The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Defendant Lee Almany ("Defendant") is scheduled for sentencing on June 19, 2008. Because of the proximity of his sentencing date the Court deems it appropriate to memorialize the reasons for its decision to disqualify Defendant's former counsel, Herbert S. Moncier ("Moncier" or "defense counsel").
Defendant's case was initially before District Judge J. Ronnie Greer in the Greeneville Division of this court. His trial was scheduled for January 16, 2008 before Judge Greer.
Almost immediately upon his entry in this case, the Government filed a motion, seeking an on-the-record inquiry as to whether Herbert S. Moncier, Defendant Lee Almany's counsel,*fn1 had a conflict of interest in representing Defendant, and whether Moncier could continue to represent Defendant in light of any such conflict (Court File No. 117).*fn2 On January 9, 2008, the Court conducted a hearing to inquire into the matter, and determined a conflict existed which precluded Moncier from continuing to serve as Defendant's counsel, and disqualified him (Court File Nos. 138, 158).
Defendant Almany was indicted for twenty-one offenses relating to drug trafficking (Court File No. 110). Those offenses involved substantive counts of distribution of cocaine, a conspiracy to distribute cocaine, and the possession of firearms in furtherance of the cocaine distribution and conspiracy (id.). The offenses carried serious consequences; for example, four of the offenses for which Defendant was charged carry a minimum sentence of thirty years. See 18 U.S.C. § 924(c)(1)(B)(ii).
On December 18, 2007, the Government moved for an inquiry as to whether Moncier should be disqualified due to a conflict of interest (Court File No. 117).*fn3 Moncier was representing Gary Musick ("Musick"), an alleged co-conspirator, whose case was on appeal at that time. United States v. Musick, No. 05-5563 (6th Cir. Docketed April 13, 2005). Musick was convicted following a trial in this district. United States v. Musick, No. 2:03-cr-62-8 (E.D. Tenn. 2003). Moncier argued Musick's appeal on October 24, 2007, and filed supplemental documentation with the United States Court of Appeals for the Sixth Circuit as recently as December 13, 2007.
In support of its motion, the Government proffered a variety of evidence including transcripts of trial testimony, and letters and other documents obtained during the Government's investigations (Court File Nos. 117, p. 2; 136, Exhibits; Exhibits presented at the January 9, 2008 hearing). From the evidence presented, the Court found there was substantial evidence of a relationship between Defendant and Musick, and such evidence indicated this relationship included drug-related activity, the very crux of Defendant's charged offenses. One convicted drug trafficker, Jeremy Jones, had stated he obtained cocaine from both Defendant and Musick (Court File No. 117, p. 2). Others had stated they obtained cocaine from Musick, always meeting him at locations near Defendant's residence (Court File Nos. 117, p. 3; 136, pp. 1-3). Musick used two automobiles which were purchased under Defendant's name (Court File No. 136, pp. 2, 3). Defendant had continued contact with Musick during Musick's incarceration, including Defendant sending money to Musick (Court File No. 117, p. 2).
On January 9, 2008, this Court held a hearing to determine whether there was a conflict of interest due to Moncier's representation of both Musick and Defendant, and whether that conflict precluded Moncier from representing Defendant (Court File No. 158). The Court heard from both the Government and Moncier. The Government stated Defendant and Musick were part of at least one common conspiracy, and provided substantial evidence supporting such a conclusion. Moncier seemed to argue any conspiracy in which Defendant and Musick were both involved in occurred earlier, so as not to be relevant in this case. However, Moncier provided very little pertinent evidence to support his argument, despite repeated invitations by the Court to do so (see id.). From the evidence presented and the representations of the Government, it appeared that Musick was higher in the hierarchy of the conspiratorial organization than was Defendant. Based upon the arguments and evidence, the Court determined that both an actual and a potential conflict of interest existed.
The Court then proceeded to question Defendant under oath about his understanding of the potential conflict (Court File No. 158, pp. 38-57). The Court inquired as to Defendant's understanding of his right to conflict-free representation and his right to have an attorney who was solely devoted to his interest. The Court inquired into numerous aspects of the conflict, breaking the issues down into four specific phases of criminal litigation where problems from conflicts would arise: the pre-trial, trial, sentencing, and appeal phases.
The Court extensively questioned Defendant as to his understanding of certain conflicts manifesting during the pre-trial stage, including the problems of divided loyalty, since Moncier would be unable to counsel Defendant as to his best interest where his actions might conflict with the best interests of Musick (id., pp. 38-48). The Court questioned Defendant as to his knowledge of the possibility and benefits of, and his interest in, cooperating with the government (id.).
The Court also addressed conflicts as they manifest in the trial stage (id., pp. 48-52). The Court addressed multiple consequences of the conflict, including: Moncier's conflicted choice of whether to call Musick to testify at trial, for fear Musick might say something that could be used against him; Moncier's inability to effectively cross-examine Musick, if the government called Musick as a witness, and to generally object to or contradict statements Musick might make, including statements which Defendant may know to be false; and, Moncier's general inability to lessen Defendant's culpability in the eyes of the jury in the offenses by attempting to shift that blame onto Musick (id.).
The Court continued, discussing problems arising from conflicts in the sentencing stage (id., pp. 52-54). This included Moncier's limitations on arguing Defendant played a minor role in comparison to Musick (id., p. 52), and Moncier's inability, not only to call Musick to testify if it would be beneficial to Defendant, but also even to fully and objectively consider whether doing so would benefit Defendant because of his conflict (id., p. 53). The Court also discussed limitations placed upon Defendant in cooperating with the Government to secure a downward departure ...