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United States v. Lezcano

United States District Court, W.D. Kentucky, Louisville Division

December 13, 2016

UNITED STATES OF AMERICA, Plaintiff
v.
OSKEL LEZCANO, Defendant

          MEMORANDUM OPINION AND ORDER

          Colin Lindsay, Magistrate Judge.

         Attorney Alexander F. Fox filed a motion to withdraw as counsel of record for Oskel Lezcano. Mot., DN 163. Fox indicated that Assistant United States Attorney Joseph Ansari has no objection to Fox's withdrawal. Id. at ¶ 1.

         Local Criminal Rule 57.6 governs attorney withdrawal in criminal cases. The rule prohibits an attorney from withdrawing within twenty-one days of trial unless a compelling reason exists. LCrR 57.6. Here, the jury trial which had been set for October 12, 2016 has been remanded, and the jury trial will be set at a future date. See Order, DN 154.

         If an attorney seeks to withdraw any other time, the attorney must file a motion and certify that the motion has been served on the client. LCrR 57.6(b). Here, Fox has filed a motion and certified that he “sent a copy of this Motion to Withdraw to the Defendant” via certified mail. Mot. ¶ 5.

         Finally, the rule requires that the attorney make “a showing of good cause.” LCrR 57.6(b).

         As good cause for the withdrawal, Fox argues that he has had “no contact whatsoever with his client for some time” even though he says he was working to resolve the matter with the government. Mot. ¶ 2. Fox also points to a phone call he received from a probation officer here in the Western District who informed him that a new arrest warrant had been issued for Lezcano, that Lezcano had not reported to the United States Probation Office, and that Lezcano was nowhere to be found. Id. Fox argues that Lezcano's fugitive status “makes it impossible for Counsel to represent his interests.” Id. ¶ 3. Fox also says that his office is in Coral Gables, Florida, a two-hour flight from Louisville. Id. Finally, Fox says that he has tried “numerous times” to reach Lezcano, and that he has reached out to his family members to encourage him to turn himself in. Id.

         Paragraph four of Fox's motion to withdraw says:

Counsel also respectfully requests, if required, a telephonic hearing to avoid having to travel to Louisville. If the Court is unwilling to grant Counsel's request for a telephonic hearing, then Counsel would request that his colleague Brendan [McLeod] be permitted to stand in for Counsel as the Ex-Parte hearing.

Id. ¶ 4 (emphasis added).

         In another case, this request would be unremarkable. Here, in light of Fox's conduct in this matter, it is ironic if not hypocritical.

         On July 30, 2015, Lezcano appeared in person in Louisville for his initial appearance and arraignment proceedings. See Order 1, DN 35. Brendan McLeod stood in for Fox whom Lezcano had retained as counsel. See Id. The undersigned remanded Lezcano to the custody of the United States Marshal Service pending a detention hearing. Id. at 2. The undersigned set the matter for a detention hearing the following day to determine whether Lezcano would remain in the Marshals' custody pending trial. See id.

         The next morning, Lezcano appeared before the undersigned for the detention hearing. Order, DN 38. Again, McLeod stood in for Fox as Lezcano's retained counsel. Id. McLeod requested on behalf of Mr. Fox a further continuance of the detention hearing for 12 additional days to allow Fox to argue the issue of detention. Id. Lezcano indicated his consent to the continuance, and the United States did not object. Id.

         The United States Probation Office had recommended Lezcano's release.

         Twelve days later, on August 12, 2015, the undersigned held a detention hearing. Order, DN 47. Fox appeared in person on behalf of Lezcano. The United States moved to withdraw its motion for detention. Id. The undersigned released Lezcano on a $100, 000 secured bond with conditions. Id. After setting the terms of Lezcano's release, the undersigned noted his discomfort ...


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