United States District Court, S.D. Alabama, Southern Division
WILLIAM E. CASSADY, Magistrate Judge.
This cause is back before the undersigned on the motion for reconsideration of the order entered on February 4, 2015 (Doc. 29) wherein Mr. Zachary Dewitt Alsobrook, Esq. was disqualified as counsel for both Frederick Miller and Laquinton Miller. (Doc. 38, Motion to Reconsider; see also Doc. 60, Motion to Supplement Motion to Reconsider.) In addition, the Court has under consideration the brief filed by Ms. Barbara Agricola McCormick, Esq. (Doc. 42-1) and her motion to withdraw (Doc. 51). Upon consideration of the contents of the briefs filed by Mr. Alsobrook and Ms. McCormick, the evidence presented during the Rule 44(c) hearing, all relevant pleadings in the file, and the evidence presented during the Garcia hearing held on March 18, 2015, this order is entered pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.2(b)(2).
I. Relevant Facts
The relevant facts necessary to resolve the disqualification issue are virtually undisputed.
During October 2014, a Captain in the Monroe County Sheriff's Department, along with other agents working as part of a drug task force, set up surveillance of the home owned by Frederick Miller and located at 265 Miller Road, Monroeville, Alabama. The officers observed what appeared to be multiple drug sales from that location made by defendants Frederick Miller and his first cousin, Laquinton Miller. To confirm the agents' suspicions, undercover operations were implemented for the purpose of making drug purchases with marked money. These purchases were made and recorded on video.
A state search warrant was then obtained for the target residence and was executed on October 30, 2014. As a result of the search, the following items were seized by law enforcement officers: more than ten pounds of marijuana, approximately 180 grams of a substance tested to be cocaine, $28, 000 in cash,  one loaded 9 mm handgun, a loaded single barrel.410 shotgun, a loaded SKS 7.62 assault-type rifle with a bayonet affixed, and scales normally associated with weighing controlled substances.
On October 31, 2014, both Frederick and Laquinton were charged with the state offenses of cocaine trafficking, marijuana trafficking, and participating in felony dog fighting. These serious charges were submitted to the grand jury in Monroe County, Alabama on December 2, 2014. Both defendants were released on bond; Frederick on December 4, 2014 and Laquinton on December 5, 2014. Those cases remain pending but no indictments have been filed as of the date of this Order.
Federal indictments were returned on December 30, 2014 charging Fredrick with engaging in a conspiracy to possess with the intent to distribute cocaine, crack cocaine and marijuana (Count 1), possession and distribution of crack cocaine, cocaine and marijuana (Counts 2-4), and the possession of a firearm in furtherance of a drug trafficking crime (Count 5). Laquinton was charged as a member of the conspiracy charged in Count 1. They were brought before the Court for an initial appearance on January 22, 2015 without counsel. The Court was informed that Mr. Alsobrook would file an appearance on their behalf once he became a member of the Bar of the Southern District of Alabama. Mr. Alsobrook was admitted on January 26, 2015 and appeared on behalf of both defendants for their arraignments, detention hearings and a hearing held pursuant to Rule 44(c), Federal Rules of Criminal Procedure. Assistant United States Attorney Gregg Bordenkircher represented the United States.
B. The January 26, 2015 Rule 44(c) Hearing
Once notice was received that the same attorney represented the co-defendants, a hearing was scheduled as required by Rule 44, Federal Rules of Criminal Procedure. During the hearing, the Court inquired as to the propriety of the joint representation of the defendants by Mr. Alsobrook. Mr. Alsobrook responded by admitting that there was a potential for conflicts in this case that could prevent his simultaneous representation of the Millers but did not consider that the potential conflicts had matured to a point that required his withdrawal from representing one or both of his clients. Mr. Bordenkircher, on the other hand, advised the Court that he believed an actual conflict exists because of the relative involvement of the defendants in the furtherance of the drug-related conspiracy.
Mr. Bordenkircher's portrayal of the participation in the conspiracy of Frederick Miller was that of an organizer/supervisor while Laquinton Miller was portrayed as having a lessor role in the conspiracy, that of a distributer/seller of the controlled substances. A glaring example of Mr. Bordenkircher's argument was the evidence that the seized drugs and weapons were found in Frederick Miller's home and that he, unlike Laquinton, was videotaped on several occasions surveying the outside of his house while armed with a handgun. Detention Hearing, Government's Exhibit 1. The evidence against Laquinton Miller, however, is that he lived with his grandmother next door to his older cousin but there is no evidence that he stored controlled substances or weapons in his home. His participation in the conspiracy is alleged to be that he would obtain drugs for sale from Frederick's home, engage in the sale of the drugs, and then deliver the proceeds to Frederick after completion of the sales.
In cases such as this, it has been observed that the Government will attempt to offer the opportunity for a reduced sentence to the younger and less culpable defendant in exchange for his testimony against the other members of the conspiracy at trial and, if necessary, at the sentencing hearing. In fact, Mr. Bordenkircher confirmed that there would be an attempt to offer a reduced sentence to Laquinton in exchange for his testimony against the other members of the conspiracy at trial and, if necessary, at the sentencing hearing. If Laquinton is called as a witness, Mr. Alsobrook would have an insurmountable conflict of interest and would not be able to proceed as counsel for either defendant.
The undersigned discussed with both defendants their right to effective assistance of counsel and their right to have independent counsel appointed in an attempt to make sure they were represented by counsel unburdened by any conflicts of interest that might impair his/her ability to provide effective assistance in this serious criminal action. Both defendants responded positively to the Court's questions about whether they understood their rights. They were also provided with information that they could waive the potential conflicts of interest if their ...