The opinion of the court was delivered by: Gleeson, District Judge.
The Government has moved to disqualify defendant's principal
counsel, Ronald Richards, from representing the defendant at
trial. On February 16, 2001, I issued an order stating that the
motion was granted, and that this opinion would follow. Set
forth below are the reasons Richards may not appear at trial as
A. The Los Angeles Indictment
Trial was scheduled to begin on October 1, 2000, at which time
the government stated that it was not ready to proceed. As a
result, the district court dismissed the Los Angeles Indictment
without prejudice under the Speedy Trial Act. On November 1,
2000, the court converted the dismissal of the indictment into a
dismissal with prejudice. Orgad has remained in custody,
however, based on an extradition request from France.
B. The Instant Indictment
On November 16, 2000, a grand jury in this district returned
an indictment charging Orgad with one count of conspiring to
distribute and to possess with intent to distribute ecstasy. A
superseding indictment, returned on December 8, 2000, added
counts charging Orgad with the importation and distribution of
ecstasy and a conspiracy to launder the proceeds of the ecstasy
Orgad arrived in this district in custody on December 14,
2000, and was arraigned the next day on the indictment and the
superseding indictment. Richards filed a notice of appearance on
that date and appeared on behalf of Orgad. On December 23, 2000,
Richards filed an application for admission to appear pro hac
vice, which I granted orally on February 9, 2001.
A motion schedule that was set on December 15, 2001, called
for oral argument of all motions on March 2, 2001. Defendant
filed numerous motions, and the government filed the instant
motion to disqualify Richards. By order dated January 19, 2001,
I directed that two motions would be addressed before all
others: defendant's motion seeking my recusal from the case and
the government's motion to disqualify Richards. I accelerated
the argument of those motions to February 9, 2001.
In a memorandum and order filed on February 16, 2001, I denied
the recusal motion.
The government's motion to disqualify Richards is based upon
his interactions, including several tape-recorded conversations,
with Jennifer Leary, a government witness who allegedly was an
ecstasy courier for Orgad. Leary will testify at trial about her
role as a courier and her dealings with Richards, and the
government will offer the taped conversations into evidence. The
facts giving rise to the government's motion are set forth
A. The Events Leading Up To The Taped Conversations
Special Agent Tony Chrysanthis of the Drug Enforcement
Administration ("DEA") and Special Agent Calvin Sigur of the
United States Customs Service are based in California and were
the case agents assigned to the investigation and prosecution of
the Los Angeles Indictment. During their investigation, they
identified numerous young women who, on Orgad's behalf, had
traveled from Europe to the United States as couriers, smuggling
large quantities of ecstasy. One of these women was Leary; as
the investigation progressed, several members of Orgad's
organization told the agents that she had been one of Orgad's
After that telephone conversation with the agents, however,
Leary spoke with an associate of Orgad in Los Angeles, who urged
her to call Richards. On September 29, 2000, Leary did so, and
she reported to Richards that the government was interested in
speaking to her. According to Leary, she told Richards that she
had been a courier for Orgad. She asked Richards whether Orgad
"was going to take care" of her. Oral Arg. at 22.*fn1
Richards (according to Leary) assured her that he would. He also
told her that the government had no case against her, and
advised her not to talk to the agents, not to answer her
telephone, and to move to a place where the agents could not
find her. According to Leary, she had additional conversations
with Richards, similar in substance to the first, before her
meeting with Chrysanthis in late October.
As stated above, on October 1, 2000, the Los Angeles
Indictment was dismissed. The sequence of events relating to
Leary suggests that the dismissal of the indictment made less
urgent the agents' need to speak to Leary. In any event,
Chrysanthis did not arrange to go to Jacksonville to interview
her until late October.
On October 29, 2000, Chrysanthis was at the airport in
Atlanta, on his way to Jacksonville, when he spoke by telephone
to Leary to confirm their appointment. From Chrysanthis's
perspective, all was well; Leary again expressed her desire to
speak to him about Orgad. However, immediately after speaking
with Chrysanthis, Leary called Richards and reported that a DEA
agent was on his way to Jacksonville.
Subsequent events make it clear that, before October 29, 2000,
Chrysanthis had already exerted pressure on Leary to provide
information that would incriminate Orgad. Specifically, Leary
was told, in essence, that if she did not meet with the agents
and provide such information, she would be arrested and would
face the prospect of a lengthy prison term. Leary reported this
Richards correctly believed that solid evidence of such
pressure would be useful in impeaching Leary if she ever
testified against Orgad. See Oral Arg. at 35 ("I am thinking,
this is fantastic defense evidence"). He also believed,
incorrectly, that the agents' approach to Leary — cooperate or
face the prospect of a long prison term — was improper or
perhaps even illegal. In fact, the agents, who had ample reason
to believe that Leary had been a courier for Orgad, were merely
using the tools Congress and the United States Sentencing
Commission gave them. See 18 U.S.C. § 3553(e) and U.S.S.G. §
5k1.1 (requiring government motion before a sentencing court can
sentence a defendant below mandatory minimum sentence and
guideline range, respectively, based on defendant's "substantial
assistance" to the government). In any event, for both of these
reasons, Richards decided to get the agents on tape. According
to Leary, Richards told her to call back Chrysanthis and tell
him that she did not want to meet with him because she knew
nothing about drug trafficking. Leary agreed to have Richards
place the call, stay on the line as a silent witness, and record
B. Leary's October 29, 2000, Conversations With The Agents
(Recorded By Richards)
Chrysanthis told Leary that she was in the "big leagues;" if
she "played ball" with the government, it could mean the
difference between a sentence of probation and a minimum of ten
years in prison. Tape A at 5.*fn2 He gave her two choices:
provide information to the government about ecstasy smuggling or
be arrested within days.
That Leary had done an about-face since her conversation with
Chrysanthis minutes earlier was apparent. Chrysanthis said, "I
don't understand why all of a sudden you've changed, you've
changed your tune." Tape A at 6. Leary responded that it was
because she didn't "want to deal with this." Tape A at 6.
Chrysanthis explicitly told Leary, with Richards listening, that
the DEA was interested in Leary's cooperation against "people
above you." Tape A at 7. After reiterating his threat to arrest
Leary if she refused to meet with him, Leary agreed to call
Chrysanthis the following day.
Richards's tape recording then includes a conversation between
him and Leary, in which Richards convinced a confused and pliant
Leary to call Chrysanthis back one more time to, as Richards put
it, "see if you can convince him, uh, that you have no
information that's relevant for him." Tape A at 10. However,
Richards failed in his effort to reach Chrysanthis, who had left
Atlanta for Jacksonville. So Richards dialed Agent Sigur. In a
lengthy conversation, which Richards again listened to and
recorded with Leary's consent, Leary reiterated her insistence
that she knew nothing about ecstasy smuggling. Sigur told her
that numerous others had implicated her in Orgad's ecstasy
smuggling, and that she would be arrested if she did not
cooperate immediately. He also repeatedly urged Leary to get an
attorney if she did not have one already.
Sigur further told Leary that the government was not
interested in couriers, but rather was focusing on the head of
the organization, "Koki."*fn3 Sigur urged Leary to "come to
the winning side." Tape B at 10, 14. He promised nothing, but
told her he would tell the prosecutor that Leary had accepted
responsibility and had simply "made a mistake," Tape B at 11,
and that the prosecutor would tell that to the judge. Sigur
emphasized to Leary that in her conversation the next day with
Chrysanthis she should have an attorney, because "we don't have
your best interest in mind." Tape B at 12. He stated that the
government was in a "trial mode" against "the head of this
organization." Tape B at 12. He mentioned numerous other
couriers who had been arrested, and proffered his view that
Leary was a minor player. He said the agents wanted to give her
the "opportunity" to help herself out by cooperating against
those who are "more responsible." Tape B at 14.
C. Leary Agrees to Cooperate Against Orgad and Richards
Leary next saw Chrysanthis on October 31, 2000, when he showed
up at her place of employment, a Jacksonville strip club.
Chrysanthis had some local law enforcement officials with him.
He asked Leary if she would speak to him outside the club. She
agreed, and told him once again that she had no knowledge of any
criminal wrongdoing. Chrysanthis assured her that she would be
arrested and left. The locals promptly arrested her on some kind
of public morals charge. She was taken
into custody, but she made bail and was released that same
Before he could leave Jacksonville, Chrysanthis received a
telephone call from Leary's roommate, who told Chrysanthis that
Leary wanted to cooperate. Chrysanthis met Leary as she was
released from custody and brought her to the DEA office in
Jacksonville. Leary admitted that she had been a courier for
Orgad. She attributed her contrary statements on October 29 to
the influence of Richards. Specifically, she said she had been
acting on the advice of Richards when she denied having
knowledge of criminal activity. She agreed to cooperate with
Chrysanthis saw in these circumstances reason to suspect that
Richards had tampered with a potential witness against Orgad. He
wanted to pursue that suspicion by having Leary contact Richards
and tempt him to tamper with her further, on tape. Recognizing
the sensitivity inherent in investigating his main target's
attorney, Chrysanthis discussed the matter with his supervisor
and with the Assistant United States Attorney handling Orgad's
California case. They authorized him to proceed.
D. The October 31 — November 1, 2000 Conversations With
Richards (Recorded By DEA Agents)
Now cooperating with the agents instead of Richards, and no
doubt at the direction of those agents, Leary importuned
Richards to commit a crime. She did not come right out and say
that, but from the outset there was nothing subtle about her
JL: Um, what's going on? I mean, it, are you
gonna, is Koki gonna take care of me? I mean, I
did stuff for him, you know. I mean, what's going
on? I don't understand. I mean, are you gonna do
anything for me? . . . [Chrysanthis] told me that
he was gonna put me in jail for a long time if I
don't cooperate and I don't know what to do.
Richards took the bait, and had four conversations with Leary
over a 29-hour period that require his disqualification from the
trial of this case. A reasonable person could conclude that
their conversations establish a number of facts that may prove
damaging to Orgad at trial.
1. Richards Knew That Leary Was Orgad's Courier
During Leary's recorded conversations with the agents on
October 29, 2000, Richards learned that the government believed
that Leary was one of numerous couriers in Orgad's ecstasy
enterprise. In Leary's recorded conversations with Richards, she
repeatedly told him the same thing. See Tape 1 at 4 (JL: "What
a, what about the things, you know, I did for Koki"); Tape 1 at
7 (RR: "I mean, you keep saying the things you did for Koki. I
mean, it was my understanding that you, that you never did
anything."); Tape 2 at 5 (JL: "I want you to know that I did,
um, bring some ecstasy bags for Koki").
2. Richards Knew The Government Was Soliciting Leary's
It was obvious from the October 29th conversations that the
DEA wanted Leary to cooperate against Orgad. In her recorded
conversations with Richards on October 31 and November 1, Leary
repeatedly told him that she was still being pressured by the
agents to admit her guilt and cooperate with the government.
See Tape 1 at 4 (JL: "He told me that he was gonna put me in
jail for a long time if I don't cooperate and I don't know what
to do."); Tape 2 at 12 (JL: . . . "they were
just telling me . . . if you work with us we'll give you a, you
know, a good deal.").
3. Richards Attempted to Gain Leary's Trust
Although he was counsel to Orgad, the principle person against
whom Leary would provide cooperation, Richards endeavored to
convince Leary that she should place her faith in him. See
Tape 2 at 7 (RR: "Okay, well listen, I mean I know you don't
know me but you're just gonna have to trust me that I'm not
gonna fuck you over."). At one point, after admonishing Leary
not to speak to the agents, Richards said:
RR: But listen, on, on a separate note, I'm a very
nice guy. I, I told you we're very close in age.
How old are you?
JL: I'm twenty four (24).
RR: Okay, I'm eight (8) years older than you,
RR: I'm not. I'm old — I, I sound older on the
RR: I'm a very young hip lawyer. I know what I'm
doing. I just want you to relax. I mean, I just,
I'm trying to make this as easy as possible for
you, but you have to understand —
RR: — that, that, that I'm not bringing this upon
RR: You know, and then, and then, and then. If, if
you want to. You know, if you want to uh, if you
want to um —
JL: I just want it taken care of. You know what
I'm saying and —
RR: — that's what I'm trying to help you out with.
Tape 2 at 26. Richards concluded that conversation on a similar
RR: Okay, I'm not going to abandon you or screw
you over, I promise.
RR: Because, I don't want to prosecute you.
JL: Okay, I understand that.
RR: Okay, I'm not here to hurt you.
RR: I'm a very sensitive individual.
RR: Okay so, are — do you feel better now?
4. Richards Told Leary She Did Not Need To Cooperate
Because There Was No Case Against Her
Confronted with a person who claimed to have committed crimes
for his client and who was feeling pressure to cooperate,
Richards sought to relieve the pressure. He assured her that the
mere fact that other couriers might have given her name to the
agents was no reason to cooperate:
RR: That's what I'm trying to help you with, if,
if, I, I know this case inside and out and your
name has never come up in this case.
RR: Don't. You know, the fact that some girl said
you brought, I mean, I, I —
JL: Well they said a couple of people, a couple of
girls. You know —
RR: — and how would, do you know how they would
JL: Probably, I, I don't know.
RR: I mean how would someone know what you did?
5. Richards Told Leary To Stop Saying She Was A Courier
Richards's theme with Leary was that the only witness to her
being a drug courier was herself, so she should be quiet about
it. When Leary explicitly told him that she carried ecstasy for
Orgad, Richards said:
RR: You know, I don't have any information that
you did that, so —
JL: Yeah, I'm just gonna —
RR: — you don't, you don't need to invent ...