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Federal prosecutors spearheading the money laundering and conspiracy case against prominent Miami criminal defense attorney Samuel I. Burstyn have targeted a second attorney whose New Jersey law office was searched by FBI agents in December. But U.S. District Judge James I. Cohn in Fort Lauderdale, Fla., recently dealt a blow to government plans to use a federal grand jury to indict the second lawyer, Marc F. Desiderio, a civil practitioner who has an office in Pompano Beach. In a March 25 order, Cohn refused a government request to disqualify Fort Lauderdale attorney Gary S. Ostrow from representing an accused drug dealer, Peter Rossi, to whom they want to offer a deal to inform on Desiderio, Rossi’s stepfather. The prosecutors had argued that Ostrow’s involvement in the case interfered with their ability to get information from Rossi. They said Ostrow had a conflict of interest because he was a good friend of Desiderio and had been hired by Desiderio to represent Rossi. Judge Cohn agreed that Ostrow has a conflict. But he found that Rossi’s Sixth Amendment right to counsel of his choice trumped the conflict. Cohn’s ruling against disqualifying Ostrow surprised both the prosecution and the defense. “I thought we had no chance at all,” said Ostrow, a partner at Ostrow & Amoroso in Fort Lauderdale. “We were shocked, but pleased.” He also said that Rossi “is not guilty of what the government is alleging.” The U.S. Attorney’s Office did not respond to a request for comment. Desiderio did not return phone calls made to his law office at Frankel & Associates in Pompano Beach or to his office in Englewood Cliffs, N.J. Burstyn and Desiderio both became government targets because of their involvement with defendants in an alleged 13-year drug conspiracy that authorities say specialized in smuggling and distributing tons of Mexican marijuana and cocaine across the country. Burstyn was indicted by a federal grand jury in February on charges of money laundering, conspiracy and obstruction of justice, based on the cooperation of two longtime clients, Jeffrey and David Tobin, who’d previously pleaded guilty in the case. Burstyn’s indictment, originally returned in October under seal, alleges that as “house counsel” to the Tobins’ cocaine and marijuana trafficking “enterprise,” he gave advice on matters related to the ongoing conspiracy, including the hiring of attorneys for gang members to protect them and keep them from cooperating with law enforcement. According to the indictment, Burstyn also advised how to hide drug profits, provided false and misleading statements to a grand jury and federal agents, and at one point counseled Jeffrey Tobin and another gang member to flee the country to avoid arrest. In addition, the indictment accuses Burstyn of using his lawyer’s trust account to lend nearly $500,000 to a drug gang associate, Rodney Fund, who had set up a car dealership in Atlanta to help generate noncriminal proceeds. The loan allegedly was collateralized by drug proceeds from Jeffrey Tobin. Government documents filed last month show Burstyn was targeted and indicted based on the cooperation of the Tobins. As part of that cooperation, the Tobins wore hidden microphones and made secret audiotapes of Burstyn when he met with them at the Federal Detention Center in Miami following their arrests early last year. The Tobins each pleaded guilty in December to conspiracy to engage in racketeering before Judge Cohn. Jeffrey Tobin was sentenced to 196 months in prison; David Tobin drew a 135-month sentence. On March 18, Chief U.S. District Judge William J. Zloch decided that Burstyn posed “a serious danger to the community and is a serious flight risk,” and ordered him held without bond. Desiderio, 58, is licensed to practice law in Florida, California and New Jersey. A source said federal agents served the December search warrant at his New Jersey law office, seizing ledgers, checkbooks and trust account records. Rossi, 35, a fugitive from racketeering, conspiracy and other charges until his arrest in Las Vegas on Feb. 4, is the lone remaining defendant in the Tobin drug case. All other defendants in the case reached deals to plead guilty, one lawyer familiar with the case said. The government’s motion to disqualify Ostrow from representing Rossi said Rossi introduced Tobin to Desiderio in 1993. “Later, the target [Desiderio] and his law firm assisted the Tobin criminal enterprise in a variety of criminal activities, including the laundering of drug proceeds,” the motion said. “The target did this under the belief that Tobin was in an illegal business, such as loan sharking, that generated large amounts of cash whose origin and source needed to be disguised from governmental authorities.” Following Rossi’s arrest in Las Vegas in February, Ostrow contacted prosecutors to tell them that he’d been retained by Desiderio to represent Rossi. The prosecutors told Ostrow he had a conflict of interest, but Ostrow replied he’d obtain waivers from both Desiderio and Rossi. In court, Fort Lauderdale-based Assistant U.S. Attorneys J. Brian McCormick and Michael J. Dittoe argued that Ostrow should be ousted as Rossi’s lawyer because of a serious conflict — Desidero was Ostrow’s friend, and Desiderio was paying Ostrow’s fees to represent Rossi. “The government wishes to debrief Rossi concerning his knowledge of the criminal activities of the target, with a view toward a plea agreement that could result in a lower sentence for Rossi,” the government’s motion said. “Consequently, attorney Ostrow has a conflict of interest that cannot be waived.” In denying the government’s motion to disqualify Ostrow from representing Desiderio’s stepson Rossi, Judge Cohn said prosecutors considered Ostrow “an impediment” to obtaining the cooperation of Rossi. But the judge rejected that argument. “This court is convinced that Mr. Rossi’s decision not to cooperate is not the result of any advice given to him by Ostrow,” Cohn said. “Mr. Rossi is the stepson of the target. Mr. Rossi has lived with the target since age 6. This familial relationship is a more compelling explanation for Mr. Rossi’s decision not to cooperate than anything Mr. Ostrow may have said or done.” Cohn said Rossi “is well aware of the government’s position and the potential benefit resulting from his cooperation.” And Rossi was “knowing and intelligent” when he waived Ostrow’s conflict, and rejected the overture from federal prosecutors.”Mr. Rossi fully understands that he is waiving any future claim of ineffective assistance of counsel based on either an actual or potential conflict of interest of Mr. Ostrow,” Cohn said. Prosecutors had argued such a conflict could not be waived. In its motion to disqualify Ostrow, the government cited statements by the Fort Lauderdale lawyer that it said proved Ostrow’s conflict. According to the motion, when prosecutors informed Ostrow they wanted to interview Rossi about his stepfather, Ostrow came to Desiderio’s defense. “Ostrow stated that he had known the target for a considerable period of time,” the motion said. “Ostrow said that the target was of outstanding character and would never be involved in any illegal activity.” The motion also said prosecutors asked the court to remove Ostrow from Rossi’s case after he “obdurately refused to acknowledge” the conflict created by his friendship with Desiderio, and his acceptance from him of money to pay for Rossi’s representation. “It would be difficult to find a clearer case of a lawyer’s conflicting interests,” the motion said.

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