United States v. Ruiz

649 F.Supp.3d 321

UNITED STATES of America, Plaintiff, v. Franco RUIZ (#1) also known as "Motorola", Defendant.

Crim. No. 4:20-cr-96-SDJ-KPJ-1

United States District Court, E.D. Texas, Sherman Division

Signed October 21, 2022

Christopher Andrew Eason, Assistant U.S. Attorney, U.S. Attorney's Office, Plano, TX, Stevan Adam Buys, Assistant U.S. Attorney, U.S. Attorney's Office, Sherman, TX, for Plaintiff.

Gaylon Perry Riddels, Gaylon P. Riddels Law Firm, PC, Sherman, TX, Donald Lee Bailey, Attorney at Law, Sherman, TX, for Defendant.

OPINION AND ORDER

KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendant Franco Ruiz's ("Defendant") Motion to Substitute Counsel (Dkt. 41) (the "Motion"), wherein Don Bailey ("Mr. Bailey") requests permission to represent Defendant. See id. On August 29, 2022, the Government filed its response opposing the Motion on the grounds that Mr. Bailey has an actual or potential conflict of interest. See Dkt. 47. On September 4, 2022, Mr. Bailey filed a reply. See Dkt. 49. On September 9, 2022, the Court held a hearing on the Motion (Dkt. 52) (the "Hearing"). Subsequently, Mr. Bailey filed the Objection to In Camera Review (Dkt. 51) (the "Objection"), the Government filed its response (Dkt. 53), and Mr. Bailey filed a reply (Dkt. 54). Upon consideration, the relief requested in the Motion (Dkt. 41) is hereby DENIED and the Objection (Dkt. 51) is OVERRULED.

I. BACKGROUND

On March 18, 2020, the Grand Jury issued a two count Indictment charging Defendant with a violation of 21 U.S.C. § 963 (Conspiracy to Manufacture and Distribute Cocaine Intending, Knowing, and with Reasonable Cause to Believe the Cocaine will be Unlawfully Imported into the United States) and 21 U.S.C. § 959 (Manufacturing and Distributing Five Kilograms or More of Cocaine Intending, Knowing, and with Reasonable Cause to Believe that the Cocaine will be Unlawfully Imported into the United States). See Dkt. 1. Defendant was subsequently extradited to the United States, and on December 20, 2021, appeared before the Court. See Dkt. 7. At Defendant's Initial Appearance, the Court appointed the Federal Public Defender to represent Defendant based on Defendant's testimony that he was financially unable to retain counsel. See Dkt. 10. On December 27, 2021, Assistant Federal Public Defender Brian O'Shea ("Mr. O'Shea") filed a Notice of Attorney Appearance on behalf of Defendant. See Dkt. 16. On January 6, 2022, Mr. O'Shea filed an Unopposed Motion to Withdraw as Attorney of Record ("O'Shea's Motion to Withdraw"), wherein Mr. O'Shea represented that he had become aware of a conflict of interest in his continued representation of Defendant. See Dkt. 17 at 1-2. On February 1, 2022, the Court granted O'Shea's Unopposed Motion to Withdraw (Dkt. 17) and appointed Kara Carreras ("Ms. Carreras"), a member of the Criminal Justice Act Panel of the Eastern District of Texas, to represent Defendant. See Dkt. 23.

On March 4, 2022, Victor Edward Rocha ("Mr. Rocha") filed a Motion to Substitute Counsel ("Rocha's Motion to Substitute Counsel"). See Dkt. 25. On March 7, 2022, the Court granted Rocha's Motion to Substitute Counsel (Dkt. 25), and ordered Mr. Rocha be substituted as counsel for Ms. Carreras. See Dkt. 26. On March 28, 2022, John Hunter Smith ("Mr. Smith") made his appearance as co-counsel of record for Defendant. See Dkt. 28. On June 30, 2022, Mr. Rocha filed a Motion to Withdraw as Counsel of Record. See Dkt. 35. On July 1, 2022, Mr. Rocha filed an Amended Motion to Withdraw as Counsel of Record ("Rocha's Amended Motion to Withdraw"), asserting Defendant and Mr. Rocha "have been unable to agree on a path to the proper resolution of the case and irreconcilable differences exist between [Mr. Rocha] and [Defendant]." Dkt. 37 at ¶ 2. Additionally, Mr. Rocha contended Defendant expressed dissatisfaction with Mr. Rocha's representation and Defendant failed to abide by his agreed-upon financial obligations to Mr. Rocha. See id. On July 7, 2022, Mr. Smith filed a Motion to Withdraw as Attorney of Record ("Smith's Motion to Withdraw"). See Dkt. 38. Mr. Smith asserted that he was hired as local counsel to assist Mr. Rocha in representation of Defendant and, thus, was moving to withdraw, as Mr. Rocha had moved to withdraw as lead counsel. See id. On July 14, 2022, the Court held a hearing on the motions and granted Rocha's Amended Motion to Withdraw (Dkt. 37) and Smith's Motion to Withdraw (Dkt. 38). See Dkts. 39, 40. On July 18, 2022, the Court appointed Gaylon Riddels ("Mr. Riddels"), a member of the Criminal Justice Act Panel of the Eastern District of Texas, to represent Defendant. See Dkt. 40.

On August 10, 2022, Mr. Bailey filed the Motion, requesting that he be substituted as counsel for Defendant. See Dkt. 41. In the Motion, Mr. Bailey asserts:

The Government is opposed to this motion based upon a belief that there is a conflict because counsel has previously represented Miguel Meneses. Counsel had been asked about representing [Defendant] for the last approximately two years. When Counsel was representing Miguel Meneses he did an investigation into any possible conflicts between the two and is aware that one CW made a statement in Colombia that [Defendant] and Mr. Meneses were in the cocaine business together. However, Counsel has talked to all parties involved in the cases and cannot determine that that statement is true. Thus, Counsel, after investigating the issue, has not determined a conflict exists absent new information that is not known to Counsel.

Id.

In response, the Government argues Mr. Bailey has an actual or potential conflict of interest that would violate the Texas Disciplinary Rules of Professional Conduct ("TDRPC") due to his previous representation of a purported co-conspirator, Miguel Meneses ("Defendant Meneses"), in a substantially related case, United States v. Meneses, No. 4:18-cr-96-ALM-CAN-1, (E.D. Tex. June 13, 2018).¹ See Dkt. 47. Specifically, the Government asserts Defendant and Defendant Meneses are Colombian nationals accused of the same drug trafficking offenses and members of the same international drug conspiracy. See id. Finally, the Government alleges, "Counsel for Mr. Meneses has advised the Government and Mr. Bailey that Mr. Meneses does not waive any conflict of interest and does not consent to Mr. Bailey's use of his privileged and confidential information." Id. at 1-2.

The Government requests the Court conduct an in camera review of reports of investigation from four Colombian cooperating witnesses, as well as Colombian law enforcement authorities (the "Reports"), which allegedly show "a clear basis for concluding that [Defendant] and [Defendant Meneses] are close drug trafficking associates and co-conspirators in substantially related cases." Id. at 2. The Government contends its request for in camera review of the Reports by the Court is necessary because the Reports contain sensitive and confidential information, which would pose a "high risk of danger to the lives and safety of the cooperating witnesses" and potentially harm ongoing investigative activities. Id. The Government further asserts it has notified Mr. Bailey of these cooperating sources and "the essence of their information relative to the close association between [Defendant and Defendant Meneses]." Id.

Mr. Bailey filed a reply asserting Defendant Meneses's counsel represented through e-mail that "Meneses does not believe Mr. Bailey has an actual conflict." Dkt. 49 at 1. Mr. Bailey further argues the Government's assertions of a conflict of interest are "based upon likely untrue conclusions based upon interviews" and, to support his assertion, includes witness statements purportedly given to Colombian authorities. Dkt. 49 at 2; Dkt. 49-2 at 1-10.

On September 9, 2022, the Court held the Hearing on the Motion, wherein the Government argued the Reports show there is a clear conflict of interest and Mr. Bailey's previous knowledge of discovery regarding Defendant in Defendant Meneses's case further highlights the conflict. See Dkt. 52. Mr. Bailey argued the Government should not be allowed to produce the Reports ex parte, asserting he should be allowed to see the documents to understand the basis of the Government's argument. See id. Mr. Bailey subsequently filed the Objection, arguing the Government has not notified Mr. Bailey of specific allegations that would give rise to a conflict and the Government is seeking to remove him from this case as "a tactic in order to avoid scrutiny of poorly investigated and presented cases." Dkt. 51 at 1. Mr. Bailey also asserts the Government could produce redacted versions of the Reports for his review and objects to the "procedure of ex parte communications and secret evidence." Id. at 5. The Government filed a response to the Objection, arguing the Court may review the ex parte-produced Reports in camera, Mr. Bailey is not entitled to the production of the Reports, and Mr. Bailey has a conflict of interest that precludes his proposed representation of Defendant. See Dkt. 53. Mr. Bailey filed a reply, arguing there are exceptions to state secrets and privilege for ex parte production and in camera review. See Dkt. 54 at 4.

II. LEGAL STANDARD

The Sixth Amendment to the United States Constitution guarantees that "in all criminal prosecutions the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. Importantly, however, "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Thus, the right is not absolute, and the presumption in favor of a defendant's counsel of his...