United States v. Moreno
| Decision Date | 26 February 2015 |
| Docket Number | Criminal No. 12–413 (FAB). |
| Citation | 132 F.Supp.3d 265 |
| Parties | UNITED STATES of America, Plaintiff, v. Angel Torres MORENO [12], Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
G. Andrew Massucco–Lataif, Maritza Gonzalez–Rivera, Myriam Y. Fernandez–Gonzalez, Olga B. Castellon–Miranda, United States Attorneys Office, San Juan, PR, for Plaintiff.
Juan F. Matos–De–Juan, Mariangela Tirado Vales Law Office, San Juan, PR, for Defendant.
BESOSA
, District Judge.
Before the Court is the United States' motion to disqualify defendant Angel Torres Moreno's attorney because of an alleged conflict of interest. (Docket No. 1744.) The government's motion includes a request for a hearing on the conflict-of-interest issue. Id. at ¶ 7. For the reasons that follow, the government's motion and its accompanying hearing request are both DENIED.
Defendant Angel Torres Moreno ("Torres") is one of twenty-two individuals charged in an alleged conspiracy to distribute cocaine out of the San Juan Luis Muñoz Marin International Airport ("SJU") in Puerto Rico. (Docket No. 518.) According to the operative indictment,1 the purported conspiracy functioned as follows: one group of participants "package[d], transport[ed] and deliver[ed] suitcases loaded with kilograms of cocaine to the American Airlines cargo area at [SJU]," where another group of participants, who were American Airlines employees, "ensure[d] that those suitcases were smuggled onto American Airlines aircrafts destined [for various] cities [on] the [East Coast] of the United States." Id. at p. 3.
Torres is charged with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
, 846 ; and aiding and abetting in the possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Docket No. 518 at pp. 3–7.) Although Torres was set to be tried with the first group of defendants in early March 2014, he requested to be transferred to the second trial group alleging medical reasons in late January 2014. (Docket No. 1086.) The Court granted his request. (Docket No. 1186.) Torres's trial is currently set to begin on March 16, 2015. (Docket No. 1737.)
On February 10, 2015, the government filed a motion to disqualify Torres's attorney, Juan Matos de Juan ("Matos"), alleging a conflict of interest. (Docket No. 1744.) Matos has represented Torres since his arraignment on June 11, 2012. (Docket Nos. 52, 56.) The government claims that one of its witnesses against Torres, Jose Melendez ("Melendez"), a former member of the Puerto Rico Police Department ("PRPD") and agent with the Drug Enforcement Agency ("DEA") task force, is a current employee of Matos. (Docket No. 1744 at ¶ 2.) Melendez apparently retired from the PRPD in February 2013, began working as a private investigator, and was hired by Matos on a contract basis at some time thereafter. Id.; Docket No. 1758 at ¶¶ 9–10. According to the government, Melendez was one of the "main investigators in this case," who "participated in the execution of search warrants, interviewed government witnesses and made video recordings." (Docket No. 1744 at ¶ 2.) The government considers Melendez to be an "important witness" because "his testimony will be directly related to [defendant Torres's] participation in [the DEA's] cocaine sham operation" conducted during the agency's investigation. Id. The government thus argues that "[Melendez's] testimony in the upcoming trial could represent a legal conflict for [Matos] if he continues representing [Torres,] as it is known in this [d]istrict that Melendez is a member of [Matos's] legal defense team in the majority of his cases." Id.
The government provides several, often overlapping, grounds for disqualifying Matos as Torres's attorney. First, the government argues that Matos's professional relationship with Melendez will impede his ability to cross-examine and impeach Melendez. (Docket No. 1744 at ¶ 3.) Second, the government is concerned that Melendez, who was involved in the investigation of this case, may disclose matters that occurred before the grand jury, in violation of the grand jury secrecy rules. Id. at ¶ 4. Third, the government asserts that the attorney-client privilege protects communications between defendant Torres and Melendez, because Melendez is an employee of Torres's attorney. Id. at ¶ 5. Fourth, the government suggests that Matos's representation of Torres creates a conflict of interest, in violation of Model Rule of Professional Conduct 1.7(a)(2). Id. at ¶ 6. Fifth, the government questions whether Matos will be able to honor his duty of confidentiality, pursuant to Model Rule 1.6. Id. Lastly, the government asserts that Matos's disqualification is appropriate in light of certain policy considerations. Id. at ¶ 7. The government proposes that the Court conduct a hearing, pursuant to Federal Rule of Criminal Procedure 44(c)
, to "explore the possible conflict of interest." Id.
In opposition to the government's motion to disqualify Matos, defendant Torres advances several points. First, Torres maintains that Melendez works as a contractor for Matos but has not been retained to provide his services on this particular case. (Docket No. 1758 at ¶¶ 13–14.) Second, with respect to Matos's ability to cross-examine Melendez adequately, Torres argues that Matos will cross-examine Melendez to the full scope of his testimony, which Torres believes is limited. Id. at ¶¶ 23–29. Third, with respect to his attorney's willingness to impeach his own employee, Torres maintains that the government has not disclosed any impeachment material as to Melendez in this case and notes that Matos has previously cross-examined Melendez in a criminal case where the government likewise provided no impeachment material. Id. at ¶¶ 30–34. Fourth, as to the grand jury secrecy rules, Torres contends that the government does not address whether Melendez even testified before the grand jury and that, in any event, Melendez has not discussed with Matos his grand jury participation (or lack of it) or that of any other witness. Id. at ¶¶ 35–38. Fifth, regarding his attorney's duty of confidentiality, Torres contends that Matos owes no such duty to Melendez. Id. at ¶¶ 39–41. Finally, defendant Torres informs the Court that Matos discussed with him the government's motion to disqualify and that he explicitly opposes any request to remove his attorney. Id. at ¶¶ 42–43. Torres is, nonetheless, amenable to a hearing on the matter, pursuant to the government's request. Id. at ¶ 44.
A motion to disqualify a defendant's counsel concerns the defendant's exercise of a constitutional right. The Sixth Amendment guarantees that in criminal prosecutions "the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI
. In interpreting this constitutional principle, the Supreme Court has held that the defendant's right to counsel includes the right to choose who will represent him. See United States v. Gonzalez–Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) ; Wheat v. United States, 486 U.S. 153, 159–60, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). A criminal defendant is entitled to a presumption favoring his chosen counsel. See Wheat, 486 U.S. at 159–60, 108 S.Ct. 1692.
The Sixth Amendment right of a criminal defendant to have an attorney of his own choosing, however, is not absolute. United States v. Lanoue, 137 F.3d 656, 663 (1st Cir.1998)
. Indeed, the right to choice of counsel is necessarily circumscribed in some respects. See Wheat, 486 U.S. at 159, 108 S.Ct. 1692 (listing examples). For instance, a defendant's choice of counsel is limited by conflict-of-interest rules. See id. at 159–60, 108 S.Ct. 1692. The presumption in favor of the defendant's counsel of choice evaporates if the government can either "demonstrat[e][an] actual conflict" or "show[ ][a] serious potential for conflict." Id. at 164, 108 S.Ct. 1692. The district court has broad discretion in determining whether a conflict exists and in fashioning an appropriate remedy to avoid it. See id. ().
What is more, "[n]otwithstanding the fundamental importance of an accused's right to counsel of his choice," a criminal defendant "cannot unduly hinder the fair, efficient and orderly administration of justice," while exercising this right.
United States v. Rivera–Hernandez, 332 F.Supp.2d 423, 430 (D.P.R.2004)
(citing United States v. Panzardi, 816 F.2d 813, 815 (1st Cir.1987) ). Indeed, "[f]ederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat, 486 U.S. at 160, 108 S.Ct. 1692. Trial courts are thus afforded "some discretion in setting rules and principles and making determinations in order to preserve the highest ethical standards of professional responsibility." Rivera–Hernandez, 332 F.Supp.2d at 430 (citing Panzardi, 816 F.2d at 816–17 ).
These and other limitations on the right to counsel of choice are tolerable because "the focus of the right is the quality of the representation that the defendant receives, not the identity of the attorney who provides the representation." Gonzalez–Lopez, 548 U.S. at 155, 126 S.Ct. 2557
(Alito, J., dissenting); see also Wheat, 486 U.S. at 159, 108 S.Ct. 1692 (). Nevertheless, "trial courts are not to unnecessarily obstruct or impede a defendant to be represented by counsel of his choice." Rivera–Hernandez, 332 F.Supp.2d at 430. The First Circuit Court of Appeals has...
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