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explaining that pleading guilty is not a plausible defense strategy where there is no evidence that the defendant is willing to plead
Summary of this case from Armienti v. U.S.Opinion
No. 98 Cr. 974 (MBM).
May 21, 2001
APPEARANCES: MARY JO WHITE, ESQ. United States Attorney for the Southern District of New York JOANNA C. HENDON, ESQ. Assistant U.S. Attorney One St. Andrew's Plaza New York, N.Y. 10007 (212) 637-2417
ROBERT M. SIMELS, ESQ. (Attorney for Defendant) 260 Madison Avenue New York, N.Y. 10016 (212) 679-8700
AMENDED OPINION AND ORDER
Cameron Yost was convicted of conspiracy to commit securities fraud and wire fraud, and to violate the Travel Act in aid of a scheme to commit commercial bribery, and was convicted as well of one substantive count of securities fraud and three of wire fraud, following an 11-day jury trial in December 1999. The charges were based on his participation in a scheme during 1996 to create demand for the stock of Banyan Corporation, a company he controlled, by paying cash bribes to stock brokers who would purchase the stock for their customers. A codefendant, Murray Goldenberg, was convicted at trial of participating in a related scheme to create demand for the stock of First Colonial Ventures, Ltd., a company Goldenberg controlled.
Yost has moved to set aside the guilty verdict, and for a new trial, on the principal ground that one of his two lawyers, Roger Fidler, rendered ineffective assistance due to a conflict of interest between Yost and Paul Syracuse, allegedly another of Fidler's clients. Yost has argued that the government was aware of the conflict and failed to disclose it to the court. Yost noted as well, in his initial reply papers, that since the trial, Fidler was indicted in this district for securities fraud, also involving a broker bribery scheme (Simels 9/8/00 Aff. ¶ 2), and suggested without actually arguing so explicitly that the investigation and subsequent indictment of Fidler also gave rise to a conflict of interest. After I issued an initial opinion denying Yost's motion, he moved for reargument, and an evidentiary hearing was held on January 17, 2001, to determine why it was that Syracuse did not testify at Yost's trial, and when it was that Fidler became aware he was under investigation by the U.S. Attorney's Office. The scope of Syracuse's proffered testimony was also established at the hearing, in part through Syracuse's own testimony, and in part through an affidavit Syracuse swore to at the hearing. (1/17/01 Yost Ex. B; 1/17/01 Tr. 16-18, 22) This amended opinion treats the issues covered in the earlier opinion, which it supersedes, and also those raised at the hearing.
Fidler since has been acquitted.
For reasons explained below, Yost's motion is denied.
I.
The legal principles that control here are not complex. However, it is useful to review them at the outset before stating the underlying facts, because Yost's presentation included many factual assertions that are only marginally relevant to the issue of whether Fidler labored under a conflict of interest that requires setting aside the conviction.
"A claim that counsel is conflicted is in essence a claim of ineffective assistance of counsel." United States v. Stantini, 85 F.3d 9, 15 (2d Cir. 1996) (citation omitted) Although a defendant generally must show prejudice in order to prevail on a claim of ineffective assistance of counsel, "when counsel is burdened with an actual, as opposed to a potential, conflict of interest, a `fairly rigid' presumption of prejudice applies." Id. (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)). However, that presumption controls "only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)). When the claim of conflict arises from multiple representation, "an attorney has an actual, as opposed to a potential, conflict of interest when `during the course of the representation, the [represented parties'] interests . . . diverge with respect to a material factual or legal issue or to a course of action.'"United States v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993) (quoting Cuyler, 446 U.S. at 356 n. 3)
The adverse effect on counsel's performance that must be shown when an actual conflict exists is a "`lapse of representation'" resulting from the conflict. United States v. Iorizzo, 786 F.2d 52, 58 (2d Cir. 1986) (quoting Cuyler, 446 U.S. at 349). To prove such a lapse, the moving party must prove "that some plausible alternative defense strategy or tactic might have been pursued" and was not, and that "the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 1993) (quoting and adopting the standard in United States v. Gambino, 864 F.2d 1064, 1071 (3d Cir. 1988)).
On the other hand, if the conflict is only potential and not actual, the defendant must prove actual prejudice rather than merely adverse effect. A showing of actual prejudice requires that a defendant demonstrate that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Fulton, supra, 5 F.3d at 609.
II.
In this case, it is also important to distinguish even the relevant factual contentions Yost has advanced in support of his motion, from the facts as disclosed by the record, including the facts proved at trial and those contained in affidavits submitted to the court and facts developed at the January 17 hearing. The two categories are not congruent.
Yost contends that Fidler actively represented him and Syracuse at the same time, in 1998 and 1999, although there was no indication in Syracuse's affidavit as to the nature of the representation other than that Syracuse "requested and obtained legal advice from Mr. Fidler with respect to matters under investigation by the United States Attorney's Office including the request of [Assistant U.S. Attorney] Patrick Smith for an interview." (Syracuse Aff. ¶¶ 2, 3; Yost Aff. ¶ 2) Syracuse's testimony at the hearing was not more illuminating. He stated only that Fidler represented him in some unspecified way and for some unspecified purpose in 1998 and 1999. (1/17/01 Tr. 11)
Yost asserts that Fidler had an actual rather than a potential conflict stemming from "Syracuse's involvement with the defendants." (Yost Mem. p. 8) According to Yost, Syracuse's "involvement" was testified to at trial by a cooperating codefendant, Clyde Feyrer, and consisted of Syracuse's participation, while at a firm called Churchill Securities, in bribing brokers to sell both Banyan stock, in aid of the scheme designed to benefit Yost, and First Colonial stock, in aid of the scheme designed to benefit codefendant Murray Goldenberg. He argues that this evidence was "significant to establishing Yost's guilt." (Yost Mem. pp. 2-3)
Yost's presents the following scenario of how Syracuse's "involvement" as described above, coupled with Fidler's representation of both Syracuse and Yost, led to a conflict that hurt Yost: Syracuse had information that would exculpate Yost, and wished to testify in Yost's behalf. Fidler led Yost to believe that he could present Syracuse as a witness who, along with other witnesses, would exculpate Yost, and induced Yost to go to trial rather than pleading guilty and perhaps seeking to cooperate with the government. After the trial commenced in December 1999, Syracuse contacted Smith at the U.S. Attorney's office through another lawyer, Thomas Sjoblom of Philadelphia, to notify the government that he was considering testifying in behalf of Yost. Smith told Sjoblom that if Syracuse testified for Yost, the government would seek to prosecute Syracuse for his activities. Syracuse then had no choice but to say that if called he would assert his Fifth Amendment rights, and thereby make himself unavailable as a defense witness. Fidler, because of his conflicting loyalties, did not explore the possibility of asking the court to confer immunity on Syracuse so that he could be compelled to testify. Yost relied on the availability of Syracuse's testimony as the keystone of a defense that never materialized at trial, and did not pursue the possibility of pleading guilty and seeking to cooperate. As a result of Syracuse's unavailability, the whole structure of the defense case collapsed, and Yost neither testified nor called any other witnesses.
The scenario depicted in the above paragraph is in the nature of a composite sketch, based on assertions in Yost's memorandum, a letter to Simels from Fidler — to which Fidler swore in summary fashion at the hearing (1/17/01 Tr. 7), and the affidavits of Yost, Syracuse and Simels, as well as the testimony of Fidler and Syracuse at the hearing. To be sure, certain of those cannot serve as sources of fact. Assertions in memoranda are not evidence and cannot substitute for evidence. See Department of Economic Devel. v. Arthur Andersen Co., 924 F. Supp. 449, 471 (S.D.N.Y. 1996). Simels was not a direct participant in the events that relate to whether Fidler had a conflict of interest. Simels' initial affidavit consists principally, if not exclusively, of descriptions of what he was told by Fidler, Syracuse and Yost. Which is to say, on the issue of whether Fidler had a conflict of interest, Simels reports only hearsay, which is not admissible. Fed.R.Evid. 802. Simels' reply affidavit is no more weighty. Other than argument, it consists simply of a report that Fidler was overheard saying that Yost was convicted because a government threat deprived him of a defense (Simels 9/8/00 Aff. ¶ 3), and numerous sub-paragraphs reciting what Syracuse allegedly told Simels he would have testified to had he been called (Id. ¶ 12 (a)-(v)). Yost's affidavit as well, to the extent it deals with the nature of Fidler's relationship with Syracuse, what Sjoblom — the lawyer who contacted Smith at the U.S. Attorney's Office on Syracuse's behalf — was told by Smith, and what potential defense witnesses, including Syracuse, would have said, simply recounts statements by Fidler to Yost, offered for the truth of those statements. Which is to say, as to the relevant issues, Yost's affidavit simply reports hearsay. On one issue as to which Yost could have provided first-hand evidence — his willingness to have pleaded guilty and offered cooperation — Yost's affidavit is loudly silent.
Fidler's letter, belatedly sworn to at the hearing, consists of a rambling and contradictory account of his interactions with Smith, unelaborated assertions that Syracuse would have contradicted Feyrer on "several key points" (Simels 6/13/00 Aff. Ex. B, p. 1), inadmissible hearsay accounts of what Smith told Sjoblom, and Fidler's alleged advice to Yost that the loss of Syracuse's testimony meant that Yost could not put on a defense case. (Id. at p. 2) This letter, even sworn to, is useless in resolving the issues on this motion.
That leaves the testimony of Fidler and Syracuse at the hearing, and two affidavits from Syracuse, one of which he had sworn to before the hearing and one of which he adopted under oath at the hearing. (Yost Ex. A, B; 1/17/01 Tr. 20, 22) That testimony and those affidavits added little to, and in some instances contradicted, what had been in the papers submitted earlier.
Syracuse testified that he gave unspecified "information" to Fidler about Feyrer (1/17/01 Tr. 16), that he thought this "information . . . exculpated Cameron Yost" (id. at 17), that he heard that Smith had told Sjoblom "that if I went in [to testify] . . . there may be some credibility issues that will come up, and they will have to take my credibility down" (id. at 18), and that he then decided, "[i]f I would be subpoenaed I would assert the Fifth Amendment, right, wrong or indifferent." (Id.) Syracuse tried at the hearing to deny that he had invoked his Fifth Amendment rights to avoid incriminating himself (1/17/01 Tr. 29-30) — the only permissible purpose of such an invocation, see United States v. Zappola, 646 F.2d 48, 53 (2d Cir. 1981) (witness's "invocation of the privilege actually was based improperly on fear for his personal safety") — and suggested that he had done so because he feared for his safety due to disclosures he would make about someone connected with organized crime (id., and id. at 38) and that he did not really understand the purpose of the Fifth Amendment (id. at 29). However, despite his claim that he feared to mention a person with alleged organized crime connections, he then went on to mention precisely the name he said he had feared mentioning (id. at 30), and under pressure of cross-examination reluctantly confirmed the plain sense of his initial affidavit — that he had invoked his Fifth Amendment rights after he heard that the government might "come after" him. (Yost Ex. A ¶ 10; 1/17/01 Tr. 34-36)
On direct, Syracuse's testimony about what he would have testified to had he been called as a witness at Yost's trial and not invoked his Fifth Amendment rights was downright extravagant:
Q. [D]id there come a time when you read what Mr. Feyrer had testified to in the proceedings?
A. Yes, I did.
Q. Did you have a reaction to his testimony?
A. I was extremely upset with some of the statements made because I had documentation with his signature on it in writing and on tapes that counteracted everything he said, about 90 percent of what he said.
(1/17/01 Tr. 16) He testified also that he had given Fidler relevant tape recordings. (Id. at 13-14) On cross-examination, the scope of Syracuse's purported knowledge of Feyrer's trial testimony shrank dramatically:
Q. Mr. Syracuse, how many days of Mr. Feyrer's testimony did you review?
A. Probably around 11 pages, eight pages. Somewhere around there.
THE COURT: Eight or 11 pages?
THE WITNESS: It was eight or 11 pages.
THE COURT: Single pages of transcript?
THE WITNESS: Correct.
(1/17/01 Tr. 24) The subject matter of these pages concerned only the relationship among Feyrer, Syracuse, Churchill Securities — the firm where Syracuse was employed at the time he allegedly bribed brokers to sell Banyan stock — and Banyan. (Id. at 28)
As to the tape recordings, Syracuse acknowledged that although he had had tape recordings that contained the voice of Yost's codefendant, Goldenberg, he had no recordings that contained the voice of either Feyrer or Richard Wolff, two witnesses who offered trial testimony that directly incriminated Yost.
The affidavit to which Syracuse swore at the hearing id. at 21-22) — Yost Exhibit B — contained only one paragraph that related anything he could have testified to at trial — paragraph 11. The remaining paragraphs contained information that was entirely irrelevant (e.g., Yost Ex. B, ¶¶ 2-7, 13-22, treating Syracuse's interaction with Assistant U.S. Attorney Patrick Smith and his own attorneys), that was beyond Syracuse's competence as a witness and contained inadmissible hearsay (e.g., Yost Ex. B ¶¶ 8, 12, treating what Syracuse thought Yost did not know and what Syracuse heard from or said to others, cf., Hester v. BIC Corp., 225 F.3d 178, 184-85 (2d Cir. 2000) (barring lay opinion testimony in employment discrimination action that amounts to "naked speculation concerning . . . motivation")), or collateral to the issues being tried (e.g., Yost Ex. B ¶ 10, treating Feyrer's relationship with Churchill Securities).
Paragraph 11, the only relevant one, simply contradicted Feyrer on the subject of whether broker bribery had been discussed at a meeting in Florida in the fall of 1996. Syracuse conceded he had not been present at a Las Vegas meeting in January 1996 where, according to trial testimony by Feyrer, the broker bribery scheme was hatched, nor did he know Jeffrey Sanders, who testified at trial to the broker bribery scheme involving Banyan. (1/17/01 Tr. 28)
At the hearing, Fidler flatly denied the suggestion in Yost's earlier papers that Fidler's own legal predicament had any effect on his representation of Yost. He testified that he had been unaware throughout the trial that he was under investigation and became aware of it at the earliest in April 2000 (1/17/01 Tr. 7-8); Yost's trial ended in December 1999.
Not only is there no evidence to support Yost's scenario about the suppression of material testimony as the result of Fidler's purported conflict (see pp. 5-6, supra), but also the facts of record are inconsistent with it. First, Yost distorts the significance of the trial testimony about Syracuse, which was peripheral to the testimony about Yost himself. The principal evidence against Yost consisted of the testimony of two witnesses, Richard Wolff and Clyde Feyrer, backed by extensive documentary evidence. Both men testified to a meeting at the Caesar's Palace hotel in Las Vegas, attended by them, by Yost and codefendant Murray Goldenberg, and by Scott Symons. The conferees discussed a scheme for bribing brokers to buy stock in corporations controlled by Yost and Goldenberg, for the accounts of their clients. In particular, Wolff and Symons suggested that they be given free stock so that they could use it to pay brokers employed at their firm, Symons Financial Group. In return, the brokers would buy stock in the companies involved — First Colonial Ventures, Ltd. in the case of Goldenberg, and Banyan Corporation in the case of Yost — for the accounts of their clients.
Wolff testified about both the meeting at Caesar's Palace (Tr. 125-29), and eventual payments to Symons brokers to sell Banyan stock (Tr. 203-07), and also about an agreement with Yost for an option to buy Banyan stock at $.10 per share as a way to funnel money to a market maker to hold the price on Banyan stock (Tr. 217-20). Even Yost has not suggested any impact that Syracuse's testimony would have had on Wolff's evidence.
Further, to the extent that the government elicited testimony from Feyrer on direct examination about dealings with Syracuse in the stock of Banyan, or First Colonial, that testimony contained no suggestion that either Yost (in the case of Banyan) or Goldenberg (in the case of First Colonial) was aware of those dealings. Thus, Feyrer testified to having deposited Banyan and First Colonial shares in accounts at Churchill Securities in order to raise the firm's net capital, as part of a plan to purchase the firm, with no suggestion that he was acting on anyone's behalf but his own (Tr. 699-704), although he thought he may have mentioned his plan to Yost (Tr. 699). Then, he and Syracuse sold First Colonial stock from those accounts without telling Goldenberg (Tr. 732-33). Further, although Feyrer testified that he and Syracuse bribed brokers at another firm, Hemisphere Securities, to buy First Colonial and Banyan stock, he said specifically that he could not recall whether he had disclosed that bribery to Yost. (Tr. 729) The government did not elicit any statements attributed to Syracuse that could be regarded as evidence against either Yost or Goldenberg.
On cross-examination, Feyrer testified further about his and Syracuse's efforts to bribe brokers at Hemisphere to promote Banyan stock (Tr. 841-42), as well as transfers by Feyrer and Syracuse of Banyan stock first to Churchill — with Yost's knowledge (Tr. 983-85) — and thence to Symons, with eventual return of the stock to Banyan (Tr. 983-85; 1020-26).
Feyrer testified as well to his and Yost's efforts in October 1996 to retrieve a block of Banyan stock from someone who had promised to retail it but had not, and to arrange terms for paying Symons brokers to retail the stock. Both efforts were unsuccessful, and Yost eventually wrote to Feyrer asking that he stop telling people he was authorized to speak in behalf of Banyan. (Tr. 734-48; GX 137)
From the above facts, it appears that Syracuse's role in the underlying events, as portrayed at trial, was peripheral, that Syracuse could not have offered any testimony to undercut Wolff's incriminating account of his dealings with Yost and the brokers at Symons Financial, and that it was defense counsel (Simels, not Fidler) who elicited Feyrer's testimony about efforts to bribe brokers at Hemisphere in order to promote Banyan stock.
Although Yost's papers make repeated reference to an alleged threat by Smith if Syracuse testified as a defense witness, and although Syracuse hinted at the same thing at the hearing — ranging from the relatively mild suggestion that Smith said it would not be in Syracuse's "best interest" to testify e.g., Yost Mem. p. 4), to the statement that Smith would "have to attempt to take [Syracuse's} credibility down" if he testified (1/17/01 Tr. 18), to the harsher suggestion that Smith had "warned" Syracuse not to testify in Yost's behalf (Yost Aff. ¶ 14), to the explicit assertion in Syracuse's affidavit that "Mr. Smith had indicated that if I showed up at trial on Mr. Yost's behalf I would be sorry because the government would come after me, whereas if I stayed away Mr. Smith would not bother me" (Yost Ex. A ¶ 10) — all those references report merely what others understood Smith had said to Sjoblom, Syracuse's attorney in Philadelphia. At best, they are statements of what Sjoblom told others Smith had said, which Yost now offers to prove that Smith in fact said what is attributed to him. Which is to say, they are hearsay, and inadmissible. Fed.R.Evid. 802. Notably, there is no affidavit from Sjoblom. The only evidence, properly speaking, of any conversation Smith had with Sjoblom is Smith's affidavit. Smith avers that in December 1999, Sjoblom called and told Smith that he represented Syracuse and that Syracuse had been contacted by the defense about giving testimony. According to Smith, Sjoblom wanted to know "about the case and how Syracuse fit in," presumably so that Sjoblom could advise Syracuse about the risks of testifying. (Smith Aff. ¶ 8) Based on Smith's awareness of Syracuse's activities in connection with this case, and another investigation Smith had been pursuing, Smith told Sjoblom that he "did not think that Syracuse could give truthful testimony and not incriminate himself." (Id.)
Finally, although Yost suggests that the indictment of Fidler in this district after Yost's trial concluded provided an additional source for conflict, there is no evidence that Fidler was aware at any time before the trial concluded that he was under suspicion or investigation by the U.S. Attorney's Office, or any other agency. Again, Fidler himself explicitly denied at the hearing that he had been so aware before the trial ended.
III.
Applying the legal principles set forth in section I above to the facts, as opposed to the assertions, set forth in section II, yields the following conclusions. First, it is not entirely clear that Fidler provided "active" representation to Syracuse, Strickland v. Washington, 466 U.S. 668, 692 (1984). as would be required to trigger a claim of conflict of interest. The evidence on that subject consists of Syracuse's statement that he "requested and obtained advice from Mr. Fidler with respect to matters under investigation by the United States Attorney's Office" (Syracuse Aff. ¶ 3), with no specification of what those "matters" were, Fidler's perfunctory statements that Syracuse was a client of his (Simels 6/13/00 Aff. Ex. B, p. 1; 1/17/01 Tr. 3) and Smith's statement that Fidler at one point offered to bring Syracuse in for an interview. (Smith Aff. ¶ 7)
Assuming without deciding that on this record Fidler could be found to have provided active representation to Syracuse, and there being no doubt that he provided active representation to Yost, the next issue is whether there was a conflict — i.e., whether Syracuse and Yost had interests that diverged "`with respect to a material factual or legal issue or to a course of action.'" United States v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993) (quoting Cuyler, 446 U.S. at 356 n. 3). Yost's papers do not so much argue as assume this conflict, and so I am left to my own resources to find it. On this record, there is no legal or factual issue apparent to me on which Yost and Syracuse had interests that diverged, let alone a "material" one. A "material" legal or factual issue is one that, if resolved in Yost's favor, would have enabled Yost "significantly to alter the quantum of proof in his favor." United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991) (discussing materiality as it relates to the requirement in Fed.R.Crim.P. 16 that the government disclose information "material to the preparation of the defendant's defense"). However, their interests apparently did diverge with respect to a "course of action" — Syracuse should testify — and Fulton places no requirement of materiality on a divergence with respect to a "course of action."
Assuming that Fidler provided active representation to Syracuse, and because he also provided active representation to Yost, and the interests of the two men diverged on the subject of whether Syracuse should testify as a defense witness even without immunity, it becomes necessary to determine whether a "`lapse of representation'" resulted from the conflict. United States v. Iorizzo, 786 F.2d 52, 58 (2d Cir. 1986) (quoting Cuyler, 446 U.S. at 349). Here, Yost is required to show both that "some plausible alternative defense strategy or tactic might have been pursued" and was not, and that "the alternative defense was inherently in conflict with or not undertaken due to [Fidler's] other loyalties or interests." Winkler v. Keane, 7 F.3d 304 309 (2d Cir. 1993). Yost has suggested two alternative strategies or tactics — pleading guilty and seeking to cooperate, and compelling immunity for Syracuse. Even assuming that a guilty plea could be characterized as a "defense strategy or tactic," it would seem a prerequisite to the plausibility of such a strategy or tactic that Yost was willing to plead guilty. However, there is no evidence in the record that pleading guilty and seeking to cooperate was ever an option for Yost because Yost does not aver that he was willing to do that, let alone what information he could have provided and how he could have prevailed on the government to accept his cooperation.
The alternative "defense strategy or tactic" of seeking immunity for Syracuse is obliquely suggested in Yost's affidavit when he refers to the possibility of compelling Syracuse's testimony. (Yost Aff. ¶ 14) Only in exceptional circumstances can a defendant compel the government to grant immunity to a defense witness, and there has been no showing that those circumstances exist here.
We apply a three-part test for determining whether there are exceptional circumstances warranting a directive that the government grant immunity to a defense witness. [citations omitted] First, the district court must find that the government, through its own overreaching, has forced the witness to invoke the Fifth Amendment or, that the government has engaged in discriminatory use of grants of immunity to gain a tactical advantage; second, the witness' testimony must be material, exculpatory and not cumulative; and third, the defendant has no other source to obtain the evidence.United States v. Diaz, 176 F.3d 52, 115 (2d Cir. 1999). As set forth below, the facts here do not meet any part of that test.
First, there is no evidence of overreaching. Despite Yost's repeated suggestions of impropriety, the only evidence of what Smith, the Assistant U.S. Attorney, told Sjoblom, Syracuse's Philadelphia attorney, is that Smith, based on his awareness of Syracuse's involvement in this and other matters, could not see how Syracuse could testify truthfully without incriminating himself. (Smith Aff. ¶ 7) That is not overreaching.
Second, there has been no showing that Syracuse could have offered evidence that would have enabled Yost "significantly to alter the quantum of proof in his favor." Maniktala, 934 F.2d at 28. On this question, the only evidence is Syracuse's claim that he would have denied there was a discussion of broker bribery at one meeting in Florida in the fall of 1996, his vague avowal that he would have contradicted Feyrer's testimony about Syracuse himself as to collateral matters, and his assertion that he could have given what sounds like inadmissible speculation about what Yost knew based on his perception of Yost's reaction to Feyrer's activities. (See pp. 10-11, supra) That is not material evidence. Even crediting Syracuse's proffered testimony, it relates only to a minor portion of Feyrer's testimony; it does not relate at all to Wolff's highly incriminating testimony. See p. 9, supra.
Third, there has been no showing that such evidence was unavailable from any other source, including most obviously from Yost himself.
Even if one were to assume arguendo that there was some tactic or strategy that would have been open to Yost and that in some way depended upon or related to Syracuse, there has been no showing that that tactic or strategy became unavailable to Yost because of Fidler's conflict of interest, assuming that the conflict existed. Yost has not even averred that he was willing to plead guilty, let alone that he could have proffered valuable information in aid of cooperation. Syracuse's unavailability as a witness did not result from any joint representation by Fidler with a resulting conflict. It resulted from (i) Syracuse's apparent involvement in the underlying facts, an involvement that did not come about as the result of anything Fidler did or neglected to do, but only as the result of Syracuse's own conduct, and (ii) Syracuse's resulting decision to invoke his Fifth Amendment rights, a decision that also did not stem from anything Fidler did or failed to do.
Finally, Yost has cited Fidler's post-trial indictment in this district and suggested that it provides a source for a conflict of interest. He does not articulate how such a conflict would arise, and the only basis for conflict that occurs to me would require that Fidler have been aware before or during Yost's trial that he was under investigation. Arguably, such awareness would create an incentive for Fidler to ingratiate himself with his pursuers by being less aggressive in his defense of Yost than he might otherwise have been. However, this argument too fails for want of evidence — here, evidence that Fidler actually was aware during or before Yost's trial that he was under investigation in this district. As noted above, at the hearing Fidler flatly denied having any inkling he was under investigation until April 2000 (see p. 11, supra), which was four months after Yost's trial ended. Fidler could not have been influenced by something he was not aware of.
As appears above, Yost has failed to show that a purported actual conflict caused a lapse of representation, as that concept is known to the law. It follows that even if one assumes there was a potential conflict in Fidler's representation of Yost and Syracuse, there has been no showing that Yost suffered actual prejudice as a result, such that the outcome of the trial would have been different but for this potential conflict. See Fulton, 5 F.3d at 609.
* * *
For the above reasons, Yost has failed to establish that Fidler was laboring under an actual or a potential conflict of interest that justifies setting aside the jury verdict. Accordingly, his motion is denied.
SO ORDERED: