The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
SUPPLEMENT TO MEMORANDUM ORDER [DOC.NO.70] AS TO DEFENDANT'S SECOND MOTION TO WITHDRAW AS ATTORNEY [DOC.NO.68]
The Government brought this case against defendant, and charged him with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §922 (g). This firearm was seized by the authorities pursuant to a search warrant for defendant's home. The search warrant was issued to a detective based upon his affidavit of probable cause. The detective's affidavit included statements whereby he claimed to have obtained information about the presence of the firearm from a proven reliable confidential informant.
The Office of the Federal Public Defender ("defense counsel") formally undertook the representation of defendant on February 17, 2009. Doc. No. 13. According to defense counsel, at the inception of its representation of defendant, there were no known conflicts. Doc. No. 56, ¶1. Subsequent to undertaking defendant's representation, defendant was granted a pretrial release, but he absconded, was ultimately apprehended, his bond was revoked, and he was incarcerated to await trial of this matter. Doc. Nos. 9-12, 16-22. From that point on, defense counsel filed nine motions to continue this case "to complete the investigation of the facts and law". Doc. nos. 29, 31, 33, 35, 37, 39, 41, 43, and 46, all at ¶3. This Court granted the first eight requests but on June 11, 2010, denied the ninth request and set jury selection and the trial date for July 26, 2010. Doc. Nos. 47-48. Defendant remained incarcerated during his counsel's year-long investigation.
Defense counsel filed its first Motion to Withdraw as defense counsel on June 16, 2010. (Doc. No. 56). On June 17, 2010, this Court denied, without prejudice, said Motion. The Order specifically stated that said Motion was denied "to insure proper transition of case to counsel who will be able to try the case on schedule. It is further Ordered that substitute counsel be appointed forthwith. All scheduling orders remain in effect." Doc. No. 59. This Court supplemented this Order the following day, on June 18, 2010, stating, "In light of the government's Response [doc. no. 57] which indicates that the government does not intend to call the confidential informant as a witness in its case in chief, the Motion to Withdraw [doc. no. 56] is further denied because no conflict of interest currently exists." However, this Court further indicated in its June 18, 2010 supplemental Order that if a Franks hearing was deemed to be required, "then the Court will revisit the issue and adjust the date for the Franks hearing to fit the schedule of substitute counsel; however, the Court will not adjust the pretrial and trial schedules as a reasonable amount of time remains for trial preparation."*fn1
Before this Court ruled upon defense counsel's request for a Franks hearing, on June 21, 2010, defense counsel filed a Second Motion to Withdraw as defense counsel, indicating that "[defense] counsel is faced with an actual conflict of interest that requires withdrawal from the case, regardless of how the court rules on [defendant]'s request for [a] Franks hearing, notwithstanding the government's stated intention not to call the confidential informant in its case and chief."
On June 22, 2010, this Court entered an Order addressing all of defendant's outstanding pretrial motions,*fn2 and also addressed defense counsel's Second Motion to Withdraw at the end of its opinion. In the portion of its opinion addressing the Second Motion to Withdraw, the Court denied defense counsel's request, but did permit the Office of the Federal Public Defender to secure additional counsel for Defendant, should they so desire. Doc. No. 70, pp. 12-14. The Court will now elaborate on its decision in this regard.
In order for the Federal Public Defender's Office to have an actual conflict of interest, as claimed in the Second Motion to Withdraw, defense counsel:
. . . must show two elements. First, he must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. He need not show that the defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative. Second, he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.
United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) citing, United States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985).
As to the first prong of the two-part Gambino test, defense counsel suggests that an investigation of the confidential informant, its former client, is a defense strategy or tactic. Defense counsel further indicates that the investigation cannot be pursued because of its prior representation of the confidential informant. Specifically, defense counsel asserts that "to provide competent legal representation to [defendant], defense counsel must independently investigate the confidential informant/former client who purportedly provided the government with key information against [defendant]." Doc. No. 68, p 4. As to the second prong of the Gambino test, defense counsel suggests that "this plausible (and viable)" defense strategy "cannot be pursued because to do so would inherently conflict with other loyalties or interests." Doc. No. 68, p. 8.
Turning to the second prong of the Gambino test, defense counsel, as the petitioner in this matter, is required to "establish" that investigating the former client/confidential informant will inherently conflict with, or not be able to be undertaken, "due to the attorney's other loyalties or interests." Gambino, 864 F.2d at 1070 (emphasis added). Defense counsel has proffered nothing that would establish such a conflict, even though defense counsel's investigation is nearly a year old. To the contrary, defense counsel summarily concludes that investigating the former client (i.e. the confidential informant), inherently conflicts with ...