Opinion
Crim. No. 4:20-cr-96-SDJ-KPJ-1
2022-10-21
UNITED STATES of America, Plaintiff, v. Franco RUIZ (#1) also known as "Motorola", Defendant.
Christopher Andrew Eason, Assistant U.S. Attorney, U.S. Attorney's Office, Plano, TX, Stevan Adam Buys, Assistant U.S. Attorney, U.S. Attorney's Office, Sherman, TX, for Plaintiff. Gaylon Perry Riddels, Gaylon P. Riddels Law Firm, PC, Sherman, TX, Donald Lee Bailey, Attorney at Law, Sherman, TX, for Defendant.
Christopher Andrew Eason, Assistant U.S. Attorney, U.S. Attorney's Office, Plano, TX, Stevan Adam Buys, Assistant U.S. Attorney, U.S. Attorney's Office, Sherman, TX, for Plaintiff. Gaylon Perry Riddels, Gaylon P. Riddels Law Firm, PC, Sherman, TX, Donald Lee Bailey, Attorney at Law, Sherman, TX, for Defendant. OPINION AND ORDER KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Franco Ruiz's ("Defendant") Motion to Substitute Counsel (Dkt. 41) (the "Motion"), wherein Don Bailey ("Mr. Bailey") requests permission to represent Defendant. See id. On August 29, 2022, the Government filed its response opposing the Motion on the grounds that Mr. Bailey has an actual or potential conflict of interest. See Dkt. 47. On September 4, 2022, Mr. Bailey filed a reply. See Dkt. 49. On September 9, 2022, the Court held a hearing on the Motion (Dkt. 52) (the "Hearing"). Subsequently, Mr. Bailey filed the Objection to In Camera Review (Dkt. 51) (the "Objection"), the Government filed its response (Dkt. 53), and Mr. Bailey filed a reply (Dkt. 54). Upon consideration, the relief requested in the Motion (Dkt. 41) is hereby DENIED and the Objection (Dkt. 51) is OVERRULED.
I. BACKGROUND
On March 18, 2020, the Grand Jury issued a two count Indictment charging Defendant with a violation of 21 U.S.C. § 963 (Conspiracy to Manufacture and Distribute Cocaine Intending, Knowing, and with Reasonable Cause to Believe the Cocaine will be Unlawfully Imported into the United States) and 21 U.S.C. § 959 (Manufacturing and Distributing Five Kilograms or More of Cocaine Intending, Knowing, and with Reasonable Cause to Believe that the Cocaine will be Unlawfully Imported into the United States). See Dkt. 1. Defendant was subsequently extradited to the United States, and on December 20, 2021, appeared before the Court. See Dkt. 7. At Defendant's Initial Appearance, the Court appointed the Federal Public Defender to represent Defendant based on Defendant's testimony that he was financially unable to retain counsel. See Dkt. 10. On December 27, 2021, Assistant Federal Public Defender Brian O'Shea ("Mr. O'Shea") filed a Notice of Attorney Appearance on behalf of Defendant. See Dkt. 16. On January 6, 2022, Mr. O'Shea filed an Unopposed Motion to Withdraw as Attorney of Record ("O'Shea's Motion to Withdraw"), wherein Mr. O'Shea represented that he had become aware of a conflict of interest in his continued representation of Defendant. See Dkt. 17 at 1-2. On February 1, 2022, the Court granted O'Shea's Unopposed Motion to Withdraw (Dkt. 17) and appointed Kara Carreras ("Ms. Carreras"), a member of the Criminal Justice Act Panel of the Eastern District of Texas, to represent Defendant. See Dkt. 23.
On March 4, 2022, Victor Edward Rocha ("Mr. Rocha") filed a Motion to Substitute Counsel ("Rocha's Motion to Substitute Counsel"). See Dkt. 25. On March 7, 2022, the Court granted Rocha's Motion to Substitute Counsel (Dkt. 25), and ordered Mr. Rocha be substituted as counsel for Ms. Carreras. See Dkt. 26. On March 28, 2022, John Hunter Smith ("Mr. Smith") made his appearance as co-counsel of record for Defendant. See Dkt. 28. On June 30, 2022, Mr. Rocha filed a Motion to Withdraw as Counsel of Record. See Dkt. 35. On July 1, 2022, Mr. Rocha filed an Amended Motion to Withdraw as Counsel of Record ("Rocha's Amended Motion to Withdraw"), asserting Defendant and Mr. Rocha "have been unable to agree on a path to the proper resolution of the case and irreconcilable differences exist between [Mr. Rocha] and [Defendant]." Dkt. 37 at ¶ 2. Additionally, Mr. Rocha contended Defendant expressed dissatisfaction with Mr. Rocha's representation and Defendant failed to abide by his agreed-upon financial obligations to Mr. Rocha. See id. On July 7, 2022, Mr. Smith filed a Motion to Withdraw as Attorney of Record ("Smith's Motion to Withdraw"). See Dkt. 38. Mr. Smith asserted that he was hired as local counsel to assist Mr. Rocha in representation of Defendant and, thus, was moving to withdraw, as Mr. Rocha had moved to withdraw as lead counsel. See id. On July 14, 2022, the Court held a hearing on the motions and granted Rocha's Amended Motion to Withdraw (Dkt. 37) and Smith's Motion to Withdraw (Dkt. 38). See Dkts. 39, 40. On July 18, 2022, the Court appointed Gaylon Riddels ("Mr. Riddels"), a member of the Criminal Justice Act Panel of the Eastern District of Texas, to represent Defendant. See Dkt. 40.
On August 10, 2022, Mr. Bailey filed the Motion, requesting that he be substituted as counsel for Defendant. See Dkt. 41. In the Motion, Mr. Bailey asserts:
The Government is opposed to this motion based upon a belief that there is a conflict because counsel has previously represented Miguel Meneses. Counsel had been asked about representing [Defendant] for the last approximately two years. When Counsel was representing Miguel Meneses he did an investigation into any possible conflicts between the two and is aware that one CW made a statement in Colombia that [Defendant] and Mr. Meneses were in the cocaine business together. However, Counsel has talked to all parties involved in the cases and cannot determine that that statement is true. Thus, Counsel, after investigating the issue, has not determined a conflict exists absent new information that is not known to Counsel.Id.
In response, the Government argues Mr. Bailey has an actual or potential conflict of interest that would violate the Texas Disciplinary Rules of Professional Conduct ("TDRPC") due to his previous representation of a purported co-conspirator, Miguel Meneses ("Defendant Meneses"), in a substantially related case, United States v. Meneses, No. 4:18-cr-96-ALM-CAN-1, (E.D. Tex. June 13, 2018). See Dkt. 47. Specifically, the Government asserts Defendant and Defendant Meneses are Colombian nationals accused of the same drug trafficking offenses and members of the same international drug conspiracy. See id. Finally, the Government alleges, "Counsel for Mr. Meneses has advised the Government and Mr. Bailey that Mr. Meneses does not waive any conflict of interest and does not consent to Mr. Bailey's use of his privileged and confidential information." Id. at 1-2.
Mr. Bailey represented Defendant Meneses following his arrest in September 2021, until Mr. Bailey's withdrawal in December 2021. See Meneses, No. 4:18-cr-96-ALM-CAN-1, Dkts. 13, 40.
The Government requests the Court conduct an in camera review of reports of investigation from four Colombian cooperating witnesses, as well as Colombian law enforcement authorities (the "Reports"), which allegedly show "a clear basis for concluding that [Defendant] and [Defendant Meneses] are close drug trafficking associates and co-conspirators in substantially related cases." Id. at 2. The Government contends its request for in camera review of the Reports by the Court is necessary because the Reports contain sensitive and confidential information, which would pose a "high risk of danger to the lives and safety of the cooperating witnesses" and potentially harm ongoing investigative activities. Id. The Government further asserts it has notified Mr. Bailey of these cooperating sources and "the essence of their information relative to the close association between [Defendant and Defendant Meneses]." Id.
Mr. Bailey filed a reply asserting Defendant Meneses's counsel represented through e-mail that "Meneses does not believe Mr. Bailey has an actual conflict." Dkt. 49 at 1. Mr. Bailey further argues the Government's assertions of a conflict of interest are "based upon likely untrue conclusions based upon interviews" and, to support his assertion, includes witness statements purportedly given to Colombian authorities. Dkt. 49 at 2; Dkt. 49-2 at 1-10.
On September 9, 2022, the Court held the Hearing on the Motion, wherein the Government argued the Reports show there is a clear conflict of interest and Mr. Bailey's previous knowledge of discovery regarding Defendant in Defendant Meneses's case further highlights the conflict. See Dkt. 52. Mr. Bailey argued the Government should not be allowed to produce the Reports ex parte, asserting he should be allowed to see the documents to understand the basis of the Government's argument. See id. Mr. Bailey subsequently filed the Objection, arguing the Government has not notified Mr. Bailey of specific allegations that would give rise to a conflict and the Government is seeking to remove him from this case as "a tactic in order to avoid scrutiny of poorly investigated and presented cases." Dkt. 51 at 1. Mr. Bailey also asserts the Government could produce redacted versions of the Reports for his review and objects to the "procedure of ex parte communications and secret evidence." Id. at 5. The Government filed a response to the Objection, arguing the Court may review the ex parte-produced Reports in camera, Mr. Bailey is not entitled to the production of the Reports, and Mr. Bailey has a conflict of interest that precludes his proposed representation of Defendant. See Dkt. 53. Mr. Bailey filed a reply, arguing there are exceptions to state secrets and privilege for ex parte production and in camera review. See Dkt. 54 at 4.
II. LEGAL STANDARD
The Sixth Amendment to the United States Constitution guarantees that "in all criminal prosecutions the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. Importantly, however, "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Thus, the right is not absolute, and the presumption in favor of a defendant's counsel of his choice "may be overcome not only by a demonstration of actual conflict but by a showing of serious potential for conflict." Id. at 164, 108 S.Ct. 1692. Consequently, "[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." Id. at 160, 108 S.Ct. 1692; see also United States v. Valdez, No. EP-10-cr-1632, 2011 WL 13137346, at *1 (W.D. Tex. June 17, 2011) ("This is so because a conflict of interest raises a court's independent interest in ensuring that ethical standards are maintained and that the legal proceeding is a fair one."). "Whether and when the defendant's right must yield to that higher interest is committed to the sound discretion of [the courts]." United States v. Morris, 785 F. Supp. 1238, 1240 (N.D. Tex. 1992) (citing United States v. Kitchin, 592 F.2d 900, 903 (5th Cir. 1979)). The proper exercise of this discretion "requires a balancing of [the] defendant's right to counsel of his own choosing against the potential harm to the efficiency and integrity of the administration of justice arising out of his counsel's potential conflict of interest." Id. (citing United States v. Cheshire, 707 F. Supp. 235, 236 (M.D. La. 1989)).
When a conflict of interest question is raised, the Court "must first determine whether an actual or potential conflict exists." United States v. DeCay, 406 F. Supp. 2d 679, 683 (E.D. La. 2005) (internal quotation omitted). In considering whether a conflict exists, courts look to state and national ethical standards adopted by the respective district. See id.; see, e.g., Perillo v. Johnson, 205 F.3d 775, 801 (5th Cir. 2000). Accordingly, courts look to their respective district court's local rules, the American Bar Association Model Rules of Professional Conduct ("ABA Model Rules"), and the state rules of conduct. See Valdez, 2011 WL 13137346, at *2 (citing Horaist v. Doctor's Hosp. of Opelousa, 255 F.3d 261, 266 (5th Cir. 2001)); DeCay, 406 F. Supp. 2d at 683; United States v. Jefferson, No. 08-140, 2009 WL 10706003, at *2 (E.D. La. July 9, 2009). Factors that may be considered in determining whether a conflict of interest exists in the criminal context include: the relationship between the subject matter of the multiple representations; the temporal relationship between the prior and subsequent representations; the character and extent of the prior relationship; and whether the attorney has confidential information that is helpful to one client but harmful to another. Perillo, 205 F.3d at 798-99 (internal citations omitted). "The question of whether a disqualifying conflict exists is highly fact-dependent." United States v. Burns, 526 F.3d 852, 856 (5th Cir. 2008) (citing United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005)). The burden of proving a conflict is borne by the party seeking disqualification. United States v. Ryan, 597 F.Supp.3d 931, 943 (E.D. La. 2022) (citing Wheat, 486 U.S. at 164, 108 S.Ct. 1692).
If the Court finds an actual or serious potential conflict of interest exists, the Court must ensure the conflict is eliminated or waived. See Wheat, 486 U.S. at 162-63, 108 S.Ct. 1692. If the conflict cannot be waived or eliminated, the Court must act to ensure the integrity of the judicial system. See id.
III. ANALYSIS
The Government argues the Motion should be denied because Mr. Bailey has an actual or potential conflict of interest that would violate the TDRPC, as Mr. Bailey's proposed representation of Defendant would be adverse to Defendant Meneses and could lead to the improper disclosure of privileged and confidential information Mr. Bailey obtained in his representation of Defendant Meneses. See Dkt. 47 at 1. The Government requests the Court review the Reports in camera due to their sensitive and confidential nature of the information contained therein. See id. at 2. As set forth below, the Court finds it has the discretion to consider the Reports in camera and, after reviewing the Reports, concludes Mr. Bailey's proposed representation of Defendant poses a serious potential conflict of interest.
A. In Camera Review
The trial judge, in the exercise of his or her discretion, determines if in camera review is appropriate. See United States v. Orozco, 982 F.2d 152, 156 (5th Cir. 1993) (citing United States v. De Los Santos, 819 F.2d 94, 97 (5th Cir. 1987)). Numerous courts in the Fifth Circuit have found in camera review of statements from confidential witnesses to be warranted. See, e.g., United States v. Nichols, No. 4:09cr222, 2011 WL 13192887, at *1-2 (E.D. Tex. Mar. 28, 2011) (ordering in camera review of agent's interview notes of Government's central witness); United States v. Jones, EP-09-cr-1567, 2011 WL 13205773, at *3 (W.D. Tex. Mar. 18, 2011) (ordering in camera review of 302 reports and interview notes generated from agents' interviews with witnesses); United States v. Trevino-Alvarez, No. A-08-cr-290, 2009 WL 10705074, at *1-2 (W.D. Tex. May 13, 2009) (denying motion to disclose witness statements produced for in camera review to the extent defense counsel requested immediate access). Additionally, Federal Rule of Criminal Procedure 16(a)(2) does not authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500. See FED. R. CRIM. P. 16(a)(2). Under the Jencks Act, 18 U.S.C. § 3500(b), the Government cannot be compelled to disclose a witness statement until after the witness has testified on direct examination. United States v. Stroud, No. 3:19-cr-439, 2022 WL 1063029, at *2 (N.D. Tex. Apr. 8, 2022) (citing 18 U.S.C. § 3500(b)).
In the Objection, Mr. Bailey argues the Government is seeking to prevent his substitution in the present case as a "tactic in order to avoid scrutiny of poorly investigated and presented cases" and accuses the Government of making false statements to misrepresent that a conflict exists. Dkt. 51 at 1-2. Further, Mr. Bailey asserts the Government "could produce redacted documents so [Mr. Bailey] can review to see if there is any veracity in the Government's assertion." Id. at 5. The Government argues the Reports contain sensitive and confidential information, which necessitate in camera review to protect the identity and safety of the confidential sources. See Dkt. 53 at 2. Both parties acknowledge that at least one witness related to this conspiracy has already been killed. See id. The Government argues the Fifth Circuit has repeatedly recognized that courts have broad discretion to conduct in camera inspections. See id. at 3. Moreover, the Government contends Rule 16 of the Federal Rules of Criminal Procedure permits the Court to review materials produced ex parte and the Court has the authority to conduct an in camera review of the Reports. See id. Finally, the Government argues Mr. Bailey is not legally entitled to see the Reports because the Jencks Act, 18 U.S.C. § 3500(a), requires production of witness reports only after the witness testifies at trial and there is no right to pretrial discovery of witnesses in non-capital cases. See id. at 4-5.
The Government also briefly argues there is an informer privilege, which allows the Government to withhold from disclosure the identity of persons who furnish information of violations of law to officers. See Dkt. 53 at 4. As the Court finds that in camera review of the Reports and withholding disclosure of the Reports is proper pursuant to Federal Rule of Criminal Procedure 16 and the Jencks Act, the Court does not reach the issue of informer's privilege.
In the present case, production of the Reports may defeat the purpose for why the Government has sought to oppose Mr. Bailey's substitution as counsel. The Government's concern that disclosure of the information contained in the Reports could jeopardize the safety of cooperating witnesses, as well as harm ongoing investigative activities, is good cause to restrict discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Thus, the Reports warrant in camera review. See United States v. Carriles, 654 F. Supp. 2d 557, 564 (W.D. Tex. 2009) ("If Defendant were to receive those materials before a protective order is in effect, the very interests the Government seeks to protect could be harmed before their validity could be determined." (citing FED. R. CRIM. P. 16(d)(1) advisory committee's note to 1975 enactment)).
Mr. Bailey cites two cases that purportedly constrain the Court's in camera review of the Reports: Abourezk v. Reagan, 785 F.2d 1043, 1060-61 (D.C. Cir. 1986) and Application of Eisenberg, 654 F.2d 1107, 1112 (5th Cir. 1981). See Dkt. 54 at 2-4. Neither case supports Mr. Bailey's assertions. To the contrary, the text Mr. Bailey quotes and relies on from these cases make clear the Court may conduct in camera review of the Reports. In Abourezk, the D.C. Circuit noted that it was improper for a district court to rely heavily on ex parte evidence reviewed in camera to adjudicate a defendant's motion for summary judgment in a civil case. See Abourezk, 785 F.2d at 1060. The court held, "[m]ost notably, inspection of materials by a judge isolated in chambers may occur when a party seeks to prevent use of the materials in the litigation . . . the court may inspect the evidence in camera and alone for the limited purpose of determining whether the asserted privilege is genuinely applicable." Id. at 1061. Additionally, the court in Application of Eisenberg held, "[o]ur adversarial legal system generally does not tolerate ex parte determinations on the merits of a civil case," but it "is settled that in camera proceedings are an appropriate means to resolve disputed issues of privilege." Application of Eisenberg, 654 F.2d at 1112 & n.7 (internal quotations omitted). Mr. Bailey's cited cases only support the proposition that the Court not only can, but should, consider the Reports in camera in deciding whether an actual or potential conflict of interest exists.
Furthermore, the Court cannot compel the Government to produce redacted copies of the Reports at this juncture as Mr. Bailey proposes. See Dkt. 51 at 5. "[T]he Jencks Act and Rule 16(a)(2) do not provide for pretrial discovery of statements made by prospective witnesses." United States v. Hansen, No. 3:04-cr-148, 2005 WL 1206868, at *3 (N.D. Tex. May 18, 2005). Defendant simply has "no constitutional right to pretrial discovery of witnesses in non-capital cases." United States v. Aguilar, 503 F.3d 431, 434 (5th Cir. 2007) (citing Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977)). Mr. Bailey asserts he cannot "counter what he cannot see." Dkt. 51 at 7. But Mr. Bailey is not in the dark. The Government states, "Mr. Bailey has previously been made aware of the existence of these cooperating sources and the essence of their information relative to the close association between [Defendant] and [Defendant] Meneses." Dkt. 47 at 2. Mr. Bailey also stated at the Hearing that he was in possession and had reviewed gigabytes of electronic discovery produced by the Government in Defendant Meneses's case, some of which also pertains to Defendant. See Dkt. 52. Thus, the Court finds in camera review of the Reports is warranted in order to resolve the preliminary question of whether there is an actual or serious potential conflict of interest in Mr. Bailey's proposed representation of Defendant and denies Mr. Bailey's request for redacted copies of the Reports.
B. Motion to Substitute Counsel
The Government opposes the Motion (Dkt. 41), arguing Mr. Bailey's proposed representation of Defendant would be adverse to Defendant Meneses in a substantially related matter and could lead to the improper disclosure of privileged and confidential information Mr. Bailey obtained while representing Defendant Meneses. See Dkt. 47 at 1. The Government points the Court to TDRPC Rules 1.05, 1.06, and 1.09 for its consideration as to whether Mr. Bailey's proposed representation would pose an actual or serious potential risk that there is a conflict of interest. See id. at 2-4; see also Dkt. 53 at 6-20. In response, Mr. Bailey asserts Defendant Meneses's counsel represented that Defendant Meneses does not believe there is a conflict, and further argues the Government's assertions of a conflict are based on false information. See Dkt. 49 at 1-2. Mr. Bailey includes the following exhibits that purportedly show there is no conflict of interest: Exhibit 1, the email communication from Defendant Meneses's counsel to Mr. Bailey and the Government, (Dkt. 49-1); Exhibit 2, alleged reports containing witness statements given to Colombian authorities as part of the peace process occurring in 2016; Exhibit 3, an affidavit sworn to by Agent Guillermo Fuentes ("Agent Fuentes"), (Dkt 49-3); and Exhibit 4, a diplomatic note from the United States to Colombia regarding the extradition of Defendant, (Dkt. 49-4). Mr. Bailey also argues that "the test is not what the Texas Disciplinary rules say but what the Supreme Court set out in Cuyler v. Sullivan . . . [t]hat is knowledge of an actual conflict or serious potential for a conflict and performance below an accepted standard for attorneys in the community." Dkt. 54 at 4. For the reasons that follow, the Court finds that Mr. Bailey has a serious potential conflict of interest that has not been, and likely cannot be, waived or eliminated.
Mr. Bailey's brief refers to Exhibit 3 as the diplomatic note and Exhibit 4 as the extradition warrant. See Dkt. 49 at 3. However, these Exhibits are attached in reverse order and are thus cited in the record respectively as Dkt. 49-3 for Agent Fuentes's affidavit and 49-4 for the diplomatic note.
1. Conspiracy between Defendant and Defendant Meneses
The Court has reviewed the Reports in camera and finds these Reports provide a sufficient basis from which to believe Defendant and Defendant Meneses are likely co-conspirators in the same drug conspiracy and, at least at some time during the conspiracy, close associates. Mr. Bailey's Exhibits 2, 3, and 4 do not persuade the Court otherwise. See Dkt. 49-2, 49-3, 49-4. Exhibit 2 is problematic, as it appears to be comprised of a number of public witness statements, purportedly made as part of the 2016 peace process, that are spliced and cut together by Mr. Bailey. See generally Dkt. 49-2. Mr. Bailey asserts these statements contradict Agent Fuentes's affidavit and show there is no connection between Defendant and Defendant Meneses. See Dkt. 49 at 2-5. The Government argues there are a number of mistranslations, questions regarding the exhibit's authenticity, and witness statements that appear to be incomplete throughout the exhibit. See Dkt. 53 at 13-20. Even disregarding the issues related to the submission of these exhibits, Exhibit 2 contains a statement that supports finding Defendant and Defendant Meneses are coconspirators in the same drug conspiracy. Purportedly, one witness stated to Colombian authorities that Defendant worked for Defendant Meneses as a drug trafficker and the two were close associates. See Dkt. 49 at 3-4; Dkt. 49-2 at 2-4. While Mr. Bailey seeks to diminish the importance of this statement by attacking the credibility of the witness, see Dkt. 49 at 4, this witness statement itself should cause concern that Defendant and Defendant Meneses are co-conspirators. Additionally, Mr. Bailey's conclusory arguments regarding Agent Fuentes's affidavit and the diplomatic note are not persuasive. See id. at 3-4. Ultimately, the Reports provide statements from multiple witnesses that Defendant worked in a leadership capacity directly for and with Defendant Meneses as co-conspirators in the same drug trafficking organization.
2. Conflict of Interest
Guided by the Texas Disciplinary Rules of Professional Conduct and the ABA Model Rules, the Court examines whether an actual or serious potential conflict of interest exists in Mr. Bailey's proposed representation of Defendant. See Valdez, 2011 WL 13137346, at *2 (citing Horaist, 255 F.3d at 266).
"The standards of professional conduct adopted as part of the Rules Governing the State Bar of Texas shall serve as a guide governing the obligations and responsibilities of all attorneys appearing in this court . . . Therefore, the attorney practicing in this court should be familiar with the duties and obligations imposed upon members of this bar by the Texas Disciplinary Rules of Professional Conduct, court decisions, statutes, and the usages customs and practices of this bar." LOCAL RULE AT-2.
TDRPC Rule 1.09(a) states in relevant part:
(a) Without prior consent, a lawyer who personally has formally represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: . . .
Tex. Disciplinary Rules Prof'l Conduct R. 1.09(a)(2)-(3), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (West 2020). "Although [substantially related] is not defined in the Rule, it primarily involves situations where a lawyer could have acquired confidential information concerning a prior client that could be used either to that prior client's disadvantage or for the advantage of the lawyer's current client or some other person. It thus largely overlaps [with] the prohibition contained in paragraph (a)(2) of this Rule." Tex. Disciplinary Rules Prof'l Conduct R, 1.09 cmt. 4A. As discussed supra, the Reports provide statements from multiple witnesses that Defendant worked in a leadership capacity directly for and with Defendant Meneses as co-conspirators in the same drug trafficking organization. Therefore, Defendant and Defendant Meneses's criminal cases are substantially related. See United States v. Edwards, 39 F. Supp. 2d 716, 734-35 (M.D. La. 1999); United States v. Phillips, 952 F. Supp. 480, 483 (S.D. Tex. 1996) (finding "[t]here is no question" the drug conspirators' cases were substantially related, as one defendant had purported knowledge relating to other co-conspirators involvement in the alleged drug trafficking conspiracy); see also United States v. Crinel, No. 15-61, 2015 WL 4394158, at *3 (E.D. La. July 15, 2015) ("[The attorney] represented [the defendant] during part of the pre-indictment phase of this case. [The attorney] now represents her co-defendant [ ]. Clearly, these representations bear a substantial relationship to each other.").(2) if the representation in reasonable probability will involve a violation of Rule 1.05; or
(3) if it is the same or a substantially related matter.
Likewise, there is a serious potential conflict of interest pursuant to TDRPC Rule 1.06(b)(1) if Mr. Bailey's proposed representation of Defendant "involves a substantially related matter in which that person's interests are materially and directly adverse to the interests" of Defendant Meneses. Tex. Disciplinary Rules Prof'l Conduct R. 1.06(b)(1). The representation of one client is directly adverse to the representation of another client "if the lawyer's independent judgment on behalf of a client or the lawyer's ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer's representation of, or responsibilities to, the other client." Tex. Disciplinary Rules Prof'l Conduct R, 1.06 cmt. 6. The Fifth Circuit has expressed concern regarding the danger of "divided loyalties" in defense counsel's successive representation of co-conspirators. See United States v. Gharbi, 510 F.3d 550, 554 (5th Cir. 2007) (citing United States v. Millsaps, 157 F.3d 989, 996 (5th Cir. 1998)); see also Tex. Disciplinary Rules Prof'l Conduct R, 1.06 cmt. 3 ("The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.").
In Gharbi, the district court found a conflict existed because there was concern defense counsel would either "pull punches on cross examination" of his previous client or his knowledge regarding his previous client would provide an advantage on cross-examination. Gharbi, 510 F.3d at 553; see also United States v. De Nieto, 922 F.3d 669, 679-80 (5th Cir. 2019) (affirming the district court's finding of a conflict of interest where defense counsel "would have been put into the position of admitting either that [the previous client] had lied to the court in her guilty plea or that [the current client] had lied to federal officials in her post-arrest interview."); United States v. Castillo, No. EP-21-cr-00520, 2021 WL 3206077, at *3 (W.D. Tex. July 29, 2021) (finding a serious potential conflict of interest when representation could "compromise counsel's ability to explore plea negotiations should the client choose to." (citing United States v. Sanchez, 546 F.3d 328, 334 (5th Cir. 2008))). Similarly, the Government argues Mr. Bailey's ethical duties would prevent him from recommending Defendant cooperate with the Government against Defendant Meneses. See Dkt. 53 at 9. Or, in the reverse, the Government argues Mr. Bailey would be unable to represent Defendant against Defendant Meneses's testimony pursuant to a cooperation agreement without improperly attacking Defendant Meneses's credibility. See id. These potential scenarios would surely jeopardize the fairness of both Defendant Meneses's and Defendant's proceedings.
Finally, Mr. Bailey has a "duty of confidentiality [which] is broader than just client communications, and extends to all confidential information, whether privileged or unprivileged, and whether learned directly from the client or from another source." Perillo, 205 F.3d at 799. TDRPC Rule 1.05(b) requires counsel ensure the confidentiality of information received by a former client and that it not be used to the disadvantage of the former client after the representation is concluded. See Tex. Disciplinary Rules Prof'l Conduct R. 1.05(b); see also Tex. Disciplinary Rules Prof'l Conduct R, 1.09 cmt. 4 (stating it would be improper if "there was a reasonable probability that the subsequent representation would involve . . . an unauthorized disclosure of confidential information under Rule 1.05(b)(1) . . . ."). Mr. Bailey stated at the Hearing he is in possession and has reviewed confidential discovery from his previous representation of Defendant Meneses, some of which pertains to Defendant. See Dkt. 52. The Government therefore asserts that it "would be impossible . . . for Mr. Bailey to avoid using confidential information of both [Defendant] and [Defendant] Meneses to which [Mr. Bailey] is now privy." See Dkt. 53 at 8. Mr. Bailey's knowledge and possession of this confidential information from his representation of Defendant Meneses, coupled with the adverse interests between the two indicted co-conspirators, could lead to an inadvertent use or disclosure of confidential information. See Ryan, 597 F.Supp.3d at 953 ("[T]here is the risk here that confidential information disclosed by [the client to the attorney] . . . will be revealed at trial. Such a possibility of a breach of a client's confidences—as well as a lawyer's duty of loyalty—eclipses [the attorney's] interest in maintaining his counsel."). For the foregoing reasons, the Court finds there is a serious potential conflict of interest in Mr. Bailey's representation of Defendant.
Similarly, ABA Model Rule 1.9(c) states in relevant part:
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
MODEL RULES OF PROF'L CONDUCT r. 1.9 (AM. BAR ASS'N 2013).(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
3. Waiver or Elimination of Conflict
The Court's inquiry does not end at the conclusion that a serious potential conflict exists. Rather, the Court must next consider whether the serious potential conflict of interest can be waived or eliminated. Courts are " 'allowed substantial latitude in refusing waivers of conflicts of interest' for an actual conflict of interest or a serious potential conflict that may arise during trial." United States v. Jackson, 805 F.3d 200, 202 (5th Cir. 2005) (quoting Wheat, 486 U.S. at 163, 108 S.Ct. 1692). Furthermore, "[a] waiver is not sufficient to remedy constitutional infirmity because the courts are obligated to conduct proceedings within the ethical standards of the profession . . . ." Id. at 203. (internal quotation omitted); see also In re Gopman, 531 F.2d 262, 266 (5th Cir. 1976) (internal quotation omitted) ("We also must remember that the court's discretion permits it to nip any potential conflict of interest in the bud."). The Court "is cognizant that 'where conflict of interest or abuse of professional confidence is asserted, the right of an attorney freely to practice his profession must, in the public interest, give way in cases of doubt.' " Ryan, 597 F.Supp.3d at 947 (quoting Doe v. A Corp., 709 F.2d 1043, 1047 (5th Cir. 1983)).
The email from Defendant Meneses's counsel, Mr. Macey, is far from an unequivocal waiver. See Dkt. 49-1. It states:
Just to get [Assistant United States Attorney] Stevan [Buys] up to speed, I will review what Mr. Bailey and I discussed. I got an email from Mr. Bailey that he was not seeking to call Miguel [Meneses] and I as witnesses for the upcoming hearing. On the contrary, he was asking if I could provide him a copy of the letter his client wrote and to confirm Miguel [Meneses] and Franco [Ruiz] did not have an "illegal relationship". In response, I hereby provide the following:
1) I will send by separate email a copy of the letter directly to Mr. Bailey.
2) I can confirm that my client and Mr. Bailey's former client - Miguel Meneses, currently maintains that he did not conduct any illicit activities with Mr. Bailey's potential new client, Franco Ruiz.
3) Miguel Meneses acknowledges that Mr. Bailey was his former attorney and he shared attorney/client communication[s].
4) Miguel Meneses does not believe Mr. Bailey has an actual conflict.
5) Miguel Meneses trusts that the court can determine if an actual or reasonable potential conflict exists
and will respect the court's ultimate decision.Dkt. 49-1. From this email communication, Defendant Meneses, through his counsel, states he "does not believe Mr. Bailey has an actual conflict," but he "trusts that the court can determine if an actual or reasonable potential conflict exists . . . ." Id. Defendant Meneses's statement appears unsure if a conflict exists and is deferential to the Court's conclusion. See United States v. Boulyaphonh, No. 3:17-CR-0450, 2018 WL 276336, at *4 (N.D. Tex. Jan 2, 2018) (finding no waiver was made when the defendant was unsure if there was a conflict); see also Tex. Disciplinary Rules Prof'l Conduct R, 1.09 cmt. 10 ("A waiver is effective only if there is consent after disclosure of the relevant circumstances, including the lawyer's past or intended role on behalf of each client, as appropriate."). Furthermore, the Government asserts Defendant Meneses's counsel has advised both Mr. Bailey and the Government that "Mr. Meneses does not waive any conflict of interest and does not consent to Mr. Bailey's use of his privileged and confidential information." Dkt. 47 at 1-2. Because the Court finds a serious potential conflict exists, Defendant Meneses's statement is not an effective waiver, as he defers to the Court's conclusion.
Even if Defendant Meneses waived the conflict, however, Mr. Bailey's proposed representation presents a number of pitfalls that could prejudice Defendant Meneses or Defendant. In addition to the potential conflict scenarios set forth above, Mr. Bailey possesses confidential information related to Defendant Meneses's criminal case that could cast doubt on the fairness of both Defendant Meneses's and Defendant's proceedings. After balancing the constitutional right of Defendant to representation by counsel of his choice with the Court's interest in the integrity of the proceedings and the public's interest in the proper administration of justice, the Court finds the potential conflict is serious and pervasive enough to preclude Mr. Bailey's representation of Defendant. See Edwards, 39 F. Supp. 2d at 746-47; see also Ryan, 597 F.Supp.3d at 957 ("Moreover, to ignore the conflict would risk exposing the proceeding to a germ that could infect the whole case and make a retrial inevitable."). Therefore, the Court finds Mr. Bailey's conflict of interest has not been, and likely cannot be, waived or eliminated.
IV. CONCLUSION
IT IS ORDERED the relief requested in the Motion (Dkt. 41) is DENIED and the Objection (Dkt. 51) is OVERRULED.
So ORDERED and SIGNED this 21st day of October, 2022.