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UNITED STATES v. BROTHERS

December 18, 1992

UNITED STATES OF AMERICA
v.
RUSSELL WHITE BROTHERS, JR., G. THOMAS NEBEL, and THOMAS WHITE BROTHERS



The opinion of the court was delivered by: THOMAS A. HIGGINS

 The Court has before it the government's motion (filed September 2, 1992; Docket Entry No. 30) to disqualify attorney Peter J. Strianse; the memorandum (filed September 2, 1992; Docket Entry No. 31) in support of the motion; defendant Nebel's response (filed September 10, 1992; Docket Entry No. 32) to the government's motion; the supplemental memorandum (filed October 9, 1992; Docket Entry No. 87) in support of the defendant Nebel's response; the second supplemental memorandum (filed November 16, 1992; Docket Entry No. 148) in support of the defendant Nebel's response; and the government's response (filed November 20, 1992; Docket Entry No. 155) to the defendant Nebel's second supplemental memorandum.

 For the reasons stated below, after reviewing the entire record, including the testimony given at the evidentiary hearing, the Court grants the government's motion to disqualify Mr. Strianse from representing Mr. Nebel in this matter.

 I. BACKGROUND

 Peter J. Strianse was an Assistant United States Attorney in the Middle District of Tennessee from January, 1987, to June, 1989. Since leaving the United States Attorney's office, Mr. Strianse has been engaged in the private practice of law in Nashville, Tennessee. The Government has moved to disqualify Mr. Strianse from representing the defendant, G. Thomas Nebel, because of actions taken by Mr. Strianse in his capacity as an Assistant United States Attorney. The parties do not dispute Mr. Strianse's actions so much as the consequences of those actions.

 A. The Search Warrant

 In April, 1988, federal and state authorities in Florida were investigating the alleged drug-trafficking activities of the defendant, Russell White Brothers, Jr., a Nashville resident. *fn1" In connection with their investigation, agents of the Drug Enforcement Administration (DEA) and the Florida Department of Law Enforcement (FDLE) came to Nashville to search Russell Brothers' house. The agents met with Mr. Strianse *fn2" who prepared the affidavit and search warrant from written reports, charts, and oral information given to him by the agents. *fn3"

 At the evidentiary hearing on the government's motion to disqualify, Mr. Strianse described the preparation as a "cut and paste" job done as a courtesy for the agents to conform their information to federal court affidavit and search warrant forms. He testified that he received no information other than that which was given to him to cut and paste. He never met the confidential informants mentioned in the affidavit, nor does he recall their identities being disclosed to him. After the search warrant was executed, he did not review the results and had no further contact with the agents. He further stated that Mr. Nebel's name never was mentioned.

 Special Agent Cynthia Schultz of the DEA testified that before meeting with Mr. Strianse she met with the two unidentified confidential informants mentioned in the affidavit. She discussed the substance of her conversations with the informants with Mr. Strianse and thinks that she told him their names. In addition, she testified that when meeting with Mr. Strianse to prepare the affidavit and search warrant, she discussed what she knew about Russell Brothers' activities, that Mr. Strianse determined whether there was probable cause for a search warrant and what information to include in the search warrant. *fn4" After Russell Brothers' house was searched, Ms. Schultz spoke with Mr. Strianse about the documents which had been discovered; however, she did not go over the inventory item by item with him. *fn5" Ms. Schultz is not sure whether she mentioned Mr. Nebel's name to Mr. Strianse.

 Special Agent William G. Wolfe of the FDLE testified that the written reports and charts given to Mr. Strianse contained information regarding smuggling and individuals which was not incorporated into the affidavit and search warrant. Mr. Wolfe also testified that the identity of the second confidential informant was made known to Mr. Strianse. Mr. Nebel's name was not mentioned and Mr. Wolfe did not give Mr. Strianse any information regarding Mr. Nebel.

 B. The Seizure Warrant

 In June, 1988, Mr. Strianse was approached by Nashville DEA Special Agent Mark Keller about preparing a seizure warrant and affidavit for a Piper Navajo aircraft allegedly used by Russell Brothers in his drug smuggling activities. Mr. Strianse testified that this, too, was a cut and paste job in which he took the affidavit from the April search warrant, added information regarding the pedigree of the airplane, and substituted Mr. Keller for Ms. Schultz as the affiant. *fn6" However, he also evaluated the evidence connecting the airplane to the reports given to him by Mr. Wolfe.

 When the agents went to seize the airplane, its engines, avionics, and log book were missing. The agents suspected the owner of the hangar, Robert Hancock, of secreting the missing engines, and Mr. Keller asked Mr. Strianse if Mr. Hancock could be charged with obstruction of justice. Mr. Strianse testified that he was going to charge Mr. Hancock with obstruction, but that Joe Brown, the United States Attorney, told him not to. Mr. Brown had spoken with Charles Ray, Mr. Hancock's attorney, and had decided not to issue a complaint and warrant in return for Mr. Hancock turning over the missing items. Mr. Strianse passed this information on to Mr. Keller.

 According to Mr. Strianse, that was the extent of his involvement. No long-term strategy was discussed, and he did not learn any confidential information regarding Russell Brothers. He does not recall a letter between Mr. Ray and himself memorializing the agreement not to prosecute Mr. Hancock; however, he does recall telling Mr. Ray by telephone that, although there was no current intent to prosecute Mr. Hancock, there was nothing to stop the DEA from going to the grand jury.

 Mr. Keller testified that Mr. Strianse's preparation of the seizure warrant and affidavit was a cut and paste job, and that he did not give Mr. Strianse any confidential information which went into the seizure warrant. However, in the days following the attempted seizure of the airplane, Mr. Keller spoke almost daily with Mr. Strianse. DEA internal memoranda (DEA 6's) regarding the seizure of the airplane and related events were given to the United States Attorney's office. *fn7" These memoranda would reflect the information Mr. Keller would have given verbally to Mr. Strianse, *fn8" much of which is material, confidential information regarding the investigation of Russell Brothers and Mr. Hancock.

 Mr. Wolfe also testified that Mr. Strianse's preparation of the seizure warrant and affidavit was mostly a cut and paste job based on the April search warrant and affidavit. However, like the earlier search warrant and affidavit, they also were based partly on information from a confidential source named in the affidavit. The investigation into Russell Brothers was still a Florida matter in June, 1988.

 It is based on these acts by Mr. Strianse in relation to the investigation of Russell Brothers that the government seeks to have him disqualified as Mr. Nebel's attorney in this matter. Briefly stated, the three defendants in this case are being prosecuted for allegedly laundering money received as a result of the defendant, Russell Brothers', drug trafficking activities.

 II. DISCUSSION

 The government bases its motion to disqualify on Canon 9 and Disciplinary Rule 9-101(B) of the ABA Model Code of Professional Responsibility, *fn9" and the Ethics in Government Act, 18 U.S.C. § 207(a)(1). The Court will address the government's arguments under the ABA Code before turning its attention to the government's statutory argument.

 A. Code of Professional ...


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