United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
case came before the Court on August 15, 2019, for a motion
hearing on defense counsel's Motion to Withdraw on
Grounds of Conflict of Interest [Doc. 45], which was filed on
July 22, 2019, and referred [Doc. 47] to the undersigned on
July 24, 2019. See 28 U.S.C. § 636(b).
Assistant United States Attorney Cynthia F. Davidson
represented the Government. Assistant Federal Defender Gianna
Maio appeared by telephone on behalf of Defendant Brown, who
was also present. Attorney James H. Varner, Jr., also
appeared for this hearing.
12, 2018, the Court appointed [Doc. 6] the Federal Defender
Services of Eastern Tennessee (“FDS”) to
represent the Defendant in this case. The instant motion
states that FDS has an actual conflict of interest in
representing Defendant Brown, because FDS has represented or
currently represents individuals with interests adverse to
those of Defendant Brown. At the hearing, Ms. Maio stated
that she has represented the Defendant through the entry of a
guilty plea in this case. She stated that while released in
the instant case, the Defendant was charged in another
federal indictment in Knoxville. Ms. Maio stated that FDS
developed a conflict through its representation of another
client related to the Knoxville case. She stated that she
discussed the Defendant's case with Mr. Varner, who
represents the Defendant in the Knoxville case.
Ms. Maio had not met with Defendant Brown with regard to the
conflict or her motion to withdraw, Mr. Varner stated that he
had met with the Defendant, who had no objection to Ms.
Maio's withdrawal or his substitution in this case. The
Court questioned Defendant Brown, who agreed that he
understood the purpose of the hearing and had no objection to
the substitution of Mr. Varner for Ms. Maio and FDS. AUSA
Davidson stated that the Government has no objection to the
Motion to Withdraw.
Sixth Amendment right to counsel encompasses the right to
have an attorney who does not have a conflict arising from
simultaneous representation of clients with conflicting
interests. See Glasser v. United States, 315 U.S.
60, 70 (1942), superseded by statute as held in
Bourjaily v. United States, 483 U.S. 171 (1987)
(regarding the admission of a coconspirator's
statements). A defendant's preference for remaining with
a particular attorney must give way to an actual conflict of
interest or even “a showing of a serious potential for
conflict.” Wheat v. United States, 486 U.S.
153, 160 (1988). “‘[W]hen a trial court becomes
aware of a potential conflict of interest, it is obligated to
pursue the matter even if counsel does not.'”
United States v. Straughter, 950 F.2d 1223, 1233
(6th Cir. 1991) (quoting United States v. Krebs, 788
F.2d 1166, 1172 (6th Cir. 1986)). Indeed, a court may
conclude disqualification is necessary, even if the defendant
offers to waive the conflict, because of its independent
interest in assuring the ethical standards of the profession
and the appearance of fairness to those observing legal
proceedings. Wheat, 486 U.S. at 160.
light of the existence of an actual conflict in this case and
the absence of any objection by either the Defendant or the
Government, the Court finds that good cause exists to
substitute counsel. Ms. Maio's Motion to Withdraw on
Grounds of Conflict of Interest [Doc. 45] is
GRANTED, and Ms. Maio and FDS are relieved
as counsel of record for Defendant Brown. See Wilson v.
Mintzes, 761 F.2d 275, 280 (6th Cir. 1985) (holding that
a defendant seeking to substitute counsel must show good
cause). The Court recognizes the Defendant's need for
conflict-free counsel. Mr. Varner agreed to accept
representation of the Defendant. The Court therefore and
hereby SUBSTITTUES and
APPOINTS Mr. Varner as the Defendant's
counsel of record under the Criminal Justice Act
(“CJA”), 18 U.S.C. § 3006A. Ms. Maio stated
that she would provide the discovery and the Defendant's
file to Mr. Varner within the next few days.
Varner asked to move the sentencing hearing, currently set
for August 21, 2019, to a date after the trial date in the
Knoxville case. The Court stated that it would advise Judge
Varlan's Chambers of Mr. Varner's
it is ORDERED:
(1) The Motion to Withdraw on Grounds of Conflict of Interest
[Doc. 45] is GRANTED;
(2) Assistant Federal Defender Gianna Maio and FDS are
RELIEVED of their representation of
Defendant Brown. Ms. Maio is DIRECTED to
provide the discovery and the Defendant's file to new
(3) Attorney James H. Varner, Jr., is
SUBSTITUTED and APPOINTED
as the Defendant's counsel of record pursuant to the CJA.
IS SO ORDERED.
 This case was originally assigned to
United States District Judge Curtis L. Collier and United
States Magistrate Judge Christopher H. Steger. On July 9,
2019, the case was reassigned [Doc. 43] to United States