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United States of America v. Nestor Luis Merced-Calderon

June 17, 2011

UNITED STATES OF AMERICA
v.
NESTOR LUIS MERCED-CALDERON DEFENDANT.



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

OPINION

I. INTRODUCTION

Before the Court is the Government's Motion to Disqualify Counsel for Defendant Nestor Luis Merced-Calderon based on defense counsel's representation of another client who is a defendant in an unrelated criminal case. This client will be referred to as "Client #1."*fn1 On April 20, 2011, the Court heard argument on the Government's oral Motion to Disqualify Counsel.*fn2

Following the hearing, the Court afforded both Government and defense counsel an opportunity to submit briefs on the Motion. Both parties did so. (See Government's Motion for Disqualification of Defense Counsel (Doc. No. 29); Defendant's Response to the Government's

Motion for Disqualification of Defense Counsel (Doc. No. 33).) The Court has considered these briefs as well as the arguments of the parties at the April 20, 2011 hearing. For reasons that follow, the Court will deny the Motion to Disqualify Counsel for Defendant.

II. FACTUAL BACKGROUND

On March 17, 2010, Client #1 was arrested while driving his vehicle in Philadelphia. (Doc. No. 33 at 2.) In the course of searching the vehicle incident to this arrest, police recovered 10 kilograms of cocaine. (Id.) Client #1 has been in custody since his arrest. (Id.)

On July 14, 2010, a Grand Jury sitting in the Eastern District of Pennsylvania returned a Second Superseding Indictment charging Client #1 and others with conspiracy to distribute 5 kilograms or more of cocaine. (Doc. No. 29 ¶ 1.) Client #1 retained present defense counsel in that case to represent him. (Id.; Doc. No. 33 at 2.) Soon after retaining defense counsel, Client #1 began cooperating with the Government by providing information on other criminal activity. (Doc. No. 29 ¶ 3; Doc. No. 33 at 2.) He attended several proffer sessions at which defense counsel was present (Doc. No. 29 ¶ 3; Doc. No. 33 at 2), and provided information about a drug trafficking organization ("DTO"), which operates in Philadelphia using vehicles with hidden compartments to transport drugs and drug proceeds. (Doc. No. 29 ¶ 3; Doc. No. 33 at 2.) On January 4, 2011, Client #1 pled guilty pursuant to a cooperation plea agreement and, as noted, is awaiting sentencing. (Doc. No. 29 ¶ 2; Doc. No. 33 at 2.)

Based in part on information provided by Client #1, law enforcement officers began investigating members of a particular DTO. (Doc. No. 29 ¶ 3; Doc. No. 33 at 3.) Using surveillance, the officers identified various locations throughout Philadelphia that they suspected might be used for storing and packaging drugs. (Doc. No. 33 at 3.) A garage located at 3835-37 North 5th Street in Philadelphia was one such location. (Id.)

On November 27, 2010, law enforcement officers observed Defendant Merced-Calderon in a vehicle exiting the garage on North 5th Street. (Doc. No. 29 ¶ 4; Doc. No. 33 at 3.) Defendant's car was stopped a short time later by police officers in Bensalem, Pennsylvania. (Doc. No. 29 ¶ 4; Doc. No. 33 at 3.) Following this traffic stop, Defendant was arrested and his car was searched. (Doc. No. 29 ¶ 4; Doc. No. 33 at 3.) The officers recovered 12 kilograms of cocaine. (Doc. No. 29 ¶ 4; Doc. No. 33 at 3.)

Following this arrest, Defendant Merced-Calderon was prosecuted in state court by the Bucks County District Attorney's Office prior to being charged in a federal indictment. (Doc. No. 29 ¶ 5.) Defendant retained present defense counsel to represent him. (Id.) Defense counsel represented him throughout the proceedings in state court. (Id.) On March 2, 2011, a Grand Jury sitting in the Eastern District of Pennsylvania returned the instant Indictment charging Defendant with possession with intent to distribute 5 kilograms or more of cocaine. (Id. ¶ 6; Doc. No. 12.) This charge was also based on the November 27, 2010 arrest of Defendant and the recovery of the 12 kilograms of cocaine in his car. Defense counsel continued his representation of Defendant Merced-Calderon in this federal case. (Doc. No. 15.)

On March 29, 2011, defense counsel filed a Motion to Suppress Physical Evidence in this case. (Doc. No. 18.) In the Motion, Defense counsel challenges the validity of the November 27, 2010 traffic stop, arguing that the stop was merely a pretext for Drug Enforcement Administration (DEA) agents to search Defendant's car. Arguing to the contrary, the Government offers two reasons to justify the stop: 1) the Bensalem police had reasonable suspicion to believe Defendant committed a violation of the Pennsylvania Motor Vehicle Code because he had an obstruction on his windshield; and 2) DEA agents had reasonable suspicion to believe the car contained drugs or drug proceeds based on Defendant's presence in the North 5th Street garage. (See Doc. No. 20.) Defendant challenges the reasons given by the Government for the stop. He contends that his presence at the North 5th Street garage did not give rise to reasonable suspicion that he was using his vehicle to transport drugs or drug proceeds and therefore the stop was illegal. Further, he asserts that the alleged motor vehicle violation did not occur and cannot serve as a basis for the stop.

In Response to the Motion to Suppress, the Government explains in part that based on information provided from persons cooperating with the government (including Client #1) and surveillance of the property, law enforcement officers had reasonable suspicion to believe that the North 5th Street garage was being used to facilitate drug offenses. (Doc. No. 20 at 8-9.) Therefore, when Defendant left this location in his vehicle, they had a reasonable belief that the vehicle contained drugs or drug proceeds. (Id.) This reasonable belief justified the stop regardless of whether the police had reason to believe that Defendant committed a motor vehicle violation. (Id.) At a suppression hearing, the Government intends to prove the reasonableness of the stop with information provided by government informants (including, but not limited to, Client #1). (Transcript of the April 20, 2011 Hearing, "Hr'g Tr." at 5:10-23.)

At the April 20, 2011 scheduled hearing on the Motion to Suppress, the Government moved for the first time to disqualify defense counsel, arguing that to zealously represent Defendant on the Motion to Suppress, defense counsel must challenge the reliability of information provided to law enforcement officers, some of which was provided by Client #1. (Hr'g Tr. at 5:24-6:19.) By challenging the reliability of such information, defense counsel will be challenging the reliability of his own client, Client #1. (Id.) According to the Government, this tactic would constitute either a breach of defense counsel's duty of loyalty owed to Client #1, or a breach of his duty to zealously represent Defendant Merced-Calderon because ...


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