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United States v. Self

December 30, 2009

UNITED STATES OF AMERICA
v.
RAHMMAR SELF AND HAZIZ SELF



The opinion of the court was delivered by: Diamond, J.

MEMORANDUM

On July 29, 2009, the grand jury charged siblings Rahmmar Self and Haziz Self with drug-related offenses. The same four-person law firm -- Lacheen Wittels & Greenberg L.L.P. -- entered its appearance for both men: H. Self retained Mark Greenberg; R. Self retained Barnaby Wittels. On November 6, 2009, I granted Mr. Wittels' Motion to Withdraw after he stated that these circumstances created an incurable potential conflict of interest. The Government contends that this same conflict also requires Mr. Greenberg's disqualification. I agree.

I. Background

A. The Charges Against Defendants

The grand jury charged brothers R. Self and H. Self with distribution and aiding and abetting the distribution of five grams or more of crack cocaine, as well as distribution of cocaine base within 1,000 feet of a public housing facility. See 21 U.S.C. § 841(a)(1); 21 U.S.C. § 860(a); Doc. No. 1. Those charges stem from the same alleged March 4, 2009 incident. On September 9, 2009, R. Self was charged by superseding indictment with two additional counts of distribution of crack cocaine, two additional counts of distribution of cocaine base within 1,000 feet of a public housing facility, and one count of possession of a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1); Doc. No. 27. These new charges stem from incidents that allegedly occurred at the same public housing facility on July 27 and August 4, 2009. (Id.)

Court-appointed counsel entered her appearance for H. Self on August 10, 2009. On September 10, 2009, Mr. Greenberg, who had been retained by H. Self, entered his appearance, thus replacing court-appointed counsel. Mr. Wittels, whom R. Self retained, also entered his appearance on September 10, 2009.

B. The Conflict of Interest is First Raised

On September 21, 2009, the prosecutor assigned to this matter raised the potential conflict of interest created by the same firm representing both Defendants. (Doc. Nos. 33, 34.) The next day, Magistrate Judge Elizabeth Hey conducted a colloquy in accordance with Fed. R. Crim. P. 44(c). (Doc. No. 35.) Unfortunately, the assigned prosecutor was unable to attend, and a substitute prosecutor -- who apparently knew nothing about the case -- represented the Government. (Tr. at 2.)

Mr. Wittels and Mr. Greenberg assured Judge Hey that they had discussed the conflict of interest with their clients "before even discussing the facts of this case," and that both Defendants were prepared to waive their right to separate counsel. (Tr. at 5.)

Judge Hey: And I'll ask you both, in your opinions, based on the knowledge that you have about the case thus far, and about any defenses to the case, whether there are any actual conflicts that are likely to arise in the joint representation?

Mr. Wittels: No, your Honor, I don't see any.

Judge Hey: All right.

Mr. Greenberg: No, your Honor, I don't see any either. (Tr. at 5.)

Judge Hey then explained to each Defendant the extremely serious charges he faced -- carrying mandatory minimum terms of ten years up to a maximum of life imprisonment -- and his right to conflict-free counsel. (Tr. at 5.) She also explained how the interests of each Defendant might diverge from those of his co-Defendant and how conflict-free counsel was essential to protect those interests. (Tr. at 8, 14.) R. Self and H. Self each waived his right ...


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