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United States v. Ramos-Lopez

United States District Court, E.D. Missouri, Eastern Division

March 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
FERNANDO RAMOS-LOPEZ Defendant.

          ORDER - WAIVER OF POTENTIAL CONFLICT OF INTEREST

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

         Currently before the Court is the government's Motion For Inquiry Into Potential For Conflict of Interest (hereinafter “Motion for Inquiry”). The potential conflict at issue involves two separately filed, but related, criminal cases, both pending before the Honorable Catherine D. Perry. See United States v. Fernando Ramos-Lopez, 4:16 CR 172 CDP, and United States v. Israel Angeles-Montezuma, S1-4:16 CR 426 CDP (JMB).[1] Pretrial proceedings in the Angeles-Montezuma matter have been referred to United States Magistrate Judge John Bodenhausen, pursuant 28 U.S.C. § 636(b). Substantially identical orders will be entered in both cases. Counsel of record for Ramos-Lopez is Mario DiSalvo, who is admitted pro hac vice. Counsel of record for Angels-Montezuma is Yan Shrayberman, who is also admitted pro hac vice.

         On March 6, 2017, on the basis of the information in the government's Motion for Inquiry, the Court held an attorney's only status conference with the participation of Messrs. DiSalvo and Shrayberman, Assistant United States Attorney (“AUSA”) Sirena Wissler, District Judge Perry, and Magistrate Judge Bodenhausen. During the status hearing, Ms. Wissler described the general circumstances leading up to her Motion for Inquiry, and Mr. DiSalvo confirmed that, although he had not entered his appearance on behalf of Angeles-Montezuma, he was assisting in Angeles-Montezuma's representation with Mr. Shrayberman. As a result of the March 6th status conference, the Court scheduled separate conflict hearings for Defendants Ramos-Lopez and Angeles-Montezuma.

         Relevant Procedural and Factual Background

         I. U.S. v. Fernando Ramos-Lopez - 4:16 CR 172 CDP

         On April 11, 2016, Ramos-Lopez[2] and several other individuals were arrested on a federal complaint (case no. 4:16 MJ 6037 PLC) related to the seizure of more than 50 pounds of suspected methamphetamine in the Eastern District of Missouri. On April 20, 2016, the Grand Jury returned an indictment charging eight individuals, including Ramos-Lopez, with possession with intent to distribute in excess of 50 grams of methamphetamine, in violation of 21 U.S.C. § 841.

         William Margulis was initially appointed to represent Ramos-Lopez in connection with the complaint. On April 21, 2016, R. Tyson Mutrux entered his appearance on behalf of Ramos-Lopez and Mr. Margulis withdrew. Mr. Mutrux represented Ramos-Lopez through the primary pretrial proceedings. On November 17, 2016, the Court granted Mr. DiSalvo' motion for leave to appear pro hac vice on behalf of Ramos-Lopez. Ramos-Lopez's trial is currently set for June 26, 2017.

         On February 27, 2017, AUSA Wissler filed the government's Motion for Inquiry in Ramos-Lopez's case.

         II.U.S. v. Israel Angeles-Montezuma - S1-4:16 CR 426 CDP (JMB)

         On September 28, 2016, the Grand Jury returned a multi-count indictment alleging, among other violations, a large-scale methamphetamine trafficking conspiracy involving 39 named defendants.[3] Angeles-Montezuma is the first named defendant and is charged with one count of conspiracy to distribute and possession with intent to distribute in excess of 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 846. Angeles-Montezuma was arrested on October 4, 2016, in the Eastern District of California, and eventually removed to this District. Mr. Shrayberman's motion for leave to appear pro hac vice on behalf of Angeles-Montezuma was granted on October 17, 2016. Mr. Shrayberman has been the only counsel of record for Angeles-Montezuma in this District. As noted above, Mr. DiSalvo has been acting as an attorney for Angeles-Montezuma. Angeles-Montezuma's case remains in pretrial proceedings; no trial date has been set.

         On February 27, 2017, AUSA Wissler filed the government's Motion for Inquiry in Angeles-Montezuma's case.

         Summary of Status Hearing - Ramos-Lopez

          On March 16, 2017, the Court held a Conflict Inquiry Hearing regarding Mr. DiSalvo's representation of Ramos-Lopez while he is also assisting with Angeles-Montezuma's representation. Ramos-Lopez was present with Mr. DiSalvo. The government was represented by AUSA Wissler and AUSA Jeannette Graviss. Also present was conflict-free standby counsel Hal Goldsmith.

         Ms. Wissler described the circumstances leading her to conclude that a potential conflict of interest exists due to Mr. DiSalvo formally representing Ramos-Lopez while simultaneously advising Angeles-Montezuma.[4] Ms. Wissler noted that the government was not seeking to disqualify Mr. DiSalvo or any other attorney at this time.

         Mr. DiSalvo explained, in substance, that he had did not believe there was any actual conflict of interest and that he had discussed the matter with Ramos-Lopez. Mr. DiSalvo represented that both he and Mr. Shrayberman had determined that there was no conflict. Mr. DiSalvo further represented that he had explained to both Ramos-Lopez and Angeles-Montezuma what a conflict is and that both defendants understood him. Mr. DiSalvo stated that the defenses for the defendants were completely different. Mr. DiSalvo advised the Court it was his belief that Ramos-Lopez wanted to waive any potential conflict of interest and wanted to continue with Mr. DiSalvo's representation.

         The Court also advised Ramos-Lopez of his right to have effective, conflict-free representation. The Court provided numerous examples of how Mr. DiSalvo's representation of Ramos-Lopez and Angeles-Montezuma might result in a conflict of interest. Ramos-Lopez was advised that conflicts are difficult to predict and that there could be adverse consequences for him if he proceeds despite the potential for a conflict of interest. Ramos-Lopez was also advised that if an actual conflict arose, his attorney may withdraw from his representation and a new attorney might not have as much time to prepare for trial. Ramos-Lopez was advised that, if he waived his right to conflict-free counsel, he would be precluded from later arguing that his attorney's representation was defective due to a conflict of interest.

         After hearing the statements of AUSA Sissler and Mr. DiSalvo, and after being advised of his rights and the risks of potential conflicts of interest, Ramos-Lopez unequivocally stated his desire to waive any conflict and continue with Mr. DiSalvo's representation.

         Before accepting Ramos-Lopez's waiver, the Court allowed Ramos-Lopez to consult privately with standby counsel Hal Goldsmith. Mr. Goldsmith reported to the Court that he had advised Ramos-Lopez of the risks associated with joint representation, that he believed Ramos-Lopez understood his rights and risks, and that Ramos-Lopez desired to continue with Mr. DiSalvo's representation.

         The Court accepted Ramos-Lopez's waiver of the potential for a conflict of interest.

         Summary of Status Hearing - ...


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