The opinion of the court was delivered by: FRIEDMAN
This matter is before the Court on the government's motion to disqualify Charles F. Daum as counsel for defendant Cecilio A. Carlyle. The government argues that Mr. Daum has actual and potential conflicts of interest caused by his simultaneous representation of Mr. Carlyle in this case and another client in a separate criminal case in federal court in West Virginia.
The Court held an extensive hearing on April 2, 1997, where both parties presented argument on the motion. The Court subsequently appointed Hamilton P. Fox, III as counsel for Mr. Carlyle for the limited purpose of giving Mr. Carlyle independent legal advice on the disqualification issue.
It then held a subsequent hearing on April 10, 1997, during which the Court considered argument from all counsel and representations from Mr. Fox, and conducted a detailed colloquy with defendant Carlyle regarding his desire to waive his right to conflict-free counsel. The Court denies the government's motion to disqualify Mr. Daum.
Cecilio Carlyle is charged, along with co-defendant Gregory Thomas, with conspiracy to distribute and possession with intent to distribute cocaine and cocaine base; the conspiracy allegedly covered the period from June 1996 through January 22, 1997. The government alleges that Mr. Carlyle is a lesser player in a wholesale narcotics supply conspiracy dealing in cocaine and cocaine base. Transcript of April 2, 1997 Hearing ("Tr.") at 6. The government asserts that the drug conspiracy in which Mr. Carlyle is allegedly involved revolves around a common foreign source of supply, which is linked to a "local connection" in the Washington D.C. metropolitan area. The local connection allegedly dealt directly with co-defendant Gregory Thomas, who in turn dealt with two individuals now cooperating with the United States. The government alleges that Mr. Carlyle dealt directly with one of the cooperating individuals to obtain cocaine or cocaine base for further distribution and sale in the District of Columbia, thereby representing the fourth link in the narcotics distribution chain. Id. at 6-7.
Mr. Daum is retained counsel for Mr. Carlyle. He has also been appointed as counsel for Gerard Thomas, who has been indicted in the United States District Court for the Northern District of West Virginia and charged with one count of conspiracy to distribute crack cocaine in a wholesale supply narcotics conspiracy. Gerard Thomas is one of Gregory Thomas' brothers. Donald Thomas, another brother of Gregory's and Gerard's, has been indicted in the West Virginia case as the lead defendant. The conspiracy alleged in West Virginia runs from 1990 to October 1996; the case against Gerard Thomas consists of allegations that somewhere in Maryland in 1992 an unidentified individual gave Gerard Thomas $ 15,000 earmarked for Donald Thomas.
A. The Government's Arguments
The government seeks disqualification of Mr. Daum as counsel for Mr. Carlyle because it believes the West Virginia case is "substantially related" to the instant case in that both involve the same narcotics distribution chain. Govt's Mot. & Mem. to Disqualify at 2-3. The government contends that the same foreign supply distributes narcotics to the same local connection which in turn supplies Gregory Thomas, who distributes the narcotics in the Washington D.C. metropolitan area, and Gerard and Donald Thomas, who distribute narcotics in the Northern District of West Virginia. Tr. at 9-10. The government also has information that Gregory Thomas has a reliable customer in West Virginia and has engaged in narcotics activities with his brothers there. The government asserts that actual and potential conflicts of interest impede Mr. Daum's ability zealously to represent both Gerard Thomas in the West Virginia case and Cecilio Carlyle in the case before this Court involving Carlyle and Gregory Thomas, particularly if (as the government says is likely) Gregory Thomas will be charged in a superseding indictment in West Virginia.
Because this case is still in its nascent stages, the government can offer only predictions as to what conflicts might arise as a result of Mr. Daum's simultaneous representation of Cecilio Carlyle and Gerard Thomas. First, the government points to the conflict that may arise if either Cecilio Carlyle or Gerard Thomas agrees to cooperate with the United States. In that event, either one of Mr. Daum's clients ultimately may be requested to testify against the other regarding the general operation of the drug distribution conspiracy; the government argues that Mr. Daum, having received privileged information from both clients, would not ethically be able to cross-examine the testifying client effectively and zealously. This prediction of conflict is premised on the government's theory that the drug conspiracies in West Virginia and the Washington metropolitan area are one and the same.
The government concedes that Gerard Thomas and Cecilio Carlyle might never actually be charged with involvement in the same conspiracy, and it does not dispute Mr. Daum's representation that Gerard Thomas and Cecilio Carlyle have never met each other and do not know each other. It nevertheless cannot eliminate the possibility that one of Mr. Daum's clients might have information about the operation of the conspiracy and/or about co-conspirators that might implicate the other client. Pointing to Gregory Thomas' potential indictment in the West Virginia case and the fact that both cases allegedly share the same distribution network, the government argues that this is not an unlikely scenario. Govt's Mot. and Mem. to Disqualify at 4-6. The Court sees this as the most serious allegation of potential conflict.
A second potential scenario for conflict is related to the first. It could arise if Mr. Daum is called upon to give advice either to Gerard Thomas or to Cecilio Carlyle about the pros and cons of cooperating with the government. The government asserts that Mr. Daum would be unable to give independent advice and counsel to both clients about the various options available to them because he could not fairly counsel a client to cooperate with the government when that cooperation might be detrimental to another client or even to a client's brother. While, as a cooperating witness, Mr. Carlyle might not be able to offer information that directly implicates Gerard or Gregory Thomas in the conspiracy, the government assumes that Mr. Carlyle would be able to offer general information about the manner in which the narcotics conspiracy operates or about a particular narcotics transaction, thereby at least indirectly implicating either or both of the Thomas brothers or providing further evidence of the existence of a conspiracy. Tr. at 19-23. The converse would be true if it were Mr. Gerard Thomas who chose to cooperate with the government.
The fourth scenario offered by the government is based on the possibility that Gregory Thomas, Mr. Carlyle's co-defendant and Gerard Thomas's brother, will be called as a witness in this case, either for the defense or for the prosecution. The government asserts that Mr. Daum would be unable to cross-examine Gregory Thomas zealously because his other client, Gerard Thomas, is Gregory's brother, and that the competing family interest may affect his ability ...