U.S. v. Clark

• Decision Date: 21 August 2004
• Docket Number: No. 04-CR-123.,04-CR-123.
• Citation: 333 F.Supp.2d 789
• Parties: UNITED STATES of America, Plaintiff, v. Levan CLARK, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

333 F.Supp.2d 789

UNITED STATES of America, Plaintiff, v. Levan CLARK, Defendant.

No. 04-CR-123.

United States District Court, E.D. Wisconsin.

August 21, 2004.

COPYRIGHT MATERIAL OMITTED

Gregory J. Haanstad, Wm. J. Lipscomb, Milwaukee, WI, for Plaintiff.

Rodney L. Cubbie, Milwaukee, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Defendant Levan Clark was indicted for conspiring to possess with intent to distribute five or more kilograms of cocaine. He retained former Assistant United States Attorney ("AUSA") Rodney Cubbie as his lawyer. The government moved to disqualify Cubbie as Clark's counsel, arguing that Cubbie was barred from representing Clark in this particular case because of his previous work as an AUSA. I held a hearing on the matter and now conclude that the government's motion must be granted.

I. FACTS

Cubbie was employed as an AUSA in the United States Attorney's Office ("Office") in Milwaukee from April 1989 until May 1997. Between November 1993 and December 1996, he headed the Organized Crime Drug Enforcement Task Force ("OCDETF"), in which capacity he supervised several lawyers. As a supervisor, Cubbie assigned cases within the OCDETF, fielded questions and served as a sounding board for the AUSAs under him, and reviewed and approved prosecution decisions. Under Office procedure, an AUSA in the OCDETF could not go to the Grand Jury to obtain an indictment without first obtaining Cubbie's approval and that of two lawyers above him in the Office's chain of command. An AUSA would typically obtain such approval by drafting a prosecution memo, which summarized the evidence and the proposed charges, and then submitting it to Cubbie and the other two lawyers for their signatures. Prosecution memos were considered work product and not made available in discovery.

On December 27, 1994, the Office opened a file on a drug trafficking investigation centered on Andre Shawn Crenshaw (the "Crenshaw investigation" or "Crenshaw matter"), which listed Cubbie as the AUSA assigned to the case. (Gov't Ex. 1.) Cubbie later assigned the case to AUSA Pamela Pepper, and on July 12, 1996, Pepper drafted a prosecution memo (Gov't.Ex. 14),¹ and submitted it to Cubbie, Criminal Division Chief Francis Schmitz and U.S. Attorney Thomas Schneider for approval. The memo evaluated the evidence against and identified as potential defendants Crenshaw, Travis Bean, Anthony Bean, Robert Bean, Elijah Rimmer, Michael Hudson, Jeffrey Smith, Jeffrey Coleman and the defendant in the present case, Levan Clark. Pepper's memo was approved in part because on June 16, 1996, the persons named in it except for Hudson, Smith, Coleman and Clark were indicted.²

Thomas Gorecki, the lead law enforcement agent on the Crenshaw matter, testified that he prepared a number of reports on the investigation and forwarded them to Cubbie as the assigned AUSA. (Gov't.Ex. 3-11.) In March 1995, Gorecki learned that Crenshaw had met with Hudson, Smith and Clark in Houston concerning the transportation of cocaine to Milwaukee, and he obtained records from Houston hotels confirming their presence there. (Gov't. Ex. 18 at 5-6, ¶ 9.) Gorecki testified that he believed that he discussed obtaining such records with Cubbie, and that Cubbie also assisted him in obtaining a subpoena for phone records related to the investigation. Gorecki also stated that in August 1995, he debriefed a witness in the Crenshaw case, Lois Wheeler, and that Cubbie was present for at least part of the interview. (See Gov't. Ex. 13.) Gorecki further testified that after Cubbie assigned the case to Pepper, he complained to Cubbie about Pepper's lack of progress on the case, that he continued to forward reports to Cubbie, and that he had other conversations with Cubbie about the case.

Cubbie testified that he did not recall working on the Crenshaw investigation, talking to Gorecki about it, or seeing any of Gorecki's reports. He also did not recall the Wheeler debriefing or reading or signing Pepper's prosecution memo. He testified that he had been a hands off supervisor, that his involvement in the matter, if any, was of a formal nature, and that he possessed no information about Clark's case resulting from his service as an AUSA.

II. DISCUSSION

A. Disqualification Standard

The Sixth Amendment protects a defendant's right to choose his own counsel. United States v. O'Malley, 786 F.2d 786, 789 (7th Cir.1986) (citing Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). However, such right is not absolute and may be outweighed if chosen counsel has a potential conflict of interest as the result of his prior representation of other defendants or government witnesses, or by his previous or ongoing relationship with the government. See, e.g., Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Algee, 309 F.3d 1011, 1013 (7th Cir.2002), cert. denied, 538 U.S. 925, 123 S.Ct. 1595, 155 L.Ed.2d 317 (2003); United States v. Combs, 222 F.3d 353, 360-61 (7th Cir.2000); O'Malley, 786 F.2d at 790-91. Such a conflict might prevent a lawyer from vigorously representing one client to the detriment of another, Combs, 222 F.3d at 361; see also Hall v. United States, 371 F.3d 969, 973 (7th Cir.2004), or provide the lawyer with an unfair advantage against his former client, Huston v. Imperial Credit Commer. Mortg. Inv. Corp., 179 F.Supp.2d 1157, 1168 (C.D.Cal.2001).

Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Wheat, 486 U.S. at 160, 108 S.Ct. 1692; see also Combs, 222 F.3d at 361. Thus, the Supreme Court has held that district courts must be afforded substantial latitude in ruling on disqualification issues, not only in cases where there is an actual conflict, but also where there is a potential conflict. Wheat, 486 U.S. at 163, 108 S.Ct. 1692. The district court must recognize a presumption in favor of the defendant's counsel of choice, but that presumption may be overcome by a demonstration of an actual conflict or a serious potential for conflict. Id. at 164, 108 S.Ct. 1692.

In the present case, the government seeks to disqualify Cubbie based on his previous service as an AUSA. It relies on 18 U.S.C. § 207(a), which provides in relevant part:

Any person who is an officer or employee ... of the executive branch of the United States ... and who, after the termination of his service or employment with the United States ... knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court or court-martial of the United States ... on behalf of any other person ... in connection with a particular matter —

(A) in which the united States ... is a party or has a direct and substantial interest,

(B) in which the person participated personally and substantially as such officer or employee, and

(C) which involved a specific party or specific parties at the time of such participation, shall be punished as provided in section 216 of this title.

In enacting § 207(a), Congress's purpose was to protect the public from an individual attempting to use not the expertise, but the specific knowledge obtained while serving as a public servant. Among other things, the statute seeks to prevent such knowledge from being used against the government itself. Grant Dawson, Conflict of Interest: Working Guidelines for Successive Conflicts of Interest Involving Government and Private Employment, 11 Geo. J. Legal Ethics 329, 339-40 (Winter 1998). The statute "implement[s] the principle `that a public servant owes undivided loyalty to the Government.'" United States v. Medico Indus., Inc., 784 F.2d 840, 842-43 (7th Cir.1986) (quoting H.R.Rep. No. 748, 87th Cong., 1st Sess. (1961)). Section 207(a) accomplishes this purpose by prohibiting an official from changing sides on the same "particular matter." Id. at 843. According to the House committee which considered the proposal that became § 207(a), "`an official should be prohibited ... from "switching sides" in a matter which was before him in his official capacity.'" Id. (quoting House Report at 4.)

Under § 207(a), a former government employee is disqualified only if the particular matter involves the same "specific party or parties." Id. In addition, a former government employee is disqualified only if, while working for the government, he participated in the matter "personally and substantially." Id.; see also United States v. Martin, 39 F.Supp.2d 1333, 1334 (D.Utah 1999). The phrase "personally and substantially" is defined in 5 C.F.R. § 2637.201(d), as follows:

The restrictions of section 207(a) apply only to those matters in which a former Government employee had "personal and substantial participation," exercised "through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise." To participate "personally" means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. "Substantially," means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial. It is essential that the participation be related to a "particular matter involving a specific party."

B. Application of Standard to the Present Case

Cubbie does not dispute that he was at least minimally...