United States v. Bolivar
| Decision Date | 20 July 2012 |
| Docket Number | No. CR 12-0128 JB,CR 12-0128 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MIGUEL BOLIVAR, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Motion for Substitution of Counsel and Memorandum in Support Thereof, filed May 29, 2012 (Doc. 182)("Motion"). The Court held hearings on June 15, and June 20, 2012. The primary issues are: (i) whether Defendant Miguel Bolivar's new counsel, Erlinda Johnson, has an actual or serious potential conflict of interest in this case; and (ii) if so, whether that conflict can be waived. The Court will grant the Motion. The Court finds that there is no conflict and that, even if Ms. Johnson has a conflict, the Waiver by Miguel Bolivar, filed June 20, 2012 (Doc. 206)("Bolivar Waiver"), and the Waiver by Eugenio Mendoza-Renteria, filed June 20, 2012 (Doc. 207)("Mendoza-Renteria Waiver"), satisfy any concerns that the Court might have.
On July 1, 2008, co-Defendant Eugenio Mendoza-Renteria was arrested for possessing with intent to distribute 5 kilograms and more of cocaine. See Motion at 3; United States v. Enran Rodriguez, CR 08-1667, Docket Text Entry, June 30, 2012 (Black, J.).1 The federal court appointedMs. Johnson to represent Mendoza-Renteria. See Motion at 4; United States v. Enran Rodriguez, CR 08-1667, CJA Appointment and Authority to Pay Court Appointed Counsel, filed July 1, 2008 (Doc. 6). On July 15, 2008, Mendoza-Renteria retained D. Chipman Venie to represent him and, on July 22, 2008, Ms. Johnson was terminated as counsel for Mendoza-Renteria. See Motion at 3-4; United States v. Enran Rodriguez, CR 08-1667, Entry of Appearance, filed July 15, 2008 (Doc. 16). On July 22, 2009, a federal grand jury returned a one-count indictment against Mendoza-Renteria, charging him with attempt to possess with intent to distribute cocaine. See Motion at 4; CR 08-167 Indictment at 1. After Mr. Venie was terminated as counsel on September 30, 2008, Ms. Johnson was reappointed to represent Mendoza-Renteria. See Motion at 4; United States v. Enran Rodriguez, CR 08-1667, Order, filed September 26, 2008 (Doc. 35); United States v. Enran Rodriguez, CR 08-1667, CJA Appointment and Authority to Pay Court Appointed Counsel, filed September 30, 2008 (Doc. 37). From October 1, 2008 to April 2009, Ms. Johnson prepared Mendoza-Renteria's case for trial and, on April 23, 2009, a jury found Mendoza-Renteria not guilty of attempting to possess with intent to distribute cocaine, but found him guilty of a misdemeanor offense. See Motion at 4; United States v. Enran Rodriguez, CR 08-1667, Verdict, filed April 23, 2009 (Doc. 109). On July 17, 2009, Mendoza-Renteria was sentenced to 364 days in custody and 1 year of supervised release, and Ms. Johnson's representation of Mendoza-Renteria terminated. See United States v. Enran Rodriguez, CR 08-1667, Judgment in a Criminal Case, filed June 23, 2009 (Doc. 119).
The arrests in this case stems from a multi-defendant indictment that a federal grand juryissued on January 24, 2012. See Redacted Indictment, filed January 24, 2012 (Doc. 2)("CR 12-0128 Indictment"). One of the individuals charged in the indictment is Mendoza-Renteria. See CR 12- 0128 Indictment at 1. Another is Bolivar. See CR 12-0128 Indictment at 1. Bolivar represents that he and Mendoza-Renteria do not know each other. See Motion at 2.
On January 26, 2012, Bolivar and others were arrested for conspiracy to possess with the intent to distribute controlled substances, contrary to 21 U.S.C. §§ 841 (a)(1) and (b)(1)(A) and (B), in violation of 21 U.S.C. § 846, and use of a telephone to facilitate a drug offense, in violation of 21 U.S.C. § 843. See Motion at 2; Docket Text Entry, filed January 26, 2012. On January 27, 2012, Bolivar appeared before a United States Magistrate Judge for an initial appearance. See Motion at 2; Clerk's Minutes, filed January 27, 2012 (Doc. 34). On February 1, 2012, Bolivar was arraigned on the indictment and released on his own recognizance. See Motion at 2; Clerk's Minutes of Arraignment/Detention, filed February 1, 2012 (Doc. 76). During that hearing, Troy Prichard represented Bolivar. See Motion at 2; Clerk's Minutes of Arraignment/Detention at 1. His entry of appearance, however, does not appear on the Court's docket until February 13, 2012. See Motion at 2; Entry of Appearance, filed February 13, 2012 (Doc. 119). Roberto Albertorio was appointed to represent Mendoza-Renteria. See Motion at 4; CJA Appointment of and Authority to Pay Court Appointed Counsel, filed January 30, 2012 (Doc. 58).
On March 21, 2012, the Court held a status conference at which all defense attorneys and all defendants, with the exception of Bolivar and the fugitive defendants, were present. See Clerk's Minutes, filed March 21, 2012 (Doc. 168). On March 27, 2012, the Court held a hearing to show cause why it should not hold Bolivar in contempt for failing to appear at a March 21, 2012, hearing. See Motion at 2; Notice of Show Cause Hearing, filed March 22, 2012 (Doc. 165). At the hearing, Bolivar explained that Mr. Prichard had not informed him that his attendance was mandatory orwhen the March 21, 2012 hearing was to begin. See Transcript of Hearing at 3:12-16 (March 27, 2012)(Bolivar)("March 27, 2012 Tr.").2 Mr. Prichard represented that there was a miscommunication, but that he had informed Bolivar about the hearing. See March 27, 2012 Tr. at 3:17-21 (Prichard). Mr. Prichard admitted, however, that he did not call Bolivar the night before the hearing to remind him about the hearing. See March 27, 2012 Tr. at 3:21-22 (Prichard). The Court explained that, if Mr. Prichard was unsure whether his client needed to appear, he needed to consult the Court's Courtroom Deputy or assume that Bolivar's presence was required. See March 27, 2012 Tr. at 4:21-5:3 (Court). Unsatisfied with Mr. Prichard's representation, in April 2012, Bolivar contacted Ms. Johnson about representing him in this case. See Motion at 2. Bolivar represents that, on May 18, 2012, he delivered a letter to Mr. Prichard requesting his immediate withdrawal as his counsel and, at that time, Bolivar terminated Mr. Prichard's services. See Motion at 2. On May 24, 2012, Bolivar retained Ms. Johnson as his counsel of choice. See Motion at 3. Bolivar represents that Mr. Prichard has no position on the substitution of counsel. See Motion at 1. Bolivar represents that Ms. Johnson and Assistant United States Attorney Reeve Swainston had been in contact regarding substitution of counsel, and that Mr. Swainston "advised that he objects to this motion to substitute counsel, citing conflict of interest due to undersigned counsel's previous representation of co-defendant Eugenio Mendoza-Renteria in a 2008 unrelated case." Motion at 1.
On May 29, 2012, Bolivar filed his Motion. See Doc. 182. Bolivar asserts that Plaintiff United States of America is unable to demonstrate that Ms. Johnson would be laboring under a conflict of interest in her representation of Bolivar. See Motion at 5. He argues that the Sixth Amended to the United States Constitution guarantees him the right to be represented by counselof his choice, and that a defendant is deprived of that right when he is prevented from obtaining the counsel of his choosing. See Motion at 5 (citing United States v. Gonzales-Lopez, 548 U.S. 140 (2006)). He contends that, for an attorney to be disqualified based on a conflict of interest, it must be shown that the attorney "actively represented conflicting interests and that an actual conflict of interest adversely affected the lawyer's performance." Motion at 5 (citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). Bolivar points to the American Bar Association's Model Rules of Professional Conduct, which provide: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." Motion at 6 (quoting Model Rules of Prof'l Conduct R. 1.9(a)). He asserts that a matter is substantially related if: "(1) [t]he current matter involved the work the lawyer performed for the former client; or (2) [t]here is substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has been generally known." Motion at 6-7 (). He argues that there is "absolutely no evidence that [Ms. Johnson's] prior representation of Mr. Mendoza in an unrelated and closed matter would create a conflict in [Ms. Johnson's] representation of Mr. Bolivar in the above captioned case." Motion at 7. He suggests that, to demonstrate an actual conflict of interest, the United States must point to "specific instances which suggest an impairment or compromise of one client's interests for the benefit of another party." Motion at 8 (citing Danner v. United States, 820 F.2d 1166, 1169 (11th Cir. 1987)). Bolivar asserts that any perceived conflicts related to Ms. Johnson's representation are speculative and that, even if the United States establishes a possible conflict, he is entitled to show that "there is good cause to believe that no conflict of interest is likelyto arise." Motion at 8 (quoting Fed.R.Crim.P. 44(c)(2)). He contends that, here, there is no information that indicates that he and Mendoza-Renteria have conflicting adverse interests. See Motion at 9.
Bolivar further asserts that the potential for conflict is not sufficient to disqualify a defendant's choice of counsel. See Motion at 9 (citing Matter of Special February 1977 Grand Jury, 581 F.2d 1262, 1264-65 (7th Cir. 1978)). He argues that "[a] mere belief or fact...
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