## Facts

- Stephen Delli Bovi, an outside contractor, was prosecuted for a kickback scheme involving inflated invoices and profit-sharing with corporate executives, leading to federal fraud charges.
- He was also charged with obstruction of justice based on allegedly altered canceled checks produced to a grand jury; copies provided did not match bank-retained records.
- Susan Goldfine, Delli Bovi’s sister-in-law and part-time secretary, helped gather subpoenaed documents and was a key government witness at trial.
- Goldfine testified that she saw Delli Bovi alter check stubs while responding to the subpoena, providing direct evidence of obstruction and supporting an inference of consciousness of guilt on the fraud counts.
- Before her grand-jury appearance as custodian of records, Goldfine met with defense counsel John Kelly, reviewed subpoenaed documents with him, received advice about the proceeding, and believed he was acting as her lawyer.
- At trial, Kelly sought to impeach Goldfine using inconsistencies between her grand-jury testimony and trial testimony, including omissions about check-tampering and her prior denial that she recognized Delli Bovi’s handwriting.
- Goldfine invoked the attorney–client privilege as to her communications with Kelly; the district court found an attorney–client relationship existed and limited Kelly’s cross-examination accordingly.
- After conviction, Delli Bovi moved for a new trial, arguing that Kelly’s prior representation of Goldfine created a conflict of interest that denied him effective assistance of counsel; the district court denied relief after a hearing.

## Issues

1. Whether defense counsel’s interactions with a government witness created an attorney–client relationship triggering privilege and limiting cross-examination.
2. Whether counsel’s prior representation of a key government witness created an actual conflict of interest that adversely affected counsel’s performance, requiring reversal under the Sixth Amendment.

## Decision

- The Second Circuit vacated the judgment of conviction and remanded for further proceedings.
- The court accepted that counsel’s conduct created an attorney–client relationship with Goldfine, allowing her to assert privilege.
- The court held that counsel’s prior representation of Goldfine created an actual conflict of interest.
- The court held the conflict adversely affected counsel’s performance by preventing effective cross-examination of a critical witness.
- Because an actual conflict with adverse effect was shown, the court did not require a separate showing that the trial outcome would likely have been different.

## Legal Principles

- An attorney–client relationship may be formed by counsel’s conduct and a witness’s reasonable belief of representation, even if counsel subjectively denies intent to represent the witness.
- An actual conflict of interest exists when counsel’s and the defendant’s interests diverge on a material issue or course of action, including where counsel owes duties of confidentiality and loyalty to a government witness whose credibility the defense must attack.
- A conflict “adversely affects” representation when it causes counsel to forgo plausible alternative defense strategies or tactics, such as meaningful impeachment and cross-examination of a key witness.
- When an actual conflict of interest adversely affects counsel’s performance, Sixth Amendment relief is warranted without the usual requirement to prove outcome-determinative prejudice.

## Conclusion

The Second Circuit set aside the convictions because defense counsel’s prior attorney–client relationship with a central government witness restricted cross-examination through privilege, creating an actual conflict that adversely affected counsel’s trial performance and violated the defendant’s right to effective assistance of counsel.


United States v. Malpiedi, 62 F.3d 465 (2d Cir. 1995)