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United States v. Vue

June 30, 2010




I. Summary of Decision

Based upon the facts of this case and the record, this Court held that the Federal Public Defender Office's prior representation of a confidential informant (i.e., a former client), whom the government did not plan to call in its case-in-chief, did not pose an "actual conflict of interest" (using defense counsel's own words at doc. no. 68, p. 3, ¶7) under United States v. Gambino, 864

F.2d 1064 (3d Cir. 1988). See Supplement to Memorandum Order (doc. no. 70), (doc. no. 71). In light of the Court's Orders and its supplements to those Orders (doc. nos. 59, 70-71) denying defense counsel's Motions to Withdraw (Doc. Nos. 56 and 68), the Federal Public Defender ("FPD" or "defense counsel") has now filed a Motion to Stay Proceedings (doc. no. 75), which this Court will deny for the following reasons.

A. Defense Counsel Relies Upon "Facts" that are Inconsistent with the Record

First, nothing on the record indicates there would be any benefit to defendant, who has been incarcerated for over a year awaiting trial of this matter, were he to lose the fruits of the FPD's twelve-month "investigation of the facts and law," which is what would occur if the FPD was permitted to abruptly withdraw from his case.*fn1

Second, nothing on the record indicates that defendant desires new counsel or has consented to defense counsel's withdrawal on the eve of trial from his case. (Pretrial conferences are scheduled for July 15 and 20, 2010 with jury selection and the trial beginning on July 26, 2010.)

Third, nothing on the record indicates that defendant ever agreed to, or even knew about, the nine (9) Motions for Extensions of Time counsel filed in this case, extending his pretrial incarceration to over twelve months. See Doc. nos. 29, 31, 33, 35, 37, 39, 41, 43, and 46. Moreover, each of these motions were apparently a form motion to enlarge time, and stated only that the motion was unopposed by the government and, generically, proclaimed that counsel "needs additional time to complete the investigation of the facts and law before they can make an informed decision concerning the filing of pretrial motions." Id. at ¶ 3.

Fourth, nothing on the record indicates how, after twelve months of "investigation of the facts and the law," defense counsel suddenly "discovered" a purported conflict of interest, only after the ninth Motion for Extension of Time (doc. no. 46) was denied (doc. no. 47), and the pretrial and trial schedule was established by doc. no. 48 (dated June 11, 2010).

Fifth, this Court has always stated that if an actual conflict of interest was brought to the Court's attention or became apparent, the Court would consider a renewed Motion to Withdraw. See doc. nos. 59 and 70, p. 14 ("This denial is without prejudice to further case developments.").

B. Additional, Independent Counsel Has Been Appointed -- Common Sense Approach

Out of an abundance of caution, the Court has granted leave for additional counsel (independent and not from the Federal Public Defender's Office) to join the defense team. See doc. no. 70, p. 14. Said additional counsel has already entered an appearance, (see doc. nos. 72, 73, and 74), and is actively engaged in preparation. See doc. no. 81.

Nothing on the record indicates that additional counsel is incapable of conducting the independent inquiries necessary (including the eight (8) areas of inquiry/"duties" set forth at pages 6 and 7 of the Motion for Stay, doc. no. 75).

Nothing on the record indicates that it would not be in the best interest of defendant to be represented at trial by a defense team consisting of: (a) defense counsel ( FPD), which purports to have been investigating this case for twelve months, plus (b) additional, independent counsel who is already working on the defense and who, assuming the defense team follows proper protocol, is capable of independently handling any purported conflict with the former client in the event that becomes necessary.

This dual, yet independent, representation eliminates the FPD's "dilemma" of possibly being placed in the position of having to cross-examine its former client or being chilled in its investigation of the former client, because independent new counsel could do so based on his own investigation, even though it is hard to imagine a scenario where defense counsel would call the confidential informant in defendant's case-in-chief.

The Court considers this dual representation to be a common sense approach, balancing the private and public interests presented by the FPD's attempt to withdraw on the eve of trial after defendant has been in custody awaiting trial for over twelve months.

C. Public Interest Dictates the Denial of this Motion to Stay

First, as stated above, the FPD defense team sought nine (9) Motions for Extensions of Time to investigate this relatively routine case -- a one count indictment charging defendant with being a convicted felon in possession of a Model 500C, 20 gauge, Mossberg shotgun in violation of 18 U.S.C. § 922(g)(1) on one day in July, 2008. It is difficult to imagine why a twelve-month investigation would be necessary to defend such a charge.

Second, not only does defendant have a right to a speedy trial, so too does the public. See Bloate v. United States, 130 S.Ct. 1345, 1356 (2010) ("Speedy Trial Act . . . serves not only to protect defendants, but also to vindicate the public interest in the swift administration of justice. . . .

[A] defendant may not opt out of the Act even if he believes it would be in his interest; '[a]llowing prospective waivers would seriously undermine the Act because there are many cases . . . in which the prosecution, the defense, and the court would all be happy to opt out of the Act, to the detriment of the public interest.'") (quoting Zedner v. United States, 547 U.S. 489, 502 (2006)).

Third, defense counsel (FPD) in this case also represented Marvin Hall who was sentenced by this Court last Friday, June 25, 2010, to the 24 months "time served" while he was in custody awaiting trial. See United States v. Hall, Criminal No. 08-0215 (doc. no. 133). The USSG range in that case was 15 to 21 months, with the likely sentence being 15 months based on all of the section 3553(a) factors, 18 U.S.C. § 3553(a), on the record in that case. Unfortunately for Mr. Hall, the FPD had filed 16 motions for extensions of time within which to file pretrial motions (see doc. nos. 28, 40, 45, 50, 55, 59, 65, 67, 71, 75, 79, 83, 85, 89, 94, and 98 ), thus costing Mr. Hall at least nine additional and unnecessary months in prison, with no discernible strategic or other benefit to him and nine months in additional prison costs assessed to the taxpayers.

For all of the above reasons, the Court finds that the granting of the requested stay (doc. no. 75) would be inconsistent with the public interest.

II. Background

A. Nature of the Charges

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 in defendant's residence from the observations of a proven reliable confidential informant within forty-eight hours of applying for the search warrant.

There is nothing on the record to support the assertion that defense counsel did not or could not have learned of the identity of the confidential informant until June 16, 2010. See doc. No. 56, ¶6. At defendant's arraignment on June 11, 2009, the lead attorney from the FPD's Office for defendant received a packet of discovery materials from the Government, including the police report regarding the search of defendant's residence and his arrest. See doc. no. 28. Attached to defendant's motion to suppress evidence obtained as a result of that search and arrest (doc. no. 51) were Detective Thomas Gault's police report regarding the application for the search warrant with his affidavit of probable cause submitted in support thereof. Doc no. 51-1, pp. 2-10. According to Detective Gault's affidavit, the confidential informant observed a sawed-off shotgun, among other things, in defendant's residence within 48 hours of the application for the search warrant on July 29, 2008.

Thus, as of June 11, 2009, the lead attorney from the FPD's Office knew or should have known that the confidential informant, who is now the heart of the FPD's two Motions to Withdraw, was in defendant's residence between July 27, and July 29, 2008. That information narrows the universe of persons who might be the confidential informant, and defendant presumably would have been able to suggest possible candidates to his attorneys over a year ago.

B. FPD's Representation

The FPD formally undertook the representation of defendant on February ...

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