United States v. Urbana

Citations: 770 F. Supp. 1552; 1991 U.S. Dist. LEXIS 16745; 1991 WL 152305Docket: 89-360-CR

Court: District Court, S.D. Florida; May 10, 1991; Federal District Court

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Sam Frank Urbana is accused of participating in a RICO conspiracy, detailed in a 44-page, 23-count indictment involving theft, unlawful debt collection, bookmaking, and importing gray market automobiles. On the eve of trial, the government sought to disqualify Urbana's attorney, claiming that the attorney was implicated in actions related to the conspiracy. Specifically, co-defendant Thomas Patton alleged that he and Urbana's lawyer engaged in returning stolen jewelry on Urbana's direction. The court had previously denied a similar motion to disqualify the attorney, finding insufficient evidence linking the attorney to the conspiracy beyond returning allegedly stolen property. The court emphasized the importance of the attorney-client relationship, noting that disqualifying Urbana's lawyer at this late stage would severely prejudice Urbana, who had been preparing for trial with this counsel since June 1989. Despite the government's concerns, the court concluded that the allegations against the attorney did not warrant disqualification, as they were only marginally relevant to the charges in the indictment.

The court relied on Mr. Urbana's sworn waiver regarding his counsel's conflict of interest and his agreement not to call his counsel as a witness. To reduce prejudice, the court instructed that any evidence regarding the Jed Baron incident during the trial should refer to Mr. Urbana's lawyer as a "local attorney," a procedure agreed upon by the remaining codefendants. On May 16, 1990, the government moved to reconsider the denial of the motion to disqualify Mr. Urbana's lawyer, asserting that evidence about the Jed Baron incident was admissible despite not being an overt act of the RICO conspiracy. The court did not formally rule on this motion, which remained inactive for ten months while preparing for trial.

On March 7, 1991, just days before trial, the government revealed new information from a witness, Patton, implicating Mr. Urbana's lawyer in criminal activity related to the Jed Baron incident. An evidentiary hearing was scheduled, where Patton testified that he had exchanged stolen property for cash with Mr. Urbana's lawyer and was later offered involvement in a drug deal. During cross-examination, Patton could only recall a single prior meeting with Mr. Urbana's lawyer, unable to provide specific details.

Due to the timing of Patton's new allegations, disclosed shortly before trial and well after he began cooperating with authorities, the court inquired whether Patton had previously mentioned these allegations during earlier debriefings. Patton could not recall, but government attorneys confirmed he had not disclosed this information until March 5, 1991. Consequently, the government renewed its motion to disqualify Mr. Urbana's lawyer, and the other defendants retracted their waiver to call him as a witness, as he could provide critical evidence to challenge Patton's credibility.

Mr. Urbana expressed concerns regarding a potential conflict of interest among his codefendants and requested the court to sever his case, allowing him to be represented by his preferred counsel. The excerpt emphasizes that a district court must evaluate a defendant's waiver of a conflict of interest in a pre-trial context, as established in Wheat v. United States. The Sixth Amendment right to counsel is highlighted as a fundamental constitutional right, essential for ensuring that a defendant has a skilled advocate to challenge the government’s case. This right extends to the choice of counsel, which, while not absolute, is constitutionally significant. The courts recognize the importance of accommodating a defendant's choice of attorney unless compelling reasons exist otherwise. The selection of counsel is critical, as defendants are typically bound by their attorney's performance, and proving ineffective assistance of counsel is challenging. Erroneous disqualification of a chosen lawyer can lead to automatic reversal in criminal cases, though such reversals often do not remedy the underlying issues, as defendants may face a lengthy trial with a second-choice attorney, incurring further financial strain.

The accused may lack the resources to retain their chosen counsel for a second trial, potentially resulting in a mere repetition of the first trial. Courts typically disqualify an accused's lawyer only as a last resort, highlighting the importance of the right to counsel of choice. However, if a lawyer's continued representation threatens public confidence in the justice system, disqualification may occur. This principle was established in United States v. Hobson, where the court disqualified a lawyer upon evidence that he was complicit in his client's criminal activities. The disqualification process uses a two-prong test: (1) there must be a reasonable possibility of identifiable impropriety, and (2) the likelihood of public suspicion must outweigh the benefits of the lawyer's continued representation. 

Although the Hobson test is relevant, the Model Code of Professional Responsibility has been replaced by the Model Rules, which do not consider the appearance of impropriety a basis for disqualification. Local rules in the Southern District of Florida align with this change. Thus, the government's challenge based on Canon 9 is insufficient for disqualification. While the Eleventh Circuit has not entirely dismissed the Hobson test, it has indicated that even if the appearance of impropriety were applicable, it would not necessarily justify overriding Sixth Amendment rights. Some jurisdictions have applied the Hobson test post-revision, such as in United States v. Walton, where a lawyer was disqualified based on allegations of intent to present false testimony. The Supreme Court has emphasized the importance of maintaining the appearance of fairness in legal proceedings.

Hobson's precedent indicates that disqualification of counsel is warranted when there exists a "reasonable possibility" of impropriety. The court does not assess the truth of Patton's testimony but finds it sufficient to meet the threshold for disqualification. The requirement for maintaining "public confidence" is met, as allowing an attorney with allegations of criminal involvement to represent a client undermines the integrity of the judicial process. Case law supports disqualification when an attorney faces charges similar to their client's, as this could lead to public suspicion and undermine the legal system's credibility.

Even if concerns about public confidence were insufficient, disqualification remains justified due to the evidence related to the Jed Baron incident and additional allegations against Mr. Urbana's counsel being admissible at trial. Mr. Urbana’s attorney is positioned as both a material witness and an alleged participant in the case, creating an inherent conflict of interest. The attorney's potential liability for the same charges as the client compromises their ability to represent the client vigorously. This conflict is exacerbated when counsel possesses personal knowledge about facts relevant to the charges, further justifying disqualification.

Mr. Urbana's attorney is deemed a necessary fact witness due to involvement in key events related to the conspiracy for which Urbana is on trial. As a potential witness on the Jed Baron matter, the attorney could provide significant testimony that might challenge the credibility of the government’s primary witness, Patton, particularly regarding allegations that Patton fabricated accusations against a prominent lawyer to benefit himself. However, due to Model Rule 3.7, the attorney cannot serve as trial counsel while also being a necessary witness.

While Mr. Urbana expressed a willingness to waive his right to conflict-free representation to retain his attorney, the court finds this unacceptable. Despite considering options to redact the attorney's name from trial materials to protect Urbana's right to counsel, the emergence of additional allegations against the lawyer complicates this approach. Redacting references to the attorney would compromise the jury's ability to assess facts, and allowing the waiver would create a conflict of interest that could bias the trial in favor of the attorney's interests. 

The court emphasizes the importance of maintaining ethical standards in criminal trials and the necessity of ensuring that Mr. Urbana is represented by counsel without actual conflicts of interest. Ultimately, the court must reject any waiver to ensure effective assistance of counsel and fairness in the trial process, even though disqualifying the attorney may hinder the trial's progress and limit Urbana's defense strategy.

The court acknowledges the potential irreparability of damage if the allegations against the defendant's attorney are unfounded. Currently, the court finds itself unable to provide a suitable alternative to disqualification. It references Supreme Court guidance suggesting caution against government actions that may create artificial conflicts to undermine a defendant's choice of counsel. The government has not adequately clarified why its key witness, Patton, failed to mention significant events earlier, despite extensive debriefing during his cooperation. Although Patton's omission is concerning, the court does not view his late revelations as a deliberate attempt to undermine constitutional rights. Consequently, the court disqualifies Mr. Urbana's lawyer from trial representation and resets the trial date to July 29, 1991. Additionally, there is a pending government motion to reconsider a prior denial of disqualification. Notable facts include Patton's past gunshot wounds to the head, raising questions about his memory, and the court's review of case law indicating that improper disqualification of counsel could lead to reversible error. The precedent suggests that arbitrary denial of the right to choose counsel is grounds for reversal, irrespective of demonstrated prejudice.

A disqualified attorney must file a notice of appeal within ten days of their disqualification order, as noted in United States v. Estevez. When disqualification occurs just before a complex trial, the accused may have already paid a substantial fee to their attorney, which complicates their ability to secure new counsel. If they cannot afford alternate representation, they must accept appointed counsel, which is not their choice, leading to a "Hobson's choice" situation where they have no real freedom in selecting representation. Canon 9 emphasizes that lawyers should avoid any appearance of impropriety. Although the court acknowledges the questionable timing and lack of corroborative evidence for the disqualification allegations, it cannot dismiss the uncontroverted testimony presented. Disqualifying Mr. Urbana from his codefendants does not solve the issue for him. The court also considered excluding evidence related to the Jed Baron incident but determined it was relevant to the government’s case and could not be excluded to accommodate the defendant's choice of counsel. Prior cases suggest that a defendant can waive an attorney's conflict of interest, but this court did not seek a waiver from Mr. Urbana, mindful of the implications of such decisions. The court aims to avoid a Sixth Amendment violation claim if a conviction results, irrespective of whether it allowed the conflicted attorney to represent the defendant or disqualified them. Following the hearing on the motion, the court notified all parties of the disqualification of Mr. Urbana's lawyer and the scheduled trial date.