U.S. v. Swafford

• Decision Date: 17 January 2008
• Docket Number: No. 06-5878.,06-5878.
• Citation: 512 F.3d 833
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph SWAFFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

512 F.3d 833

UNITED STATES of America, Plaintiff-Appellee, v. Joseph SWAFFORD, Defendant-Appellant.

No. 06-5878.

United States Court of Appeals, Sixth Circuit.

Argued: December 7, 2007.

Decided and Filed: January 17, 2008.

ARGUED: Paul D. Cross, Clements & Cross, Monteagle, Tennessee, for Appellant.

Gregg L. Sullivan, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: Paul D. Cross, Clements & Cross, Monteagle, Tennessee, for Appellant. Perry H. Piper, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: MERRITT, COLE, and GRIFFIN, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

I.

The defendant, Joseph Swafford, challenges his conviction for selling iodine used in the production of methamphetamine, a controlled substance. We agree with the defendant that his conviction on the two conspiracy counts suffers from an impermissible variance because in each charge there were multiple conspiracies with different participants, and therefore the conspiracy convictions must be overturned. Additionally, we find that the district court erred by denying the defendant's amended motion to strike or elect the substantive counts. The 38 substantive counts must therefore be merged into 19 counts. Accordingly, we reverse the district court opinion in part and remand with instructions to resentence the defendant in accordance with this opinion.

II.

On February 24, 2005, a federal grand jury returned a forty-count superceding indictment charging Swafford with crimes related to the sale of iodine, a necessary ingredient in the production of methamphetamine. Count 1 charged that from August 1, 2001, to October 15, 2004, the defendant and co-defendant corporation, JES, Inc.—operating as Broadway Home and Garden ("Broadway")—conspired to aid and abet the manufacture of 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. Count 2 charged that for the same dates the defendants conspired to distribute iodine, having reasonable cause to believe that it would be used to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(c). Counts 3 through 21 charged that on various dates the defendants possessed chemicals knowing and having reasonable cause to believe that they would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 843(a)(6). Finally, counts 22 through 40 charged that on various specific dates, the defendants unlawfully distributed iodine, knowing and having reasonable cause to believe that the iodine would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2).

At trial, the government offered considerable testimony from approximately 20 former Broadway customers and admitted methamphetamine "cooks," each of whom testified that Swafford had sold them iodine, many on a regular basis, over a number of years. The government attempted to prove that such quantities clearly exceeded that necessary for a legal purpose (e.g. the treatment of horses), thus precluding a potentially legitimate buyer-seller relationship. The government also offered testimony tending to show that the defendant was aware that the iodine was destined for methamphetamine production, including the following facts: the defendant only accepted cash for the sales of iodine (but would allow credit cards for other sales), used trade language associated with methamphetamine production, warned his iodine customers when federal agents were in the store, advised his clients about different types of iodine available and enquired about the resulting product. A jury found Swafford guilty on all forty counts and the judge sentenced Swafford to 360 months, the minimum recommended Guidelines sentence.¹ Swafford filed a timely appeal and raises a total of eight challenges to his conviction.

III.

The defendant argues that the district court erred in granting the government's motion to disqualify his retained counsel. This Court's standard of review of a district court's decision regarding the disqualification of counsel is a "generous one." United States v. Mays, 69 F.3d 116, 121 (6th Cir.1995). "The district court is to be given wide latitude" in making such determinations and a decision will be upheld unless "arbitrary" or "without adequate reasons." Id.

The Sixth Amendment guarantees counsel for all defendants in criminal prosecutions and recognizes a qualified right to choose that counsel. Wheat v. United States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). A defendant enjoys a presumption in favor of counsel of choice, but such a presumption may be overcome because such a choice must be balanced with "the court's interest in the integrity of the proceedings and the public's interest in the proper administration of justice." Mays, 69 F.3d at 121; see also Wheat, 486 U.S. at 164, 108 S.Ct. 1692. In situations where a potential conflict of interest may arise, the court's interest in the integrity of the proceedings may trump the defendant's choice. Whether the client waives his right to conflict-free representation is not dispositive, as district courts have the ability to prevent a conflict "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." Wheat, 486 U.S. at 163, 108 S.Ct. 1692.

The defendant claims that the district court erred in granting the motion to disqualify counsel because he had waived his right to an "advice of counsel" defense. Originally, the defendant intended to offer the partial defense of "advice of counsel," which disproves the mens rea element of the offense, by showing that he had spoken with a lawyer from the same firm representing him at trial about the legality of his iodine sales. In describing the potential for this defense to result in a conflict of interest, the district judge noted that the firm had refused to allow the defendant to call the lawyer who allegedly provided the advice, that the government intended to call an attorney from the firm if Swafford testified as to his conversation, and that defense counsel's potential loyalty to the firm might prevent him from adequately cross-examining a fellow partner. See United States v. Swafford, 2005 U.S. Dist. LEXIS 26890, *26 (D.Tenn.2005) (mem.) (citing Tenn. S.Ct. R. 8, RPC 1.7(b)(2005)). The judge acknowledged that Swafford was prepared to waive this defense and that his counsel did not believe that their representation would be adversely affected. Id. at *10-11. Nevertheless, he granted the motion on the grounds that during the course of the trial, the government might offer evidence leading the defendant to testify, which, in turn, might implicate the conflict of interest within the firm. This potential, the court concluded, required resolution of the issue before the trial because "the stakes are so high" (e.g. mistrial, replacing counsel). Id. at *27.

The district court appropriately recognized its obligation to balance the defendant's right to counsel of choice with the court's independent obligation to serve justice. The district court quoted the following language from Wheat, which is instructive as well for the reviewing court:

Unfortunately for all concerned, a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen 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.

Swafford, 2005 U.S. Dist. LEXIS 26890 at *23-24 (quoting Wheat, 486 U.S. at 162-163, 108, S.Ct. 1692). Such discretion is warranted, moreover, because of the "whipsaw" nature of waiver of conflict-free representation: "If a trial court disqualifies counsel, defendant will argue . . . a violation of his Sixth Amendment right to counsel of his choice. If a trial court refuses to disqualify an attorney, a defendant may later attempt to raise an ineffective assistance of counsel claim based on conflict of interest, asserting that his waiver was not knowingly or voluntarily made." Sierra v. Michigan Depot of Corrections, 4 Fad 1348, 1353-1354 (6th Cir.1993) (citing Wheat, 486 U.S. at 161-62, 108 S.Ct. 1692). We are aware that such an argument— taken to its logical extreme—could allow a district court judge to disqualify counsel every time the government files a motion, but believe that the district court appropriately found that this was not the case. See Swafford, 2005 U.S. Dist. LEXIS 26890 at *24-25 (discussing that the possibility for the government to "manufacture" conflicts).²

We have previously affirmed the disqualification of counsel in a case involving a potential advice-of-counsel defense. See United States v. Timmer, 1995 WL 704186, 995 U.S.App. LEXIS 37057 (6th Cir.1995). In Timmer, a criminal defendant was charged with bankruptcy fraud and the same attorney...