In United States v. Arrington, 17-4092-cr (October 18, 2019) (Lynch, Lohier, Judge Brian M. Cogan of the United States District Court for the Eastern District of New York, sitting by designation), the Second Circuit vacated Defendant-Appellant Roderick Arrington’s convictions for murder in aid of racketeering and related convictions, and remanded for a new trial, holding that he was not provided with adequate information prior to waiving his attorney’s actual conflict of interest. While defendants should have their counsel of choice, and have the right to waive most conflicts of interest, the defendant needs to have sufficient information and independent advice to make a knowing and intelligent waiver of the right to conflict-free counsel. The Court of Appeals has long policed the boundaries of this issue and Arrington will give courts and counsel further guidance about how to approach these notoriously tricky Sixth Amendment questions.
The Government alleged the Arrington was an enforcer for the “Schuele Boys,” a Buffalo street gang that trafficked narcotics. In August 2012, Arrington murdered Quincy Balance, and attempted to murder Damon Hunter, in retaliation for their putative role in the murder of a Schuele Boys member. He, along with alleged fellow Schuele Boys members Aaron Hicks, Marcel Worthy, and LeTorrance Travis (and others) were subsequently charged with racketeering and narcotics conspiracy-related offenses. Arrington’s charges also included murder in aid of racketeering and murder in aid of a narcotics offense.
In April 2016, Arrington’s trial attorney, Andrew LoTempio, informed the district court that he represented Michael Robertson—mentioned in certain discovery documents in Arrington’s case—in a separate but related matter. The district court assigned Arrington Curcio counsel held a hearing in accordance with United States v. Curcio, 680 F.2d 881 (2d Cir. 1982) and determined that there was no actual conflict of interest. The district court allowed LoTempio to withdraw from his representation of Robertson, and accepted Arrington’s in-court waiver of the right to conflict-free counsel. LoTempio also mentioned at the hearing that he had previously represented co-defendant Hicks, but stated that it was in an unrelated criminal matter, and there was no further discussion of the issue that day.
Then, in September 2017, roughly a week before trial, Hicks filed a motion to disqualify LoTempio on the grounds that the prior representation actually involved overt acts referenced in the indictment. The district court once again appointed Arrington Curcio counsel, and held a hearing. With Arrington present, the district judge explained that divided loyalties could impair LoTempio’s ability to zealously cross-examine Hicks, should he choose to testify. Arrington then left the courtroom to confer with Curcio counsel. While Arrington was out of the courtroom, the discussion regarding the conflict issue continued, and LoTempio, for the first time, suggested severing the trials of Arrington and Hicks as a way of avoiding an actual conflict. The following morning, the Curcio colloquy resumed with Arrington once again present. He waived the conflict, and the proceeding was adjourned. There was, however, no discussion of a possible severance while Arrington was present.
Later that afternoon, the district court continued to hear argument on Hicks’ motion to disqualify LoTempio. It appears as if Arrington was (likely) not present at this portion of the proceedings; the Court of Appeals expressed frustration that whether he was present was not entirely clear from the record. At the hearing, LoTempio once again suggested that severance would eliminate the possibility of a conflict, and offered to proceed with Arrington’s trial first. The district court—over objections from the Government and Hicks—accepted that proposal, and ordered the trial of Worthy and Arrington to proceed first.
Several days later, on the morning of jury selection, Worthy pled guilty, and Arrington was tried alone. His defense focused on disputing that he committed the murder in aid of racketeering or in furtherance of a narcotics offense, rather than on trying to persuade jurors that he had not killed Balance. He was subsequently convicted on eight counts—including murder in aid of racketeering and murder in furtherance of a narcotics offense—and acquitted on four guns and drugs counts.
Shortly thereafter, Hicks was tried. He testified in his own defense, denying the existence of the Schuele Boys enterprise, and asserting that Arrington had not been at the scene of Balance’s murder. Hicks was convicted of a number of counts, but the jury hung on others. He was convicted on the remaining counts upon retrial, during which he did not testify.
The Second Circuit Reverses On Curcio Grounds
On appeal, Arrington challenged the sufficiency of the evidence as to all counts of conviction—again focusing his argument on the alleged lack of evidence that the murder was committed in aid of racketeering and in furtherance of a narcotics offense—and also argued that his waiver of LoTempio’s conflict with respect to Hicks was not knowing and voluntary because he was not privy to the discussion regarding severance. After rejecting his sufficiency arguments, the Court turned to his conflict of interest argument, grounded in his Sixth Amendment right to effective assistance of counsel.
Under well-established Supreme Court and Circuit precedent, a criminal defendant has the constitutional right to representation that is free from conflict of interest. While there are certain conflicts that are so pervasive that a defendant cannot waive them, generally, a criminal defendant may waive conflicts of interest, provided that the waivers are knowing and voluntary. Critically, in order for a waiver to be valid, the defendant must be advised of “the dangers arising from the particular conflict.” It is left to the district court, with assistance from counsel, to advise the defendant about those dangers.
In analyzing the issue, the Court explained that there were two primary sources of conflict: (1) LoTempio’s duty to Hicks, his former client; and (2) Hicks’s refusal to waive LoTempio’s conflict, which led to LoTempio’s insistence on severing the trials, and LoTempio’s offer to have Arrington tried first. The latter conflict, according to the court, was “more serious.” The only way LoTempio could continue to represent Arrington—which was in his own self-interest—was for the trials to be severed. Since severance would surrender the “significant strategic advantage of learning the Government’s evidence with respect to Hicks in advance of or during Arrington’s trial,” LoTempio, the Circuit found, had an actual conflict of interest.
The Circuit, however, disagreed with Arrington that it was an unwaivable conflict, and instead examined whether Arrington’s waiver of the conflict was knowing and voluntary. It ultimately concluded that it was not, as Arrington had not been informed about the severance implications of the waiver prior to making it, including surrendering the advantage of learning the Government’s evidence against Hicks prior to or during his own trial.
After finding that there was an actual conflict that Arrington had not knowingly and voluntarily waived, the Court addressed whether Arrington demonstrated that he had been prejudiced by the actual conflict of interest, entitling him to vacatur of his conviction. In order to show prejudice in the event of an actual conflict, a criminal defendant need only establish that “a lapse in representation resulted from the conflict,” because some “plausible alternative defense strategy or tactic might have been pursued,” but for the conflict of interest. The panel reasoned that Arrington could have benefited from Hicks’s testimony at a joint trial, which satisfied the prejudice requirement, and entitled him to a new trial.
Arrington underscores the importance of thoroughly addressing conflicts of interest on the record and in the presence of the defendant. In order to ensure that a waiver of the Sixth Amendment right is valid, defense counsel should put on the record that the defendant is present, and clearly state all of the practical consequences of any conflict of interest. This did not happen here, and Arrington will receive a new trial with conflict-free counsel.
The biggest risk in this setting may be that none of the parties perceives accurately the dangers that can result from a waiver. Here, the Court gave great weight (appropriately) to the benefit of being tried second, with a preview of the government’s evidence. Indeed, the government’s case may not have been overwhelming. Arrington was acquitted on several counts, and it was only at retrial that Hicks was convicted of the more serious charges against him. From the perspective of the district court, it is difficult to navigate through the Scylla and Charybdis here: automatic disqualification of counsel with a waivable conflict is also a basis for reversal. It is perhaps surprising that there aren’t more Curcio reversals given the complicated nature of the issues involved and the many procedural hurdles that must be cleared for a conflict to be waived.