US v. Miranda, 95-482-CR.

• Decision Date: 14 May 1996
• Docket Number: No. 95-482-CR.,95-482-CR.
• Citation: 936 F. Supp. 945
• Parties: UNITED STATES of America v. Edilberto J. MIRANDA, Defendant.
• Court: U.S. District Court — Southern District of Florida

936 F. Supp. 945

UNITED STATES of America v. Edilberto J. MIRANDA, Defendant.

No. 95-482-CR.

United States District Court, S.D. Florida.

May 14, 1996.

Mary V. King, Assistant United States Attorney, Miami, FL, for plaintiff.

Edward R. Shohat, Miami, FL, for defendant.

ORDER GRANTING GOVERNMENT'S MOTION TO DISQUALIFY COUNSEL

HIGHSMITH, District Judge.

THIS CAUSE came before the Court upon the government's motion to disqualify Edward Shohat, Esq. from representing Defendant Edilberto J. Miranda in this action. The Court held hearings on this matter on April 23, 1996 and May 10, 1996. Having received documentary and testimonial evidence, having heard arguments of counsel, and being otherwise fully advised in the premises, the Court grants the government's motion.

PROCEDURAL BACKGROUND

On December 13, 1995, the grand jury returned an indictment against Defendant Edilberto J. Miranda. The indictment charges Miranda with conspiracy to conduct money laundering transactions involving proceeds from drug trafficking. The time span of the alleged conspiracy is September, 1989 through July, 1991. The indictment also includes twenty-two substantive counts, charging Miranda with various money laundering transactions involving real estate, cashier's check deposits into securities accounts, wire transfers and bank deposits, all property alleged to constitute proceeds from drug trafficking. These money laundering offenses allegedly took place from June, 1990 through May, 1991. Finally, the indictment alleges that property of the defendant, consisting of $1.9 million, plus a parcel of real estate, is subject to criminal forfeiture.

Since the time of his arrest on February 7, 1996, Miranda has been represented in this case by Edward Shohat, Esq. The government claims that such representation conflicts with Shohat's representation of Pedro Lopez. The government intends to call Lopez as a witness at Miranda's trial, which is currently scheduled to commence on July 22, 1996.

FACTUAL FINDINGS

At the initial hearing held in this matter on April 23, 1996, the government made a factual proffer in support of its motion for disqualification of defense counsel. During the course of the second hearing, held on May 10, 1996, the government submitted affidavits from Pedro Lopez and from Special Agent Linda Cianelli, the investigator in this case. In addition, the Court examined both Miranda and Lopez (the latter in camera); and permitted questioning of Cianelli by counsel for the parties. Having considered the evidence, and having assessed the credibility of the witnesses, the Court makes the following factual findings.

1. In August, 1991, Pedro Lopez (a/k/a Pedro Armando Lopez-Zayas) pleaded guilty and was convicted in the Southern District of Florida, in Case No. 90-196-CR-NESBITT, for his drug trafficking and money laundering activities as part of an organization headed by Julio Morejon-Pacheco.

2. Since his arrest in April, 1990, Lopez has been represented in all aspects of Case No. 90-196-CR-NESBITT by Edward Shohat, Esq. As more fully discussed below, the Court finds that Shohat's representation of Lopez in that matter is still ongoing.

3. After his guilty plea, Lopez entered into a cooperation agreement with the government. The agreement requires Lopez to provide his full and complete cooperation in criminal investigations and prosecutions, including the giving of truthful testimony, as may be required.

4. As a result of his cooperation, and pursuant to Fed.R.Crim.P. 35, Lopez received a reduction in the sentence previously imposed upon him in connection with Case No. 90-196-CR-NESBITT. At a hearing held on April 4, 1996, the Honorable Lenore C. Nesbitt, United States District Judge, Southern District of Florida, reduced Lopez's term of imprisonment from twenty to eight years. According to Lopez's undisputed affidavit, the reduction was based, in part, upon his truthful cooperation with the United States in matters involving Edilberto Miranda, and others, and his anticipated testimony at Miranda's trial. Shohat represented Lopez at the Rule 35 hearing.¹

5. According to Lopez's undisputed affidavit, he is prepared to testify at Miranda's trial that he has known Miranda for over ten years, and that he came to know Miranda through his own association with an extensive drug trafficking organization headed by Julio Morejon-Pacheco. Lopez claims to have detailed knowledge regarding Miranda's money laundering activities for Morejon-Pacheco and other drug traffickers since approximately 1985 until sometime after April, 1990, and anticipates providing detailed testimony regarding such activities at Miranda's trial.

6. The Court finds that this proffer supports the government's posture that Lopez's testimony is essential in helping prove the following elements at trial: the defendant's criminal knowledge and intent concerning the money laundering charges; and the fact that such transactions involved the proceeds of drug trafficking. Thus, the Court rejects Shohat's attempts to marginalize Lopez's anticipated testimony, both temporally and substantively, by characterizing such testimony as "not heartland testimony" and, at best, "404(b) testimony".

7. Lopez further avers that, during a government debriefing conducted in January, 1992, he described his own involvement, as well as that of Morejon-Pacheco and others, in money laundering activities with Miranda and others. Shohat, who was present at the debriefing as Lopez's counsel, left the interview room when Lopez began to discuss Miranda.²

8. According to Lopez, in late 1993 he learned from Shohat that Miranda had asked Shohat to represent him in a legal matter, but that Shohat had turned down Miranda's request because he felt he had a conflict of interest. At that time, Shohat assured Lopez that he was Lopez's lawyer.

9. Shohat now takes the position that, for all practical purposes, his representation of Lopez concluded with the granting of the government's Rule 35 motion for reduction of Lopez's sentence. Shohat does not discount the potential for continued representation should matters arise in connection with Lopez's custody. According to Shohat, however, "nothing he can do can negatively affect" Lopez at this juncture.

10. Shohat's perception of the status of his representation of Lopez significantly differs from Lopez's perception. In examining Lopez in camera, the Court found him both candid and credible. Lopez exhibited great respect and admiration for Shohat, as well as confidence in his professional abilities. Lopez's understanding is that he is still represented by Shohat. Lopez is worried about Shohat, his attorney, representing Miranda, a person about whom Lopez has not only given information, but against whom he will testify at trial.

11. The Court is deeply troubled by these diverging perceptions. The Court is even more troubled by Shohat's and Lopez's differing versions of an interview that took place during the period of time that elapsed between the two hearings held by the Court. According to Lopez, Shohat visited him at the Federal Detention Center on April 26, 1996, three days after the first hearing. Lopez states that, at that time, he fully discussed with Shohat the details of his anticipated trial testimony. As previously noted, Lopez still considers Shohat to be his attorney. Shohat, on the other hand, stated to the Court that his visit to Lopez was in his role as Miranda's attorney. He further claims to have informed Lopez that his representation was concluded. Unlike the two minor inconsistencies mentioned above, this third contradiction between Shohat's and his client's versions of the facts requires reconciliation. The distasteful task of assessing the credibility of an officer of the court, vis-a-vis that of his client (someone whom the Court has found both candid and credible), cannot be sidestepped. The Court finds that, had Shohat's statement to Lopez regarding the status of his representation been as clear as he purports it to have been, Lopez would not have remained under the impression, as articulated to the Court, that Shohat still represents him.

12. The Court also has difficulty accepting Shohat's assessment that, even if technically ongoing, his representation of Lopez has ceased for all practical purposes. Lopez anticipates testifying on behalf of the government at Miranda's trial. It is undisputed that the granting of the Rule 35 motion was predicated, at least in part, upon the expectations of the government regarding such testimony. Thus, by testifying at Miranda's trial, Lopez will be performing a contractual duty owed by him to the government under the cooperation agreement negotiated by Shohat on his behalf. Because Shohat has represented Lopez during previous testimonial appearances and debriefings in furtherance of the cooperation agreement, the Court finds reasonable Lopez's obvious expectation that Shohat continue to represent him during the course of Miranda's trial.

13. The Court also finds it difficult to rule out, as Shohat does, the potential that attorney client confidences imparted by Lopez to Shohat would be jeopardized in the course of Shohat's continued representation of Miranda in this case.³ Indeed, this problem may have already occurred. Shohat claims to have visited Lopez on April 26, 1996 in his role as "Miranda's attorney". Therefore, Shohat would not view the information obtained at that visit as privileged. Yet, that same visit was perceived by Lopez as a visit by "his" attorney, and justifiably so in the Court's view. Therefore, the same information that Shohat may view as nonprivileged is entitled to protection when seen through Lopez's eyes.

14. With regard to Agent Cianelli's affidavit and testimony, the Court finds her to be credible and unbiased. Agent Cianelli's statements further support the government's position that Lopez's anticipated testimony is neither superfluous nor tangential...