The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM ORDER OF COURT
Presently before the Court is the RULE 44(c) MOTION FOR HEARING TO INQUIRE INTO JOINT REPRESENTATION filed by the government (Document No. 550), the RESPONSE filed by Defendant David Curran (Document No. 551), the RESPONSE filed by Defendant Franco Badini, and the REPLIES filed by the government (Document Nos. 552 and 556). Defendant Barndt filed a NOTICE that he will not be filing a brief in response to the Motion for Rule 44(c) Hearing (Document No. 557).
After due consideration, for the following reasons the Motion for a Rule 44(c) hearing will be denied.
Defendants David Curran, Bradley Barndt, and Franco Badini, along with thirteen (13) other co-defendants, have been charged with conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine from in or around January 2009 to in or around November 2009, in violation of Title 21, United States Code, § 846.
On December 17, 2009, Magistrate Judge Lisa Pupo Lenihan appointed Attorney Stephen Israel to represent Defendant Bradley Barndt. On December 21, 2009, Magistrate Judge Amy Reynolds Hay appointed Attorney Warner Mariani to represent Defendant David Curran. On April 9, 2010, Magistrate Judge Cathy Bissoon appointed Attorney Stephen H. Begler to represent Defendant Franco Badini. By Order of April 23, 2010, Attorney Begler was permitted to withdraw as attorney for Defendant Badini because Defendant Badini had privately retained Attorney Lee Rothman to represent him. None of these criminal defense attorneys are associated with one another in the private practice of law.
A hearing on pretrial motions filed by Defendants was scheduled and conducted by the Court on April 13, 2011. Each of the named Defendants was present in person and each of the referenced attorneys formally entered an appearance on the record on behalf of the respective Defendants as above referenced, i.e., Attorney Mariani on behalf of Defendant Curran; Attorney Israel on behalf of Defendant Barndt; and Attorney Rothman on behalf of Defendant Badini. After initial remarks of the Court and statements of counsel for the government and each defendant, it developed that the only testimony and evidence to be presented at the hearing related to motions to suppress evidence of two (2) separate vehicle traffic stops which exclusively involved only one of the three defendants, David Curran. Defendants Barndt and Badini, with their attorneys, remained at counsel table as the hearing proceeded.
During the direct examination of the government's first witness, Pennsylvania State Trooper David Scott Emery, the Court observed Attorney Rothman stand, walk over to Attorney Mariani, and speak something into his ear, in response to which Attorney Mariani appeared to nod. Attorney Rothman returned to his seat at counsel table. Later, during Attorney Mariani's cross-examination of Trooper Emery and/or Sergeant Anthony DeLuca, Attorney Rothman again stood, walked over to Defendant Curran, and appeared to briefly converse with him, and again returned to his seat. Attorney Mariani, without apparent reaction, continued with his cross-examination.
The government raised the issue of possible joint representation of Defendant David Curran after the pretrial motions hearing. In its motion, the government indicates that Attorney Rothman has represented his current client, Mr. Badini, in the past on other charges, as well as "acted on behalf of Mr. Barndt in 2009 relative to a probation issue." Additionally, Attorney Rothman has also represented Defendant Curran in the past on other charges, and during the time period of the instant federal conspiracy investigation and charge, Attorney Rothman communicated with members of the Pennsylvania State Police and the United States Attorney's office on behalf of Defendant Curran. The government specifically requests that "in light of Mr. Rothman's history acting on Mr. Curran's behalf and his communication with Mr. Curran during the motions hearing while he was representing Mr. Badini and while Mr. Mariani was examining witnesses on Mr. Curran's behalf, it would be prudent for an inquiry to be made into whether de facto joint representation is occurring." Mot. at ¶ 9.
Both Attorneys Mariani and Rothman formally responded to the government's motion and both adamantly deny that Attorney Rothman has represented or advised Defendant Curran regarding the charges pending against him in this case. Both attorneys acknowledge that Attorney Rothman spoke to Defendant Curran during the hearing, but only after Attorney Mariani was consulted and granted permission.
Federal Rule of Criminal Procedure 44(c) provides as follows:
(c) Inquiry into Joint Representation
(1) Joint Representation. Joint representation occurs when:
(A) two or more defendants have been charged jointly under Rule 8(b) or have been joined for ...