U.S. v. Gonzalez-Florido, 97-0139CCC.
| Decision Date | 25 September 1997 |
| Docket Number | No. 97-0139CCC.,97-0139CCC. |
| Citation | 986 F.Supp. 687 |
| Parties | UNITED STATES of America, Plaintiff, v. Jose GONZALEZ-FLORIDO a/k/a Papo and Reina Marbella Baptista de Capobianco, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Guillermo Gil, U.S. Attorney, Jorge E. Vega-Pacheco, Asst. U.S. Atty., Warren Vásquez, Asst. U.S. Atty., for Plaintiff.
Esther Castro-Schmidt, Tintillo Gardens, Bayamon, PR, for Defendants.
The Court has before it an Informative Motion and Request for Hearing filed by defendant González-Florido on August 20, 1997 (docket entry 20). The motion describes a situation confronted by defendant's counsel, Ms. Esther Castro-Schmidt, a former Assistant U.S. Attorney who participated as prosecutor in the presentation of evidence before the Grand Jury in 1991 against the person who is now her client. Defense attorney Castro-Schmidt narrates in her motion that the government attorney in charge of this case requested that she withdraw because of her prior involvement in the 1991 indictment against the defendant. The motion was referred to the Magistrate-Judge for hearing, which was held on August 26, 1997; a report and recommendation was filed the next date (docket entry 25), and a motion requesting adoption of the report, yet noting exception to the Magistrate-Judge's findings, was filed on September 11, 1997 by the United States (docket entry 28).
Magistrate-Judge Arenas specifically found that the prior 1991 conviction of the defendant and attorney Castro-Schmidt's participation in that case do not trigger the conflict of interest criminal statute, 18 U.S.C. § 207(a), or the Rules of Professional Responsibility. Confronted, however, with what he described as "the definite probability and definite threat of criminal prosecution of defense counsel," he, nonetheless, recommended that the Court allow defendant González-Florido to release his chosen counsel and grant a period of time to retain another attorney. In that same report and recommendation, the Magistrate-Judge informed that defendant reluctantly opted to attempt to obtain the services of another attorney and that "his only reason to do so was because of his concern for the probable prosecution of his attorney." Report and Recommendation, docket entry 25, at p. 8. This decision was made after the Magistrate-Judge told defendant that the government's attorney believed Ms. Castro-Schmidt had a serious conflict, that they were very serious about this, and that they were "going to continue to investigate this matter to the point where they might file charges against her." Transcript of Hearing held before the Magistrate-Judge, docket entry 26, p. 5, lines 16-20. He was advised on several occasions by the Magistrate-Judge that he had the right to have adequate representation of counsel, which meant an attorney focused only on defendant's problems and one who does not have an independent problem of her own.
The involuntariness of defendant's renouncing the counsel of his choice is manifest in the following statement:
MR. GONZALEZ: I have come to a decision that I will find ... try and find another attorney because I don't want ... I feel ... I really feel in the back of mind I dont's have much of a choice.
Because I don't want anything to ... the possibility of something happening to Mrs. Castro. I'll just have to go and find another one.
Transcript, docket entry 26, p. 22 at lines 2-8.
It is unfortunate that the defendant was brought at that stage into the discussion of the matter referred to the Magistrate-Judge. Granted that the defendant had to be advised of the concerns held by the Magistrate-Judge at some point, but certainly those concerns had to be addressed independently of and separate from the matter at issue, to wit, whether Ms. Castro-Schmidt should be disqualified as a potential violator of a criminal statute. Turning to the merits of the government's position—that the defense attorney will incur in conduct prohibited by 18 U.S.C. 207(a) and by Rule 1.11 of the Rules of Professional Responsibility adopted by this Court if allowed to participate in this criminal case—the Court FINDS, as did the Magistrate-Judge, that neither the Rules of Professional Responsibility nor section 207(a) are applicable to Ms. Castro-Schmidt in the circumstances surrounding the discharge of her duties in the present case. Both the Rule and the statute apply to a former government attorney who represents persons in connection with a matter in which that attorney participated personally and substantially as an officer or government employee. Aside from the fact that the government has not even hinted that Ms. Castro-Schmidt's appearance in this 1997 case is "knowingly" made "with the intent to influence," as required by section 207, the common element required by both this section and Rule 1.11 that the appearance be in connection with a matter in which she had participated personally and substantially as a public officer or employee, is simply lacking. This 1997 criminal proceeding in which Ms. Castro-Schmidt appears as defense counsel has nothing to do with the 1991 criminal matter in which she participated personally and substantially as an Assistant U.S. Attorney. Her circumstances are different from those present in U.S. v. López, 71 F.3d 954, 963 (1st Cir.1995), where an Assistant U.S. Attorney, after being personally involved in the Grand Jury investigation of López, then began representing him in dealing with that same investigation. The element spelled out in section 207(a)(I)(B) is clearly present in such a situation.
In the present case, but for the fact that defendant's prior conviction may be raised at trial pursuant to Rule 609 of the Federal Rules of Evidence, there is no other connection between her appearance as defense counsel in this case and her appearance before the grand jury in the matter of the 1991 indictment of defendant González-Florido. That circumstance alone does not convert the present criminal case in which Ms. Castro-Schmidt appears as a matter in which she participated personally and substantially as an officer or government employee.
The government raises the possibility of a request for revocation of the defendant's supervised release in the 1991 case. If the person who represents defendant in such revocation proceeding is involved in a conflict of interest situation, that is for the Court to decide in that particular case. It would seem obvious that as to a revocation proceeding in the 1991 case, Ms. Castro-Schmidt would place herself in a situation of possible violation of section 207(a) and Rule 1.11 if she should appear as releasee's attorney. In any event, that is a matter to be raised in that case; it is not an argument in favor of her disqualification in this 1997 case.
Accordingly, the Court FINDS that there is no reason to disqualify Ms. Castro-Schmidt as defense attorney of Mr. González-Florido nor is there justification to order him, or convince him, to choose someone other than her. The fact found by the U.S. Magistrate Judge in the sense that Ms. Castro-Schmidt was actually threatened with criminal prosecution for violation of 18 U.S.C. Section 207(a) unless she withdrew from the case treads perilously close to a violation of an accused's Sixth Amendment right to counsel. The government should have raised its concerns and its request before the Court instead of exercising the overpowering force of threatening her with criminal charges. The United States can use a sword, never a bludgeon, in exercising its responsibilities.
Ms. Castro-Schmidt will remain as defendant González-Florido's attorney, unless, after receiving copy of this Order and after they privately discuss the matter, defendant voluntarily decides that it is in his best interest to retain another counsel. Defendant and Ms. Castro-Schmidt are GRANTED a term of ten (10) days after notice of this Order to discuss the matter and inform the Court if he wishes to continue represented by her, or if he seeks an extension of time to retain another counsel.
SO ORDERED.
The Court has before it the Motion for Reconsideration filed by the United States of America on October 9, 1997 (docket entry 31) addressing the Order of September 25, 1997 (docket entry 29) in which the Court determined that defense attorney Castro-Schmidt will remain in the case unless defendant José González-Florido voluntarily decided after receiving copy of the order and privately discussing the matter, whether it was in his best interest to retain new counsel. The defendant replied to said motion on October 7, 1997 (docket entry 35).
Attached to the Motion for Reconsideration are three unsworn declarations under penalty of perjury of U.S. Attorney Guillermo Gil, Assistant U.S. Attorney Jorge E. Vega-Pacheco, Chief of the Criminal Division, and Assistant U.S. Attorney Warren Vázquez. Mr. Gil's declaration affirms that he discussed with Ms. Castro-Schmidt over the telephone the issue of her representation in an attempt to dissuade her from continuing the same but that he never threatened nor does he intend to prosecute attorney Castro-Schmidt for continuing her representation of defendant González-Florido. A.U.S.A. Vázquez, in charge of the case, states that he "suggested to counsel Castro that she should consider from continuing(sic) her representation in the abovementioned case." Both Assistant U.S. Attorneys Vázquez and Vega-Pacheco declared under penalty of perjury that in the course of their duties they "attended a hearing before Magistrate Judge Justo Arenas wherein the issue of the continued representation of Mr. González Florido was argued" and "[t]hat neither in the in chambers conference nor at any time, have I ever threatened to prosecute attorney Castro for her continued representation of Mr. González Florido."
In the request to reconsider the United States addresses the...
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Public corruption.
...interest where counsel's conduct, "as a whole, creates the 'reasonable appearance' of significance"); United States v. Gonzalez-Florido, 986 F. Supp. 687, 689 (D.P.R. 1997) (allowing counsel to remain where she had participated as U.S. Attorney with same defendant, but several years prior);......
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Public corruption.
...interest where counsel's conduct, "as a whole, creates the 'reasonable appearance' of significance"); United States v. Gonzalez-Florido, 986 F. Supp. 687, 689 (D.P.R. 1997) (allowing counsel to remain where she had participated as U.S. Attorney with same defendant, hut several years prior);......
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Public corruption.
...interest where counsel's conduct, "as a whole, creates the 'reasonable appearance' of significance"); United States v. Gonzalez-Florido, 986 F. Supp. 687, 689 (D.P.R. 1997) (allowing counsel to remain where she had participated as U.S. Attorney with same defendant, but several years prior);......
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Public corruption.
...interest where counsel's conduct, "as a whole, creates the 'reasonable appearance' of significance"); United States v. Gonzalez-Florido, 986 F. Supp. 687, 689 (D.P.R. 1997) (allowing counsel to remain where she had participated as U.S. Attorney with same defendant, but several years prior);......