T. S. Ellis, III, United States District Judge.
In this child pornography case, defendant Allan Cortez and his co-defendants are charged in an indictment with conspiring to produce, distribute, and receive child pornography. To defend him against these charges, defendant has retained an experienced defense lawyer who, as it happens, also recently represented, and arguably continues to represent, a person who pled guilty to and was convicted of engaging in the same conspiracy to distribute and receive child pornography as is alleged here against defendant. At issue pretrial, therefore, is whether defendant's retained counsel is disqualified from representing defendant in this case because counsel's previous representation of another member of the alleged conspiracy constitutes an actual or potential conflict of interest. The matter has been fully briefed and
A grand jury in the Eastern District of Virginia indicted defendant and his two co-defendants, charging them with the following three offenses: (i) conspiracy to produce child pornography, in violation of 18 U.S.C. § 2251(a) and (e); (ii) conspiracy to distribute and receive child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); and (iii) conspiracy to possess and access with intent to view child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).
According to the indictment, defendant and his co-conspirators located minors on public social media sites and induced them into private chatrooms on myvlog.net, and there enticed these minors to engage in and record via web camera lewd and lascivious conduct, including masturbation. Although the alleged co-conspirators apparently never met face-to-face, they purportedly communicated via the internet, where they shared information and tips on how to coax minors into engaging in this sexually explicit conduct on the video camera.
To defend against these serious charges, defendant has retained John Kiyonaga ("Defense Counsel"), an experienced criminal defense attorney. As it happens, this attorney's fund of experience includes the representation of another individual convicted of participating in the same child pornography conspiracy as is alleged in this case.
Specifically, last year, Defense Counsel, pursuant to the Criminal Justice Act,
Importantly, defendant Cortez, by counsel, agrees that the conspiracy to which Funk pled guilty involved the same website at issue in this case. In his submission to the Court, Defense Counsel observed that Funk, "[a]s part of his plea agreement... admitted to using the same website, myvlog, which Defendant [Cortez] is now accused of using" (Doc. 76). Not only did the two men use that website, but they used it at the same time, in the same chat rooms; indeed, at oral argument Defense Counsel noted that defendant and Funk were "in the chat room at the same time on three occasions." United States v. Allan Cortez, No. 1:16-CR-128 (E.D.Va. Aug. 19, 2016) (Hearing Transcript ("Tr.") 16:22-23).
Nearly three months later, on July 21, 2016, the government filed a Statement of Issues Relating to Potential Conflict (Doc. 59). In its Statement, the government expressed concern that Defense Counsel faced an actual or potential conflict of interest, precisely because he had also represented Funk in a prosecution involving the same child pornography conspiracy described in defendant's indictment. In this regard, the government noted that it remained possible that the government, pursuant to Funk's plea agreement requiring his cooperation, might compel Funk to testify against defendant and his alleged co-conspirators. Were that to occur, the government noted, Defense Counsel would face the prospect of cross-examining his own client, a clear conflict of interest.
Defense Counsel responded by presenting the opinion of an attorney who purported to be an expert on the Virginia Rules of Professional Conduct. Relying in part on this attorney-expert's opinion, Defense Counsel argued that no conflict existed because the government had declined Funk's offer to cooperate. Specifically, Defense Counsel asserted that the government would accept Funk's cooperation only if Funk could "illuminate physical abuse of a victim
Soon thereafter, the parties appeared for a hearing on the issue whether an actual or potential conflict of interest existed. In the course of the hearing, Defense Counsel again noted that the government had indicated that there were only two subjects on which Funk's cooperation would be accepted and Funk permitted to testify against defendant and his co-conspirators in this case — the identification of new websites unknown to the government or of additional physical abuse. Tr. 27:20-18:1.
A ruling on the matter was reserved, however, because neither the government nor Defense Counsel had addressed in their written submissions the governing standard regarding potential or actual conflicts of interest in a criminal case — namely, the Sixth Amendment. Accordingly, Defense Counsel was afforded an opportunity to submit a supplemental pleading to address the Constitutional issues involved. Defense Counsel complied by filing an Addendum to Defendant's Response to Government's Statement of Issues Relating to Potential Conflict by Defense Counsel (Doc. 76).
The threshold issue is the question of governing law. Both the government and Defense Counsel in their memoranda addressing the conflict of interest issue focused solely on the Virginia Rules of Professional Conduct. This focus was mistaken; the governing body of law under which the actual or potential conflict of interest of an attorney representing a defendant in a federal criminal prosecution should be assessed is the Sixth Amendment and federal decisional authority interpreting it, for it is this Amendment that guarantees the right to conflict-free counsel. See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest."); Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir.1990) ("[T]he Sixth Amendment right to counsel includes the right to effective assistance free of conflicts of interest[.]"). In the words of Justice O'Connor, "[p]revailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable [pursuant to the Sixth Amendment right to effective counsel], but they are only guides." Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
To be sure, a state bar's professional rules of conduct have a role to play,
In sum, the Sixth Amendment and federal decisional authority applying that Amendment are the proper source of governing law as to whether Defense Counsel has an actual or potential conflict of interest and, if so, whether that conflict may be waived.
A second threshold question arises by virtue of Defense Counsel's assertion that it was inappropriate for the government to raise the question whether Defense Counsel has an actual or potential conflict. Defense Counsel is incorrect; both the Sixth Amendment and the Virginia Rules of Professional Conduct invite, indeed compel, prosecutors to alert a trial court to a defense attorney's potential or actual conflict. See, e.g., Wheat v. United States, 486 U.S. 153, 155, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (affirming disqualification of a criminal defense attorney for a potential conflict that the government had brought to the trial court's attention); Va. R. Prof'l Conduct 1.7 cmt. 9 ("In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question."). This is a sensible requirement, as it is neither in defendant's nor the government's interest to proceed with a case that is infected with an incurable conflict of interest.
A third preliminary question must be addressed here, as Defense Counsel seeks to offer the expert testimony of a Virginia lawyer on the proper interpretation and application of the Virginia Rules of Professional Conduct to the facts of this case. Thus, the third question is whether such testimony is properly admissible under Rule 702, Fed. R. Evid. It is not.
Rule 702(a) provides, in pertinent part, that a qualified expert may testify to an opinion if "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."
Simply put, an expert telling a judge how to interpret a rule or statute does nothing more than give an attorney a redundant means of presenting legal argument to the Court. Nothing prevented Defense Counsel from making his arguments through his briefs or oral argument. As one treatise notes, "[e]ven during a bench trial there seems no compelling reason to allow live testimony by conflicting experts on the law, as written briefs, supplemented by oral argument by counsel if appropriate, will serve the same function." The New Wigmore: A Treatise on Evidence: Expert Evidence § 2.3.
These principles, applied here, make clear the inadmissibility of Defense Counsel's state-law expert. Based on Defense Counsel's proffer, the testimony would comprise an attorney-witness's conclusions on whether the facts at bar presented a conflict under the Virginia Rules of Professional Conduct. Such testimony runs afoul of McIver's prohibition of expert legal testimony that "states a legal standard or draws a legal conclusion by applying law to the facts[.]" See 470 F.3d at 562. Defense Counsel was afforded the opportunity to include in his brief and at oral argument the same points advanced by his expert.
The controlling question presented is whether there exists in this case a conflict, potential or actual, arising from Defense Counsel's previous representation of another member of the alleged conspiracy, and whether client waivers might cure any existing conflict of interest.
To determine whether Defense Counsel in this criminal case labors under an actual or potential conflict of interest, analysis properly begins with the Sixth Amendment. The Sixth Amendment guarantees defendants the right to a lawyer unencumbered by an actual conflict or serious potential for conflict. See Hoffman, 903 F.2d at 285.
An actual conflict of interest "occurs in circumstances where a lawyer's interests are such that it is reasonable to believe that she or he would be tempted to act in a manner inimical to the client's best interests." Reckmeyer v. United States, 709 F.Supp. 680, 688 (E.D.Va.1989); cf. United States v. Tatum, 943 F.2d 370, 375 (4th Cir.1991) (actual conflict exists "[w]hen the attorney is actively engaged in legal representation which requires him to account to two masters [and] it can be shown that he took action on behalf of one"). Of course, an actual conflict "is not always as apparent as when [counsel] formally represents two parties who have hostile interests." Tatum, 943 F.2d at 376. Rather, an actual conflict of interest may include situations where a lawyer "harbor[s] substantial personal interests which conflict with the clear objective of his representation of the client," or where counsel's "continuing duty to former clients may interfere with his consideration of all
As the Fifth Circuit has observed, a number of factors may help determine whether a conflict of interest exists. These factors include (i) "whether the attorney has confidential information that is helpful to one client but harmful to another"; (ii) "whether and how closely the subject matter of the multiple representations is related"; (iii) "how close in time the multiple representations are related"; and (iv) "whether the prior representation has been unambiguously terminated." United States v. Infante, 404 F.3d 376, 392 (5th Cir.2005). Importantly, the Sixth Amendment applies not only when a defense lawyer has an actual conflict of interest, but also "in the more common cases" where a serious potential for conflict exists. Wheat, 486 U.S. at 163, 108 S.Ct. 1692.
Of course, there is clearly an actual conflict of interest in the event the government calls Funk as a witness in its case against defendant. Were that to occur, Defense Counsel would face an intolerable choice between (i) pulling punches on cross-examination
A conflict of interest may also arise by virtue of Defense Counsel's continuing obligation to Funk to seek a sentence reduction for substantial assistance to the government, pursuant to Rule 35, Fed. R. Crim. P. To be sure, it is a close call whether Defense Counsel, as an appointed lawyer to Funk, has an ongoing obligation at the Rule 35 stage. Defense Counsel has argued in his brief that "Mr. Funk has no appellate or other post conviction issues necessitating [Defense Counsel's] assistance" (Doc. 76). Although he cites no authority for this claim, some cases could support Defense Counsel's position. For instance, the Fourth Circuit has observed that there is no Constitutional right to counsel — and thus no claim for ineffective assistance of counsel — with respect to a Rule 35(b) motion. See United States v. Taylor, 414 F.3d 528, 535 (4th Cir.2005). On the other hand, some authority has held that "[a]n attorney's appointment to represent an indigent under [the Criminal Justice Act] extends until a motion under Rule 35 is filed and argued, or the [time] to file the motion has expired...." United States v. Morales, 498 F.Supp. 139, 143 (E.D.N.Y.1980).
Ultimately, several factors tip the scales toward finding that Defense Counsel has an ongoing duty to Funk. The first is that Defense Counsel said as much during oral argument. Tr. 19:7-15.
Given Defense Counsel's ongoing duty to Funk, the conflict of interest is readily apparent: as counsel for Funk, Defense Counsel should attempt to persuade the prosecution to call Funk against defendant, so that Funk may receive a reduced sentence pursuant to Rule 35, Fed. R. Crim. P.; at the same time, as counsel for Cortez, Defense Counsel should seek to exclude, diminish, or discredit Funk's testimony — which would undermine Funk's efforts to reduce his sentence.
Although the parties have not identified any authorities on point, Supreme Court and Circuit Court decisional law is instructive. In Wheat v. United States, the Supreme Court found a serious potential conflict — and upheld the disqualification of a defense attorney — where the attorney aimed to engage in the successive representation of several individuals charged with participating in an overlapping conspiracy. 486 U.S. at 153, 108 S.Ct. 1692. There, one alleged member of a drug conspiracy sought to retain a lawyer who had already represented two other alleged members of the same conspiracy. Id. at 155, 108 S.Ct. 1692. Importantly, the attorney's new client was "likely to be called as a witness for the Government" against one of the lawyer's existing clients, and vice versa. Id. at 155-56, 108 S.Ct. 1692. The Supreme Court concluded that disqualification was proper, despite conflict-waivers from all three affected clients. Id. at 159, 108 S.Ct. 1692.
The Fourth Circuit reached a similar conclusion in United States v. Williams, another case in which a defense attorney faced the prospect of cross-examining a former client. 81 F.3d 1321 (4th Cir.1996). There, a defendant charged with bank fraud hired a lawyer that had previously represented, during the FBI's investigation into the matter, the government's initial suspect. Specifically, the government planned to call the lawyer's former client to testify against the current client. In upholding the lawyer's disqualification, the appellate panel perceived a "potential conflict" comprising dual risks: either the lawyer (i) would improperly use privileged information during cross-examination (to his former client's detriment), or (ii) he would fail effectively to cross-examine the witness (to his present client's detriment). Id. at 1325.
The Fifth Circuit provides further persuasive authority. See Infante, 404 F.3d 376. In that drug conspiracy case, a defense attorney ultimately cross-examined two former clients who testified for the government against a present client. Id. at 390. Before trial, however, the government brought a motion, pursuant to Rule 44, Fed. R. Crim. P., to alert the district court to the potential conflict of interest arising from defense counsel's prior representation of the government's witnesses. Id. During the course of the motion hearing, the defense attorney conceded that he had previously represented two of the government's proffered witnesses and that he would pursue sentence reductions on their behalf, pursuant to Rule 35, Fed. R. Crim. P., if these former clients testified. Id. The district court concluded pretrial that there was no conflict of interest; on review, the
Whereas Wheat, Williams, and Infante were cases involving likely or actual government witnesses, disqualification may also be justified even where the prosecution has not yet decided whether to call a defense attorney's former client against a present client. United States v. Williams, 439 Fed.Appx. 254 (4th Cir.2011) (unpublished). There, the Fourth Circuit upheld the disqualification of a defense lawyer on the ground that she had previously represented a possible government witness, the defendant's father. Id. at 256. This potential witness had been convicted in a previous matter and hoped to receive a reduced sentence by cooperating with the government against his son, pursuant to Rule 35, Fed. R. Crim. P. See Williams, 439 Fed. Appx. at 256. Even though the government had not yet decided whether it would call the witness, the government moved to disqualify the defense attorney because of the potential conflict of interest. Id. The Fourth Circuit concluded that, despite the government's uncertainty whether the witness would ultimately be called, the government's motion to disqualify the defendant's counsel "was properly granted" in light of the district court's broad discretion and Circuit precedent. Id. at 256-57 (citing Williams, 81 F.3d 1321).
The standards elucidated in these cases, applied here, point convincingly to the existence of a serious potential conflict on the part of Defense Counsel.
Given the existence of at least a potential conflict, the question is whether a knowing and voluntary waiver by defendant and Funk could cure that potential conflict, or whether it is instead proper to disqualify Defense Counsel.
In some cases, a defendant may make a knowing and voluntary waiver of his right to conflict-free counsel. See United States v. Duklewski, 567 F.2d 255 (4th Cir.1977). In determining whether to accept such a waiver, a district court "must make as thorough and long an inquiry as necessary to determine whether the accused is voluntarily, knowingly and intelligently waiving his right." Hoffman, 903 F.2d at 288. A waiver is voluntary if it is "an intentional relinquishment or abandonment" of the right to conflict-free counsel. Id. Such a waiver is knowing and intelligent if the defendant knows the basis for, and potential consequences of, his chosen counsel's alleged conflict of interest. See id. at 289; Duklewski, 567 F.2d at 257. Ultimately, the defendant must know "the crux of the conflict and [have] an understanding of its implications ... even if the defendant does not know each detail concerning the conflict." United States v. Brown, 202 F.3d 691, 698 (4th Cir.2000).
Here, Rule 44(c)(2), Fed. R. Crim. P., offers guidance and standards by which to ascertain whether a waiver is knowing and voluntary. The Rule provides that
The Advisory Notes further provide that a district court should, inter alia, (i) forthrightly advise each affected client of the right to effective representation and of the potential dangers of representation by conflicted counsel; (ii) ensure that each affected client understands that right and those perils; (iii) grant each affected client the liberty to ask questions regarding the nature and consequences of his legal representation; (iv) ascertain whether each affected client has discussed the matter with his attorney, or whether he wishes to consult outside counsel; (v) endeavor to have each affected client personally articulate in detail his intent to waive his right to conflict-free counsel; and (vi) record the waiver colloquy.
Here, defendant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to conflict-free counsel. Defendant was voir dired under oath and advised as to the nature and dangers of Defense Counsel's conflict. Defendant was also informed of his right to have conflict-free counsel appointed on his behalf. Once he was fully informed of his rights and the risks of proceeding with representation by a conflicted attorney, defendant stated unequivocally that he wished to proceed with Defense Counsel as his attorney in this matter. Tr. 45:2-48:25.
Because Defense Counsel's conflict of interest could affect Funk too, it is necessary
The final issue to consider will be whether waiver by both defendant and Funk is sufficient, or whether Defense Counsel's conflict is not waivable, therefore requiring disqualification. In considering this question, it will be necessary to weigh carefully a criminal defendant's Sixth Amendment rights to conflict-free counsel and counsel of choice, as well as the judiciary's independent duty to safeguard the integrity of criminal proceedings. See Wheat, 486 U.S. at 162, 108 S.Ct. 1692 ("[W]here a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented."); United States v. Howard, 115 F.3d 1151, 1155 (4th Cir. 1997) ("The right [to counsel of choice] is circumscribed by ... the obligation of trial courts to safeguard the integrity of the proceedings before them.").
In sum, (i) the Sixth Amendment provides the salient, dispositive standard for analyzing whether Defense Counsel has a conflict of interest; (ii) the government properly raised the question whether Defense Counsel has an actual or potential conflict of interest; (iii) the proffered expert testimony is inadmissible; (iv) Defense Counsel has a potential for conflict; and (v) it is necessary, despite defendant's waiver of his right to conflict-free counsel, to determine whether Funk wishes to waive the same and, if so, whether such waivers would undermine the integrity of these criminal proceedings.
An appropriate Order will issue.
Rule 1.7 provides that a concurrent conflict exists if (i) "the representation of one client will be directly adverse to another client," or (ii) "there is significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client [or] a former client...." In turn, Rule 1.9(a) provides that a lawyer may not represent a new client if: (i) the lawyer has "formerly represented a client in a matter," (ii) the representation of the new client involves "the same or a substantially related matter" as the previous representation, and (iii) the new client's interests are "materially adverse" to the former client's interests.
Pursuant to either Rule, Defense Counsel's clients have adverse interests. Additionally, pursuant to Rule 1.9, defendant's and Funk's cases appear to be "substantially related," because Defense Counsel had ample opportunity to obtain confidential information from Funk that could be relevant to defendant's case. See, e.g., Tessier v. Plastic Surgery Specialists, Inc., 731 F.Supp. 724, 730 (E.D.Va. 1990) (noting that the phrase, "substantially related," has been used to describe situations where a lawyer "could have obtained confidential information in the first representation that would have been relevant in the second"); Rogers v. Pittston Co., 800 F.Supp. 350, 354 (W.D.Va.1992) ("No actual receipt of confidences must be shown" to establish that two matters are substantially related).