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United States v. Mahone

United States District Court, E.D. Kentucky, Central Division

May 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MELVIN TREMAYNE MAHONE, JR., and LISA CHARISE MAHONE, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert E. Wier United States Magistrate Judge

         The 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.

         At Ms. 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.

         The 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.

         The 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.

         At the 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.[1] The colloquy engaged the Mahones, both under oath and deemed competent after inquiry, in a narrative discussion.

         At the 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.[2] 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.

         Legal Principles

         “In 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”).

         A 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).

         “In 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 standards).

         Waiver

         Generally, 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));[3]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 counsel.

         At the 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.[4] 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, ...


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