time for the defendant to make a decision, and (6) determines, preferably by
- Issuer
- Department of Justice
- Document type
- Motion
- Date
- 2023-01-04
- Case
- United States v. Rafael Martinez, 22 Cr. 251 (LJL)
Summary
A letter from the U.S. Attorney's Office for the Southern District of New York to Judge Lewis J. Liman, dated January 4, 2023 and filed as Document 44 in United States v. Rafael Martinez, No. 1:22-cr-00251-LJL. The letter states that Steven Bellew, an associate at Willkie Farr & Gallagher LLP assisting defense counsel, has applied for a position as an Assistant United States Attorney in that district. Citing United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), the Government asks the Court to hold a hearing to advise the defendant of his right to conflict-free counsel and confirm he wishes to proceed with current representation. An enclosure sets out the Government's proposed Curcio hearing questions, covering the circumstances of representation, discussions with counsel, the opportunity to consult other counsel and waiver. The document is 5 pages.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“time for the defendant to make a decision, and (6) determines, preferably by.”
Department of Justice, dated 2023-01-04. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2023-01-04-united-states-v-rafael-martinez-22-cr-251-ljl/
, SHA-256 9e0b84fb94709ba3e9415c7c199269608a323b160158f2ea2caae083b7d15460.Full text
Case 1:22-cr-00251-LJL Document 44 Filed 01/04/23 Page 1 of 5
U.S. Department of Justice
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007
January 4, 2023
BY ECF
The Honorable Lewis J. Liman
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: United States v. Rafael Martinez, 22 Cr. 251 (LJL)
Dear Judge Liman:
The defendant in the above-captioned action is represented by Elkan Abramowitz,
Telemachus Kasulis, and Russell Feldman of the law firm Morvillo, Abramowitz, Grand, Iason &
Anello PC (“Morvillo, Abramowitz”), and by Michael Schachter and Randall Jackson of the law
firm Willkie Farr & Gallagher LLP (“Willkie Farr”). Mr. Schachter and Mr. Jackson are assisted
by Steven Bellew, an associate at Willkie Farr. Mr. Bellew has notified the Government that he
has applied for a position as an Assistant United States Attorney in the Southern District of New
York. As a result of Mr. Bellew’s application, and the potential conflict of interest that it presents,
the Government respectfully requests that the Court hold a hearing pursuant to United States v.
Curcio, 680 F.2d 881 (2d Cir. 1982), both to advise the defendant of his right to a counsel with no
such potential conflict and to confirm on the record that the defendant is prepared to go forward
with his current representation.
The Second Circuit has set forth the requirements for a Curcio procedure in detail:
At such a hearing, the trial court (1) advises the defendant of his right to
representation by an attorney who has no conflict of interest, (2) instructs
the defendant as to the dangers arising from particular conflicts, (3) permits
the defendant to confer with his chosen counsel, (4) encourages the
defendant to seek advice from independent counsel, (5) allows a reasonable
time for the defendant to make a decision, and (6) determines, preferably by
means of questions that are likely to be answered in narrative form, whether
the defendant understands the risk of representation by his present counsel
and freely chooses to run them.
United States v. Perez, 325 F.3d 115, 119 (2d Cir. 2003).
The parties are next scheduled to appear before the Court in this matter on January 17,
2022 at 10 a.m. The Government respectfully requests that the Court hold a Curcio hearing at that
Case 1:22-cr-00251-LJL Document 44 Filed 01/04/23 Page 2 of 5
time, or, alternatively, on another date that is convenient for the Court. A proposed set of questions
to be posed at the Curcio hearing is attached for the Court’s consideration.
Respectfully submitted,
By:
Katherine Reilly
Micah Fergenson
Assistant United States Attorneys
212-637-6521/2190
cc: Counsel of Record (by ECF)
Enclosure
Case 1:22-cr-00251-LJL Document 44 Filed 01/04/23 Page 3 of 5
The Government’s Proposed Curcio Hearing Questions
The Government respectfully requests the Court to include the following questions in its
examination of Rafael Martinez, the defendant, pursuant to the procedures outlined in United
States v. Curcio, 680 F.2d 881 (2d Cir. 1982). In addition, the Government respectfully requests
that the Court address Mr. Martinez personally, seek to elicit narrative answers from Mr. Martinez,
and give Mr. Martinez an opportunity to consider the Court’s advice and review it with
independent counsel prior to accepting a waiver, pursuant to United States v. Rodriguez, 968 F.2d
130, 138-39 (2d Cir. 1992).
Introductory Questions
1. How old are you?
2. How far did you go in school?
3. Do you currently consult a doctor for any condition?
4. Are you currently under the influence of alcohol or drugs of any kind?
5. Are you feeling well enough to proceed with this hearing today?
Circumstances of Representation
6. Are you currently represented by, among other attorneys, Michael Schacter,
Randall Jackson, and Steven Bellew of the law firm Willkie Farr & Gallagher LLP?
7. Are the attorneys from Willkie Farr & Gallagher LLP retained or appointed
counsel?
9. Do you know that Mr. Bellew has applied for a position with the United States
Attorney’s Office for the Southern District of New York — that is, the Office that is currently
prosecuting you?
10. Because of Mr. Bellew’s pending application for employment with the United
States Attorney’s Office for the Southern District of New York, I wish to advise you of certain
matters. You should understand that under the United States Constitution and the laws of this
country, you are entitled to the aid and assistance of counsel at all times in these proceedings. You
are entitled to counsel of your own choice unless there is a strong legal reason for disqualifying
that counsel. If you cannot afford an attorney, as you have already indicated, an attorney will be
appointed to represent you without cost. Do you understand?
11. It is essential to the idea of an adequate defense in a criminal proceeding that your
attorney have no conflicts or adverse interests of any kind. That is to say, he cannot, unless it is
with your knowledge and consent, have any conflicting interest in the case. You have the right to
the assistance of a lawyer whose loyalty to you is undivided and not subject to any factor that
might intrude upon that loyalty. The purpose of this law is to ensure that you have the full devoted
Case 1:22-cr-00251-LJL Document 44 Filed 01/04/23 Page 4 of 5
defense furnished to you by an attorney who has no other possible interest of any kind in this
matter. Do you understand that?
12. This Court — having presided as the judge in many trials in this courthouse —
believes that representation where there is a potential conflict of interest, may be ill-advised. Do
you understand that?
13. Do you understand that Mr. Bellew’s application for employment with the United
States Attorney’s Office for the Southern District of New York, as a prosecutor, creates the
potential that he may have allegiances to interests that may be adverse to your own interests?
14. Do you understand that, by deciding to proceed with Mr. Schachter, Mr. Jackson,
and Mr. Bellew as part of your defense team, you are waiving any argument after your sentencing
that they were ineffective or deficient in their representation of you, because Mr. Bellew suffered
from a conflict of interest by virtue of his application for a position with the U.S. Attorney’s
Office?
Discussions With Counsel Re: Potential Conflicts
15. Have you discussed these conflict-of-interest matters with Mr. Schachter, Mr.
Jackson, and Mr. Bellew?
16. Are you satisfied with their representation of you?
Defendant’s Narrative of Potential Conflicts and Rights
17. I want you to please describe for me, in your own words, your understanding of the
conflict of interest that potentially arises from Mr. Bellew’s representation of you while pursuing
his application for a position with the United States Attorney’s Office as a federal prosecutor.
Opportunity to Seek Advice of Other Counsel
18. Do you understand that you have a right to consult with a lawyer other than Mr.
Schachter, Mr. Jackson, and Mr. Bellew in order to determine whether you wish Willkie Farr to
represent you?
19. Do you understand that the Court will give you an opportunity to do so and that the
Court encourages you to do so?
20. Do you understand that if you cannot afford other counsel, the Court will appoint
counsel to consult with you regarding these conflict of interest matters? Such an attorney will not
be connected with Willkie Farr or the Government at all. Anything you tell that attorney will be a
secret between you and the attorney. The attorney cannot tell Mr. Schachter, Mr. Jackson, or Mr.
Bellew, me, or the Government’s attorneys about your discussions with him or her. Do you
understand that?
Case 1:22-cr-00251-LJL Document 44 Filed 01/04/23 Page 5 of 5
Questions to the Defense Attorneys
21. Mr. Schachter, Mr. Jackson, and Mr. Bellew, have you discussed the potential
conflicts of interest with Mr. Martinez?
22. And do you feel that he understands the possible risks of being represented by a
lawyer with potential conflicts of interest?
23. If you wish, Mr. Martinez, I will give you several days to consult with another
attorney about these conflict of interest matters. You should think about the possibilities that I
have told you about. You may talk it over with attorneys other than Mr. Schachter, Mr. Jackson,
and Mr. Bellew. After you’ve thought it all over, I will ask you whether you have considered the
matters I have talked about, whether you want than Mr. Schachter, Mr. Jackson, and Mr. Bellew
to continue to represent you, and whether you want to waive your right to counsel who is not
laboring under any potential conflicts of interest. I will also ask you whether you are willing to
waive your rights to argue, on appeal or otherwise, that you were denied effective assistance of
counsel because of Mr. Bellew’s application for a position with the prosecutor’s office for the
Southern District of New York.
25. Is there anything that the Court has said that you wish to have explained further?
Is anything unclear?
26. Would you like the opportunity to consult with another attorney? [If so, adjourn
for such opportunity, and continue with the questions immediately following, upon reconvening.]
Second Proceeding if Requested and/or Concluding Questions
27. Do you still wish to proceed with than Mr. Schachter, Mr. Jackson, and Mr. Bellew
as your attorneys in this case?
28. Have you received any inducements, promises or threats with regard to your choice
of counsel in this case?
29. Do you agree to waive any and all future arguments, on appeal or otherwise, that
you were denied effective assistance of counsel because of Mr. Bellew’s pursuit of a position as a
federal prosecutor with the Southern District of New York?
30. Is your waiver of your right to conflict-free representation voluntary?
File and source
- File
- CASE_SDNY_1-22-cr-00251_US-v-Martinez_doc44_LETTER-MOTION-CURCIO_2023-01-04.pdf
- Size
- 208,295 bytes
- SHA-256
- 9e0b84fb94709ba3e9415c7c199269608a323b160158f2ea2caae083b7d15460
- Original
- www.justice.gov