U.S. v. Kaufman
| Decision Date | 26 January 2005 |
| Docket Number | No. 04-40141-01/02-SAC.,04-40141-01/02-SAC. |
| Citation | 354 F.Supp.2d 1201 |
| Parties | UNITED STATES of America, Plaintiff, v. Arlan Dean KAUFMAN, and Linda Joyce Kaufman, Defendants. |
| Court | U.S. District Court — District of Kansas |
Kristy Parker, Lisa Krigsten, U.S. Department of Justice, Washington, DC, Tanya J. Treadway, Office of United States Attorney, Topeka, KS, for Plaintiff.
J. Justin Johnston, James R. Wyrsch, Keith E. Drill, Wyrsch Hobbs & Mirakian, PC, Kansas City, MO, for Defendants.
The case comes before the court on the government's motion to disqualify defense counsel (Dk. 74) and the government's unopposed motion for complex case designation (Dk. 81). On January 18, 2005, the court heard arguments and suggestions from the parties, granted the unopposed motion for complex case designation, and took the motion to disqualify counsel under advisement. Having reviewed the matters submitted and researched the governing law, the court rules as follows.
MOTION TO DISQUALIFY (Dk. 74).
The government seeks to disqualify the law firm of Wyrsch, Hobbs & Mirakian, P.C. ("Wyrsch firm") which currently represents both defendants from representing either defendant. The government argues two grounds: first, that good cause exists for believing the joint representation creates a conflict of interest, and second, that an attorney associated with the Wyrsch firm is likely to be a witness at trial. In opposing the motion, the defendants deny that the argued conflict of interest is anything more than speculation, but should the court find an actual or potential conflict then the defendants offer an alternative remedy short of disqualification, namely, the defendants' written waivers of conflict-free counsel and the retention of independent trial counsel for Linda Kaufman. The defendants dispute that James Fletcher's involvement and activities in this case make him a necessary witness at trial.
The Sixth Amendment to the United States Constitution guarantees the right of counsel to a defendant in a criminal prosecution. This "right to effective assistance of counsel contemplates the right to conflict-free representation." Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir.) (citing Holloway v. Arkansas, 435 U.S. 475, 483-84, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)), cert. denied, 540 U.S. 973, 124 S.Ct. 446, 157 L.Ed.2d 323 (2003). The right to conflict-free counsel extends to plea negotiations and proceedings, trial, and sentencing. See Holloway, 435 U.S. at 490-91, 98 S.Ct. 1173. Because the focus of this right is with insuring a fair adversarial process and not with securing a particular relationship between a defendant and his chosen counsel, the Supreme Court has observed:
[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.
Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Thus, a defendant's right to choose his own counsel is subject to different limitations, including the one relevant here, that is, when the defendant's chosen counsel represents co-defendants and a conflict of interest exists. Id. at 159-163, 108 S.Ct. 1692.
"Although multiple representation of co-defendants is not a per se violation of the Sixth Amendment, it does contain great potential for conflicts of interest." United States v. Martin, 965 F.2d 839, 842 (10th Cir.1992) (quoting United States v. Burney, 756 F.2d 787, 790 (10th Cir.1985)). "[M]ultiple representation of criminal defendants engenders special dangers of which a court must be aware." Wheat, 486 U.S. at 159, 108 S.Ct. 1692. A court must be alert to possible conflicts of interest and determine if the conflicts require separate counsel. Id. at 160, 108 S.Ct. 1692. Regardless of its ruling, a trial court may be "whipsawed" by subsequent challenges of error in that the multiple representation resulted in ineffective assistance of counsel or that the denial of multiple representation resulted in the defendant losing his right to choose his own counsel. Id. at 161, 108 S.Ct. 1692. For these reasons, it is important for the trial court to fulfill its duty to investigate cases of joint representation and afford the parties an opportunity to create a complete record on the relevant issues. Rule 44(c) of the Federal Rules of Criminal Procedure1 lays out the trial judge's duty to investigate, and the court here has conducted a Rule 44(c) hearing with both sides having the chance to submit all of their respective arguments and evidence.
As provided by Rule 44(c), a court must act to protect each defendant's right to counsel, "[u]nless there is good cause to believe that no conflict of interest is likely to arise." In cases of joint representation, a conflict occurs when the defendants' interests "`diverge with respect to a material factual or legal issue or to a course of action,'" United States v. Martin, 965 F.2d at 842 (quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n. 3, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)); "when counsel cannot use his best efforts to exonerate one defendant for fear of implicating the other,'" Dokes v. Lockhart, 992 F.2d 833, 836 (8th Cir.1993) (quoting Hayes v. Lockhart, 766 F.2d 1247, 1250 (8th Cir.), cert. denied, 474 U.S. 922, 106 S.Ct. 256, 88 L.Ed.2d 263 (1985)), cert. denied, 513 U.S. 968, 115 S.Ct. 437, 130 L.Ed.2d 348 (1994); and "whenever one defendant stands to gain significantly by advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing," United States v. McCaskey, 9 F.3d 368, 381 (5th Cir.1993) (citations omitted), cert. denied, 511 U.S. 1042, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994). When "the available evidence points to significantly different levels of culpability" between the jointly represented defendants, a conflict can develop. United States v. Stantini, 85 F.3d 9, 19 (2nd Cir.), cert. denied, 519 U.S. 1000, 117 S.Ct. 498, 136 L.Ed.2d 390 (1996). As explained in Holloway, the "[j]oint representation of conflicting interests is suspect because of what it tends to prevent an attorney from doing," as in "from challenging the admission of evidence prejudicial to one client but perhaps favorable to another or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another." 435 U.S. at 489-90, 98 S.Ct. 1173. Conflicts from joint representation arise not only in those cases going to trial but may occur in plea negotiations and proceedings as well as in sentencing hearings. See Moore v. United States, 950 F.2d 656, 660 (10th Cir.1991).
As reflected in the advisory committee's notes to Rule 44(c), a contemplated remedy in the event of a conflict is a "knowing, intelligent and voluntary waiver of the right to separate representation." The Supreme Court in Wheat, however, rejected the argument that as a corollary to "the Sixth Amendment presumption in favor of counsel of choice" a waiver can cure any and all conflicts arising from joint representation. 486 U.S. at 160-64, 108 S.Ct. 1692. In fact, a waiver does not allay a court's independent concerns with "ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." 486 U.S. at 160, 108 S.Ct. 1692. Additionally, the trial court has "an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment." 486 U.S. at 161, 108 S.Ct. 1692. A trial court conducts its proceedings with a legitimate concern for its final judgment "remain[ing] intact on appeal." Id. These independent interests may justify a trial court's refusal of a proffered waiver upon a finding of a conflict of interest. 486 U.S. at 162, 108 S.Ct. 1692.
The Supreme Court in Wheat observed that the trial court must evaluate the appropriateness of a conflict waiver under some difficult circumstances:
Unfortunately for all concerned, a district court must pass on the issue of whether or not to allow a waiver of conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government's witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them.
486 U.S. at 162-63, 108 S.Ct. 1692. These described circumstances persuaded the Court to afford district courts "substantial latitude in refusing waivers of conflicts of interests not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." Id. at 163, 108 S.Ct. 1692. In sum, the district court must acknowledge the...
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