United States v. Hersman, CRIMINAL ACTION NO. 2:13-cr-00002
| Decision Date | 05 March 2013 |
| Docket Number | CRIMINAL ACTION NO. 2:13-cr-00002 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. RAYMOND HERSMAN, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
Pending is the United States' motion requesting that the Court determine whether Defendant Raymond Hersman's counsel, William C. Forbes, has a disqualifying conflict of interest and should be removed as counsel in this case.1 [ECF 41.] Defendant filed under seal his response to the United States' motion contending that Mr. Forbes does not have a conflict of interest.2 (ECF 42-1.) For the reasons that follow, the Court GRANTS the United States' motion, FINDS that Mr. Forbes must be disqualified from representation of Defendant in this case, and DISQUALIFIES Mr. Forbes from further representation of Defendant.
On January 3, 2013, a federal grand jury returned a one-count indictment charging Defendant with possession with intent to deliver fifty grams or more of methamphetamine, a Schedule II controlled substance. (ECF 6.) United States Magistrate Judge, Mary E. Stanley, detained Defendant pending trial based, in part, on the seriousness of the offense, the weight of the evidence, and Defendant's significant prior criminal history. (ECF 12.) Trial was set for March 12, 2013.
In February 2013, the United States made its discovery disclosures, and Defendant filed his pre-trial motions. On February 20, 2013, Defendant moved to continue the pre-trial hearing on the grounds that he needed to determine whether a disqualifying conflict of interest existed. (ECF 34.) The Court granted the motion and continued the pre-trial motions hearing to February 28, 2013. On February 27, 2013, the United States filed its motion requesting the Court determine whether Mr. Forbes has a disqualifying conflict of interest. On February 28, 2013, the Court conducted a hearing on the United States' motion. Following the parties' proffers of mostly uncontested evidence and argument by counsel, the Court took the motion under advisement.
The United States contends that Defendant's counsel, Mr. Forbes, has a disqualifying conflict of interest because: 1) Mr. Forbes has previously represented three potential witnesses for the United States; and 2) Mr. Forbes, himself, is a potential witness in the case.
More particularly, the United States argues that Mr. Forbes previously represented one of the confidential informants (the "CI") used in the investigation of the defendant in this case, Raymond Hersman. The CI was a subject of a previous and unrelated federal grand juryinvestigation into a methamphetamine distribution network. Mr. Forbes negotiated an immunity agreement for the CI, and the CI then provided incriminating information to law enforcement about Mr. Hersman. One additional twist is that the CI's sources of the information about Mr. Hersman are: 1) another of Mr. Forbes' former clients, who is also a potential witness in this case; and 2) Mr. Forbes himself.
In addition to the CI, Mr. Forbes also previously represented a second individual in 2006, who the United States represents "will likely testify at the trial in this case." (ECF at 3.) (Although this second individual is publicly identified only as "the Source of Information" (the "SOI"), his or her identity has been disclosed to Mr. Hersman and Mr. Forbes in the course of discovery in this case.) The SOI pleaded guilty in federal court to a methamphetamine conspiracy charge and cooperated, like the CI, with the United States. The SOI implicated Mr. Hersman not only in the crime alleged in the Indictment in this case, but also in uncharged prior methamphetamine "dealings." (Id.)
Finally, the United States identifies a third potential witness who was formerly represented by Mr. Forbes. While it is less clear whether this person is likely to be a witness, the United States proffers that this individual has relevant incriminating information about Defendant.
In support of its motion, the United States cites Rule 1.7(a)(1) & (2) and Rule 1.9(a) & (c)(1) of the Model Rules of Professional Conduct, ethical rules which govern attorney conflicts of interest.3 The United States argues that Mr. Forbes' former representation of these witnessesconstitutes a conflict of interest in that he will not be able to engage in meaningful cross-examination of these former clients. The United States further argues that any verdict against Defendant could later be challenged by Defendant on the grounds that Mr. Forbes' representation of him was constitutionally ineffective because of these various alleged conflicts of interest.
Defendant denies Mr. Forbes has a disqualifying conflict of interest. Although Mr. Forbes admits his prior representation of the three potential witnesses for the United States, he claims that these former clients are "minor witnesses." (ECF 42-1.) Defendant asserts that Mr.Forbes' representation of the CI concluded "approximately 17 months ago" and that any statements the CI made incriminating Defendant were made after Mr. Forbes' representation of the CI ended. (Id.) Defendant, presumably referencing the SOI, states that Mr. Forbes' representation of this individual has likewise ended. Defendant also tenders written waivers by Defendant, the CI, the SOI, and a third individual purporting to waive any conflict of interest that Mr. Forbes might have. (ECF 42-2.)
The Sixth Amendment to the Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The right to assistance of counsel was designed to assure fairness in the adversary criminal process. United States v. Morrison, 449 U.S. 361, 364 (1981). "[T]he purpose of providing assistance of counsel 'is simply to ensure that criminal defendants receive a fair trial.'" Wheat v. United States, 486 U.S. 153, 158-59 (1988) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). "[I]n evaluating Sixth Amendment claims, 'the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such.'" Id. at 159 (citing United States v. Cronic, 466 U.S. 648, 657, n. 21 (1984)). "Thus, while 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." Id. (citations omitted). While a trial court must recognize a presumption in favor of a defendant's counsel of choice, that presumption may be overcome not only by a demonstration of actual conflict but also by a showing of a serious potential for conflict. Id. at 164.
An attorney has an actual conflict when he actively represents conflicting interests. United States v. Tatum, 943 F.2d 370, 375 (1991) (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). "[A] potential conflict of interest exists if the interests of a defendant could place his attorney under inconsistent duties in the future." United States v. Brodnik, 710 F. Supp. 2d 526, 541 (S.D. W. Va. 2010) (Berger, J.) (citing United States v. Jones, 381 F.3d 114, 119 (2nd Cir. 2004)) (other citations omitted). Although conflicts of interest usually occur when an attorney represents multiple clients, a conflict may also exist between an attorney's private interests and those of the client. United States v. Magini, 973 F.2d 261, 263-64 (4th Cir. 1992) (citations omitted). Disqualification may also be appropriate though no conflict of interest exists but circumstances indicate that the attorney has "first-hand knowledge of the events presented at trial." United States v. Locascio, 6 F.3d 924, 933 (2nd Cir. 1993). Thus, a defendant's attorney may be disqualified when the attorney might be called as a witness for the defendant or be an unsworn witness for the defendant at trial. Locascio, 6 F.3d at 934 ( ); United States v. Kliti, 156 F.3d 150, 156 (2nd Cir.1998) () Disqualification, however, is a "drastic remedy" to the unsworn witness problem. Locascio, 6 F.3d at 934.
In Wheat v. United States, supra, one attorney sought to represent three defendants who were charged in the same marijuana conspiracy. 486 U.S. at 155-56. The United States objectedand argued that the attorney's joint representation posed a potential conflict because, first, Mr. Wheat would likely be called as a witness in the trial of one co-defendant and, second, because the attorney represented the other co-defendant, who was likely to be called as a witness against Mr. Wheat. Id. All three defendants agreed to their representation by the same attorney and waived any future conflict of interest claims. Id. The Supreme Court held that the district court's refusal to allow the attorney to represent Mr. Wheat was within its discretion and did not violate petitioner's Sixth Amendment rights. Id. at 164. The Court soundly rejected the argument that waivers by all affected defendants resolved the conflict of interest problem:
To continue reading
Request your trial