United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
E. Wier United States Magistrate Judge
Court addresses the status of Hon. Jerry L. Wright as counsel
for Defendant Lisa Charise Mahone. The Indictment charges Ms.
Mahone and Co-Defendant Melvin Tremayne Mahone, Jr. (her
son), with a variety of crimes, centered on (as relevant to
her) an alleged conspiracy between them to distribute a
mixture or substance containing a detectable amount of heroin
and fentanyl, in violation of 21 U.S.C. §§
841(a)(1) and 846. DE #1 (Indictment). Ms. Mahone also faces
individual distribution charges, as well as an allegation of
attempting to possess with the intent to distribute a mixture
or substance containing heroin and fentanyl. Id. All
such particular conduct as alleged was within the same
temporal and geographic scope as the overall conspiracy.
Mahone's initial appearance and arraignment, Mr. Wright
notified the Court “of a potential issue in the case
regarding his prior joint representation of the Co-Defendants
on criminal charges in state court.” DE #11, at 1 n.1.
The Court immediately cited concern over whether Mr.
Wright's prior state-court representation of both Mahones
on charges related to the same conduct would create an actual
or potential conflict of interest, threatening either
Mahone's (or both Mahones') Sixth Amendment right(s)
to effective and conflict-free counsel. See DE ##11,
16, 20, 22, 29.
Court, thus, scheduled a hearing on the topic and appointed
separate, independent counsel-Hon. Benjamin D.
Allen-“for the limited purpose of advising [Ms. Mahone]
with respect to the prior joint representation issue and the
issues pertinent to the . . . hearing.” DE #16 (Order).
Mr. Mahone already has separate counsel, Hon Jeffrey A.
Darling, a CJA appointee. At the April 26, 2017, hearing, the
Court advised each Defendant in detail of the contours of the
individual right to effective assistance of counsel,
including conflict-free representation. “Unless there
is good cause to believe that no conflict of interest is
likely to arise, the court must take appropriate measures to
protect each defendant's right to counsel.” Fed. R.
Crim. P. 44(c)(2). There was not good cause to forestall
further inquiry. Indeed the nature of the charges, the
dynamics of the prior joint representation in this specific
case, the Kentucky ethics rules, federal court policies, and
the Court's experience all pointed toward the need for
further development, inquiry, and protective measures.
detention hearings painted a picture of the underlying proof.
The Government will endeavor to prove a trafficking
conspiracy involving both Mahones stretching from late spring
to early fall of 2016. Peppered throughout are individual
trafficking acts by Ms. Mahone. The investigatory apex, or
perhaps conclusion, was an October 20, 2016, raid at Mr.
Mahone's residence in Lexington, yielding significant
incriminating contraband. Per the United States's
proffer, Ms. Mahone was on her way to Mr. Mahone's
residence on October 20 to pick up drugs for distribution at
a controlled buy. The state charged the Mahones for virtually
all of the same conduct reflected in the federal indictment,
though without the conspiracy or arrest date conduct as to
Ms. Mahone. At the point of later federal arrest, the Mahones
were physically at the same location, and police found Lisa
Mahone in possession of nearly an ounce of cocaine on that
date. At the hearing, Mr. Wright claims he did not talk to
either Mahone about the other, as part of his representation
of them in Madison and Fayette Circuit Court. Mr. Wright did,
however, of course confer with each defendant about the state
charges targeting that defendant.
conflict hearing, the Court heard extensively from all
attorneys and advised and queried both Mahones under oath as
to the conflict issues, waiver elements, and Defendants'
rights in the matter. The Court implemented a full
Curcio rubric, cataloging a series of possible
scenarios (with concrete examples provided) that could
threaten to place the interests of the Co-Defendants at odds
and thus strain or make impossible Mr. Wright's ability
to fulfill all fiduciary and other duties owed both
Defendants-Ms. Mahone as a current client and Mr. Mahone as a
former client. The colloquy engaged the Mahones, both
under oath and deemed competent after inquiry, in a narrative
hearing, both Defendants unequivocally sought to waive the
right to conflict-free counsel, to consent to the status quo,
and to allow Mr. Wright to continue to represent Ms. Mahone.
Further, Ms. Mahone filed a written waiver. DE
#26-1. For the reasons that follow, the Court
rejects each Defendant's putative waiver and disqualifies
Mr. Wright from representing Ms. Mahone in this case. Counsel
Wright acted as the lawyer for both Mahones on state charges
that effectively blanket the federal case. In this scenario,
the Court finds that Wright's prior joint representation
of the Mahones on the subject matter of the Indictment and
the resulting serious potential for conflict foreclose Mr.
Wright's representation of Ms. Mahone.
all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his
defence.” U.S. Const., amend. VI. A criminal defendant
presumptively has the constitutional right to retained
counsel of her choice. Wheat v. United States, 108
S.Ct. 1692, 1700 (1988). However, “the essential aim of
the Amendment is to guarantee an effective advocate for each
defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom [s]he
prefers.” Id. at 1697. Thus, the presumption
may be “overcome” by a “demonstration of
actual conflict” or “by a showing of a serious
potential for conflict.” Id.; accord
United States v. Jones, 381 F.3d 114, 119 (2d Cir.
2004); Serra, 4 F.3d at 1354; see also Wood v.
Georgia, 101 S.Ct. 1097, 1103 (1981) (right to
conflict-free counsel is “correlative right”).
conflict actually exists, in a scenario of this type,
“when the attorney's and the defendant's
interests ‘diverge with respect to a material factual
or legal issue or to a course of action, ' or when the
attorney's representation of the defendant is impaired by
loyalty owed to a prior client.” Jones, 381
F.3d at 119 (quotation omitted). “An attorney has a
potential conflict of interests if the interests of the
defendant could place the attorney under
inconsistent duties in the future.” Id. In
either situation, the Court may reject an otherwise
valid waiver of the Sixth Amendment right to conflict-free
counsel. Wheat, 108 S.Ct. at 1699. “A
defendant enjoys a presumption in favor of counsel of choice,
but such a presumption may be overcome because such a choice
must be balanced with the court's interest in the
integrity of the proceedings and the public's interest in
the proper administration of justice.” United
States v. Swafford, 512 F.3d 833, 839 (6th Cir. 2008)
(internal quotation marks omitted). “In situations
where a potential conflict of interest may arise, the
court's interest in the integrity of the proceedings may
trump the defendant's choice.” Id.
“A district court has broad discretion to remove
counsel for a potential conflict, even if the defendant
wishes to waive the conflict.” United States v.
Matsa, 540 F.App'x 520, 523 (6th Cir. 2013).
general, in deciding whether to accept a defendant's
waiver of conflict-free counsel, a district court must
determine (i) whether the defendant's waiver is
sufficient and (ii) whether the conflict is of a type which
can be waived.” United States v. Cardin, 577
F.App'x 546, 552 (6th Cir. 2014). “The first
inquiry focuses on the specific defendant before the district
court. The second inquiry focuses on the integrity of the
judicial system generally.” Id. “The
district court is to be given wide latitude in making such
determinations [regarding disqualification] and a decision
will be upheld unless arbitrary or without adequate
reasons.” Swafford, 512 F.3d at 839 (internal
quotation marks omitted); Wheat, 108 S.Ct. at 1699
(“[T]he district court must be allowed substantial
latitude in refusing waivers of conflicts of interest . . .
in the more common cases where a potential for conflict
exists which may or may not burgeon into an actual conflict
as the trial progresses.”); see also, e.g.,
United States v. Shearburn, No. 3:15-CR-5-GFVT-REW,
2015 WL 12999704 (E.D. Ky. July 10, 2015) (describing the
a defendant may, “in the absence of compelling
circumstances, ” waive the right to conflict-free
counsel. United States v. Davis, 490 F.3d 541,
548-49 (6th Cir. 2007) (quoting United States v.
Reese, 699 F.2d 803, 805 (6th Cir. 1983) (per
curiam));see also Jones, 381 F.3d at 117-20
(court may accept valid waiver of right to conflict-free
counsel where only potential conflict exists). Of course, any
waiver must reflect that the party waiving is competent and
acting in a knowing, voluntary, and intelligent fashion.
Jones, 381 F.3d at 119; United States v.
Curcio, 680 F.2d 881, 887 (2d Cir. 1982). To assess the
validity of a waiver of the right to conflict-free counsel,
the Second Circuit established the following now venerated
procedure, which the Court here adopted: (1) advise of right
to conflict-free counsel; (2) instruct as to dangers; (3)
permit conference with chosen counsel; (4) encourage
independent advice; (5) allow reasonable time for decision;
and (6) engage in narrative colloquy to ensure that defendant
understands risks and freely chooses to run them. United
States v. Rodriguez, 968 F.2d 130, 138-39 (2d Cir. 1992)
(outlining steps for “Curcio hearing” in
context of conflict waiver). The Court found both Defendants
competent based on questioning under oath. The Court,
premised on the lengthy and dynamic discussion at the
hearing, also finds that each knowingly, intelligently, and
voluntarily sought to waive his or her right to conflict-free
Curcio hearing, attorneys Darling, Wright, and Allen
each represented that he had discussed with his respective
client the potential conflicts and consequences that could
arise as a result of Wright's prior joint representation.
According to the attorneys, Ms. Mahone persisted in her
desire to retain Mr. Wright, and Mr. Mahone endorsed that
posture. Mr. Wright advised that he believes he can
ethically represent-and is ethically representing-Ms. Mahone,
even in light of his prior representation of Mr. Mahone. The
Court discussed on the record the potential conflicts and
then examined the Mahones concerning their willingness to
waive any actual or potential conflict. Under oath, each
professed to understand the possible conflicts. Defendants
stated (as part of a detailed discussion by and with the
Court) that they perceived and were aware of issues-in the
context of prior joint representation on the same substantive
charges-that may arise with respect to the attorney-client
privilege; the duties of loyalty, confidentiality,