On March 10, 1998, a thirty count indictment was issued alleging that Juan Almeida committed several crimes when he made arrangements to distribute large quantities of cocaine to New York and Russia. Almeida was charged in nine of the 30 counts and ultimately convicted on 'cocaine conspiracy'. The conspiracy to distribute cocaine was stated to encompasse three ventures that were undertaken between 1986 and 1995. The first venture took place in the late 1980's when Almeida with fugitive co-conspirator Nelson "Tony" Yester (who was still at large at the time of the case), coordinated the transportation of several shipments of cocaine from Miami to New York. The second venture entailed a scheme to acquire a World War II-era Russian submarine for a Colombian drug cartel. The third venture involved a plan to conceal cocaine inside Russia-bound shipments of shrimp. The Government's "star" witness with respect to the submarine and shrimp ventures was Ludwig "Tarzan" Fainberg, a Russian-speaking immigrant who was charged in the conspiracy (and who ultimately pled guilty pursuant to a plea agreement.) Almeida and Fainberg each hired their own defense attorneys. They believed, however, that some coordination might be useful in defeating the Government's case. The co-defendants therefore entered into an oral joint defense agreement. According to Almeida's counsel, "countless volumes of attorney-client and work product information [were] ... shared between the parties" and "dozens of meetings (totaling well over 100 hours) were held." On February 19, 1999, approximately one month before trial, Fainberg decided to defect from the united front. In return for his testimony against Almeida, the Government allowed Fainberg to plead to a single count of racketeering (attracting 37 months imprisonment). In the Government's view, this meant the district court in the case of Almedia had to address the alleged existence of an attorney-client privilege and a possible conflict of interest. The judgment of the court on appeal did not discuss the convictions for ''cocaine conspiracy'', rather it limited itself to these discreet questions essentially around the ability of co-defendants’ counsel to share confidential information for the purpose of pursuing a common interest. At trial, the district court had precluded Almeida’s counsel from utilizing privileged communications in cross-examining Fainberg that Fainberg made to Almeida’s attorneys during the existence of the joint defense agreement Fainberg entered into an agreement with the Government to plead guilty and testify against Almeida.
The court of appeal examined the correctness of the district court in denying the jury any benefit of those communications and information.
The appeal court recalled that Fainberg and Almeida were charged with conspiracy to traffic narcotics. With separate counsel Fainberg and Almeida entered into an oral joint defense agreement and, at more than 100 meetings they and their lawyers shared “countless volumes of attorney-client and work product information.” Shortly before trial, however, Fainberg agreed to plead guilty and testify against Almeida. During the trial the prosecutor claimed Fainberg as their witness and stated it was expected he would assert his “attorney-client privilege” vis-a-vis Almeida's counsel. A court-counsel colloquy ensued. The prosecutor said that when Fainberg spoke to Almeida's counsel in connection with the joint defense, “it was just as if [Fainberg] was talking to his own attorney” and “[t]herefore, the attorney client privilege would exist.” This, according to the prosecutor, showed that Almeida's counsel was impaired because of a conflict of interest. How could Almeida's attorney effectively cross-examine Fainberg when Almeida's attorney essentially represented Almeida and Fainberg? Almeida's counsel, the prosecutor asserted, suffered from a classic “divided loyalty” problem. The prosecutor therefore urged the district court to (1) prohibit Almeida's lawyers from using any confidential information they had obtained from Fainberg during the two years in which the joint defense privilege was in operation and (2) obtain either a conflicts waiver from Almeida or else require the withdrawal of Almeida's counsel for purposes of cross-examining Fainberg. The district court did not believe Almeida's attorney had a conflict of interest; but it was concerned, that in cross-examining Fainberg, privileged information may be revealed. The prosecutor, the appeal court noted, assuming the right to act as Fainberg's attorney, objected on the grounds that such communications could not be repeated, lest a revelation of the confidential communications in open court amount to a waiver. The court sustained the prosecutor's objection, it found that a joint defense agreement existed and concluded that this agreement precluded Almeida's counsel from using any information obtained from Fainberg in connection with the joint defense. In so doing it not only barred counsel's use of Fainberg's communications during cross-examination, but also the derivative use of the communications. Defense counsel's response to the court's ruling was that the court would be committing error if it severely limited their ability to cross-examine Fainberg. The jury found him guilty of count two of the indictment but Almeida moved the court for a new trial aruging that Fainberg now had a signed waiver of any privileges. The district court, citing Fainberg's waiver, lifted the restrictions on his testimony. The district court also indicated that its trial ruling had been mistaken and that once Fainberg defected to the prosecutorial camp, he had no privilege with respect to Almeida's counsel.
The appeal court noted agreed that Fainberg had effectively waived the privilege as to Almeida’s counsel, and the defense moved for a new trial which would have available to it the information the trail court had disallowed- once Fainberg defected to the prosecutorial camp, he had no privilege with respect to Almeida's counsel. The appeal court set out the information that would have been revealed including that Fainberg denied conspiring with Almeida to buy or sell submarines. He claimed that Almeida was “not guilty” of the charges and that the Government concocted a case based upon Fainberg's “macho talk” that “nobody believed.” Fainberg recalled that he related this position to one of Almeida's lawyers during a joint defense strategy session, but that he had to change his testimony in order to get himself “out of the situation.” as regards Fainberg denied conspiring with Almeida to buy or sell submarines. As regards derivative evidence the appeal court reasoned the defense would surely have argued that there was also possible collusion between inmates to commit perjury against Mr. Almeida. The appeal court stated “We believe that Fainberg waived the privilege when he agreed to plead guilty and testify against Almeida in exchange for the Government's dismissal of several counts in the indictment”, but the court also emphasized the fact that it was not holding “that accomplices always waive the privilege when they testify on behalf of the government". Rather when each party to a joint defense agreement is represented by his own attorney, and when communications by one co-defendant are made to the attorneys of other co-defendants, such communications do not get the benefit of the attorney-client privilege in the event that the co-defendant decides to testify on behalf of the government in exchange for a reduced sentence. The district court's error prevented the introduction of crucial evidence that would have significantly undermined the credibility of three of the Government's key witnesses. There is a reasonable possibility that the jury would not have convicted Almeida but for the district court's erroneous exclusionary ruling. The appeal court ruled the district court error was not harmless, and Almeida's conviction must therefore be vacated. It remanded the case for a new trial.
While described in media reports as a colourful and brazen drugs trafficking plot to buy a submarine in the former Soviet Union for $5.5 million to transport cocaine from Colombia to the United States and Canada, this court case turned on more technical arguments as result of Fainberg’s guilty plea and agreement to testify against Almedia. Ludwig Fainberg, was the owner of a strip club, described in media reports as a suspected Russian organized crime figure in South Florida. His accomplices in this plot were Juan F. Almeida and Nelson P. Yester, two 37-year-old Cuban immigrants accused of being middlemen for Colombian drug cartels. Yester at the time of the case was at large. It is clear that where there may be many parties to legal proceedings (such as in organised crime cases) joint defense agreements may be utilised. While such agreements are important in preserving legal privileges and facilitating coordination among parties with similar interests, they can create potentially significant conflict of interest issues -these may be best resolved in writing, although the court here prescribed no particular format. Here the Court distinguished the joint defense agreement from the prototypical joint representation where a lawyer undertakes the attorney-client representation of two or more persons. The Court nevertheless appeared ultimately to accept the attorney-client metaphor for the joint defense doctrine and found implied waiver of the privilege where a member of the joint defense agreement begins cooperating with the Government. While this reasoning has been criticised as confusing the issues it is clear from the judgment that other members of the joint defense agreement can use the information they learned from the member who is now cooperating with the Government even though it may not be in his best interests. The court reasoned that there is no duty of loyalty between a defense attorney and a co-defendant he does not represent, eliminating any concern about a conflict of interest on the part of the attorney for the defendant left standing trial. Additionally, the Almeida court explained that a cooperator waives his own attorney-client privilege when he turns state's evidence, which removes the possibility of a conflict of interest from the case entirely. The court held that when the parties to a joint defense agreement are each represented by their own counsel, and when one co-defendant communicates with attorneys of other co-defendants, those communications do not receive the benefit of the attorney-client privilege when the co-defendant testifies for the government in exchange for a more favorable sentence for himself.
This case clarified that by testifying against his co-defendants, acting in his own interest rather than in the common interest, the government cooperator abandons the joint defense privilege he once enjoyed, and counsel for his co-defendant is under no automatic ethical or constitutional impediment in cross-examining him.