The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant Will Johnson's sealed motion to reconsider the Order disqualifying his counsel due to an actual conflict of interest with a former client (Docket No. 491; see Docket No. 483, Order of Oct. 15, 2012; see also Docket No. 489, Johnson motion to file under seal, Docket No. 490, Order granting leave to file under seal). Familiarity with that Order is presumed.
That Order decided the motion of the Government for determination of the existence of a conflict of interest for Johnson and his present counsel (Docket No. 428), see United States v. Williams, 372 F.3d 96 (2d Cir. 2004) (Court is obligated to conduct inquiry into potential conflicts). Defense counsel responded (Docket No. 435), stating that he was not aware of any conflict with his representation of Johnson and a confidential witness (hereinafter "C.W."), then cooperating with law enforcement in another case due to pending charges in this Court against C.W. (id., Def. Atty. Dep. ¶¶ 4-5, 2).
The prosecution against Johnson is for an alleged conspiracy to distribute controlled substances and money laundering involving over twenty other co-defendants. Johnson is represented by Thomas Eoannou in this action (see Docket No. 358). Mr. Eoannou also represented C.W. This Court found in the previous Order (Docket No. 483, Order at 4-5) that an actual (and not a mere potential) conflict existed between Johnson and Eoannou due to C.W. coming forward in Johnson's case as a cooperating witness, and threats to C.W. from those believed to be affiliated with Johnson if C.W. proceeded as a cooperating witness. That actual conflict was deemed to be non-waivable by either Johnson the current client or the former client (id. at 5). An attorney appearance conference was scheduled for October 29, 2012 (Docket No. 484), and independent stand by counsel was appointed for Johnson (see text minute entry, Oct. 29, 2012).
Johnson, through Eoannou, moved for reconsideration of the declaration of an actual conflict (Docket No. 491). In his sealed moving papers and during argument on October 29, 2012 (see Docket No. 492; text minute entry Oct. 29, 2012), Eoannou denied most of the bases for the conflict allegations. First, Eoannou claims that he only represented C.W. briefly, for only one proffer session with the Government in an unrelated case, and that other counsel (Michael D'Amico) represents C.W. Eoannou then was on trial and C.W. called from his interview with federal agents requesting that Eoannou be present and that C.W. did not want to talk with the agents without Eoannou being there. Eoannou states there was no mention of Johnson or Briggs, and no indication to him that a conflict might exist with his representation of C.W. and Johnson. C.W. never indicated that he would cooperate in the Briggs investigation. Eoannou vehemently denies instructing C.W. not to talk with agents. As for the allegations of threats made by Johnson's family to C.W., Eoannou states that he told Johnson's mother on two occasions to leave the Court before C.W. was to appear and advised her not to attend the conference held on October 29, 2012. Eoannou will submit a formal termination of his representation of C.W. in the other case. To date, Eoannou has not formally withdrawn from representing C.W. in the other case.*fn1
During oral argument, Eoannou repeatedly mentioned the name of C.W. This Court declines to repeat that name in this Order due to the allegations made regarding C.W.'s safety.
The Government responded during the October 29, 2012, conference that the agents were sure that a conflict existed, that Eoannou advised C.W. not to talk with them about Johnson. The Government then notes that C.W. appears to be recanting and withdrawing his cooperation. The Government sought that any hearing on this matter be sealed and noted that the overall case needs to be resolved quickly (cf. Docket Nos. 478, 493).
This Court reserved decision on the motion for reconsideration (text minute entry, Oct. 29, 2012), and contemplated whether to hold a further hearing. Upon further consideration this Court now declines to conduct a further hearing.
I. Reconsideration Standards
The Federal Rules of Criminal Procedure makes no express provision for reconsideration.
Judge Larimer in another case held that the Magistrate Judge there had the "discretion to reconsider or reopen prior proceedings which precipitated" the Magistrate Judge's decision, United States v. Florack, 155 F.R.D. 49, 51 (W.D.N.Y. 1994). In Florack, the Government sought reconsideration (pursuant to then Federal Rule of Criminal Procedure 12(f)*fn2 ) by Magistrate Judge Fisher of his refusal to allow the Government to argue an otherwise defaulted suppression motion, id. at 50-51; see id. at 51-52 (Report & Rec. of Fisher, Mag. J.). Judge Siragusa of this Court held in United States v. Amanuel, No. 05CR6075, 2006 WL 266560, at *1 (W.D.N.Y. Jan. 31, 2006), that the civil standard for reconsideration is applicable in criminal cases, that the standard for reconsideration is "strict" and reconsideration "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked--matters, in other words, that might reasonably be expected to alter the conclusion reached by the court," id. (internal quotations and citations omitted).
II. What Type of Conflict Is Presented Here?
A defendant has a Sixth Amendment right to be represented by conflict-free counsel, Holloway v. Arkansas, 435 U.S. 475, 484 (1978); Glasser v. United States, 315 U.S. 60, 71 (1942); United States v. Falzone, 766 F. Supp. 1265, 1271 (W.D.N.Y. 1991) (Arcara, J.). A conflict arises when defendant's counsel of choice represents (or formerly represents) a Government witness appearing against defendant, Falzone, supra, 766 F. Supp. at 1271. As previously stated, under applicable New York Rules of Professional Conduct, a lawyer shall not represent a client if a reasonable lawyer would conclude that "the representation will involve the lawyer in representing differing interests," § 1200.0 Rules of Professional Conduct, Rule 1.7(a)(1) (2009). Where a conflict of interest between an attorney and his client is potential, this Court may in its discretion disqualify that counsel based upon the Court's "independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them," Wheat v. United States, 486 U.S. 153, 160 (1988); see also United States v. Sullivan, 381 F. Supp. 2d 120 (W.D.N.Y. 2005) (Larimer, J.). A conflict relating to an attorney's ...