State v. Reeder

• Decision Date: 23 June 2014
• Docket Number: No. 69226–7–I.,69226–7–I.
• Citation: 330 P.3d 786,181 Wash. App. 897
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Michael J. REEDER, Appellant.

181 Wash.App. 897

330 P.3d 786

STATE of Washington, Respondent,

v.Michael J. REEDER, Appellant.

No. 69226–7–I.

Court of Appeals of Washington, Division 1.

June 23, 2014.

David L. Donnan, Washington Appellate Project, Seattle, WA, for Appellant.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Scott Allen Peterson, King County Prosecuting Attorney, Seattle, WA, for Respondent.

LEACH, J.

¶ 1Michael Reeder appeals his conviction for 14 counts of securities fraud and 14 counts of theft in the first degree.He challenges the trial court's denial of his motions to appoint new counsel, to suppress evidence obtained with a special inquiry judge subpoena, and to dismiss some or all of the State's charges as barred by the statute of limitations.He also claims that his sentence for multiple counts of the same crimes violated the prohibition against double jeopardy.Because Reeder fails to show that his attorney had a conflict of interest, that the challenged subpoena violated his constitutional rights, or that the statute of limitations expired before the State filed criminal charges against him and because he was not subject to double jeopardy where each count was based on a discrete, fraudulent transaction, we affirm.

FACTS

¶ 2William McAllister, a Seattle resident, met Reeder through a company that provided nonbank real estate financing.Between March 2006 and June 2007, McAllister made a series of payments to Reeder for two real estate investments.

¶ 3 Reeder first told McAllister that he had an option to purchase two parcels of land in Lake Stevens, Washington.Reeder and McAllister formed a limited liability company and opened a bank account for the purpose of buying these two parcels of land.McAllister wired $200,000 to Reeder on May 26, 2006, and wrote a check to Reeder for $150,000 on June 16, 2006, to use for the down payment.Reeder and McAllister signed an agreement documenting these loans, which stated that Reeder had already entered into purchase and sale agreements for the properties.Reeder never purchased the land in Lake Stevens, nor did he return the $350,000 to McAllister.

¶ 4 On March 7, 2006, Reeder told McAllister that he had an opportunity to purchase property in Bellevue for $1.4 million.Reeder showed McAllister a fraudulent purchase and sale agreement and quitclaim deed for the property, as well as an appraisal report stating that the property was worth $2 million.At the time, Reeder knew that the owners did not want to sell the property.Based upon Reeder's representations, McAllister made a series of payments to Reeder totaling $1.4 million to use for its purchase.Reeder provided promissory notes for many, but not all, of these payments.The promissory notes indicated that the loans were “exclusively for business and commercial purposes and not for personal use.”Reeder never purchased the property and did not use any of the funds to buy the property.He did not return McAllister's money.¹

¶ 5The State obtained Reeder's bank and credit card records with subpoenas issued by a special inquiry judge under RCW 10.27.170.These records showed that McAllister made payments to Reeder totaling $1,725,700.The bank and credit card records also showed that Reeder withdrew McAllister's money in cash or used it to purchase cashier's checks payable to Reeder.He used the funds in casinos and for personal expenses.

¶ 6 On April 8, 2011, the State charged Reeder by information with 14 counts of securities fraud and 15 counts of first degree theft by deception based upon the 15 separate payments that McAllister provided.The State filed an amended information on June 15, 2012.

¶ 7 Before trial, Reeder moved to substitute counsel based on an alleged conflict of interest.The court denied this motion.

¶ 8 Before trial, Reeder also moved to suppress evidence obtained with the special inquiry judge subpoenas.He also moved to dismiss the securities fraud counts, alleging that the statute of limitations barred these charges.The trial court denied the motions.²Later, the court granted the State's motion to dismiss count 29 charging first degree theft.

¶ 9 The jury found Reeder guilty of 14 counts of securities fraud and 14 counts of first degree theft and returned special verdicts finding that each crime was a major economic offense or series of offenses.The court imposed an exceptional sentence above the standard range.

¶ 10 Reeder appeals.

ANALYSIS

¶ 11 Reeder raises four issues.First, he claims that his trial attorney had a conflict of interest that deprived Reeder of effective assistance of counsel.Second, he challenges the trial court's denial of his motion to suppress evidence obtained with a special inquiry judge subpoena.Third, he asserts that the statute of limitations barred some or all of the charges against him.Finally, he argues that his sentence violated the prohibition against double jeopardy.We reject Reeder's contentions and affirm.

Motion To Appoint New Counsel

¶ 12 Reeder claims that his trial counsel had a conflict of interest that prejudiced him throughout the proceedings.We review for abuse of discretion a trial court's decision to deny a motion to substitute counsel.³“Whether the circumstances demonstrate a conflict under ethical rules is a question of law, which is reviewed de novo.”⁴A defendant“ ‘must show good cause’ ” before the trial court will allow substitution of counsel, “ ‘such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.’ ”⁵

¶ 13 The Sixth Amendment right to counsel includes the right to conflict-free counsel.⁶Reeder invokes several Rules of Professional Conduct to support his claim.RPC 1.7(a) prohibits a lawyer from representing a client if the representation involves a concurrent conflict of interest.A concurrent conflict of interest exists if “the representation of one client will be directly adverse to another client” or if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”⁷RPC 1.10 prohibits lawyers associated in a firm from knowingly representing a client “when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.”⁸

¶ 14 To establish that an actual conflict of interest deprived him of effective assistance of counsel, Reeder must show both that his attorney had a conflict of interest and that the conflict adversely affected counsel's performance.⁹We presume prejudice if Reeder satisfies this two-part inquiry.¹⁰Demonstrating a mere possibility of a conflict of interest does not entitle him to relief.¹¹“[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”¹²

¶ 15 Reeder claims that his attorney, Matthew Pang, had a conflict of interest because another attorney at Pang's law firm, David Roberson, previously gave legal advice to Reeder's sister, Billy Jo Cuzak.Cuzak was neither a witness nor a party in this case.Here, the trial court allowed both parties, as well as Roberson, to address Reeder's motion to substitute counsel based upon this alleged conflict of interest.

¶ 16 Roberson told the court that before the State filed criminal charges against Reeder in this case and while Roberson was working at a different law firm, Cuzak called Roberson for legal advice “regarding a civil matter where I think the subject matter was either the same or very similar.”Roberson told the court that he created no file.He also notified his supervisor at his current firm and the attorney originally assigned to Reeder's case about these events; his supervisor decided that no conflict existed.

¶ 17The trial court denied Reeder's motion to substitute counsel.In its oral ruling, the court reasoned,

I just don't see a conflict of interest here.Even if there is one, the Court will deem it resolvable by a Chinese wall, and Mr. Roberson is now ordered not to discuss this with anyone at all.Mr. Pang is ordered not to discuss with Roberson, Mr. Pang is ordered to advise all—any investigators that they are not to discuss it with Mr. Roberson.There's no file to warn off so that doesn't make any difference.

¶ 18“The existence of an attorney/client relationship is a question of fact, the essence of which may be inferred from the parties' conduct or based upon the client's reasonable subjective belief that such a relationship exists.”¹³Even a short consultation may create an attorney-client relationship.¹⁴

¶ 19 Reeder argues that the conflict of interest “was real and legally cognizable” and that “the trial court's retreat behind a ‘Chinese Wall’ was ineffectual in resolving the conflict.”Reeder claims that this conflict prejudiced him because “defense counsel failed to understand the nature of the case, the relevant evidentiary standards and ultimately presented no defense.”

¶ 20 Reeder presents no facts or citations to the record to support his contentions.¹⁵Although he claims that “Mr. Roberson continues to owe a duty of loyalty to Ms. Cuzak,” Reeder cites insufficient facts to establish that Cuzak ever reasonably believed an attorney-client relationship existed.He fails to identify any interest Cuzak had that was adverse to his own or any responsibility owed to Cuzak that materially limited his attorney's representation.Reeder identifies no facts showing that the attorneys did not impose a proper Chinese wall or that this Chinese wall did not resolve any alleged conflict of interest.¹⁶Reeder fails to show a conflict of interest or prejudice.Because he must demonstrate both, the trial court did not abuse its discretion in denying his request to substitute counsel.

Suppression of Evidence Obtained...