Thomas that is beneficial to Mr. Carlyle (or vice versa), but that he will be unable to use it in representing Mr. Carlyle because of the attorney-client privilege. Caught in this situation, the government argues, Mr. Daum would be unable to represent both of his clients zealously and effectively. Were Mr. Daum to refrain from using the Thomas-generated information in assisting Mr. Carlyle because of ethical constraints, he would not be able to make full use of all available information helpful to Mr. Carlyle. By representing Mr. Carlyle in this constrained manner, Mr. Daum would violate his duty of loyalty to Mr. Carlyle. Furthermore, the government argues, it would be very difficult for Mr. Daum to make the distinction between information learned in the course of investigating Mr. Carlyle's case and information learned as a result of representing Gerard Thomas -- in effect by attempting to build a "Chinese wall" within himself. While this scenario for potential conflict does not depend on the activity charged in this case and the case in West Virginia being part of the same conspiracy, it assumes that the information Gerard Thomas and Cecilio Carlyle currently possess overlaps because the respective drug conspiracies share the same distribution network or because of the familial relationship between Gerard and Gregory Thomas. Tr. at 13-16.
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 to vigorously represent Mr. Carlyle. Tr. at 17-19.
B. The Defendant's Position
Mr. Daum maintains that no actual or potential conflicts are implicated by his simultaneous representation of Gerard Thomas and Cecilio Carlyle. Mr. Daum first argues that despite the government's representations to the Court, the West Virginia and Washington, D.C. cases are not substantially related. The criminal conduct with which his respective clients are charged does not overlap either geographically or temporally. Furthermore, even if the two conspiracies share a common source of narcotics supply, as the government asserts, neither Gerard Thomas nor Cecilio Carlyle are being prosecuted as suppliers of narcotics to any of the co-conspirators; that is, neither defendant is being characterized as a supplier at the top of the conspiracy. Gerard Thomas is charged with allegedly receiving money, purported to be drug proceeds, on one occasion in 1992. Cecilio Carlyle is charged with receiving narcotics, several times in 1996 and early 1997, from a confidential informant. Neither defendant is charged with involvement in the supply side of the conspiracy. Thus, Mr. Daum argues, the cases are not related.
Mr. Daum also contends that no conflicts can or will arise as a result of his representation of both Mr. Carlyle and Gerard Thomas because neither defendant knows the other or knows of the other, and neither defendant has any information about the other, related or unrelated to the respective charges brought against them in either case. Mr. Carlyle's relationship with his immediate supplier, a cooperating witness whom Gregory Thomas allegedly supplied, did not afford him the opportunity to identify anyone in the drug distribution chain because the relationship was very limited -- the supplier never divulged any information regarding the alleged conspiracy to Mr. Carlyle. Mr. Daum also represents to the Court that he personally has no information about Gregory Thomas, either from his brother Gerard or from Mr. Carlyle.
After reviewing all the motion papers and the transcript of the April 2 hearing, Hamilton P. Fox, III, independent counsel to Mr. Carlyle, also believes that the conflict scenarios offered by the government are too remote and hypothetical to require disqualification of Mr. Carlyle's counsel of choice. Nevertheless, at the Court's request, Mr. Fox met with Mr. Carlyle at length and advised him of the possible conflict scenarios offered by the government and the problems that might arise with respect to each. Having had independent advice on this matter, Mr. Carlyle told Mr. Fox that he wanted Mr. Daum to continue to represent him.
At the April 10 hearing, Mr. Carlyle was placed under oath and the Court engaged in an extensive colloquy with him regarding each potential for conflict that had been identified by the government. Mr. Carlyle represented to the Court that he still wanted Mr. Daum as his lawyer and that he voluntarily waives his right to conflict-free counsel. Mr. Carlyle stated that he likes the way Mr. Daum represents him and speaks to him and that he feels comfortable with Mr. Daum. In response to questions from the Court, Mr. Carlyle said that his desire to have Mr. Daum continue as his counsel has nothing to do with any financial reasons or fees that have already been paid to Mr. Daum.
At the Court's request, Mr. Daum also consulted with his other client, Gerard Thomas, and submitted a sworn affidavit from Mr. Thomas. The affidavit spells out a number of the factual scenarios that may develop, Mr. Thomas' understanding of how they may create conflicts of interest, his understanding that Mr. Daum cannot reveal to him information he receives from Mr. Carlyle or "in the course of representing Mr. Carlyle," his understanding of the limitations that may be placed on Mr. Daum's cross-examination of witnesses against him, and his understanding that the potential conflicts of interest may affect Mr. Daum's ability to enter into plea negotiations. Nevertheless, Mr. Thomas waived his right to conflict-free counsel: "Having fully discussed my right to conflict free counsel with my attorney . . . I hereby waive my right to conflict free counsel. By waiving my right to conflict free counsel, I am choosing to proceed with Mr. Daum as my attorney, despite the fact that a conflict of interest may arise in the future, because he is my attorney of choice and I am comfortable with him and trust him."
While the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.
Wheat v. United States, 486 U.S. 153, 159, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988). Still, there is a strong presumption in favor of a defendant's counsel of choice. Id. at 160.