United States v. Green
| Decision Date | 14 February 2012 |
| Docket Number | No. CR 09-311 MCA,CR 09-311 MCA |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. PATRICIA JOSEPHINE GREEN, M.D., Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Defendant's Opposed Motion to Reconsider Dr. Green's Detention Pending Hearing on Her New Trial Motion. [Doc. 172] filed in this cause as Document No. 173. Having fully considered the applicable law, the arguments of counsel, the submissions of the parties, and otherwise being fully advised in the premises, the Court grants the motion and will release Defendant from confinement pending the conclusion of evidentiary proceedings on her motion for a new trial. Matters relating to the merits of Defendant's motion for new trial will be addressed by separate order, and in separate proceedings.
Much of the facts underlying this matter have been set out in detail in a previous order. See Doc. 199. As such, the Court only summarizes those facts already addressed in depth and recounts only such additional facts as are necessary to explain its decision to release Defendant.
Defendant Patricia Green, a medical doctor, was investigated for prescribing methadone in instances believed inappropriate for medical treatment. [Doc. 199] Agent Phil Caroland ledthe sting operation which resulted in the charges against her. [Id.] Agent Caroland entered Defendant's medical office in an undercover capacity and wearing a concealed recording device. [Id.] Defendant ultimately gave him a prescription for methadone. [Id.]
Defendant was first indicted on February 10, 2009 on a single count of dispensing a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). [Doc. 2] Her trial began on July 28, 2010 and, at that trial, she was represented by attorneys Gary Mitchell and Randall Harris. [Doc. 56] Immediately before the first trial commenced, Assistant United States Attorney Joel Meyers informed the Court that Agent Caroland, who was the key witness for the Government, was married to an associate working in Mr. Harris' small law office located in the city of Clovis, New Mexico. [Doc. 199] Mr. Harris acknowledged this fact and advised the Court that he had discussed this matter with Defendant and had built a firewall within his office so that his associate, Mrs. Caroland, would have no involvement of any kind with or access to information regarding Defendant's case. [Doc. 199] The Court engaged in a colloquy with Defendant where she indicated her desire to proceed with Mr. Harris as her representative despite the conflict. [Doc. 199] Defendant waived the conflict and the Court accepted her waiver. The trial proceeded. After many hours of deliberation, the jury was unable to reach a verdict and a mistrial was declared. [Doc. 57, 199]
Subsequent to the first trial, the Government filed a superceding indictment and included an additional charge alleging violation of §§ 841(a)(1) and (b)(1)(c), (the "death count"). [Doc. 73] Defendant's second trial commenced on May 23, 2011. She was represented at that trial by attorneys Randall Harris and Kirk Chavez. [Doc. 136] It should be noted that Mr. Harris and Mr. Chavez do not practice law out of the same office, and that each attorney was privatelyretained. The issue of the conflict involving Agent Caroland and his wife and was raised anew, as was the matter of the firewall. [Doc. 199] Mr. Harris assured the Court prior to the commencement of the second trial that a firewall was in place to protect Defendant and Defendant again indicated, during a colloquy with the Court, a desire to proceed with Mr. Harris as her representative. [Doc. 199] Defendant expressed her satisfaction with Mr. Harris' representation. On May 31, 2011, the jury returned a verdict of guilty on one count of dispensing controlled substances for no legitimate medical reason in violation of §§ 841(a)(1) and (b)(1)(c). [Doc. 148] Defendant was acquitted on the death count. [Id.]
Mr. Harris remained as Defendant's attorney until July 26, 2011. [Doc. 162] Mr. Chavez withdrew several weeks earlier, on June 29, 2011. [Doc. 156] On July 25, 2011, Judith Rosenstein entered her appearance as counsel for Defendant. [Doc. 161] Several days later, Jody Neal-Post also entered an appearance as counsel for Defendant.
On September 22, 2011, some sixteen weeks after her conviction, Defendant (through Ms. Rosenstein and Ms. Neal-Post) filed an ex parte motion for new trial pursuant to Fed.R.Crim.P. 33. [Doc. 172] Defendant filed the motion ex parte because she asserted that her motion contained privileged information. [Doc. 172] After briefing, a hearing, and oral argument, the Court issued a Memorandum Opinion and Order on November 9, 2011 requiring Defendant to release the ex parte motion to the Government to allow the Government an opportunity to review and respond to the arguments made therein. [Doc. 199] The motion was released on November 15, 2011, the Government submitted a timely responsive motion on December 7, 2011 [Doc. 210] and Defendant filed a timely reply on December 14, 2011. [Doc. 212] In her Rule 33 motion, Defendant makes three arguments in support of the contention that she is entitled to a new trial. First, Defendant claims that she is entitled to a new trial because Mr. Harris labored under the conflict of interest involving Agent Caroland and, although Defendant agreed to waive this conflict and proceed with Mr. Harris as her representative, her waiver was invalid. [Id. at 16-17] This claim will be referred to as the Caroland conflict.
Defendant next claims that she is entitled to a new trial because Mr. Harris was generally ineffective at her second trial. [Doc. 172 at 15-16] Finally, Defendant claims that she is entitled to a new trial because Mr. Harris was ineffective in that he labored under an actual financial conflict of interest. [Id. at 15] These claims were not made before or during the second trial but were raised for the first time in Defendant's Rule 33 motion.
For purposes of this Court's consideration of the pending motion seeking release from detention, a review of Defendant's arguments reveals that the latter two of the three claims she raises—general ineffectiveness and the financial conflict—are not viable as claims under 33(b)(1) as newly discovered evidence or as claims under 33(b)(2) as based on other grounds and which should be considered as timely due to excusable neglect. However, I find that Defendant's first argument as to "the Caroland conflict"—that she did not validly waive the right to counsel free of the conflict involving Agent and Mrs. Caroland—does not suffer from the same shortcomings. Thus, only the first claim-the Caroland conflict-- merits consideration with respect to Defendant's pending request to be released.
Defendant's Opposed Motion to Reconsider Dr. Green's Detention Pending Hearing on Her New Trial Motion. [Doc. 172] is governed by 18 U.S.C. § 3143(2), which provides asfollows:
Defendant contends that she should be released from detention because there is a substantial likelihood that her motion for a new trial will be granted and she is not likely to flee or pose a danger to any other person or the community. The success of Defendant's motion for release therefore depends on the substantial likelihood that her motion for a new trial under Fed. R. Crim. P. 33 will be granted.
Federal Rule of Criminal Procedure 33 provides as follows:
Generally, "[a] motion for a new trial is not regarded with favor and should only be granted with great caution." United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997).Rule 33 "authorizes district courts to grant new trials 'if required in the interest of justice.'" United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir. 2006).
The Rule does not define 'interests of justice' and the courts have had little success in trying to generalize its meaning. Nevertheless, courts have interpreted the rule to require a new trial 'in the interests of justice' in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial.
United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989); accord United States v. Ring, 768 F.Supp.2d 302, 310 (D.D.C. 2011). The Tenth Circuit has previously recognized that ineffective assistance of counsel may serve as the foundation for a motion for new trial under Rule 33. See United States v. Meacham, 567 F.3d 1184, 1187 (10th Cir. 2009) (...
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