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UNITED STATES v. ESCOBAR-OREJUELA

December 22, 1995

UNITED STATES, against JOSE ESCOBAR-OREJUELA, et al., Defendants.


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 Presently before the Court is the Government's motion, joined in by defendant Julio Bermudez Prado ("Bermudez Prado"), to disqualify Barry E. Schulman ("Schulman") from representing defendant Jose Escobar-Orejuela ("Escobar-Orejuela") in this pending criminal prosecution. The motion is denied.

 I.

 BACKGROUND

 In 1978, Schulman, while an Assistant United States Attorney ("AUSA") in the Eastern District of New York, prosecuted Escobar-Orejuela, Bermudez Prado and Jesus Lozada-Duenas ("Lozada-Duenas"), and others, for their involvement in a conspiracy to import and distribute cocaine and other illicit drugs. See United States v. Cambindo Valencia, 609 F.2d 603 (2d Cir. 1979), cert. denied, Prado v. United States, 446 U.S. 940, 64 L. Ed. 2d 795, 100 S. Ct. 2163 (1980). According to the indictment, the conspiracy occurred between approximately January 1972 and October 1976. Cambindo Valencia, 609 F.2d at 607.

 Schulman is now defending Escobar-Orejuela against new drug charges arising out of a different conspiracy to distribute cocaine. Bermudez Prado again is his co-defendant and Lozada-Duenas was a co-defendant who has pled guilty and will likely be a Government witness at trial. This new conspiracy, as set forth in the indictment, allegedly occurred "on or about and between May 1, 1994 and April 11, 1995." The Government's motion papers claim that Escobar-Orejuela headed an illegal organization, involving Bermudez Prado and Lozada-Duenas, that imported large amounts of cocaine into the United States from Columbia. (Gov't Mem. Supp. at 8 (August 23, 1995)). It plans to prove at trial that Escobar-Orejuela arranged for the importation of 180 kilograms of cocaine in a shipping container aboard a Grancolombiana ship that was to be docked at a Brooklyn pier. Id. The Government asserts the defendants' plan was that Escobar-Orejuela, through Lozada-Duenas, would use an "inside man" known to Lozada-Duenas, who could move the container from the ship to a fence at the pier where it could be removed by a group of unloaders. Id. at 8-9. Bermudez Prado allegedly acted as "lookout" during the importation scheme. Id. at 9.

 Despite the approximately 20-year hiatus between these two criminal cases, the Government contends that it will be prejudiced if Schulman is not disqualified because he presumably obtained confidential government information relevant to the current prosecution while prosecuting the defendants in Cambindo Valencia. The Government states:

 
While the present case is not the same investigation as United States v. Cambindo Valencia, and in fact the present investigation did not begin until over 15 years after the indictment in Cambindo Valencia, the facts of . . . Cambindo Valencia nevertheless are highly likely to be relevant at least as background to the conspiracy in this case, in regard to the cross-examination of Lozada-Duenas, and in regard to the possible cross-examination of Bermudez Prado.

 Id. at 13.

 Resolving disqualification motions where a criminal attorney is sought to be disqualified because of his or her former Government employment requires a careful balancing of a defendant's Sixth Amendment right to counsel of his or her choice with the duty of the Court to preserve the integrity of the judicial process and the Government's right to a fair trial. There is sparse case law addressing the clashing of these competing interests. In light of their importance, the Court conducted a searching fact-specific inquiry of counsel (the "Hearing") to flush out the nature and scope of these interests in the context of the prior and current prosecutions.

 II.

 THE HEARING

 At the Hearing, the Government focused on "background information" that it plans to adduce at trial from Lozada-Duenas concerning his relationship with Escobar-Orejuela and Bermudez Prado, allegedly dating back to the Cambindo Valencia conspiracy. With respect to Lozada-Duenas' anticipated testimony, the Government stated:

 
Now, what I expect at trial is that when Mr. Lozado [sic] is asked, well, how did you meet Jose Escobar? How did you meet Bermudez-Prado? His answer will be, events which were investigated by Mr. Schulman as part of his case.
 
These defendants, Lozado [sic], Escobar, Bermudez-Prado, all met and became associates in the narcotics business during the time of Mr. Schulman's investigation. So that to understand the present conspiracy, to understand why these people, why Lozado [sic] would be trusted by Escobar, why Escobar would trust Mr. Bermudez to do business, significant narcotics business, in this case it's necessary for the jury to know how these people met each other; how they did narcotics business together; how they were in the same circle of narcotics dealers; how they came to trust each other; how they went to trial together; -- I'm not certain the government will offer this -- how they sat at counsel table together; how they didn't testify against each other; how they served their time; how they trusted each other; how they became associates in this case.

 (Tr. 7.) *fn1"

 In response to the Court's questions regarding whether there was anything else, other than this background information, connecting the two prosecutions, the Government alluded to the arrest of Bermudez Prado in the current prosecution, which occurred while he was sitting in a van outside of a pier in New Jersey. (Tr. 10.) Thereafter, the following colloquy took place:

 
[THE COURT]: I think I understand some of your conceptual strokes here, but I want to deal with this thing on a more fact-specific situation.
 
[THE GOVERNMENT]: I'll try to get down to the facts that I was dealing with, before, with Mr. Bermudez outside of the pier in a van.
 
[THE COURT]: All right. That's one fact scenario which concerns you?
 
[THE GOVERNMENT]: Yes, particularly. And, here is why: A number of the other defendants had just broken into a container, had gone through a fence, broken into a container on the pier in Newark, and had removed hundreds of pounds of cocaine, and placed it into the van.
 
Mr. Bermudez-Prado did not go. He didn't go. He waited in the van.
 
Now, then the arrests occurred. The question in this case for the jury to decide is, what was Mr. Bermudez-Prado's mental state? Did he have the requisite intent?
 
Now, one of the main issues . . . is going to be Bermudez-Prado's relationship to the person he's sitting next to, Escobar. How did they get to know each other? What's the context? And, it is going to be drug dealing. It's not going to be poker playing or something else.
 
And, that relationship was formed and investigated and proved at trial by Mr. Schulman. It's the exact evidence that he proved after [sic] the trial. He charged them both in a ...

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