U.S. v. Muflahi
| Decision Date | 15 April 2003 |
| Docket Number | No. 03-M-1105.,No. 02-CR-92A(F).,02-CR-92A(F).,03-M-1105. |
| Citation | 317 F.Supp.2d 208 |
| Parties | UNITED STATES of America, v. Mohamed H. MUFLAHI, Defendant. United States of America, v. Abdulizzez NASR, Defendant. |
| Court | U.S. District Court — Western District of New York |
Michael A. Battle, United States Attorney, Maryellen Kresse, Assistant United States Attorney, of Counsel, Buffalo, NY, for the Government.
Bouvier, O'Connor, LLP, George R. Blair, Jr., Michael J. Likoudis, of Counsel, Buffalo, NY, for Defendants.
DECISION and ORDER
The above referenced Indictment was referred to the undersigned for all pretrial matters by order of Hon. Richard J. Arcara dated June 20, 2002 (Doc. No. 6); the referenced Complaint, filed May 30, 2002, is before the court pursuant to 28 U.S.C. § 636(a)(1). Each matter is presently before the court on the Government's motions, filed January 7, 2003, to disqualify counsel (Doc. No. 16).
These cases arise from an undercover investigation conducted by the United States Department of Agriculture into allegations of food stamp fraud occurring at a small convenience food and beverage store, Five Star Food and Beverage Center, located in Buffalo, New York, and owned by Anwar H. Muflahi, a defendant charged in 02-CR-91A(F), at which Defendants Mohamed H. Muflahi and Abdulizzez Nasr were employees. Defendant Mohamed Muflahi and Anwar Muflahi are brothers. Government's Memorandum of Law in Support at 2.
Defendant Mohamed H. Muflahi ("Mohamed Muflahi" or "Muflahi") is charged in a indictment alleging two counts of food stamp fraud in violation of 7 U.S.C. § 2024(b) based on transactions occurring on March 4, 2002 and May 1, 2002, respectively. Defendant Abdulizzez Nasr ("Nasr") is charged in a Criminal Complaint filed May 30, 2002 (Doc. No. 1) with violating 7 U.S.C. § 2024(b) on January 3, 2002 and March 6, 2002, respectively. In a related case, Anwar H. Muflahi is also charged in a five count Indictment, 02-CR-91A(F), with violations of 7 U.S.C. § 2024(b) on December 5, 2001, February 5, 2002, February 6, 2002, March 5, 2002, and April 3, 2002. At their respective arraignments and initial appearance Defendants informed the court they had retained Michael Likoudis and George Blair, Jr. as their attorneys.
Because all of the alleged unlawful food stamp redemptions occurred at the same store, Five Star Food and Beverage, and despite the fact that Defendants were not jointly charged and the alleged violations occurred on different dates, the court conducted, on June 18, 2002, a hearing pursuant to Fed.R.Crim.P. 44(a) and United States v. Curcio, 680 F.2d 881 (2d Cir.1982).
At the hearing, in which Defendants participated in English, the court advised Defendants of the potential risks associated with joint representation. At that time, it was represented to the court that Defendants and the Government had entered into plea negotiations and that a plea offer by which Defendants would plead to a felony count of violating 7 U.S.C. § 2024(b) was being considered.
Subsequently, defense counsel was informed by the Government that the Government's plea posture had changed and that Muflahi and Nasr, employees of the store owner Anwar Muflahi, were offered misdemeanor pleas on the condition that they agree to cooperate including testifying against Anwar Muflahi. Government's Memorandum at 3. The Government further advised counsel that such development created a disqualifying conflict, a need for separate counsel and requested an appearance before the court. Id. At a pretrial conference scheduled on the Government's suggestion of disqualification, conducted November 5, 2002, Michael P. Stuermer, Esq. and Paul J. Cambria, Jr., Esq. entered an appearance on behalf of Anwar Muflahi and Attorneys Blair and Likoudis withdrew from their representation of Anwar Muflahi. Id. at 4. Although Mr. Blair stated that he believed an actual conflict existed as to his and Mr. Likoudis's continued representation of Mohamed Muflahi and Nasr, a further adjournment was granted to enable the parties to discuss the issue and report back to the court. Id.
On December 19, 2002, Mr. Blair informed the court and the Government that he now believed no basis for his withdrawal1 was presented and declined the Government's suggestion that he do so. Government's Memorandum at 5. Based on the conditional nature of the Government's plea offer, the Government maintained an actual conflict was present and orally moved to disqualify Messrs. Blair and Likoudis. Id. Following oral argument, the court requested written briefs. Id.
The Government's written motions to disqualify were, as noted, filed January 7, 2003 in each case along with its Memorandum of Law in Support ("Government's Memorandum"). Defendants' Memoranda in Opposition were filed in each case, February 6, 2003 ("Defendants' Memoranda"). Further oral argument was deemed unnecessary. Based on the following, the Government's motion is GRANTED.
Although the Sixth Amendment guarantees to an accused the right to have and choose counsel, the right is not unconditional. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The court retains the duty to assure that such choices do not create risk that counsel operate with actual or potential conflicts of interest so as to impair the effectiveness of representation. Id. Indeed, this overriding obligation places courts in the dilemma of creating reversible error for failure to prevent ineffective assistance of counsel claims, on the one hand, and interference with a defendant's right to select counsel of his choice, on the other. Id. at 161-62, 108 S.Ct. 1692. The perils of deciding either way may make the court's decision difficult but it cannot paralyze the court into inaction, as the court is required to carry out its inherent duty to supervise the quality of representation in its proceedings. Id. at 163, 108 S.Ct. 1692.
"A defendant's Sixth Amendment right to the effective assistance of counsel includes the right to be represented by an attorney who is free from conflicts of interest." United States v. Blount, 291 F.3d 201, 210 (2d Cir.2002) (citing Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 1241, 152 L.Ed.2d 291 (2002)). The Sixth Amendment right to counsel is not absolute; although a defendant's choice of counsel is presumptively favored, a determination of disqualification by the court will be sustained where the court, in its sound discretion, finds either an actual conflict or a serious potential for conflict. Wheat, supra, at 164, 108 S.Ct. 1692. "An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and the defendant's interests diverge with respect to a material factual or legal issue or to a course of action." United States v. Schwarz, 283 F.3d 76, 91 (2d Cir.2002) (internal quotation omitted), cert. denied, 511 U.S. 1022 (1994).
Once the court is advised of the possibility of a conflict of interest, the court is obligated to "investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all." United States v. Levy, 25 F.3d 146, 153 (2d Cir.1994). Nevertheless, dual or subsequent representation, without more, does not violate the Sixth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 346-349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see United States v. Stantini, 85 F.3d 9, 14 (2d Cir.) (), cert. denied, 519 U.S. 1000, 117 S.Ct. 498, 136 L.Ed.2d 390 (1996). Further, the government bears a heavy burden of establishing that concerns about the integrity of the judicial process justify the disqualification in the particular circumstances of the case. See Evans v. Artek Sys. Corp., 715 F.2d 788, 794 (2d Cir.1983) (); United States v. Phillips, 699 F.2d 798, 801-02 (6th Cir.1983) (), overruled on other grounds, United States v. Tosh, 733 F.2d 422 (6th Cir.1984); Sauer v. Xerox Corp., 85 F.Supp.2d 198, 199 (W.D.N.Y.2000) ().
A conflict of interest may be based on a defendant's attorney's prior representation of a government witness who is to appear on the Government's behalf against the defendant. Blount, supra, at 211 (citing Mickens, supra, at 1245); United States ex rel. Stewart on Behalf of Tineo v. Kelly, 870 F.2d 854, 857 (2d Cir.1989). Whether to disqualify counsel involves the defendant's right to a fair trial, which includes balancing the interests of the former client and witness with the interests of the government and the public, against the defendant's right to representation by the counsel of his choice. Stewart, supra, at 856. Disqualification should result where defense counsel's prior representation of a trial witness carries with it a substantial risk that "vigorous cross-examination" of the witness may be impaired to the disadvantage of the defendant so as to avoid improperly using information previously acquired from the witness. Wheat, supra, at 164, 108 S.Ct. 1692; Stewart, supra, at 857.
As such, "[t]he trial court must evaluate the interests of the defendant, the government, the witness and the public in view of the circumstances of the particular case and perform a `balancing test' to determine if there is either an actual conflict or a serious potential for conflict requiring disqualification." United...
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