US v. Urbana, 89-360-CR.

• Decision Date: 10 May 1991
• Docket Number: No. 89-360-CR.,89-360-CR.
• Parties: UNITED STATES of America, Plaintiff, v. Sam Frank URBANA, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

770 F. Supp. 1552

UNITED STATES of America, Plaintiff, v. Sam Frank URBANA, et al., Defendants.

No. 89-360-CR.

United States District Court, S.D. Florida.

May 10, 1991.

Joe H. Vaughn, Special U.S. Atty., Miami, Fla.

Jose Quinon, Quinon & Straefer, Miami, Fla., for Urbana's Counsel.

Roy J. Kahn, Miami, Fla., for Salerno.

Kenneth B. Whitman, Fort Lauderdale, Fla., for Tannenbaum.

Henry Bugay, Miami, Fla., for Braham.

Albert J. Krieger, Kenneth Kukec, Miami, Fla., for Cortina.

MEMORANDUM OPINION

EDWARD B. DAVIS, District Judge.

In the face of accusation by the people, an accused has but one person in whom he can confide, his counsel, whose allegiance shall be undivided, his trust uncompromising, his efforts tireless. Immersed in proceedings far too complex for the unacquainted, the accused blindly places faith in his attorney to protect him at every turn. It comes as no surprise, therefore, that those facing significant restraints on liberty invest whatever resources they have to retain the very best counsel available.

Sam Frank Urbana stands before this court accused of conspiring to participate in a RICO enterprise. The 44-page, 23-count indictment charges that Mr. Urbana and seven codefendants agreed to obtain money through theft, collection of unlawful debts, bookmaking operations, and importation of "gray market" automobiles into the United States. At considerable expense, Mr. Urbana retained counsel of his own choosing to represent him in what was expected to be a protracted and complex prosecution. Over time, he and his lawyer have built a valued attorney-client relationship.

On the eve of trial, the government has moved, ore tenus, to disqualify Mr. Urbana's counsel from representing him at trial.¹ The government asks this court to override Mr. Urbana's right to counsel of choice in order to preserve the integrity of the criminal process. Having considered every possible alternative short of disqualification, and sensitive to Mr. Urbana's unequivocal desire to be represented by his choice of counsel, this court must nevertheless grant the government's motion.

I. BACKGROUND

On April 5, 1990, approximately ten months after the indictment was filed, the government moved to disqualify Mr. Urbana's lawyer from representing him. The government claimed to have evidence implicating Mr. Urbana's lawyer in an act in furtherance of the alleged RICO conspiracy. According to the government, co-defendant Thomas Patton informed the government that in May, 1986, he went to the home of Mr. Urbana's lawyer at the direction of Mr. Urbana. Patton, who since December, 1989 has been cooperating with the government, stated that he and Mr. Urbana's lawyer drove to the office of another local attorney with a bag containing stolen jewelry. According to Patton, he and other associates of Mr. Urbana had stolen the jewelry from the home of one Jed Baron, and Mr. Urbana's lawyer was commissioned to return that property to Mr. Baron's lawyer in exchange for $15,000 (the "Jed Baron incident").

After considering arguments in favor of disqualifying Mr. Urbana's lawyer based on his alleged participation in this event, this court denied the government's motion. United States v. Urbana, 89-360-Cr-Davis (S.D.Fla. April 13, 1990) (unpublished order denying motion to disqualify). This court was not persuaded that Mr. Urbana's lawyer had anything more to do with the incident than to return allegedly stolen property. Without ruling on the admissibility of the evidence, this court held that:

In arriving at the proper balance between affording the defendant his counsel of choice and permitting the government to put on its case, this court observes that indeed, the allegations concerning the theft are not charged in the indictment. That evidence, therefore, is only tangentially relevant, and the prejudice to the government's case by precluding the introduction of such evidence would only be marginal. On the other hand, disqualifying counsel at this late stage of the case would significantly prejudice Urbana, as counsel and Urbana have together been preparing for this complex trial since June, 1989.

Id., slip op. at 2. This court also relied on Mr. Urbana's sworn waiver of his counsel's conflict of interest (docket entry no. 154), and his sworn agreement not to call his counsel as a witness at trial (docket entry no. 155).

In order to minimize the prejudice, this court instructed the parties that to the extent that evidence concerning the Jed Baron incident surfaced at trial, Mr. Urbana's lawyer would not be mentioned by name in connection with the return of the property; instead, any and all witnesses testifying about the incident would simply refer to him as a "local attorney." Counsel for the remaining codefendants informed the court that their clients would not object to such a procedure.

On May 16, 1990, the government moved the court to reconsider the denial of the motion to disqualify. Citing United States v. Coia, 719 F.2d 1120, 1123-24 (11th Cir. 1983), cert. denied, 466 U.S. 973, 104 S.Ct. 2349, 80 L.Ed.2d 822 (1984), the government argued that evidence about the Jed Baron incident would be admissible even though the incident was not identified as an overt act of the RICO conspiracy. This court took the motion under advisement, but did not formally rule on the motion. The matter remained dormant for ten months while the parties prepared for trial.

On March 7, 1991, four days before trial was scheduled to commence, this court convened for a status conference. At the conference, the government advised the court that just two days earlier, Patton had disclosed to the government, for the first time, additional information about the Jed Baron incident implicating Mr. Urbana's lawyer in criminal activity. The court scheduled an evidentiary hearing for the next day in order to evaluate the testimony.

At the hearing, Patton testified about the Jed Baron incident. He stated that after he and Mr. Urbana's lawyer exchanged the stolen property for cash, they drove back to Urbana's lawyer's home, at which time Patton gave the lawyer $3,000 as remuneration for his services. The two men entered the home, and sometime during the course of the one hour that they were in the home, Mr. Urbana's lawyer supposedly proposed a "dope score," a drug "rip-off," to Patton.² Furthermore, Mr. Urbana's lawyer allegedly showed Patton approximately twenty to twenty-five kilograms of cocaine which were stored in a safe located in the billiard room overlooking the bay.³

To test the credibility of the witness, this court invited all counsel to cross-examine Patton on the germane issue before the court. Mr. Jose Quinon, representing Mr. Urbana's lawyer for purposes of the proceeding, and Mr. Henry Bugay, counsel for codefendant Braham, engaged Patton in a series of questions about the incident. Patton testified that he had met Mr. Urbana's lawyer on only one occasion predating the Jed Baron affair. According to Patton, he had once accompanied Mr. Urbana to Mr. Urbana's lawyer's office. He could not recall the address of the office, when the meeting occurred, the purpose of the visit, what conversations transpired or for how long they met;⁴ he merely remembered meeting Mr. Urbana's lawyer on that sole occasion.⁵

Because of the suspect timing of the revelation concerning Mr. Urbana's lawyer's participation in criminality — six days before trial and some fifteen months after Patton had begun cooperating with the government — the court made its own inquiry.⁶ Specifically, the court asked Patton whether he had previously disclosed to government agents or the government attorneys, during one of the fifty or so debriefing sessions, the additional information about Mr. Urbana's lawyer. Patton testified that he could not recall whether he had or had not.⁷ The government attorneys have stated in open court, and the debriefing agent, Richard Leahy of the F.B.I., testified under oath in camera, that Patton had not mentioned the additional allegations until the debriefing session of March 5, 1991.

Based on Patton's testimony, the government renewed its motion to disqualify Mr. Urbana's lawyer from representing Mr. Urbana at trial. The other defendants indicated that they would no longer be willing to waive their right to call Mr. Urbana's lawyer as a witness because he could offer persuasive evidence to undermine Patton's testimony. Mr. Urbana, sensitive to the concerns of his codefendants, proposed that the court sever him and permit his counsel of choice to represent him at trial.

II. CHOICES

Unfortunately for all concerned, a district court must pass on the issue of whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context ...

Wheat v. United States, 486 U.S. 153, 162, 108 S.Ct. 1692, 1699, 100 L.Ed.2d 140 (1988).

A. Counsel of Choice

The sixth amendment right to counsel is perhaps the most precious of constitutional rights a criminal defendant possesses. It ensures that an accused has an advocate, skilled in the art of trial advocacy, to test the evidence offered and challenge the allegations levied by the government. Without such a right, as the Supreme Court has recognized in an oft-quoted passage, even the most gifted of laymen might be wrongly convicted:

An accused lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932).

The correlative right to counsel of choice, though not absolute, is similarly of constitutional dimension. United States v. Collins, 920 F.2d 619, 625 (10th Cir.1990). Like...