IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN

Document Sample
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN Powered By Docstoc
					                        IN THE UNITED STATES DISTRICT COURT

                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                     :

               v.                            :       CRIMINAL NO. 06-658

C. ROBERT DADDS                              :
CONSTANCE TAYLOR


                GOVERNMENT'S MOTION TO DISQUALIFY COUNSEL

I. Introduction

               On November 28, 2006, a grand jury indicted defendants Constance Taylor and C.

Robert Dadds, along with nine co-defendants, charging them with conspiracy to defraud the

United States by impeding, impairing, obstructing, and defeating the lawful functions of the

Internal Revenue Service, in violation of Title 18, United States Code, Section 371. Dadds was

arrested by authorities, and on December 4, 2006, appeared before the United Sates Magistrate

Judge for arraignment. The Magistrate Judge entered an order appointing the Office of the

Federal Defender to represent Dadds.

               On December 11, 2006, attorney Jonathan Altman entered an appearance on

behalf of both Dadds and Constance Taylor. Although there was an arrest warrant for Taylor,

Taylor had not been apprehended, nor had she turned herself in to authorities at that time.

Altman initially represented to the United States Attorney’s Office that Taylor would turn herself

in, but he then changed his mind, contending that the Court lacked jurisdiction over Taylor.1

       1
          This claim was principally based on the contention that Taylor is a citizen of the
Commonwealth of Pennsylvania and not a citizen of the United States. As noted in the
government’s opposition to the defendants’ subsequent motions, similar claims have been
rejected by other courts as “completely without merit and patently frivolous.” United States v.
Also on December 11, in conjunction with entering his appearance on behalf of the two co-

defendants, Altman filed a motion on each of their behalf, moving to dismiss for lack of

jurisdiction. The two motions made similar legal arguments, but had different exhibits attached

to them. On December 13, 2006, the Office of the Federal Defender filed a motion to withdraw

as counsel for Dadds. On the same day, this Court set a hearing regarding the representation of

Dadds and Taylor.

               On December 18, 2006, Altman filed a motion to dismiss the indictment on behalf

of Dadds and filed a similar motion on behalf of Taylor.

               The following day, the Court conducted a hearing to address Altman’s joint

representation of both Taylor and Dadds. Dadds appeared before the Court. Taylor failed to

appear because, according to Altman, the Court lacked jurisdiction over her. The government

informed the Court that there was an outstanding arrest warrant for Taylor, and that Altman

initially had represented that she would turn herself in, but then refused to do so. The Court

advised the government to locate Taylor and arrest her. It was the government’s belief at that

time that Taylor was residing in Utah. Altman gave no indication to the Court or the government

that he knew Taylor’s whereabouts.

               In light of the potential conflict (and the absence of Taylor and therefore the

inability of the Court to conduct any inquiry of her), the Court ordered the temporary

appointment of substitute counsel for Taylor and ordered Altman not to speak with Taylor other

than to inform her that he was no longer representing her, at least temporarily. Altman was to

continue his representation of Dadds.


Mundt, 29 F.3d 233, 237 (6th Cir. 1994)

                                                 2
               On December 19, following the hearing, Internal Revenue Service Special Agent

Christopher Hueston, who had been in Court for the hearing and had met Altman there, drove to

Altman’s office in Paoli, Pennsylvania. There he saw a vehicle with Utah license plates which

he identified as belonging to Taylor’s husband. Suspecting that Taylor might be inside Altman’s

office, Agent Hueston contacted the local police department and requested assistance in the

execution of the arrest warrant for Taylor.

               Special Agent Hueston then encountered Altman outside of the office. Agent

Hueston asked for Altman’s assistance in apprehending Taylor peacefully and without incident.

He asked Altman if Taylor was inside Altman’s office. Altman replied that he did not know if

Taylor was inside, and that even if he did know, he would not tell Agent Hueston. Altman then

went into his office and locked the door.

               Altman returned approximately half an hour later. He asked for permission to

turn Taylor over to the United States Marshal’s Office at a later time. Agent Hueston reminded

Altman that he already had forgone that opportunity. He further reminded Altman that, as

Altman had heard in Court, there was a valid arrest warrant for Taylor, and he again asked for

Altman’s cooperation. Altman again refused, stating that he could not say if Taylor was in the

office. Agent Hueston asked for permission to walk through the office to see if Taylor was there.

Altman refused.

               Following the first conversation between Agent Hueston and Altman, Agent

Hueston telephoned Assistant United States Attorney Amy Kurland and relayed what was

transpiring. AUSA Kurland tried to telephone Altman on both his cellular telephone and his

office telephone, but was unable to reach him. AUSA Kurland then left messages informing


                                                3
Altman that the U.S. Attorney’s Office intended to seek a search warrant for Altman’s office

unless Taylor surrendered.

               At approximately 1:15 p.m., Taylor emerged from the office and was arrested.

Taylor was arraigned before a United States Magistrate Judge on December 21, 2006. At that

time, in accordance with this Court’s instructions, separate counsel (Paul Sarmousakis, Esq.) was

appointed to represent Taylor.2

II. Discussion

               The Supreme Court of Pennsylvania by order dated October 16, 1987, adopted the

Rules of Professional Conduct. These Rules were adopted by this Court pursuant to Local Rule

of Criminal Procedure 2 (which adopts Local Rule of Civil Procedure 83.6, Rules of Disciplinary

Enforcement). The Rules are intended to “‘promote public confidence in the integrity of the bar

by guarding against impropriety or even the appearance of such impropriety.’” Simms v. Exeter

Architectural Prods., Inc., 868 F. Supp. 668, 676 (M.D. Pa. 1994) (quoting Caracciolo v. Ballard,

687 F. Supp. 159, 160 (E.D. Pa. 1988) (emphasis added).

               Rule 1.7 of the Rules of Professional Conduct provides in relevant part:

                      (a)     A lawyer shall not represent a client if the representation of that
                              client will be directly adverse to another client, unless:

                              (1) the lawyer reasonably believes the representation will not
                              adversely affect the relationship with the other client; and

                              (2) each client consents after consultation.

Rules of Professional Conduct 1.7(a).



       2
          Following this Court’s hearing on January 4, 2007, this Court appointed Mark Cedrone,
Esq. to represent C. Robert Dadds with respect to the issue of joint representation by Altman.

                                                 4
               Ineffective assistance of counsel may result from an attorney’s conflict of interest.

Strickland v. Washington, 466 U.S. 668, 692 (1984) (right to effective assistance of counsel

impaired when defense counsel operates under conflict of interest because “counsel breaches the

duty of loyalty, perhaps the most basic of counsel’s duties”). A trial court must conduct an

inquiry if it has reasonable notice that a potential conflict exists. Cuyler v. Sullivan, 446 U.S.

335, 346-47 (1980). Where trial courts have failed to conduct such an inquiry, the reviewing

courts have presumed a violation of the Sixth Amendment. Holloway v. Arkansas, 435 U.S. 475,

484-85 (1978) (violation of right to assistance of counsel when trial judge failed to investigate

claim of possible conflict of interest on part of defendant’s attorney).

               As noted in Rule 1.7(a) quoted above, the right to conflict-free assistance of

counsel may be waived by the defendant if the waiver is knowing and intelligent. There exists a

presumption in favor of the defendant’s choice to waive the right of conflict-free representation

and retain original counsel. However, this presumption may be overcome “not only by a

demonstration of actual conflict, but by a showing of a serious potential for conflict.” Wheat v.

United States, 486 U.S. 153, 164 (1988). See also United States v. Gonzales-Lopez, 126 S. Ct.

2557 (2006) (noting that a client may not demand that a court honor his waiver of conflict-free

representation).

               Conflicts of interest arise whenever an attorney’s loyalties are divided. The

representation of multiple clients in a single proceeding increases the likelihood of both actual

and potential conflicts. Wheat, 486 U.S. at 159 (“multiple representation of criminal defendants

engenders special dangers of which a court must be aware”).

               In Wheat, the petitioners argued that a waiver by all of the affected parties could

cure any problems associated with the multiple representation. The Supreme Court rejected this

argument. “Federal courts have an independent interest in ensuring that criminal trials are


                                                  5
conducted within the ethical standards of the profession and that legal proceedings appear fair to

all who observe them. . . . Not only the interest of the criminal defendant but the institutional

interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated

multiple representation.” Id. at 160.

               The Supreme Court noted that “where a court justifiably finds an actual conflict of

interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants

be separately represented.” Id. at 162. The Court then proceeded to make the same holding with

respect to not only an actual conflict, but also a showing of a serious potential conflict of interest.

       [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 when relationships
       between parties are seen through a glass, darkly. The likelihood and dimensions
       of nascent conflicts of interest are notoriously hard to predict, even for those
       thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate
       enough to learn the entire truth from his own client, much less be fully apprised
       before trial of what each of the Government’s witnesses will say on the stand. A
       few bits of unforeseen testimony or a single previously unknown or unnoticed
       document may significantly shift the relationship between multiple defendants.
       These imponderables are difficult enough for a lawyer to assess, and even more
       difficult to convey by way of explanation to a criminal defendant untutored in the
       niceties of legal ethics. Nor it is amiss to observe that the willingness of an
       attorney to obtain such waivers from his clients may bear an inverse relation to the
       care with which he conveys all the necessary information to them.

               For these reasons we think the district court must be allowed substantial
       latitude in refusing waivers of conflicts of interest not only in those rare cases
       where an actual conflict may be demonstrated before trial, but in the more
       common cases where potential for conflict exists which may or may not burgeon
       into an actual conflict as the trial progresses.

Wheat, 486 U.S. at 162-63.

               The Third Circuit has articulated a number of factors which the trial court must

consider in addressing the permissibility of representation by a particular attorney. These include

whether the attorney has divided loyalties among multiple current or past clients, and whether the


                                                  6
representation will in any other way offend rules of professional conduct. A conflict may also

arise from the personal interests of counsel that are “inconsistent, diverse or otherwise

discordant” with those of his client and which affect the exercise of his professional judgment on

behalf of his client. Government of Virgin Islands v. Zepp, 748 F.2d 125, 135 (3d Cir. 1984).

                The court has 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.’” Gonzales-Lopez, 126 S. Ct. at 2565-66 (quoting Wheat, 486 U.S. at 160)

(internal citations omitted). See also United States v. Williams, 81 F.3d 1321, 1325 (4th Cir.

1996) (no abuse of discretion when court refused to allow waiver of conflict-free representation

because counsel had previously represented defendant’s wife who was a potential witness for

prosecution).

                As the Third Circuit explained in United States v. Moscony, 927 F.2d 742 (3d Cir.

1991):

         [T]he trial court has an institutional interest in protecting the truth-seeking
         function of the proceedings over which it is presiding by considering whether the
         defendant has effective assistance of counsel, regardless of any proffered waiver.
         Moreover, to protect the critically important candor that must exist between client
         and attorney, and to engender respect for the court in general, the trial court may
         enforce the ethical rules governing the legal profession with respect both to client-
         attorney communications and to conflict-free representation, again regardless of
         any purported waiver. Finally, the court has an independent interest in protecting
         a fairly-rendered verdict from trial tactics that may be designed to generate issues
         on appeal.

Moscony, 927 F.2d at 749 (internal footnote omitted). See also Wheat, 486 U.S. at 161 (there is

a “legitimate wish of district courts that their judgments remain intact on appeal,” to be

considered); United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir. 1978) (representation where

there is a conflict of interest “not only constitutes a breach of professional ethics and invites

disrespect for the integrity of the court, but it is also detrimental to the independent interest of the


                                                   7
trial to be free from future attacks over the adequacy of the waiver or the fairness of the

proceedings in his own court and the subtle problems implicating the defendant’s comprehension

of the waiver.”).

               The decision to refuse a waiver of the right to conflict-free representation rests

largely with the trial court. Wheat, 486 U.S. at 164. As the Supreme Court observed last term in

Gonzalez-Lopez, “[w]e have recognized a trial court’s wide latitude in balancing the right to

counsel of choice against the needs of fairness, and against the demands of its calendar.”

Gonzalez-Lopez, 126 S. Ct. at 2565.

               A district court’s decision whether or not to accept a waiver is afforded deference,

unless the decision was entirely “arbitrary.” United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir.

1996). Where the decision was not arbitrary, that is, it was based on a review of the proper

factors, the decision is subject to review only for abuse of discretion. Id. As long as the court

makes a “reasoned determination on the basis of a fully prepared record,” its decision will not be

deemed arbitrary. Id. at 1075. Accord United States v. Stewart, 185 F.3d 112, 120 (3d Cir.

1999). Thus, in Voigt, the record was sufficiently substantial to enable the district court to make

a reasoned and well-informed decision to disqualify the defendant’s counsel of choice,

notwithstanding the fact that the district court did not hold an evidentiary hearing, where the

court did hear oral argument and had before it at the time of argument submissions of the parties,

including sworn affidavits and documentary evidence attached as exhibits. The record was

substantial, and the parties’ positions were amply delineated and developed. Id. at 1076. Also,

in Voigt, formal findings of fact were not required where the Court orally issued its

disqualification decision that indicated the principal basis for its decision was its concurrence

with the government that the potential for counsel to be called as a witness posed a potential

conflict of interest. The court of appeals was left with no question that the trial court performed


                                                  8
the balancing required by circuit case law and “considered a factor legitimately weighing against

the right to counsel of choice.” Id. at 1074-76.

               The Supreme Court’s recent case of Gonzales-Lopez does not undermine any of

these important principles laid out by the Supreme Court in Wheat and by the Third Circuit in the

cases cited above, and on the contrary, to the extent the case speaks to these issues, it is entirely

supportive of and consistent with them. For the most part, Gonzalez-Lopez is inapposite to the

instant case. In Gonzales-Lopez, the district court had barred an attorney from representing the

defendant, contrary to the defendant’s wishes, because the attorney in a separate case before the

district court had violated an ethical rule by communicating with a represented party. The

government conceded before the Supreme Court that the district court had erred. Faced with that

concession, the Supreme Court reversed the conviction holding that it was not necessary to show

prejudice. The importance of the government’s concession in Gonzalez-Lopez was highlighted

by the Court when it set out the holding for the case: “This is not a case about a court’s power to

enforce rules or adhere to practices that determine which attorneys may appear before it, or to

make scheduling and other decisions that effectively exclude a defendant’s first choice of

counsel. However broad a court’s discretion may be, the Government has conceded that the

District Court erred when it denied respondent his choice of counsel. Accepting that premise, we

hold that the error violated the respondent’s Sixth Amendment right to counsel of choice and that

this violation is not subject to harmless-error analysis.” Gonzalez-Lopez, 126 S. Ct. 2566.

               Gonzalez-Lopez did not involve a conflict of interest and, therefore, is largely

irrelevant to the issues in this case. However, to the extent that one might look to Gonzalez-

Lopez for guidance in the area of joint representation, the Supreme Court was careful in the case

to explain that its holding was not at all contrary to its earlier holding in Wheat and was not

intended in any way to undermine the principles set forth in that case. Thus in Gonzalez-Lopez,


                                                   9
the Court unambiguously stated:

       Nothing we have said today casts any doubt or places any qualification upon our
       previous holdings that limit the right to counsel of choice and recognize the
       authority of trial courts to establish criteria for admitting lawyers to argue before
       them. . . . [T]he right to counsel of choice does not extend to defendants who
       require counsel to be appointed for them. . . . Nor may a defendant insist on
       representation by a person who is not a member of the bar, or demand that a court
       honor his waiver of conflict-free representation. See Wheat, 486 U.S. at 159-60,
       108 S.Ct. 1692. We have recognized a trial court’s wide latitude in balancing the
       right to counsel of choice against the needs of fairness, and against the demands of
       its calendar. The court has, moreover, 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, supra, at 160.

Gonzales-Lopez, 126 S. Ct. at 2565 (emphases added) (other internal citations omitted); see also

id. at 2561 (“To be sure, the right to counsel of choice “is circumscribed in several important

respects,”) quoting Wheat, 486 U.S. at 159.

               A. Altman May Not Represent Both Defendants.

               Under the principles set forth above, this Court should deny the waiver of the

conflict of interest by the defendants and disqualify Altman from representing either defendant.

Altman has a very serious potential conflict if not an actual conflict with both defendant

Constance Taylor and defendant C. Robert Dadds. There is no basis from which to believe that

he would be able to effectively represent both of these parties in a case where the two defendants

are charged with conspiring with each other (and other parties) in the same crime. Altman

clearly would have divided loyalties among the two clients and his representation would offend

the rules of professional conduct. In addition, the Court’s independent interest in “protecting a

fairly-rendered verdict from trial tactics . . . designed to generate issues on appeal,” Moscony,

927 F.2d at 749, militates in favor of disqualification here. Even ignoring any concern about

whether one defendant might want to cooperate and testify against the other, if both defendants

proceed to trial, one may want to take the stand in his or her own defense. That would place


                                                 10
Altman in the position of having to cross-examine his own client. Clearly it would not be

possible for him, in that not unlikely circumstance, to act in the best interests of both of his

clients. In addition, at a trial, there may be evidence which would be beneficial to one client and

detrimental to the other. Again, Altman would be forced to have to choose between the interests

of his clients. If the case were to proceed to sentencing, one of these defendants might want to

make an argument about his or her role in the offense. This would necessitate a comparison of

that defendant’s role in the conspiracy to the parts played by others, including Altman’s other

client. Altman easily might be in the position of having to make an argument to the detriment of

one of his clients in order to bolster the interests of the other. As the Supreme Court observed in

Holloway v. Arkansas, 435 U.S. 489-90 (1978), “[j]oint representation of conflicting interests is

suspect because of what it tends to prevent the attorney from doing” including exploring possible

plea negotiations, “challenging the admission of evidence prejudicial to one client but perhaps

favorable to another,” or “arguing at the sentencing hearing the relative culpability of one by

emphasizing that of another.” See also id. (noting that “[e]xamples can be readily multiplied”).3

                B.      Altman May Not Represent Only Taylor.

                As the government indicated at the Court’s hearing, there presently is an

investigation in the U.S. Attorney’s Office into the incidents surrounding Constance Taylor’s

arrest and Altman’s actions relating to that arrest. In light of the fact that this investigation is

ongoing, there is a clear conflict between Altman and Taylor. One easily could be called to be a

witness against the other, and their interests with respect to this investigation could easily

diverge, endangering Altman’s ability to act in his client’s best interests. In addition, even


        3
         Joint defense agreements are not to the contrary. Those agreements permit attorneys to
maximize synergies and to share information to the extent it is beneficial for their clients. In this
case, Altman would not be in a position to determine whether it is beneficial for him to share
information on behalf of Dadds’ attorney with Taylor’s attorney because anything Dadds attorney
would know, Taylor’s attorney would know.

                                                   11
notwithstanding that investigation, Altman’s role and presence during the arrest of Taylor would

be relevant at Taylor’s trial. Taylor’s evasion of authorities, knowing that there was an

outstanding warrant for her arrest, is arguably evidence of consciousness of guilt. Under these

circumstances, the government could reasonably seek to call Altman as a witness on this point,

and he would be faced with the proposition of having to testify against his client. Even if Altman

were not called as a witness, his performance as an advocate could be impaired by his

relationship to the events in question. For example, he might be constrained from making certain

arguments on behalf of his client because of his own involvement in her arrest. As the Supreme

Court explained in Wheat, it is not necessary that the court find that there is an actual conflict.

At a minimum in this case there is a very significant and serious potential for conflict in any

representation of Taylor by Altman.

               Moreover, the government notes that for the past month, Altman has represented

Dadds, and for much of that time, only Dadds. During that time, Altman has filed motions on

Dadds’ behalf to dismiss the case for lack of jurisdiction and to dismiss the indictment. It is

difficult to comprehend how such motions could have been filed and such representation could

have occurred over such a period of time absent any discussions about the substance of the case

and the charges involved. Therefore, for this reason as well, the government submits there is a

conflict in this case that warrants disqualifying Altman from representing Taylor. Even if there

were no such conversations, the importance that “legal proceedings appear fair to all who

observe them,” Gonzales-Lopez, 126 S. Ct. at 2565, calls for disqualification here.4

       4
          It is worth noting that Altman was not appointed in this case, but instead was retained
by Dadds. While it is possible that an attorney appointed by the court might not have an
opportunity to speak with his client over a nearly one-month period or might have only been able
to introduce himself and not engage in a substantive conversation about the case, that situation is
far more unlikely in the case of retained counsel where presumably there would have had to have
been some conversation about the case before the retention was arranged and before any fee
arrangements were negotiated.

                                                  12
               C.      Altman May Not Represent Only Dadds.5

               Altman also may not represent only Dadds for several reasons. First, Taylor

apparently now works in Altman’s office as a paralegal. There are three individuals who work in

that office -- Taylor and Altman are two of them. It is inconceivable that Taylor could continue

to work in the office while affording Altman the necessary secrecy and privacy for his

representation of Dadds. Second, even if such a “wall” between Taylor and Altman were

possible – which seems inconceivable in an office of that size – Dadds would be deprived of the

services of Altman’s paralegal (Taylor), which would negatively effect the representation Altman

would be providing. The courts have identified the difficulty of having multiple attorneys from

one firm representing co-defendants. That concern is severely exacerbated when it is the co-

defendant herself who works with the attorney. Moreover, this situation would clearly impact the

candor between Dadds and Altman. It is difficult to imagine that anyone in Dadds’ position

would be completely comfortable sharing information with his attorney when he knows that that

attorney is working with a co-defendant. Trusting that any information imparted would not make

its way – even inadvertently – back to Taylor would require a leap of faith that Dadds should not

be required to make. Even an arguably innocent slip of the tongue in Taylor’s presence could

adversely effect Dadds’ representation, and it certainly would have the potential to negatively

impact the integrity of the Court’s proceedings. Finally, we note that Altman stated at this

Court’s initial hearing on this matter that he had met with both Taylor and Dadds and had spoken

with both of them. That conversation has tainted Altman’s representation of either of these

defendants. Under all of the measures this Court is to consider, disqualification is appropriate


       5
          It is the government’s understanding from the Court’s January 4, 2007 hearing that
Altman had stated that if he were unable to represent both Dadds and Taylor, he would not
represent only Dadds, making this point moot. Out of an abundance of caution, however, the
government presents this claim for the Court’s consideration in case such a situation were to be
proposed.

                                                13
here.

III. Conclusion

                   WHEREFORE, for the reasons set forth above, the government requests that this

Court disqualify Jonathan Altman from representing either Constance Taylor or C. Robert Dadds

in this matter.6


                                               Respectfully submitted,

                                               PATRICK L. MEEHAN
                                               United States Attorney



                                               __________________________________________
                                               ARA B. GERSHENGORN
                                               AMY L. KURLAND
                                               Assistant United States Attorneys




        6
         While this Court could render a decision in this matter in the absence of a hearing, the
government respectfully requests that the Court hold a hearing in order to fully develop the
record on this issue.
                                 CERTIFICATE OF SERVICE

        I certify that I have served or caused to be served a copy of the foregoing motion by

electronic filing:


                       Paul A. Sarmousakis, Esq.
                       454 24th Street
                       P.O. Box 2
                       Avalon, NJ 08202

                       Mark Cedrone, Esq.
                       Cedrone & Janove
                       Suite 940 Public Ledger Building
                       150 South Independence Mall West
                       Sixth & Chestnut Streets
                       Philadelphia, PA 19106

                       Jonathan F. Altman, Esq.
                       1500 E. Lancaster Avenue, Suite 100
                       Paoli, PA 19301




                                              ARA B. GERSHENGORN
                                              Assistant United States Attorney

Date: January 22, 2007




                                                15