In an impassioned ruling, a federal judge denied a request from prosecutors to remove one of Peter Gerace Jr.’s defense lawyers, saying there is no reasonable possibility the lawyer committed a crime by putting two names on a witness list that caused another judge to recuse himself from the case.
Prosecutors said they obtained a recording from an investigator during the government’s investigation into the July death of Crystal Quinn, a witness in the Gerace case. The recording, they say, reveals a disingenuous motive for adding the names of Sinatra's relatives to the witness list – an orchestrated recusal.
Federal prosecutors said they saw a “corrupt motive” behind Gerace attorney Eric Soehnlein putting two relatives of U.S. District Judge John L. Sinatra Jr. on the witness list for Gerace’s trial, calling it an orchestrated recusal.
Soehnlein, who with then-co-counsel Steven Cohen put the names on the defense witness list, told Sinatra in June that adding the names “wasn’t taken lightly.” Gerace’s lawyers said they had a legitimate purpose for putting them on the list because both of the relatives’ names had been included among the pretrial information the government turned over to them about witnesses and evidence.
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Because his relatives’ names were added to the witness list, Sinatra recused himself over the summer from Gerace Jr.’s bribery, sex- and drug-trafficking case, and now U.S. District Judge Lawrence Vilardo is handling the case.
Since November, prosecutors have sought to remove Soehnlein as one of Gerace’s defense lawyers, arguing that he added the relatives’ names because Gerace wanted the case in front of another judge. Cohen withdrew from Gerace’s legal team in September.
Federal prosecutors are investigating one of the region’s most high-profile attorneys in connection with a conspiracy that reportedly caused the death of a witness in the Pharaoh's strip club case to prevent her from testifying.
The government has suggested that Soehnlein could be prosecuted for putting names on the witness list if he had “mixed motives” for doing so, Vilardo said. In prosecutors’ view, if Soehnlein put the names on the witness list both to ensure that they could testify at trial and to get Sinatra to recuse himself, a jury could conclude that Soehnlein committed a crime.
“That suggestion is nothing short of terrifying,” Vilardo said in his written ruling Thursday.
“It is not hyperbole to say that the rights of all defendants in this district and beyond to the effective assistance of counsel — and by extension this court’s obligation to preserve the fairness of its criminal proceedings — are at issue here,” Vilardo said.
Regardless of the intent, a defense attorney putting someone on a witness list who has been disclosed in the government’s discovery material is not obstruction of justice, Vilardo said.
In this case, the government provided the defense attorneys forms filled out by FBI agents for both witnesses.
U.S. District Judge John L. Sinatra Jr. recused himself Wednesday from a high-profile bribery, sex- and drug-trafficking case less than two months before the scheduled start of the trial for the strip club owner and former DEA agent facing the charges.
“So there is no question that defense counsel did not create the names from whole cloth or simply name relatives of Judge Sinatra who had nothing to do with the case,” Vilardo said.
“It is not undue drama to say that if a lawyer can be prosecuted for obstruction of justice based on ‘mixed motives’ for an objectively bona fide legal action taken on behalf of a client, that will create a conflict for every defense attorney’s representation of every client,” Vilardo continued. “Lawyers should not have to worry that their objectively legitimate strategic decisions will lead to a criminal investigation whenever the government perceives a nefarious motive.
“Rather than ask the question that they are duty-bound by the Constitution to consider – what is in my client’s best interest – defense attorneys would have to ask a second question: What if the government thinks I have a corrupt motive for making this decision? In the moment when an attorney pauses to ask that second question, the defendant’s Sixth Amendment right (to conflict-free counsel) disintegrates because the attorney is thinking about himself or herself instead of the client.”
The legal fight over Gerace’s legal representation has stalled the trial for Gerace for months. Indicted three years ago, Gerace is awaiting trial on charges of bribing a DEA agent and operating Pharaoh’s Gentlemen’s Club, his Cheektowaga strip club, as a drug-involved premises where drugs were sold and young women were exploited through their drug addictions and coerced into sex acts.
Officials at the U.S. Attorney’s Office could not be reached for comment on Vilardo’s ruling. Soehnlein declined comment on the ruling.
Peter Gerace Jr., the owner of Pharaoh's Gentlemen's Club in Cheektowaga, is awaiting trial on charges of bribing a DEA agent, drug traffickin…
Rodney O. Personius, the ethics counsel for Soehnlein, said Vilardo’s decision “courageously sets new legal precedent.”
“Mr Soehnlein is also to be commended for remaining steadfast throughout this ordeal in his defense of his client’s Sixth Amendment right to counsel, in not bending like a reed in the wind to the enormous pressure placed upon him by the government’s outrageous allegations,” Personius said. “He did not back down. In the end, his loyalty to his client has been completely vindicated. His sterling reputation as one of the area’s leading criminal defense attorneys shines brighter than ever.”
Vilardo made it clear in his ruling that his criticism is not directed at the prosecution’s trial team – Assistant U.S. Attorneys Joseph Tripi, Casey Chalbeck and Nicholas Cooper – for bringing the removal motion.
“This court agrees that the decisions of others in the U.S. Attorney’s Office to investigate the so-called orchestrated recusal obligated the trial team to bring these issues to the court’s attention,” Vilardo said.
Vilardo pointed to a provision in federal law referred to as the “attorney safe harbor,” which prevents charging a lawyer with a crime merely for doing his or her job.
“The reason for the safe harbor is simple,” Vilardo said. “Without it, a defense attorney would have to think twice before pursuing a strategy for some reason the government might think had a corrupt motive.”
In a defense court filing on Soehnlein’s behalf, the safe harbor provision was cited. But the prosecution’s court filing did not cite it.
Vilardo said he had no reason to doubt the omission was an oversight – not an attempt to conceal it from the court.
However, “this court has serious concerns about the fact that in a brief accusing a well-respected member of the bar of a crime, no supervisor at the U.S. Attorney’s Office noticed the omission of a legal provision that could absolve him.”
Court filings over the government’s motion to remove Soehnlein have been sealed from public view. Lawyers involved in the case have declined to comment and have been vague about the facts in court proceedings. So, there is no public explanation from prosecutors detailing what they believe Soehnlein did that justifies trying to oust him.
But clues emerged during a proceeding last month before Vilardo about why prosecutors pressed to remove Soehnlein as Gerace’s lawyer.
Prosecutors mentioned a recording.
“That recording suggests that the recusal was an end looking for a means,” Chalbeck told Vilardo at the hearing. “And the means was discovered maybe in part by tasking someone to research a federal judge’s family members through Ancestry.com.
In his ruling Thursday, Vilardo quoted from a sealed prosecution filing.
In the filing, the government argued “there is a reasonable possibility that Soehnlein engaged in criminal conduct when he exploited ... the federal recusal statute to orchestrate Judge Sinatra’s recusal by putting two relatives of Judge Sinatra on the witness list for Gerace’s trial,” according to Vilardo’s ruling. “The government further argues that “even if ... Soehnlein’s conduct was not criminal, he is a subject or witness relative to criminal conduct involving the alleged conspiracy to orchestrate Judge Sinatra’s recusal and allegedly false affidavits that were submitted to this court in support of Gerace’s motion for release in August 2023.”
Personius said the judge used a strictly legal analysis in throwing out the government’s motion to remove Soehnlein.
“However, the facts of the case conclusively demonstrate, as well, that the extraordinary action on the part of the government was meritless,” Personius said. “Their factual arguments were premised upon speculation and conjecture, as exemplified by a tape recording that was filled with wildly fanciful claims untethered to any actual facts, reminiscent of the script of a B movie that never found its way to the big screen. Sadly, this recording was the cornerstone of the government’s claims.”
trick Lakamp can be reached at plakamp@buffnews.com