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United States v. Lorenzana-Cordon

United States District Court, D. Columbia.

August 27, 2015

UNITED STATES,
v.
ELIU LORENZANA-CORDON, Defendants

Page 130

          For WALDEMAR LORENZANA-LIMA, also known as VALDEMAR LORENZANA-LIMA, Defendant: A. Eduardo Balarezo, LEAD ATTORNEY, BALAREZO LAW, Washington, DC; Joaquin G. Perez, LEAD ATTORNEY, Miami, FL; Ron Earnest, LEAD ATTORNEY, LAW OFFICES OF RON EARNEST, Riverdale, MD.

         For ELIU ELIXANDER LORENZANA-CORDON, Defendant: A. Eduardo Balarezo, LEAD ATTORNEY, BALAREZO LAW, Washington, DC; Barry Coburn, LEAD ATTORNEY, COBURN & GREENBAUM, PLLC, Washington, DC; Manuel J. Retureta, LEAD ATTORNEY, RETURETA & WASSEM, P.L.L.C., Washington, DC.

         For WALDEMAR LORENZANA-CORDON, also known as VALDEMAR LORENZANA-CORDON, Defendant: A. Eduardo Balarezo, LEAD ATTORNEY, BALAREZO LAW, Washington, DC; Manuel J. Retureta, LEAD ATTORNEY, RETURETA & WASSEM, P.L.L.C., Washington, DC; Ron Earnest, LEAD ATTORNEY, LAW OFFICES OF RON EARNEST, Riverdale, MD; Mark John Carroll, LAW OFFICES OF MARK J. CARROLL, Potomac, MD.

         For DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, Movant: Maria-Claudia T. Amato, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Washington, DC.

         For UNITED STATES OF AMERICA, Plaintiff: Adrian Rosales, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Narcotic and Dangerous Drug Section, Washington, DC; Amanda Nunn Liskamm, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Andrea Goldbarg, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Washington, DC; Dennis N. Urbano, LEAD ATTORNEY, Miami, FL; George Allen Dale, LEAD ATTORNEY, LAW OFFICE OF G. ALLEN DALE, Washington, DC; Guadalupe Valencia, LEAD ATTORNEY, LAW OFFICES OF GUADALUPE VALENCIA, San Diego, CA; Michael Nicholas Lang, UNITED STATES DEPARTMENT OF JUSTICE, Criminal Division, Narcotic and Dangerous Drug Section, Washington, DC.

Page 131

         MEMORANDUM OPINION

         COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

         On April 2, 2009, a federal grand jury returned an indictment charging Defendant Eliu Elixander Lorenzana-Cordon (" Defendant" ) with conspiracy to import over five kilograms of cocaine into the United States in violation of 21 U.S.C. § 959, 960, and 963. The indictment also carries a criminal forfeiture allegation pursuant to 21 U.S.C. § § 853 and 970. Defendant remained a fugitive for approximately two-and-a-half years in Guatemala and was arrested on this indictment in Guatemala on November 8, 2011. After fighting extradition for approximately three-and-a-half years, Defendant was extradited to Washington, D.C. on April 30, 2015, and made an initial appearance before Magistrate Judge Alan Kay on May 1, 2015.

         Defendant has been represented by Manuel J. Retureta for the past five years. On May 11, 2015, the Government filed a Motion for the Court to conduct an inquiry into a potential conflict related to Mr. Retureta's simultaneous representation of Defendant and a cooperating witness in an unrelated case who is expected to testify against Defendant. The parties submitted briefing[1] about this potential conflict and the Court held hearings inquiring into the conflict on June 4, 2015, July 13, 2015, and August 4, 2015. The Court now issues this Memorandum Opinion setting forth the Court's findings and rulings as to the conflicted representation. The Court incorporates and makes a part of this opinion its detailed oral findings on the record issued during the August 4, 2015, hearing.

         I. BACKGROUND

         A. Factual Background

         Mr. Retureta has represented Defendant for more than five years with regards to the instant case. Def.'s Pos., at 1. Mr. Retureta filed a Notice of Appearance in this matter on March 4, 2010. See ECF No. [200]. Mr. Retureta has also represented an individual for more than four years who is a cooperating witness (" the witness" ) for the Government against Defendant. Def.'s Pos., at 2. The witness' case is unrelated to Defendant's case, however, the Government has debriefed the witness regarding information that he/she might have relating to Defendant and his co-defendants. Id. As the Government was aware of Mr. Retureta's simultaneous representation of Defendant and the witness, the Government forewarned Mr. Retureta " during debriefing prior to its agents making inquiries of [the witness] regarding [Defendant] and his co-defendants, so that [Mr. Retureta] could leave

Page 132

the room." Id. Consequently, Mr. Retureta was not present for any debriefings of the witness related to Defendant. Id. The Government has indicated that it expects to call the witness as a witness in Defendant's case. Def.'s Pos., at 2; Gov't Supp. Br., at 1.

         B. Procedural Background

         On May 11, 2015, the Government filed a motion requesting a hearing for the Court to determine whether a conflict of interest exists with Mr. Retureta's simultaneous representation of Defendant and the witness and whether it may be waived. Defendant filed an opposition.

         Mr. Retureta has proposed an arrangement whereby he would remain counsel for Defendant and a second, independent counsel would be secured for Defendant to prepare and conduct cross-examination of the witness. Mr. Retureta further proposes that additional counsel would be secured to represent the witness at his/her sentencing to the extent the witness' testimony against Defendant is relevant to the witness' sentencing.

         On June 4, 2015, the Court conducted its first inquiry into the potential conflict during a status hearing in this matter. Mr. Retureta represented to the Court during that hearing that he would discuss the potential conflict with the cooperating witness whom he is representing and promptly inform the Court of whether the cooperating witness decided to continue with Mr. Retureta as his attorney. See Order (June 5, 2015), ECF No. [583], at 3. The Court indicated it would then consider whether to appoint independent counsel to speak with Defendant about the potential conflict. Id.

         On June 10, 2015, Mr. Retureta filed a notice with the Court conceding that his simultaneous representation of Defendant and the witness presented a conflict of interest, but indicating that Defendant " ha[d] informed undersigned counsel that he wishes to waive the conflict, and, pursuant to his rights under the Sixth Amendment, desires to retain undersigned counsel as his defense counsel." Def.'s Pos. at 1. Mr. Retureta further represented that " he is confident that his performance, on behalf of [Defendant] and the other individual recently announced as a government witness, shall not be adversely affected by his simultaneous representation of them" and proposed that second counsel prepare for and conduct cross-examination of the witness and an additional counsel represent the witness at the witness' sentencing. Id. at 3-4. As to the witness, Mr. Retureta informed the Court that the simultaneous representation would be discussed with the witness during an upcoming status hearing in the witness' unrelated case before Judge John D. Bates. Id. at 4. Finally, Mr. Retureta requested that the Court appoint independent counsel to consult with Defendant on the matter of the simultaneous representation and his waiver of the resulting conflict. Id.

         The Government filed a response on June 24, 2015, opposing the simultaneous representation of Defendant and the witness and the proposed second counsel arrangement. On July 6, 2015, the Court appointed Barry Coburn of Coburn & Greenbaum PLLC to represent Defendant " for the limited purpose of advising [Defendant] in connection with Mr. Retureta's potential conflict with representing [Defendant] at the same time as representing a potential witness who would testify against [Defendant] at trial." Order (July 6, 2015), ECF No. [597], at 1.

         On July 13, 2015, the Court held a second hearing to inquire into the conflicted representation. Mr. Retureta, Mr. Coburn, and counsel for the ...


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