The opinion of the court was delivered by: VAN ANTWERPEN
This matter is before the court for a proceeding under Fed. R. Crim. P. 44(c) to determine whether Richard J. Makoul, Esquire, should be disqualified from representing defendant Dean Martin Arnold because of his prior representation of one Jennifer Kloss, who will be a witness in this case. The government filed a motion on April 27, 1995 to disqualify Mr. Makoul and after notice to counsel, a hearing was held before the court on Thursday, May 4, 1995. At the hearing, Jennifer Kloss objected in strong terms to Mr. Makoul's representation of Dean Martin Arnold.
On April 11, 1995, a federal grand jury returned a Superseding Indictment in the instant case charging Dean Martin Arnold with bank larceny, in violation of 18 U.S.C. § 2113; money laundering, in violation of 18 U.S.C. § 1956; witness tampering, in violation of 18 U.S.C. § 1512(b)(3); and attempted murder of a witness, in violation of 18 U.S.C. § 1512(a)(1)(A). These charges arise from Arnold's alleged theft of approximately $ 465,000 in cash between December 1993 and August 23, 1994 while employed as an armored car guard at Federal Armored Express, Allentown, Pennsylvania.
The superseding indictment alleges that in December 1993, and August 1994, defendant Arnold stole approximately $ 465,000 belonging to two federally insured banks. Arnold is also charged with threatening Jennifer Kloss, who is his ex-fiancee, by choking her and putting a gun to her head. This was allegedly done to prevent her from advising the police and the FBI about her knowledge of Arnold's involvement in the thefts. The grand jury also charged that Arnold attempted to kill Kloss to prevent her from testifying against him at trial.
On August 23, 1994, FBI agents and local police went to the house trailer where Jennifer Kloss and Dean Martin Arnold lived in an effort to interview them about the disappearance of $ 400,000 from Federal Armored Express. Jennifer Kloss and Dean Martin Arnold were living together and were engaged to be married. The agents were unable to interview either Kloss or Arnold at that time. The next day, Jennifer Kloss spoke with her father, Joseph Kloss, about the incident and the need for a lawyer. Joseph Kloss became concerned about his daughter becoming implicated in the disappearance of the money and the possible involvement of her fiancee, Dean Martin Arnold. Joseph Kloss contacted the office of Richard J. Makoul, Esquire, about legal representation.
A $ 1,000 check was given to Dean Martin Arnold and Jennifer Kloss by Mr. Joseph Kloss so that they could retain counsel. This check was endorsed by Dean Martin Arnold and Attorney Richard Makoul as a retainer fee (Government's Hearing Exhibit #1). Additional fees were also paid. The $ 1,000 fee was paid on August 25, 1994, at which time Joseph Kloss, Jennifer Kloss and Dean Martin Arnold attended a meeting with Mr. Makoul in his office. During the course of this meeting, which lasted approximately one hour, Mr. Makoul provided legal advice to Jennifer Kloss in the presence of both Mr. Kloss and Jennifer Kloss. During the meeting, Mr. Makoul asked Mr. Kloss to leave the room so he could speak privately with Jennifer Kloss and Dean Martin Arnold. During this private consultation, Jennifer Kloss and Dean Martin Arnold made confidential communications to Mr. Makoul and Mr. Makoul gave them legal advice. Mr. Makoul was of the view that the situation primarily concerned Dean Martin Arnold, but could also involve Jennifer Kloss.
As a result of her meeting with Mr. Makoul and his statements to her, Jennifer Kloss believed Mr. Makoul represented her in connection with the FBI investigation and when she met with the FBI on December 20, 1994 she informed them that she was represented by Mr. Makoul (Government's Hearing Exhibit #3). In addition, Mr. Makoul also advised FBI Special Agent Thomas Fry, the case agent in this investigation, that he represented both Jennifer Kloss and Dean Martin Arnold and requested that the FBI not interview either of them.
By December of 1994 the relationship between Dean Martin Arnold and Jennifer Kloss had apparently come to an end and their engagement was broken. Mr. Joseph Kloss wrote a letter, (Government's Hearing Exhibit #6), bringing this to the attention of Mr. Makoul and stating that he would no longer provide financial help for Dean Martin Arnold.
The applicable law is well-known. A criminal defendant is entitled to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). "Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see e.g., Fed. R. Crim. P. 44(c), it is reasonable for the criminal justice system to ...