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March 9, 2001


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 Orgad's attorney.


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 distribution.

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 below.

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 couriers.

In mid-September of 2000, while preparing for the trial of the Los Angeles Indictment, Agent Sigur contacted Leary, who was working as an exotic dancer in Jacksonville, Florida. He wanted to enlist Leary to cooperate against Orgad. Sigur told Leary that the agents knew she had served as a drug courier and that they intended to serve her with a subpoena to testify at Orgad's trial in California. Leary acknowledged that she had information to provide to the agents in connection with their investigation of Orgad. Later in September, Sigur and Chrysanthis together informed Leary by telephone that they would like to come to Jacksonville to speak to her. She agreed to meet with the agents for an interview.

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 to Richards.

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 the call.

B. Leary's October 29, 2000, Conversations With The Agents (Recorded By Richards)

When Leary called back Chrysanthis, he was still in Atlanta, waiting for his connecting flight to Jacksonville. Leary told him not to come. She said she had spoken to a lawyer and that there was no reason for her to talk to the DEA. She denied being a drug courier. Chrysanthis responded by saying that he would return to Los Angeles, obtain an arrest warrant, and have her arrested. He reiterated that a large number of other couriers had implicated Leary as a courier of ecstasy from Paris.

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 night.

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.

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 approach:

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.

Tape 1 at 4.*fn4

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 Cooperation

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, okay.

JL: Yeah.

RR: I'm not. I'm old — I, I sound older on the phone —

JL: — yeah —

RR: — than I am.

JL: Yeah, yeah.

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 —

JL: I understand.

RR: — that, that, that I'm not bringing this upon you.

JL: Okay, okay.

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 note:

RR: Okay, I'm not going to abandon you or screw you over, I promise.

JL: Okay.

RR: Because, I don't want to prosecute you.

JL: Okay, I understand that.

RR: Okay, I'm not here to hurt you.

JL: Okay.

RR: I'm a very sensitive individual.

JL: Okay.

RR: Okay so, are — do you feel better now?

JL: I do feel better.

RR: Okay good, alright.

Tape 2 at 30.

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.

JL: Okay.

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 know that?

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 ...

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