United States District Court, D. Nebraska
R. Zwart United States Magistrate Judge.
April 27, 2018, the government filed a notice stating Carlos
Monzon has a conflict of interest in the above-captioned
actions. (US v. Marshall, 4:18CR3013, Filing No.
38). Mr. Monzon disagrees, and further states that assuming a
conflict exists, both defendants have signed a written waiver
of that conflict. For the reasons explained below and during
the three hearings held on this issue, I conclude Monzon has
an actual or serious potential conflict that cannot be
waived. He is disqualified from representing the defendants.
Supreme Court in Wheat v. United States, thoroughly
weighed two competing Sixth Amendment rights: (1) the
“qualified right to be represented by counsel of
one's choice;” and (2) the “right to a
defense conducted by an attorney who is free of conflicts of
interest.” 486 U.S. 153, 159 (1988). The Court
determined that “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.” Id. at 157.
when evaluating a potential conflict of interest, the court
should thoughtfully consider the competing constitutional
interests and only disqualify a defendant's chosen
counsel in the face of a serious conflict. United States
v. Izydore, 167 F.3d 213, 221 (5th Cir.1999)
(“defendant's waiver does not necessarily preclude
a district court from rejecting a defendant's counsel of
choice when the overall circumstances of a case suggest a
conflict of interest may develop”). The court's
reasoning must show, on its face, that the trial court
weighed these considerations on a “fully prepared
record.” United States v. McDade, 404
Fed.Appx. 681, 683 (3d Cir. 2010).
develop the record on the conflict issue, the court appointed
Peder Bartling to independently investigate the potential
conflict and report his findings to the court. Bartling
reviewed the government's documentary evidence and
interviewed counsel and the witnesses, thereafter filing two
reports summarizing his findings. The first report was filed
just prior to the August 22, 2018 hearing, with the addendum
report drafted after Zachary Paul Friesen
(“Friesen”) provided a proffer interview
regarding the allegations against Marshal Marshall
(“Marshall”). (Filing Nos. 66 and 73). Both
reports were provided to counsel for the government and to
Monzon (after first being reviewed by the undersigned
magistrate judge to assure no privileged or work product
information was included).
began representing Friesen in April of 2017. (US v.
Friesen, 4:16CR3131, Filing No. 32). He began
representing Marshall in April of 2018. (US v.
Marshall, 4:18CR3013, Filing No. 34). Shortly
thereafter, the government filed its notice of conflict.
(US v. Marshall, 4:18CR3013, Filing No. 38). When
Monzon agreed to represent Marshall, there was no reason to
believe a conflict did or would exist. The conflict in this
case did not arise from Defendants' alleged mutual
involvement in the same charged crimes, but rather their
interactions after meeting each other while detained at the
Saline County Jail.
on the evidence of record, Marshall frequently used
Friesen's jail phone instead of his own to evade having
his jail calls monitored and their content reviewed by law
enforcement. Friesen lent his phone to Marshall several
times, and he was able to hear Marshall's side of many of
those conversations. The government states Marshall made
incriminatory statements during numerous monitored jail
has pleaded guilty and awaits sentencing. Under the terms of
his plea agreement, Friesen may be entitled to a sentence
reduction for providing truthful testimony against Marshall.
Marshall is still awaiting trial, and the government intends
to call Friesen as a witness against Marshall at that trial.
The government states Friesen's testimony can provide: 1)
foundation to admit the content of Marshall's calls made
with Friesen's phone; 2) direct and circumstantial
evidence that Marshall knew the conduct he was describing
during the calls was unlawful; and 3) to the extent Friesen
was present and can recall, the actual content of
Marshall's incriminating statements during the jail
claims the government's intended use of Friesen as a
trial witness is insufficient to create a conflict because
Friesen's testimony will be inadmissible at trial, and
even if admissible, it is cumulative and unnecessary. Monzon
asks the court to review the content of the jail calls,
decide if the information will be admissible at trial, and
only then decide if an actual conflict exists. The
undersigned magistrate judge rejected this suggestion,
concluding that doing so was unnecessary to decide the
conflict issue. A court need not review all the evidence and
envision how the entire trial will unfold, including what
evidentiary objections will be raised and sustained, before
deciding if an actual conflict exists. McDade, 404
Fed.Appx. at 683 (finding it was unnecessary for the trial
court to determine the exact scope and likelihood of any
conflict of interest caused by the government witness's
testimony so long as the court made a reasoned determination
that the conflict was serious).
presumption that a criminal defendant is entitled to his or
her counsel of choice may be overcome not only by a
demonstration of actual conflict but “by a showing of a
serious potential for conflict. United States v.
Basham, 561 F.3d 302, 323 (4th Cir.2009) (citing
Wheat, 486 U.S. at 164) (emphasis in original).
Representing a government witness who will potentially
testify against another client presents an actual or at the
very least, a serious potential for, conflict.
McDade, 404 Fed.Appx. at 683 (determining that
district court did not abuse its discretion in disqualifying
an attorney who previously represented one of the
government's potential witnesses); United States v.
Sanchez Guerrero, 546 F.3d 328, 334 (5th Cir. 2008)
(“[r]epresentation of a government witness, testifying
in exchange for a reduction in sentence, while also
representing the defendant he is testifying against raises
serious conflicts of interest”).
undersigned magistrate judge has weighed the competing
interests in the defendants' right to counsel of their
choice, and their right to conflict-free representation.
Here, Friesen will be called by the government as a witness
against Marshall. If Monzon represents both Friesen and
Marshall, he cannot encourage Friesen to testify against
Marshall without prompting a serious risk of harming Marshall
at trial; and Monzon cannot discourage Friesen's
testimony against Marshall without undermining Friesen's
interest in a reduced sentence. Although both Friesen and
Marshall have purportedly waived any conflict arising from
Monzon's representation, there is an actual or
“serious potential for” a conflict of interest in
this case. United States v. Basham, supra. Because
“the likelihood and dimensions of nascent conflicts of
interest are notoriously hard to predict, ” the
district court has substantial latitude in refusing a
criminal defendant's conflict waiver where a potential
conflict may develop into an actual conflict at trial.
United States v. Gharbi, 510 F.3d 550, 553 (5th Cir.
2007) (Wheat, 486 U.S. at 160) (emphasis added); see also
United States v. Cain, 671 F.3d 271, 294 (2d Cir. 2012)
(“district courts have broad latitude in making a
decision whether to disqualify a defendant's chosen
counsel”) (citation omitted); Serra v. Michigan
Dep't of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993)
(“evaluation of the facts and circumstances of each
case under this standard must be left primarily to the
informed judgment of the trial court”) (citation
the facts presented, the waivers signed by Marshall and
Friesen are insufficient and ineffective under the Sixth
Amendment. I therefore find Monzon is disqualified from
concurrent representation of Friesen and Marshall. And since
he has extensively represented both clients already-Friesen
to the sentencing stage and attending his proffer against
Marshall, and Marshall to the ...