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United States v. Anderson

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

June 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS GREGORY ANDERSON, JR., Defendant.

          ORDER ADOPTING SECOND REPORT AND RECOMMENDATION

          AUDREY G. FLEISSIG UNITED STATES DISTRICY JUDGE.

         This matter is before the Court on Defendant's Motion to Reconsider Defendant's Motion to Dismiss Indictment and Request for Supplemental Evidentiary Hearing, filed on August 4, 2016. (ECF #751.) In his initial motion, Defendant requested dismissal of the indictment, based primarily on certain pre-indictment and post-indictment conflicts of interest by Defendant's prior counsel, Rosenblum, Schwartz, Rogers and Glass (“RSRG”), and the failure of the prosecutor to prevent the conflicts of interest and other claims of alleged improper conduct by the prosecutor. By Order dated January 14, 2016, I adopted the first Report and Recommendation (the “R&R”) of the Magistrate Judge, and denied Defendant's Motion to Dismiss for Irreparable Denial of Defendant's Constitutional Right to Effective Assistance of Counsel. (ECF #315.)

         Shortly before trial, Defendant obtained from a defendant in another case, involving the drug trafficking organization (“DTO”) of Kyle Kienstra, certain witness statements of Michael Saracino, a cooperating defendant in the Kienstra case, which included three references to Defendant. Because Saracino was represented by RSRG, Defendant filed the instant motion, requesting that I reconsider my prior Order denying Defendant's request to dismiss the indictment. Defendant asserts that these statements of Saracino show that his prior attorneys had yet another conflict of interest, and that this conflict, together with the conflict previously asserted, negatively impacted his representation. Defendant also contends that the prosecutors should have been aware of and advised Defendant and the Court of this additional conflict, and that the prosecutors also misstated the facts to the Court. He argues that this misconduct, together with the alleged misconduct discussed in his initial motion, warrants dismissal of the indictment.

         The United States filed a Response (ECF #761), and I granted Defendant's request for a supplemental evidentiary hearing. I again referred the matter to Magistrate Judge Nannette A. Baker, under 28 U.S.C. § 636(b). Judge Baker held a supplemental evidentiary hearing on September 8 and 9, 2016, at which Defendant was represented by his attorneys, William S. Margulis and Justin K. Gelfand. The United States was represented by Assistant United States Attorney James C. Delworth. Numerous witnesses testified at the hearing, including government agents who were present for Saracino's proffer statements, two attorneys from RSRG, the lead prosecutors from the Anderson and the Kienstra cases, and Saracino. Following receipt of the transcript, the parties submitted post-hearing briefs, and Judge Baker thereafter submitted a Second Report and Recommendation (“Second R&R”), recommending that Defendant's motion for reconsideration be denied. (ECF # 873.)

         Judge Baker found with respect to the new evidence that Defendant failed to demonstrate that RSRG labored under an actual conflict of interest that adversely affected their representation of Defendant. Judge Baker further found that Defendant still had not shown that the prosecutors had committed the kind of intentional misconduct that is required to warrant dismissal of the indictment, based in part on her subsidiary finding that the prosecutors had no actual knowledge that the cooperating witness had made incriminating statements about Defendant until August of 2016.

         Defendant filed objections to the Second R&R (ECF #883), to which the United States responded (ECF #888). In his objections, Defendant reasserts some of the grounds raised in his motion for reconsideration. He further contends that the Magistrate Judge erred by failing to make an express finding with respect to whether RSRG had an actual conflict of interest, and erred in concluding that Defendant failed to demonstrate that any such conflict adversely affected counsel's representation. He also asserts that the prosecution team failed to do their jobs to discover and advise Defendant and the Court of this additional conflict of interest, and objects to the Magistrate Judge's conclusion that this failure, together with other alleged improprieties and the “troubling” conduct found in the prior Order, do not constitute the type of outrageous conduct that requires dismissal of the indictment.

         When a party objects to a Report and Recommendation concerning a motion to dismiss in a criminal case, the court is required to “‘make a de novo determination of those portions of the record or specified proposed findings or recommendations to which objection is made.'” United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)).

         I have conducted a de novo review of the record, including a careful review of the testimony of the witnesses and exhibits introduced at the hearings. Based on my review, I conclude that the Magistrate Judge, after a full and fair hearing, made proper factual findings and correctly analyzed the issues. I adopt and incorporate the Magistrate Judges' factual findings, with three slight clarifications discussed below.[1] The facts are recited in the first and Second R&R, and will be summarized and supplemented only as necessary. I also adopt and incorporate the thorough reasoning and conclusions in the Second R&R.

         A. Claims of Conflict-of-Interest by Defense Counsel

         As set forth in the Second R&R, some years prior to 2011, Defendant Anderson and Kyle Kienstra were jointly involved in a marijuana trafficking enterprise. In approximately 2011, however, Anderson and Kienstra had a falling out with respect to their drug trafficking operations, and they parted ways, with each setting up his own drug trafficking operation. The criminal investigation of Anderson and Kienstra began in approximately January of 2012. Although the precise date when the decision was made to split the case into two indictments is unclear, that decision had been made by sometime during the summer of 2014, and on August 13, 2014, two separate indictments were filed, one with respect to the Kienstra DTO, with Assistant United States Attorney (AUSA) Stephen Casey as the lead prosecutor, and one with respect to the Anderson DTO, with AUSA John Davis as lead prosecutor.

         Prior to the indictments, in July and November, 2012, the United States began seizing items from the co-conspirators in the Anderson case, including the seizure of firearms and currency from Anderson in November, 2012. RSRG, primarily through associate Marc Johnson, provided representation with respect to forfeiture proceedings related to Anderson and co-defendant Hounsom. Although the representation pertained primarily to forfeiture proceedings, Attorney N. Scott Rosenblum (“Rosenblum”) of RSRG first “began communicating with AUSA Davis regarding Anderson and a potential indictment” in approximately November or December, 2012.

         In approximately March, 2013, Rosenblum began representing Michael Saracino, a close friend of Kyle Kienstra's who had become involved in Kienstra's drug trafficking operation. Attorney Johnson became personally involved in the representation of Saracino in approximately July of 2014. The record is undisputed that Rosenblum advised Anderson and Kienstra of the firm's representation of the other, and they each consented. From the outset of Rosenblum's representation of Saracino, Saracino made clear his decision to provide cooperation to the government with respect to the Kienstra investigation. Rosenblum also understood that Saracino did not really know Anderson, had not been involved in any drug dealing with Anderson, and did not intend to cooperate against Anderson or the Anderson DTO.

         As set forth in the Second R&R, Saracino participated in seven proffers with government agents, five pre-indictment, and two post-indictment. The first proffer was on June 24, 2014.[2] It lasted approximately three and one-half hours, and is summarized in a report that is 13 pages long, single-spaced. Both this proffer, and the six that followed, focused solely on the Kienstra organization, providing extensive details regarding the Kienstra DTO. Together, the summaries of the seven proffers span more than 30 pages, single-spaced.

         At issue in the motion for reconsideration are two isolated statements made by Saracino during the course of his seven proffers. The first occurred pre-indictment, on June 24, 2014. In discussing enforcers used by Kienstra, the summary of the proffer reflects that Saracino mentioned that Anderson had hired a man identified as Mitchell Hughes to rob Kienstra, and that Saracino later approached Hughes to work for him as an enforcer. The second mention of Anderson occurred on January 8, 2015. Saracino had been asked about his own activities in Boston on behalf of Kienstra, and about one trip in particular. And after discussing the details of the trip he made on behalf of Kienstra to pick up marijuana proceeds and return them to St. Louis, Saracino added that Anderson, who had been Kienstra's initial source of supply, also had marijuana customers in Boston.

         The third item at issue relates to a DEA summary provided as discovery in the Kienstra case that was given to Anderson by one of the Kienstra defendants. That DEA summary showed that in March, 2013, Saracino falsely implicated Anderson in connection with a marijuana transaction. Specifically, on March 15, 2013, Saracino went to make a pick-up of marijuana and cash on behalf of Kienstra, not knowing that the individual from whom he was making the pickup (“CS”) was cooperating and that it was in fact a controlled delivery being conducted in connection with the investigation. CS had previously been a member of Anderson's organization, but became disenchanted with Anderson and started getting his marijuana from Kienstra, which was the status in March of 2013. Saracino was arrested, and interviewed by the agents. In an effort to protect his friend, Kienstra, Saracino falsely told the agents that Anderson was the source of the marijuana. He also falsely identified the person from whom he had made the pickup, identifying him as a person named “Smoke, ” and made other false statements. Because it had been a controlled delivery and CS was cooperating, the agents knew that Saracino was lying about both the source and the customer, and they terminated the interview and placed him under arrest.

         Defendant contends that Rosenblum's representation of both Anderson and Saracino at the time that Saracino made the two incriminating statements about Anderson during his proffers constitutes an irreconcilable conflict of interest, and that the conflict adversely impacted Rosenblum's representation of Anderson. Defendant objects to the Magistrate Judge's finding that Defendant failed to show that any conflict adversely affected RSRG's representation of Anderson, and further contends that the Magistrate Judge erred by failing to make an express finding with respect to whether there was a conflict of interest.

         For the reasons discussed below, Defendant's objections to the Second R&R related to the conflict of interest are not well-taken. At the outset, I reiterate the conclusion in my prior Order that because Defendant has no constitutional right to effective assistance of counsel prior to the indictment, his claims based on any alleged pre-indictment conflict of interest must fail. See United States v. Gouveia, 467 U.S. 180, 188 (1984). Assuming arguendo that Defendant has such a right, even under the more liberal standard of Cuyler v, Sullivan, 446 U.S. 335 (1980), for a presumption of prejudice to apply, Defendant would be required to demonstrate that there was an actual conflict of interest that adversely affected his lawyers' performance. Id. at 350; Plunk v. Hobbs, 766 F.3d 760, 764 (8th Cir. 2014). This, in turn, requires Defendant to (i) identify a plausible alternative defense strategy or tactic that counsel might have pursued, (ii) show that the alternative strategy was objectively reasonable under the facts, and (iii) establish that defense counsel's failure to pursue the alternative strategy was linked to the actual conflict. Morelos v. United States, 709 F.3d 1246, 1252 (8th Cir. 2013).

         From a full review of the record, I agree with the Magistrate Judge that Defendant has failed to show that any conflict of interest adversely affected defense counsel's representation, and that ...


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