United States v. Lucio

• Decision Date: 18 April 2013
• Docket Number: Criminal No. B–13–210.
• Citation: 996 F.Supp.2d 514
• Parties: UNITED STATES of America, v. Eduardo “Eddie” LUCIO.
• Court: U.S. District Court — Southern District of Texas

996 F.Supp.2d 514

UNITED STATES of America,

v.Eduardo “Eddie” LUCIO.

Criminal No. B–13–210.

United States District Court,

S.D. Texas,

Brownsville Division.

Signed April 18, 2013.

Michael J. Wynne, Financial Litigation, US Attorneys Office, Houston, TX, US Marshal, US Pretrial Services, US Probation, Brownsville, TX, Gregory J. Surovic, US Attorneys Office, San Antonio, TX, for United States of America.

John T. Blaylock, Blaylock Law Firm, Harlingen, TX, Rigoberto Flores, Jr., Law Offices of Rigoberto Flores, Jr., Brownsville, TX, for Eduardo “Eddie” Lucio.

Memorandum Opinion and Order

ANDREW S. HANEN, District Judge.

The issue before the Court is whether John Blaylock (hereinafter “Blaylock”), counsel for Defendant Eduardo Lucio (hereinafter “Lucio” or “Defendant”), may remain as defense counsel in the above-styled cause. Having reviewed the facts and the applicable law, the Court finds that an actual conflict between Blaylock's personal interests and those of his client Lucio exists; and that there is a serious potential for yet another conflict between them to emerge at trial. To protect Defendant's Sixth Amendment right to effective assistance of counsel and to ensure the fairness of the judicial proceeding before it, the Court is left with no choice but to ORDER Blaylock DISQUALIFIED from representing Lucio in this matter. The Court hereby additionally DENIES in part Defendant Lucio's Motion for Sanctions Due to Manufacturing Actual, Unwaiveable Conflict; and/or Motion for Hearing Relating to Late Disclosure; alternatively, Motion to Sever [Doc. No. 116].¹

I. Factual Background

This Court has previously discussed the factual particulars that gave rise to this issue. [ See Order, Doc. No. 139 at 3–4, 6]. The Court nonetheless repeats the critical facts here.

On January 28, 2013, the Court held an in camera conference with all counsel present to discuss an intercepted communication between Blaylock and former State District Judge Abel C. Limas, an anticipated principal government witness against Lucio.² In that 2008 conversation, former Judge Limas and Blaylock discuss the flight from this jurisdiction of a certain criminal defendant that Judge Limas had sentenced in his court, and then released from custody. The focus of the discussion was the impact (and ways to lessen the impact) that the escape was having on Judge Limas' then current re-election campaign. Specifically, Blaylock mentions that in reaching out to potential supporters on behalf of Judge Limas, he had been confronted several times with questions regarding the escape. He asks Judge Limas how he should respond to such inquiries. Judge Limas states that he has “the transcript” where “they [the DA's office] didn't object” and that “it was a deal that was done by everybody.” “And it was, I don't know why you're not publicizing that,” Blaylock responds; to which Judge Limas emphatically answers, “Because I can't.” ³

The circumstances surrounding this criminal defendant's escape also form, in part, the factual bases for the criminal allegations against Defendant in Counts Three and Four of the Superseding Indictment. [ See Doc. No. 84 at 17–20]. Specifically, in Count Four, the Government alleges that Lucio aided and abetted Hobbs Act extortion. The factual allegations for the Count are that Lucio enabled Judge Limas to obtain illicit monies, and in exchange, that Judge Limas agreed to remain silent regarding the events that allegedly led to this criminal defendant's escape. Given that the overall content of the intercepted communication supports the Government's theory of both Limas' and Lucio's motives to commit the crime alleged in Count Four, the Government had listed the recording as a proposed exhibit. [ See United States v. Villalobos, No. 1:12–cr–374, Doc. No. 104 at 9].

The Court, while not making an advisory ruling on its ultimate admissibility, had and still has little doubt that the recording will eventually become admissible.⁴ Accordingly, upon learning of the recording's existence, the Court became gravely concerned that its admittance into evidence would give rise to a conflict of interest between Blaylock and Lucio; specifically, that Blaylock could become a witness against Lucio at trial. Following the conference, the Court ordered the parties to submit proposed resolutions regarding this issue.

In response, the Government agreed to not offer the exhibit in its case-in-chief, but reserved the right to offer it in rebuttal. [ See Government's Br. in Resp. to the Court's Inquiry Concerning Representation by Counsel, Feb. 8, 2013, Doc. No. 114 at 3–4]. The Government further agreed not to object to Blaylock remaining on the case, so long as Lucio waived any conflict of interest that may come to fruition at trial. [ Id. at 7–8]. In contrast, Defendant Lucio took the position that the conflict was “unwaiveable.” [Def. Lucio's Mot. for Sanctions Due to Manufacturing Actual, Unwaiveable Conflict; and/or Mot. for Hr'g Relating to Late Disclosure; alternatively, Mot. to Sever, Feb. 8, 2013, Doc. No. 116 at 1, 9, 12]. Citing the ABA Model Rules of Professional Conduct, Defendant noted that “an attorney may not represent a defendant in a criminal case and at the same time be a trial witness....” [ Id. at 9]. Furthermore, “a conflict that amounts to a breach of the code of professional ethics [,]” Defendant argued, “obviously qualifies” as a conflict of interest for which this Court may insist on defense counsel's disqualification. [ Id. at 16].

Defendant maintained, however, that Blaylock was his counsel of choice. [ See id. at 2]. To balance the “unwaiveable” conflict discussed above with his continuing desire for Blaylock to represent him, Defendant argued to the Court that the Government “manufactured” the conflict. [ Id.] Distilled to its essentials, Defendant's argument is that the prosecution had a duty to disclose the conflict, that the Government chose not do so until it was too late, and that the late disclosure was really a veiled attempt to remove Blaylock, who had proven to be an effective advocate, from the case. [ See id. at 2, 5–9]. “The government should be sanctioned for manufacturing this conflict and the Court should not look to Mr. Lucio to solve a problem created by the government's failure to disclose.” [ Id. at 2]. Defendant did not indicate in the motion the specific sanctions he was seeking, although one assumes the suppression of the recording in question to be among the remedies sought.

To solve any potential advocate-witness problem, furthermore, Defendant strongly advocated that a severance was necessary [ id. at 3, 9–11, 18]; otherwise, Defendant argued, the Court would virtually ensure that Blaylock would become a witness. “Mr. Lucio's co-defendant not only has a need to call the undersigned[, Blaylock,] as a witness, he has an incentive to do so.” [ Id. at 3]. As for the Government, Defendant stated, it “may or may not call him as a witness depending on whether they approve or disapprove of his or the co-defendant's cross-examination.” [ Id. at 9]. “Mr. Villalobos[, however,] cannot be forced to forego a full and vigorous cross-examination and his rights would not be affected by calling the undersigned.” [ Id. at 3]. Defendant thus explained why a severance was necessary:

[T]he undersigned can control himself during argument or cross-examination of Mr. Limas and avoid “opening the door.” However, the undersigned cannot control the counsel of Mr. Villalobos ... a severance is the only way to eliminate the risk to Mr. Lucio of his co-defendant opening the door to the detriment of Mr. Lucio.

[ Id.]. Defendant assured the Court that he would not call Blaylock as a witness if a severance were granted. [ Id.] Defendant also explicitly stated, however, that in the event that the recording was admitted at trial, “the danger to Mr. Lucio is that the undersigned will likely be called by the government in rebuttal, by co-defendant Villalobos ... or even, by the defendant himself as he has been forced into this untenable position.” [ Id. at 2 (emphasis added) ].

The Court told the parties that it was inclined to sever Defendant's case during a telephonic hearing held on March 11, 2013. The Court then granted Defendant's motion to sever in open court on March 19, 2013. [Mot. Hr'g Tr. 2:17, March 19, 2013. See also Doc. No. 139 at 1–2]. In doing so, the Court relied in part on Lucio's representation that the severance would cure the conflict problem. To further accommodate Lucio's counsel of choice, moreover, the Court suggested that the parties stipulate to using a transcript of the recording in lieu of the actual tape, and redact the references to Blaylock in the transcript; for instance, by only identifying the speakers as Judge Limas and an “unidentified lawyer.” [Tr. 7:1–11].⁵ In that manner, Blaylock would not by name be implicated in the factual events underlying the criminal allegations. No risk would therefore exist that the jury would question Blaylock's integrity as an advocate for Defendant by virtue of his peripheral involvement in the facts as evidenced by the recording, and any potential need for Blaylock to take the stand would presumably be erased. The Government agreed to the suggestion. [Tr. 7:5–6].

Defendant, on the other hand, refused to provide this Court with his position regarding the proposed redaction. Instead, Defendant countered, in accordance with his motion for sanctions, that since the Government “manufactured” the conflict to deprive him of his counsel of choice, the Government should be prohibited from using the recording at all. [Tr. 7:19–8:1]. Even after the Government had agreed to the redaction proposal, Blaylock continued to argue that he may “as a matter of ethics,” have to “bow out;” that the Government had created a conflict that was “unwaiveable;” and that both he and his client were put in a “terrible position.” [Tr. 8:2–15].⁶

As a final measure, the Court...