disqualified under Rule 5-102(A) if witness might testify regarding material conversation with counsel). b. Mr. Lichtman Has Personal Knowledge of the Facts Underlying the Obstruction-of-Justice Charge

Mr. Lichtman has an actual conflict of interest because of his personal knowledge of the facts underlying the obstruction-of-justice charge in Count Thirteen of the indictment. During the weekend of December 19, 2010, Mr. Lichtmans investigator paid two jailhouse visits to CW-3, with Mr. Lichtman joining the second visit. That same weekend, Rosemond used various tactics to try to dissuade CW-3 from cooperating. These tactics included calling CW-3's wife and having CW-1 confront the NY Defense Attorney with proffer notes that Rosemond had wrongfully obtained. Viewed in this context, Mr. Lichtmans and his investigators actions clearly are probative of Rosemonds scheme to prevent CW-3 from cooperating. Indeed, it is reasonable to infer, and the government will argue at trial, that it was Rosemond who sent Mr. Lichtman and his investigator to repeatedly visit CW-3 a represented party over the weekend. These jailhouse visits, like CW-1's confrontation of the NY Defense Attorney and Rosemonds call 8

to CW-3's wife, appear to be part of Rosemonds strategy to stop CW-3 from cooperating. In light of Rosemonds access to CW-3's proffer notes, it is clear that Rosemond already knew that CW-3 was attempting to cooperate with the government and there was little reason to send emissaries on two consecutive weekend days for any reason other than to try to persuade CW-3 not to cooperate or to arrange for new counsel in the hope that CW-3 would change course. While the government does not possess any information that Mr. Lichtman knew of the other actions Rosemond took in furtherance of his scheme, Mr. Lichtmans actions are nevertheless a critical link in the chain of events charged in the obstruction-of-justice count. This case raises the same issues as United States v. Orgad, 132 F. Supp. 2d 107 (E.D.N.Y. Mar. 9, 2001), where the Court disqualified an attorney who was alleged to have been the conduit for the defendant's attempt to influence a witness. Noting that the lawyer was either a potential witness, a potential unsworn witness at trial, or implicated in illegal conduct, the Court found that the interests of the adjudicative process would not permit the attorney to participate in the case. See id. at 121-126. Here, too, there is the potential that Mr. Lichtman could be called by the government as a witness to the obstruction charge. It is also important that here, as in Orgad, Rosemond may believe that Mr. Lichtman has information that would be helpful to disproving the obstruction-of-justice charge. Mr. Lichtman, however, cannot be called as a witness for Rosemond while also acting as his attorney. c. Mr. Lichtman Previously Represented a Cooperating Witness

Mr. Lichtman faces an additional conflict of interest, stemming from his prior representation of CW-1 on a state criminal case. An attorneys prior representation of a government witness presents an inherent conflict of interest. See Locascio, 6 F.3d at 931; Iorizzo, 786 F.2d at 57; Restatement (Third) of the Law Governing Lawyers 121 (2000) (recognizing that a serious problem arises when there is a substantial risk that the lawyers representation of the client would be materially and adversely affected by . . . the lawyers duties to . . . a former client . . . .). This is because a lawyer owes an absolute duty of loyalty and confidentiality to his former client. See United States v. Yannotti, 358 F. Supp. 2d 289, 295 (S.D.N.Y. 2004); United States v. Rahman, 861 F. Supp. 266, 274 (S.D.N.Y. 1994). That duty precludes the lawyer from disclosing matters revealed to him by reason of the confidential relationship, absent release from that duty under the law. See Rahman, 861 F. Supp. at 274; EC 4-6 (The obligation to protect confidences and secrets of a client continues after the termination of employment.). Accordingly, a lawyer cannot use privileged information obtained from his former client during a prior representation that would adversely affect that client in the present proceeding. See United States v. James, 708 F.2d 40, 45-46 (2d Cir. 1983); United States v. Cunningham, 672 F.2d 1064, 1072-73 (2d Cir. 1982). Thus, in representing his current client, a lawyer cannot attack his former client through cross-examination or argument to the jury. See Rahman, 861 F. Supp. at 277; United States v. Massino, 303 F. Supp. 2d 258, 262 (E.D.N.Y. 2003) (Because of [the attorneys] prior representation of [the cooperating witness], [the attorney] cannot ethically 9

cross-examine [the cooperating witness] without his consent.); United States v. Falzone, 766 F. Supp. 1265, 1275 (W.D.N.Y. 1991) (finding it improper for an attorney to cross-examine his prior client because the attorney is in a position to use information gleaned from the prior representation either purposely or inadvertently). Such cross-examination may be essential to the effective representation of his current client. See United States v. Kelly, 870 F.2d 854, 856-57 (2d Cir. 1989) (finding disqualification necessary because the defendants interests would best be served by vigorous cross-examination of the informant in a manner wholly inconsistent with the informants interests a task that defense counsel could not perform without violat[ing] the rights of the informant to expect continued loyalty and confidentiality from his former attorney); United States v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995) (finding that the lawyer was prohibited from seeking to conduct a thorough, no-holds-barred cross-examination . . . because of [the lawyers] obligations as [the witnesss] prior attorney). Here, Mr. Lichtman could be precluded from vigorously cross-examining CW-1, or commenting on his credibility at trial in this case, because Mr. Lichtman previously represented CW-1 and may have learned privileged and highly relevant information regarding CW-1 that could be used to attack his credibility at trial. Mr. Lichtman would be precluded, however, from cross-examining CW-1 or attacking his credibility because of his continuing obligations to CW-1. d. Mr. Lichtman Has Represented Two of Rosemonds Co-Defendants

A further conflict exists because Mr. Lichtman previously represented two of Rosemonds current co-defendants, Jason Williams and Dennis Graham. Mr. Lichtman also appeared in Court at Grahams arraignment on the instant indictment, along with Grahams courtappointed counsel. At that proceeding, Mr. Lichtman informed the Court that he and Graham had met to discuss the case, though Mr. Lichtman did not file a notice of appearance for Graham. In United States v. Levy, 25 F.3d 146 (2d Cir.1994), the Second Circuit reversed a defendant's conviction because one of a number of conflicts was the attorney's prior representation of a co-defendant. The court reasoned that the attorney's continuing obligations to his former client necessarily meant that his interests diverged from his current client especially since [the defendant's] most likely defense was to shift blame to [the former client]. 25 F.3d at 156. The problem identified in Levy is even more acute here, where Mr. Lichtman appears to have had a meeting with Graham about representing him in the instant matter. e. Mr. Lichtmans Actions as House Counsel to the Rosemond Enterprise Will Be Part Of The Governments Proof At Trial

A conflict is also present because Mr. Lichtman served as House counsel to numerous members of the Rosemond Enterprise, evidence of which will be introduced to establish the existence of an enterprise. Gotti, 771 F.Supp. 560-61. In Gotti, an opinion the Second Circuit described as thoughtful and well-reasoned, United States v. Locascio, 6 F.3d at 931, Judge Glasser disqualified John Gottis attorney, Bruce Cutler, partially on the ground that the governments proof at trial would establish that Cutler had acted as house counsel to Gottis criminal organization. 10

Gotti, 771 F.Supp. at 560. As noted, above, Mr. Lichtman has represented many members of the Rosemond Enterprise in connection with their narcotics case at the time they were members of that Enterprise, including Aaron Ferguso, Rodney Johnson, co-defendant Dennis Graham, Timothy Stackhouse, Kesner Rosemond and Jonathan Brown. In addition, in his role as house counsel, Mr. Lichtman met with Rosemond and CW-1 sometime during January 2011 to discuss the instant investigation. At trial, the government must prove the existence of the CCE charged in the superseding indictment. In doing so, any evidence that tends to show common interests, economic relationships or a hierarchical structure is relevant. United States v. Gotti, 9 F.Supp.2d 320, 324 (S.D.N.Y. 1998). This includes evidence of an attorneys multiple representations, as they show a relationship between the members of an organization. See United States v. Simmons, 923 F.2d 934, 949 (2d Cir. 1991) (benefactor payments found probative of prior or present relationship between the benefactor and his beneficiaries; evidence of attorney acting as house counsel admissible at trial); United States v. Barnes, 604 F.2d 121, 147 (2d Cir. 1979) (multiple defendants' decisions to use the same attorney may suggest a conspiracy among them); United States v. Orgad, 132 F.Supp.2d at 124 (holding that acts of attorney were admissible to show relationship between the parties); Gotti, 9 F.Supp.2d at 325; United States v. Castellano, 610 F.Supp. 1151, 1153-60 (S.D.N.Y. 1985) (the decision of a number of persons to retain the same lawyer may be probative of an association among them). Here, Mr. Lichtman representation of numerous members of the Rosemond Enterprise is powerful evidence of (1) the relationship between the members of the Rosemond Enterprise and (2) the Rosemond Enterprises status as an ongoing organization . . . [whose] various associates function[ed] as a continuing unit. United States v. Turkette, 452 U.S. at 583. In addition, Mr. Lichtman arranged for his former associate, Mariel LaSasso, Esq., to represent Williams in the instant matter. As this Court noted in Orgad, arranging for the[] representation [of others] is highly probative evidence of the existence and membership of criminal enterprises. . . . Orgad, 132 F.Supp.2d at 125. Moreover, Mr. Lichtman may posses evidence relevant to the case related to these multiple representations which could aid in Rosemonds defense. See United States ex rel. Stewart v. Kelly, 870 F.2d 854, 856 (2d Cir. 1989). In such situations, ethical codes generally require the attorney-witness to withdraw from his representation. See also Model Code of Professional Responsibility DR 5-102(A)(2000); see also United States v. Kliti, 156 F.3d 150, 156 n.7 (2d Cir. 1998)(If [the defendants] attorney were to be a sworn witness, he should be disqualified as the trial attorney)(citing United States v. Peng, 766 F.2d 82, 87 (2d Cir. 1985), and United States v. Cunningham, 672 F.2d 1064, 1074 (2d Cir. 1982)). As the Second Circuit explained: If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an

11

advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. Cunningham, 672 F.2d at 1074 (quoting American Bar Association Code of Professional Responsibility, Ethical Consideration 5-9); see NYRPC Rule 3.7(a), previously found in DR 5-102(A). Accordingly, Mr. Lichtman suffers from a conflict because the governments proof at trial will establish that he served as house counsel to the Rosemond Enterprise. f. Mr. Lichtman Received A Large Amount of Cash from Rosemond

It is well-settled that unexplained wealth is highly probative evidence of involvement in narcotics trafficking. United States v. Young, 745 F.2d 733, 762-63 (2d Cir.1984) ($67,320 in cash, $236,655 in jewelry, two Mercedes-Benz automobiles, $50,000 in furniture, and a $41,000 swimming pool highly probative of involvement in narcotics trafficking); United States v. Barnes, 604 F.2d 121, 147 (2d Cir. 1979) ($1,380,000 in miscellaneous income by five individuals over three-year period) (citing Carter v. United States, 429 U.S. 98 (1976) (in narcotics prosecution, proper to introduce evidence of large expenditures of cash, as well as evidence of failure to file returns)); United States v. Viserto, 596 F.2d 531, 535-36 (2d Cir. 1979) (proof of substantial cash expenditures by defendants permissible-testimony as to payments to defendants of over $1 million); United States v. Napoli, 173 F.3d 847, 1999 WL 265024, *3 (2d Cir. 1999) (unpublished decision) (in money laundering case, court held [i]t is well settled in this Circuit that unexplained wealth is relevant to create an inference of illicit gain) (citing United States v. Prix, 672 F.2d 1077, 1084 (2d Cir. 1982) (government may introduce evidence of cash purchases coupled with tax evidence tending to show that defendant had no legitimate source of cash)). Here, Mr. Lichtman has accepted over $150,000 in cash from Rosemond, to represent Rosemond and others in criminal matters. Mr. Lichtman filed the appropriate Forms 8300 for this cash. However, because Rosemonds legitimate work in the music industry did not normally involve cash payments, the government will introduce this and other evidence of Rosemonds access to unexplained cash to establish Rosemonds involvement in large-scale cocaine trafficking. Once again, such a showing would again insert Mr. Lichtman as part of the governments proof in this case. g. Mr. Lichtman Would Act as an Unsworn Witness at Trial

Mr. Lichtmans relationship to the events in question would make him an unsworn witness at trial. See McKeon, 738 F. 2d at 34-35. As the Second Circuit has stated: when an attorney is an unsworn witness, the detriment is to the government, since the defendant gains an unfair advantage, and to the court, since the fact-finding process is impaired. Waiver by the

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defendant is ineffective in curing the impropriety in such situations, since he is not the party prejudiced. United States v. Locascio, 6 F.3d at 934; see also Ciak v. United States, 59 F.3d 296, 304-05 (2d Cir. 1995) (Standing alone, becoming an unsworn witness is a basis for disqualification of an attorney.). Mr. Lichtman would be an unsworn witness if he argued that (1) his visit to CW-3 was not part of Rosemonds attempt to prevent CW-3 from cooperating, (2) he did not accept large amounts of cash from Rosemond, or (3) his representation of multiple, key members of the Rosemond Enterprise is not evidence of the existence of an association-in-fact among these people. See Gotti at 562-63 (noting that defense attorneys mere presence at trial could make him an unsworn witness before the jury in explaining his own conduct and interpreting Gottis conversations on the tapes). Further, Mr. Lichtmans prior representation of CW-1 and knowledge of CW-1's role in the Enterprise gathered from the January 2011 meeting with Rosemond and CW-1 allow Mr. Lichtman to hint to the jury that he has information concerning CW-1's credibility to which the jury is not privy. Mr. Lichtman may also be hamstrung by the evidence concerning his own conduct. For example, Mr. Lichtman might reasonably attempt to minimize his visit to CW-3 or his role as house counsel to the Rosemond Enterprise and adopt a strategy involving witness selection and cross-examination that is designed to explain, de-emphasize or disprove these circumstances, not to further Rosemonds interests. The unsworn witness problem cannot be remedied by a waiver from Rosemond. This is because, when the attorneys status as an unsworn witness may inure to the benefit of the defendant, [w]aiver by the defendant is ineffective in curing the impropriety in such situations, since he is not the party prejudiced. Locascio, 6 F.3d at 934. h. Mr. Lichtmans Presence Creates The Appearance Of Impropriety

Apart from the prejudice arising from the described conflicts, the Court is also obligated to weigh the overall appearance of impropriety that such conflicts create. This is true because federal courts have an independent interest in ensuring that criminal trials are conducted within ethical standards of the profession and that the legal proceedings appear fair to all who observe them. Wheat, 486 U.S. at 160. While involuntary disqualification of counsel may prevent an accused from retaining counsel of his choice, courts have the power and duty to disqualify counsel where the public interest in maintaining the integrity of the judicial system outweighs the accuseds constitutional right. In Re Grand Jury Subpoena Upon Doe, 781 F.2d 238, 250-51 (2d Cir. 1985). Thus, a court may refuse to accept waivers from a defendant where the compromise in representation engendered by such waivers would jeopardize the fairness or quality of the trial or lend an appearance of unfairness. United States v. Arrington, 867 F.2d at 129. Thus, the Second 13

Circuit has found that the public has an interest in having trials conducted fairly. James, 708 F.2d at 46; United States v. Orgad, 132 F.Supp.2d at 121 (multiple conflicts of interest, actual and potential, warranted disqualification, despite the defendants waiver, because the number and depth of conflicts posed a great threat to the courts institutional interest in trial integrity). Here, even if one or more of the individual conflicts could be adequately addressed via waivers, the Court must weigh whether the cumulative effect of the myriad conflicts are of such a depth and breadth that the Court has an independent interest in ensuring its institutional integrity by disqualifying Mr. Lichtman, irrespective of whether the defendant wishes to retain Mr. Lichtman as his counsel. Considering the full scope of the conflicts presented here, especially in light of the murkier pre-trial context in which all of the ramifications of Mr. Lichtmans several conflicts may not be seen clearly, Wheat, 486 U.S. at 162-63, the Court's interest in the integrity of the judicial process, id. at 160, may warrant the disqualification of Mr. Lichtman. 3. Conclusion

For all of the foregoing reasons, Mr. Lichtman suffers from numerous actual and potential conflicts of interest which we bring to the Courts attention pursuant to Wheat and its progeny.

Respectfully submitted, LORETTA E. LYNCH United States Attorney By: /S/ Carolyn Pokorny Todd Kaminsky Assistant U.S. Attorneys

cc:

Jeffrey Lichtman, Esq. (Counsel to defendant James Rosemond)(via hand)

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