United States v. Malpiedi

Stephen Delli Bovi (defendant) was under investigation for operating a kickback scheme and obstructing justice by tampering with checks subpoenaed by a grand jury. Susan Goldfine was subpoenaed by the grand jury to authenticate documents, including the checks. Goldfine met with Delli Bovi’s attorney, John Kelly, to review the documents. Kelly answered Goldfine’s questions about the grand jury proceeding, went with her to the hearing, and waited for her outside. Goldfine believed Kelly was her lawyer. Goldfine did not discuss any tampering and falsely testified that she did not recognize Delli Bovi’s handwriting. The government (plaintiff) called Goldfine to testify at trial about custodial matters. Goldfine informed the government that she had witnessed Delli Bovi alter the checks. Kelly attempted to cross-examine Goldfine during the trial about her testimony to the grand jury and expressed an intent to impeach her based on inconsistencies between her grand jury testimony and her assertion that she witnessed Delli Bovi alter the checks. Goldfine invoked the attorney-client privilege, The court found that Kelly’s conduct toward Goldfine at the grand jury proceeding created an attorney-client relationship between them even though Kelly asserted he did not believe his actions meant he represented Goldfine. The court ruled Kelly could not cross-examine Goldfine about her grand jury testimony due to his obligations as her prior attorney. Delli Bovi was convicted and filed a motion for a new trial on the ground that Kelly’s conflict of interest deprived him of effective assistance of counsel. After an evidentiary hearing, the district court found that the conflict of interest did not negatively affect Kelly’s representation of Delli Bovi. The district court denied the motion for a new trial, and Delli Bovi appealed.