opposed motion for ruling on joint representation

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

vs. No. 13-2037

RICK REESE, TERRI REESE, and RYIN REESE,

Defendants-Appellees.

OPPOSED MOTION FOR RULING ON JOINT REPRESENTATION

Appellant, the United States of America, hereby moves for this Court to rule

on whether William J. Olson, Herbert W. Titus, and Michael Connelly may

continue to represent defendants/appellees Rick, Terri, and Ryin Reese jointly in

this appeal. As grounds for this motion, the government states as follows:

BACKGROUND

This case involves a family-owned Federal Firearms Licensee operating in

Deming, New Mexico B New Deal Shooting Sports (New Deal). New Deal is

owned and operated by defendant/appellee Rick Reese and his wife,

defendant/appellee Terri Reese. Their two sons, Remington Reese and

defendant/appellee Ryin Reese, also worked at the store and were involved in its

daily operations and sales. On August 24, 2011, a federal grand jury returned a

thirty-count indictment against Rick, Terri, Ryin, and Remington Reese. The

Appellate Case: 13-2037 Document: 01019046101 Date Filed: 05/01/2013 Page: 1

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indictment accused the defendants of conspiracy to commit the crimes of making

false statements in connection with the acquisition of firearms and smuggling

goods from the United States (count 1); knowingly making false statements in

connection with the acquisition of firearms (counts 2-10); smuggling firearms and

ammunition from the United States (counts 11-28); and conspiracy to commit

money laundering (counts 29-30).

The defendants were tried by a jury beginning on July 17, 2012. At the

close of the government’s case, the defendants moved for a judgment of acquittal

on all counts. The district court granted the motion with respect to counts 29 and

30 (the money laundering counts), but denied it with respect to counts 1 through

28. On August 1, 2012, the jury found Ryin Reese guilty of two counts of

knowingly making false statements in connection with the acquisition of firearms,

and found Rick and Terri Reese guilty of one count each of the same offense. The

jury found Remington Reese not guilty on all counts.

On November 21, 2012, the United States filed a sealed ex parte motion

notifying the district court that one of its trial witnesses, along with other law

enforcement officers in southern New Mexico, had been the subject of an FBI

investigation. The United States asked the court to rule that the information related

to the investigation was not subject to disclosure to the defense as impeachment

material under Giglio v. United States, 405 U.S. 150 (1972). The district court


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ordered the United States to serve its motion on the defendants. The United States

not only served the motion on the defendants, but also disclosed to the defendants

the information related to the FBI investigation. The defendants thereafter filed a

motion for a new trial, arguing that the information that the United States had

disclosed constituted Giglio material that should have been disclosed before trial.

On February 1, 2013, the district court granted the defendants’ motion for a new

trial based on its view that the government had violated its Giglio obligations. On

March 4, 2013, the United States filed its notice of appeal of the district court’s

order granting a new trial.

THE JOINT REPRESENTATION ISSUE

On November 21, 2011, approximately three months after this case was

indicted, the district court entered an order prohibiting the Reeses from retaining a

single lawyer or law firm from representing the Reeses jointly. Doc. 77.1 The

district court found that actual or potential conflicts of interest existed between the

Reeses, and that the Reeses could not waive their right to conflict-free counsel. Id.

at 7-19. Each of the Reeses thereafter obtained his or her own counsel in the

district court. Robert Gorence represented Rick Reese. Pete Domenici, Jr., Brad

Hall, and Lorraine Hollingsworth represented Terri Reese. Jason Bowles

represented Ryin Reese.

1 A copy of the district court’s order (Doc. 77) is attached to this motion for the Court’s convenience.


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On March 19, 2013, after the United States had filed its notice of appeal,

attorneys William J. Olson, Herbert W. Titus, and Michael Connelly entered their

appearances in this Court on behalf of Rick, Terri, and Ryin Reese. On March 13,

2013, Jason Bowles entered his appearance in this Court on behalf of Ryin Reese,

and on March 19, 2013, Robert Gorence entered his appearance on behalf of Rick

Reese. No attorney has entered his or her appearance in this Court solely on behalf

of Terri Reese. Attorneys Olson, Titus, and Connelly were not involved in the

district court proceedings.

In this appeal, the United States will argue that the district court erred in

finding that it had violated its Giglio obligations by failing to provide potential

impeachment material on a single witness, Deputy Allen Batts. At trial, Deputy

Batts testified regarding a single interaction he had with Terri Reese on August 30,

2010. His testimony did not inculpate Rick or Ryin Rees. Thus, on appeal, the

United States expects to argue, among other things, that because Deputy Batts’

testimony did not inculpate Rick or Ryin Reese, any potential impeachment of

Deputy Batts would have had no effect on Rick or Ryin Reese’s convictions.2 This

distinction between Rick and Ryin Reese, on the one hand, and Terri Reese, on the

other, seems like it could present a potential conflict of interest between the Reeses

2 The information about Deputy Batts was not material to Terri Reese’s conviction either. Nonetheless, because Deputy Batts testified about interactions he had with Terri Reese, a different analysis applies to the effect of the delayed disclosure with regard to Terri Reese.


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on appeal. Furthermore, should the parties engage in plea negotiations during the

pendancy of the appeal, each of the Reeses may wish to consult conflict-free

appellate counsel to determine the likelihood of his or her success in defending

against the government’s appeal. Again, because of the distinction that the United

States intends to draw between Rick and Ryin Reese, on the one hand, and Terri

Reese, on the other, joint representation may present a potential conflict of interest

in that regard.

Counsel for the United States has raised its potential conflict concern with

attorneys Olson, Titus, and Connelly. Mr. Titus, on behalf of all the attorneys who

have entered their appearance on behalf of the Reeses, has explained why defense

counsel believe that there is no potential conflict arising out of joint representation

for all three defendants/appellees. He also has represented that because defense

counsel believe there is no potential conflict, he and his co-counsel have not

obtained waivers from Rick, Terri, or Ryin Reese regarding any potential conflict.

The Reeses oppose this motion and intend to file a response in opposition to the

motion as provided for in Rule 27 of the Federal Rules of Appellate Procedure.

ANALYSIS

The United States has an obligation to bring a defense counsel’s potential

conflict of interest to the court’s attention as early as possible to preserve the

integrity of the judicial process and to protect the prosecution from post-conviction


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claims, including claims of ineffective assistance of counsel. See United States v.

Migliaccio, 34 F.3d 1517, 1528 (10th Cir. 1994) (“[W]hen the government is aware

of a conflict of interest, it has a duty to bring it to the court’s attention and, if

warranted, move for disqualification.”); In re Gopman, 531 F.2d 262, 265-66 (5th

Cir. 1976) (when an attorney discovers that opposing counsel may be representing

parties with adverse interests, “he is not only authorized but is in fact obligated to

bring the problem to that court’s attention”); see also Wheat v. United States, 486

U.S. 153, 160 (1988) (“[F]ederal courts have an independent interest in ensuring

that criminal trials are conducted within the ethical standards of the profession and

that legal proceedings appear fair to all who observe them.”). Similarly, “a court

confronted with and alerted to possible conflicts of interest must take adequate

steps to ascertain whether the conflicts warrant separate counsel.” Wheat, 486 U.S.

at 160.

Although Rule 44 of the Federal Rules of Criminal Procedure provides a

mechanism for addressing the issue of joint representation in district court, counsel

for the United States has not been able to find any rule or case law that governs this

process in the Court of Appeals. A defendant’s right to conflict-free

representation, however, continues throughout the appellate process. See Mathis v.

Hood, 937 F.2d 790 (2nd Cir. 1991) (affirming district court’s determination that

defendant’s appellate counsel in state court had a conflict of interest sufficient to


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undermine confidence in the outcome of the appeal); see also Furnish v. United

States, 252 F.3d 950, 951-52 (8th Cir. 2001) (implicitly recognizing right to

conflict-free appellate counsel, but affirming district court’s denial of petitioner’s §

2255 motion based on petitioner’s allegation that her appellate attorney, who

jointly represented petitioner and her husband, was mainly concerned with with her

husband’s success on appeal and failed to raise meritorious arguments on behalf of

petitioner); Stringer v. Jackson, 862 F.2d 1108, 1118 (5th Cir. 1988) (implicitly

recognizing right to conflict-free appellate counsel, but affirming district court’s

denial of writ of habeas corpus based on petitioner’s allegation that his appellate

attorney, who represented both the petitioner and his son, rendered ineffective

assistance of counsel on appeal because of a conflict of interest), reversed in part

on other grounds sub nom Stringer v. Black, 503 U.S. 222 (1992). Thus, the

United States is bringing this motion so that the Court may consider, before the

appeal proceeds, whether a potential conflict of interest exists between the Reeses

in this appeal, and, if so, whether they may effectively waive their right to the

assistance of conflict-free counsel.

The United States recognizes that the issue presented in this appeal is

substantially more limited than the myriad of issues facing the Reeses shortly after

their indictment. Consequently, the district court’s ruling that the Reeses had to be

separately represented in the trial court is not determinative of whether they may


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be jointly represented in this appeal. The United States also recognizes that “joint

representation on appeal . . . is often appropriate.” Penson v. Ohio, 488 U.S. 75, 87

n.8 (1988). Nonetheless, in an excess of caution, the United States believes it is

duty bound to raise this issue with the Court given its expectation that it will

distinguish between Rick and Ryin Reese, on the one hand, and Terri Reese, on the

other, regarding the effect of Deputy Batts’ testimony on their respective

convictions.

For the foregoing reasons, the United States requests that this Court rule, in

advance of the briefing, whether attorney’s Olson, Titus, and Connelly may

continue to represent the Reeses jointly on appeal. Should the Court determine

that the record is insufficient for it to make such a determination, the United States

requests that the Court remand the case to the district court for the limited purpose

of having it determine whether joint representation is appropriate in this appeal.

Respectfully submitted, KENNETH J. GONZALES United States Attorney s\ Laura Fashing LAURA FASHING Assistant U.S. Attorney NM Bar No. 8013 P. O. Box 607 Albuquerque, NM 87103 (505) 346-7274 [email protected]


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CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION I HEREBY CERTIFY that the foregoing motion was filed with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by emailing the motion to [email protected] and requesting that the Clerk file the motion through the CM/ECF system on this 1st day of May, 2013. I ALSO CERTIFY that Herbert W. Titus, William J. Olson, and Michael Connelly, attorneys for Rick Reese, Terri Reese, and Ryin Reese, and Robert Gorence, attorney for Rick Reese, and Jason Bowles, attorney for Ryin Reese, are registered CM/ECF users, and that service will be accomplished by the appellate CM/ECF system. I ALSO CERTIFY that any required privacy redactions have been made. I FURTHER CERTIFY that the digital submission of this document has been scanned for viruses with scanning program Trend Micro OfficeScan Client, version 10.6.2108 Service Pack 1, most recently updated on 4/30/13, and, according to the program, the file is free of viruses. s\ Laura Fashing_______________ LAURA FASHING Assistant United States Attorney


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

vs. No. 11-cr-2294 RB

RICK REESE,TERRI REESE,RYIN REESE, andREMINGTON REESE,

Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Remington Reese’s Motion and Amended Motion for

Rule 44 Hearing to Determine Counsel. (Doc. 64, filed October 13, 2011, and Doc. 65, filed

October 17, 2011, respectively). The Court conducted a hearing on November 2, 2011. Having

considered the submissions and arguments of counsel, relevant law, and being otherwise fully

advised, the Court finds that its independent interest in ensuring the Reese family a fair trial

precludes the law firm of Bregman & Loman, P.C. from jointly representing Defendants in this

matter.

I. Background

On August 24, 2011, a federal grand jury returned a 30-count indictment charging Rick

Reese, his wife Terri, and their sons Ryin (24 yrs) and Remington (19 yrs), all of whom operated

the federally-licensed firearms store “New Deal Shooting Sports” located in Deming, New

Mexico, with conspiracy (Count I), making false statements in connection with the acquisition of

firearms (Counts 2 - 10), smuggling goods from the United States (Counts 11 - 28), and money

laundering conspiracies (Counts 29 - 30) over a roughly 16-month period. The Indictment

Case 2:11-cr-02294-RB Document 77 Filed 11/21/11 Page 1 of 19Appellate Case: 13-2037 Document: 01019046101 Date Filed: 05/01/2013 Page: 10

charges Defendants with varying levels of involvement and culpability in the alleged illegal

activities.

United States law enforcement authorities arrested Defendants on August 30, 2011,

following an approximately seven-month investigation. (United States’ Unopposed Motion to

Declare this Case to be Complex, Doc. 58, filed Sept. 27, 2011, at 1). On September 2, 2011,

United States Magistrate Judge Gregory Wormuth held a case management hearing focused on

appointment of counsel. Judge Wormuth evaluated Defendants’ financial affidavits and

determined that the Court would appoint separate counsel to each member of the Reese family.

(See Docs. 13-16). Judge Wormuth observed that Rick and Terri Reese would likely be required

to reimburse the government for expenses incurred from representation by court-appointed

counsel because their financial affidavits disclosed significant illiquid assets from which they

could finance their defense. (See Docs. 13 & 14). Judge Wormuth appointed counsel to Ryin

and to Remington Reese without requiring them to reimburse the government for representation.

(See Docs. 15 & 16).

On September 28, 2011, the Court granted the government’s Unopposed Motion to

Declare this Case to be Complex. (Doc. 61).

On October 17, 2011, attorneys Sam Bregman and Eric Loman of Bregman & Loman,

P.C., filed a Motion for Substitution of Counsel requesting to enter their appearance on behalf of

Defendant Rick Reese. (Doc. 66). The Court granted this motion on October 18, 2011. (Doc.

67).

Prior to filing this motion, Bregman & Loman, P.C. had contacted the court-appointed

attorney for Remington Reese, Paul Rubino, to request that he allow attorney Eric Loman to

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replace him as attorney of record for Remington. At that time, Bregman & Loman, P.C.

indicated to Rubino that they intended to represent all four members of the Reese family. In

response, Rubino filed a Motion and Amended Motion for Rule 44 Hearing to Determine

Counsel (Doc. 64, filed October 13, 2011, and Doc. 65, filed October 17, 2011, respectively)

upon the belief that “a conflict of interest exists and/or will arise should one law firm and/or one

attorney represent all four defendants in this matter at the same time.” (Doc. 65 at ¶ 6). Court-

appointed counsel for Ryin and Terri Reese both concur in attorney Rubino’s Amended Motion.

The United States filed its Response on October 28, 2011, in which it declared its agreement

with Rubino that, pursuant to Federal Rule of Criminal Procedure 44, the Court should conduct a

hearing to determine whether the joint representation of all four defendants by Bregman &

Loman, P.C. raised actual or potential conflicts of interest. (Doc. 69). The Response also

highlighted several specific conflicts that could arise as a result of joint representation.

Bregman & Loman, P.C. filed its Response to Amended Motion for Rule 44 Hearing on

October 28, 2011 (Doc. 70), stating that Rick Reese’s mother had contacted Bregman & Loman,

P.C. seeking representation for her family and that Sam Bregman had visited each member of the

Reese family at their respective detention centers to discuss the possibility of representation.

Bregman contends that while he did not discuss the facts of the case with the defendants in any

detail, he did raise with each defendant the possibility of conflicts of interest developing were he

to represent all four family members. Bregman states that his discussions with the defendants

“satisfied” him that no potential conflicts would arise in this case. (Doc. 70 at 1). According to

Bregman & Loman, P.C. “each Defendant expressed his or her desire to be represented by Mr.

Bregman and his partner, Eric Loman,” and “[e]ach Defendant also signed a retainer agreement.”

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(Doc. 70 at 1-2).

A hearing on this matter was held on November 2, 2011. (Doc. 68). Plaintiff appeared

by and through counsel, Nathan Lichvarcik and Michael Nammar, Assistant United States

Attorneys. Defendants appeared in person and through counsel Sam Bregman and Eric Loman

for Rick Reese, Paul Rubino for Remington Reese, Leon Schydlower for Terri Reese, and

Santiago Hernandez for Ryin Reese. The matter is now ready for decision.

I. Discussion

The Court finds that the proposed joint representation raises serious potential conflicts of

interest, and that despite Defendants’ proffer of voluntary and intelligent waivers, this Court’s

independent interest in ensuring that Defendants receive a fair trial precludes Bregman &

Loman, P.C. from representing multiple members of the Reese family.

A. Actual or Potential Conflicts of Interest

1. Sixth Amendment Right to Reasonably Effective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees defendants the right

to effective assistance of counsel in criminal prosecutions. United States v. Burney, 756 F.2d

787, 790 (10th Cir. 1985). “[T]he proper standard for attorney performance is that of reasonably

effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), which the Tenth

Circuit has characterized as the “exercise [of] the skill, judgment and diligence of a reasonably

competent defense attorney.” Burney, 756 F.2d at 790 (citing Dyer v. Crisp, 613 F.2d 275, 278

(10th Cir. 1980)). Because the primary focus of this right is to ensure that defendants receive a

fair trial, the Supreme Court has observed:

While the right to select and be represented by one’s preferred attorney iscomprehended by the Sixth Amendment, the essential aim of the Amendment

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is to guarantee an effective advocate for each criminal defendant rather than toensure that a defendant will inexorably be represented by the lawyer whom heprefers.

Wheat v. United States, 486 U.S. 153, 159 (1988).

Thus, a defendant’s right to be represented by his counsel of choice is limited in certain

critical respects, including circumstances where – as here – an attorney’s intent to represent

multiple defendants may raise conflicts of interest which undermine his ability to serve as the

effective advocate contemplated by the Sixth Amendment. Id. at 159-60.

Many courts have recognized that representation of co-defendants raises considerable

potential for conflicts of interest. Burney, 756 F.2d at 790. Where courts are alerted to possible

conflicts derived from joint representation, they “must take adequate steps to ascertain whether

the conflicts warrant separate counsel.” Wheat, 486 U.S. at 160. Federal Rule of Criminal

Procedure 44(c) guides this inquiry and directs that trial courts:

promptly inquire about the propriety of joint representation and . . . personallyadvise each defendant of the right to the effective assistance of counsel,including separate representation. Unless there is good cause to believe that noconflict of interest is likely to arise, the court must take appropriate measuresto protect each defendant's right to counsel.

FED. R. CRIM. P. § 44(c) (emphasis added).

A trial court initiating this inquiry must begin with a presumption in favor of the

defendant’s counsel of choice. Wheat, 486 U.S. at 164. Indeed, joint representation can be “a

means of insuring against reciprocal recrimination. A common defense often gives strength to a

common attack.” Holloway v. Arkansas, 435 U.S. 475, 482-83 (1978) (citing Glasser v. United

States, 315 U.S. 60, 70 (1942)). Further, “[a]n attorney representing [multiple] defendants in a

criminal matter is in the best position professionally and ethically to determine when a conflict

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of interest exists or will probably develop in the course of a trial.” Id. at 485 (citing State v.

Davis, 110 Ariz. 29, 514 P.2d 1025 (1973)). As a corollary, defense attorneys have the

obligation, upon discovering a conflict of interests, to advise the court at once of the problem.

Id. at 486. Courts should also credit the fact that “ ‘[a]ttorneys are not fungible’ . . . often ‘the

most important decision a defendant makes in shaping his defense is his selection of an

attorney.’ ” United States v. Collins, 920 F.2d 619, 625 (10th Cir. 1990) (citing United States v.

Laura, 607 F.2d 52, 56 (3d Cir.1979)). Finally, trial courts must consider the possibility whether

the government is seeking to “manufacture” a conflict in order to prevent a defendant from

having a particularly able defense counsel at his side. Wheat, 486 U.S. at 163.

Once a court has acknowledged the presumption in favor of a defendant’s chosen

counsel, that presumption may be overcome by either a demonstration of actual conflict or by a

showing of a serious potential for conflict. Id. at 164. In cases of joint representation, conflicts

may arise in situations where defendants’ interests “diverge with respect to a material factual or

legal issue or to a course of action,” Cuyler v. Sullivan, 446 U.S. 335, 356 n.3 (1980); “when

counsel cannot use his best efforts to exonerate one defendant for fear of implicating the other,”

United States v. Kaufman, 354 F. Supp. 2d 1201, 1204 (D. Kan. 2005) (citing Dokes v. Lockhart,

992 F.2d 833, 836 (8th Cir.1993)); or “whenever one defendant stands to gain significantly by

advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel

is also representing.” Id. at 1204 (citing United States v. McCaskey, 9 F.3d 368, 381 (5th

Cir.1993)).

Ultimately, “[j]oint representation of conflicting interests is suspect because of what it

tends to prevent an attorney from doing.” Holloway , 435 U.S. at 489-90. Attorneys may be

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unable to challenge the admission of evidence prejudicial to one client but possibly favorable to

another, to explore possible plea negotiations, or to argue at a sentencing hearing regarding the

relative involvement and culpability of one client at the potential expense of another. Id.

Furthermore, joint representation may be particularly problematic where an attorney proposes to

defend multiple conspirators in an alleged complex illegal scheme. See, e.g., Wheat, 486 U.S. at

163. Similarly, where “the available evidence points to significantly different levels of

culpability” between the jointly represented defendants, United States v. Stantini, 85 F.3d 9, 19

n.8 (2d Cir. 1996), conflicts may be more likely to arise. Such conflicts may affect

representation at any stage of a case, including plea negotiations, trial, or sentencing hearings.

See Holloway v. 435 U.S. at 490-91.

In light of the foregoing considerations, the Court will now turn to the potential for

specific conflicts posed by joint representation in the instant case.

2. Actual and Potential Conflicts of Interest Posed by Joint Representation inthe Pending Case

At this time, attorneys Sam Bregman and Eric Loman of Bregman & Loman, P.C.

represent only defendant Rick Reese. Terri, Ryin, and Remington Reese remain represented by

their respective court-appointed attorneys. However, each of the three remaining defendants has

expressed his or her desire to retain Bregman & Loman, P.C. as defense counsel and has signed a

retainer agreement to that effect.

At the hearing conducted in this matter on November 2, 2011, attorney Bregman argued

that Defendants’ intent to present a unified defense will prevent the evolution of conflicts of

interest. Although he acknowledged that he had not discussed the facts of the case with Terri,

Ryin, or Remington in any detail, he stated that he had raised the subject of potential conflicts

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with each defendant and had attempted to discern whether anyone intended to “point [a] finger”

at anyone else. (Transcript of Rule 44 Hearing, Doc. 74, at 6:9-11). He concluded that his

discussions with Defendants satisfied him that no conflicts of interest would arise.

Despite Bregman’s confidence that no conflicts will develop as a result of joint

representation, the Court agrees with the government that Bregman & Loman, P.C.’s proposed

representation of all four defendants poses serious potential for conflict. The Court does not

doubt Defendants’ intention to present a unified defense in the face of the pending charges.

However, it is unable to accept Bregman’s unfounded assertion that no conflict will develop

given that (1) Bregman has not yet discussed the facts of the case in any detail with Terri, Ryin,

or Remington, and therefore cannot have adequately explored the myriad potential conflicts

posed by joint representation in this case; (2) Bregman has not yet had access to discovery

materials provided by the government to counsel for Terri, Ryin, or Remington, and therefore

lacks sufficient information upon which to base his firmly-held belief that no conflicts will arise;

and (3) the complexity of the charges against the Reese family, as well as Defendants’ varying

levels of alleged involvement and culpability, makes this case particularly vulnerable to

significant conflicts of interest that may impermissibly trespass upon Defendants’ Sixth

Amendment right to effective counsel.

The Indictment makes clear distinctions among Defendants regarding their involvement

in the alleged illegal scheme, making it more likely that their independent interests could

eventually diverge on legal issues, factual issues, or on general defensive strategy. Rick Reese,

for example, is charged with five counts (1, 9, 26, 29, & 30) and five overt acts (10 & 30-33) on

two discrete dates. Terri Reese is charged with seven counts (1, 10, 22, 24, 27, 29, & 30) and

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eight overt acts (8, 9, 20, 22, 23, 25, 28 & 29) on five different dates. Remington Reese is

charged with nine counts (1, 13, 16, 18, 21, 25, & 28) and eight overt acts (13-16, 18, 19, 22, &

29) on at least four dates. Ryin Reese is charged with 18 counts (1, 2-8, 11, 12, 13, 15, 17, 19,

20, & 23) and seventeen overt acts (1, 3, 4, 6, 11, & 16-27) on no fewer than eight different

dates. In addition, the United States contends that Defendants’ actions and quotes caught on tape

during the government’s investigation reveal varying levels of egregiousness. (United States’

Response to Def. Remington Reese’s Amended Mot. for Rule 44 Hearing to Determine Counsel,

Doc. 69, at 14). Thus, the Court is not presented with the situation where an attorney “wish[es]

to represent two coequal defendants in a straightforward criminal prosecution” Wheat, 486 U.S.

at 163-64; rather, much like in Wheat, Bregman & Loman, P.C. intends to represent four

defendants of varying stature, facing various charges, in an alleged complex firearms and money

laundering conspiracy spanning a period of sixteen months.

Under these circumstances, joint representation may preclude conflicted counsel from

pursuing defensive tactics that would otherwise be available. For example, in pretrial

negotiations with the government, conflicted counsel may be unable to freely advise any

individual member of the Reese family as to whether he or she should cooperate with the

government, plead guilty, or continue onward to trial, because the consequence of such advice to

one client could ultimately implicate another. See, e.g., Thomas v. Foltz, 818 F.2d 476, 481-81

(6th Cir. 1987) (finding an actual conflict of interest existed where an attorney who was jointly

representing three co-defendants was precluded from engaging in separate plea negotiations on

behalf of one defendant which may have been detrimental to the interests of the other two). The

United States additionally points out that Rick and Terri Reese are differently situated than sons

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Ryin and Remington in that they have significantly more to lose on the forfeiture side of the

Indictment, creating different incentives in potential pretrial plea negotiations.

In addition, blame shifting – or attempting to minimize one’s culpability as compared to

other co-defendants – is a tactic often employed by defense attorneys at the pretrial, trial, and

sentencing phases of criminal prosecutions. Such a strategy may be particularly viable where

there is a significant discrepancy among defendants in the type or number of charges filed. Were

Bregman & Loman, P.C. to represent all four members of the Reese family, counsel would be

unable to engage in blame shifting which could be highly favorable to one client because it

would necessarily implicate the guilt of another. As pointed out by the United States in its

Response, some degree of blame shifting may have already occurred in pretrial proceedings. At

Defendants’ detention hearings, for example, Remington Reese was arguably portrayed as the

youngest and most vulnerable defendant – unlikely to be the leader of the group. Similarly, Rick

Reese’s then-attorney emphasized that Rick’s involvement in the alleged scheme was largely

limited to a single date: July 29, 2011. Where a conflict-free attorney may be able to exploit

these facts for the benefit of an individual defendant, conflicted counsel may be unable to do so

without flagging another defendant’s increased culpability. See e.g. United States v. Romero,

780 F.2d 981, 986 (11th Cir. 1986) (finding an actual conflict of interest existed where a blame

shifting defense was a “feasible” option that an attorney was unable to pursue due to his joint

representation of defendants).

Other courts have found an actual conflict of interest to exist where an attorney is

prevented from advising a client on an offer of immunity in exchange for testimony against a co-

defendant. See, e.g., United States v. Migliaccio, 34 F.3d 1517, 1526 (10th Cir. 1994). In

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Migliaccio, two doctors were convicted in district court of conspiracy to defraud the United

States, as well as of mail fraud stemming from the filing of false claims with the Civilian Health

and Medical Program of the Uniformed Services. Both doctors were represented by a single

attorney. Before trial, the government offered one of the doctors informal immunity in exchange

for truthful information which could be used against the other defendant. The Court found that

the government’s offer forced counsel into the position of “refrain[ing] from counseling [one

doctor] to accept the offer of immunity in order to protect [the other doctor’s] status or to

maintain his own attorney-client relationship with [the doctor to whom the government had not

offered immunity].” Id. The court found the actual conflict in Migliaccio to be “patent.” Id.

Although the Court cannot speculate as to whether the government may offer immunity to one or

more members of the Reese family in exchange for testimony, it must acknowledge the

possibility that this could occur. Should the government offer immunity to any defendant, and

particularly should a defendant later choose to avail himself or herself of such an offer, counsel

Bregman & Loman, P.C. will face an actual and substantial conflict.

Several potential conflicts could similarly arise if this case proceeds to trial. Should one

of the defendants wish to testify, for example, conflicted counsel could face the precarious

situation of eliciting testimony favorable to the defendant on the stand while simultaneously

subjecting that defendant to cross-examination which could prejudice the remaining defendants.

Further, because defendants are charged with a variety of different overt acts in furtherance of

the alleged conspiracy, even direct examination favorable to one defendant has the potential to

negatively impact other defendants’ interests.

Similar problems may present themselves in regard to cross-examination of government

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witnesses. In its Response, the United States states that it anticipates offering an agent’s

testimony declaring that Ryin Reese, in an alleged post-Miranda confession, “took full blame for

the crimes and said that Terri, Rick, and Remington were not involved in the crimes.” (United

States Response, at 16-17). This alleged inculpatory statement may be favorable to Rick, Terri,

and Remington Reese, but could be harmful to Ryin Reese’s defense. This would present

conflicted counsel with severe difficulties in determining whether to object to the statement’s

admissibility. Further, were this evidence to be admitted, conflict-free counsel would be able to

emphasize the alleged statement on cross-examination whereas conflicted counsel would be

precluded from pursuing this line of questioning because it would cast culpability on Ryin. See,

e.g., United States v. Gharbi, 510 F.3d 550, 553 (5th Cir. 2007) (affirming the district court’s

decision to disqualify a defendant’s requested attorney because that attorney was already

representing the defendant’s co-defendant daughter; under these circumstances, the court found

that it was impossible to guess whether defense counsel would “ ‘pull punches on cross

examination,’ thereby providing ineffective assistance to Gharbi.”)

Finally, if Defendants are ultimately convicted, conflicted counsel will be unable to argue

that a lesser sentence be imposed on any individual member of the Reese family based on

relative culpability because this would highlight fault on the part of the remaining defendants.

Thus, despite attorney Bregman’s assurances that no conflicts are likely to develop, the

Court can readily foresee serious potential for conflict.

B. Waiver

The Court having found that joint representation of the Reese family presents serious

potential for conflict must now determine whether Defendants’ waiver of conflict-free counsel

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constitutes an adequate remedy under the circumstances. Despite the significant weight given to

Defendants’ choice of counsel, as well as Defendants’ assertions that they will waive any actual

conflicts which may develop over the course of these proceedings, the Court finds that the

potential for serious conflict in this case warrants preclusion of joint representation.

Rule 44(c) does not specify what measures may be taken upon a district court’s finding of

an actual or serious potential conflict. One possible course of action is for the court to obtain a

knowing, intelligent, and voluntary waiver of the right to separate representation. See Advisory

Committee Notes to 1979 Amendment. However, “[a] waiver of the right to separate

representation should not be accepted by the court unless the defendants have each been

informed of the probable hazards, and the voluntary character of their waiver is appropriate.” Id.

At the November 2, 2011 hearing, the Court advised defendants of their right to

independent counsel, informed them of a variety of probable pitfalls stemming from joint

representation, and questioned them extensively regarding their intent to waive their right to

conflict-free representation. Defendants, individually, expressed that they understood the risks

inherent in joint representation and that their waivers were knowing, voluntary and intelligent.

While the Court does not question Defendants’ conviction on these points, it does not believe it

is possible at this early stage for the waivers to be truly “knowing.” Knowing waivers require

that defendants fully understand the nature of the situation. See e.g. United States v. Winkle, 722

F.2d 605, 611 (10th Cir. 1892). This criminal proceeding is in its infancy. Defendants were

arrested on August 30, 2011. At the time of the hearing, defendants Terri, Ryin and Remington

Reese had determined to retain new counsel with whom they had not discussed the facts of the

case, and they had not yet had the opportunity to fully review the considerable amount of

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discovery provided by the government. (See United States’ Motion to Declare Case Complex,

Doc. 58 at 1, stating that Defendants will likely receive over 14 gigabytes of electronic discovery

including reports, photographs, and video from the execution of the search warrant). Given

these facts, it is not possible at this point for the attorneys, defendants, or even the Court to fully

appreciate the width and breadth of specific, albeit potential, dangers posed by joint

representation in the instant case.

Even if the Court were to find that Defendants’ waivers were knowing, the inquiry would

not be complete. In addition to protecting defendants’ right to effective representation,

“[f]ederal courts have an independent interest in ensuring that criminal trials are conducted

within the ethical standards of the profession and that legal proceedings appear fair to all who

observe them.” Wheat, 486 U.S. at 160. Trial courts may also be legitimately concerned that

their final judgments remain intact on appeal. Id. Pairing these considerations with Defendants’

intention to waive conflict-free counsel engenders special difficulties at this early juncture

because the Court must “pass on the issue whether or not to allow a waiver . . . not with the

wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when

relationships between parties are seen through a glass, darkly.” Id. at 163. As stated by the

Supreme Court in Wheat:

The likelihood and dimensions of nascent conflicts of interest are notoriouslyhard to predict, even for those thoroughly familiar with criminal trials. It is arare attorney who will be fortunate enough to learn the entire truth from his ownclient, much less be fully apprised before trial of what each of the Government’switnesses will say on the stand. A few bits of unforeseen testimony or a singlepreviously unknown or unnoticed document may significantly shift therelationship between multiple defendants. These imponderables are difficultenough for a lawyer to assess, and even more difficult to convey by way ofexplanation to a criminal defendant untutored in the niceties of legal ethics. Noris it amiss to observe that the willingness of an attorney to obtain such waivers

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from his clients may bear an inverse relation to the care with which he conveysall the necessary information to them.

Id. at 163-64.

For these reasons, district courts are “allowed substantial latitude in refusing waivers of

conflicts of interest not only in those rare cases where an actual conflict may be demonstrated

before trial, but in the more common cases where a potential conflict exists which may or may

not burgeon into an actual conflict as the trial progresses.” Id. at 164.

In this case, there are simply too many potential problems posed by joint representation

to permit Bregman & Loman, P.C. to represent multiple members of the Reese family. In

addition to the specific potential conflicts of interest discussed above, the complexity of the

pending case makes it more likely that Defendants’ interests will diverge at some point in the

course of these proceedings and give rise to conflicts unforeseen. This possibility is particularly

problematic where, as here, the attorney attempting to represent multiple co-defendants is either

unsure or unwilling to acknowledge that some conflicts are too egregious to be waived. At the

November 2, 2011 hearing, the Court asked Mr. Bregman whether, as a general theoretical

matter, there are some conflicts which are unwaivable. Mr. Bregman responded that he did not

know the answer, to which the Court replied, “[w]ell, I think the cases tell me that the answer to

that question, theoretically, is yes.” (See Rule 44 Hearing Transcript, Doc. 74, at 27:13-19). Mr.

Bregman’s response is troublesome because it conveys a reluctance to embrace even the

possibility that unwaivable conflicts could arise in this case. Such a disposition could inhibit Mr.

Bregman’s ability or willingness to fully advise Defendants regarding the impact of actual or

serious potential conflicts should they emerge going forward.

In a similar vein, Mr. Bregman did not address how he would deal with the specific

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potential conflicts identified by the government. In response to the Court’s questioning of how

he would address the alleged inculpatory statement by Ryin Reese discussed above, Mr.

Bregman responded that “[t]heoretically, [he would] deal with it like anything else . . . determine

what’s best for [his] client’s interest, and . . . move forward.” (See Rule 44 Hearing Transcript,

Doc. 74, at 29:24-25 - 30:1). This response begs the question: which client’s interest? As noted

above, counsel representing Rick, Terri, or Remington may choose to pursue Ryin’s statement as

exculpating the remaining defendants; conflicted counsel, by contrast, would be unable to do so

because this could highlight culpability on the part of Ryin.

In addition, the fact that Defendants are all members of the same immediate family

creates a unique dynamic that could bear upon potential future conflict. It is conceivable that

family ties of love and loyalty may predispose Defendants to request joint representation out of a

desire to protect their family as a unit, rather than to defend themselves based on individual

interests. See, e.g., United States v. Cooper, 672 F. Supp. 155, 159 (D. Del. 1987) (“Because

defendants are family members, they may not be acting out of self-interest in choosing joint

representation, but rather out of an interest to protect the family as a unit.”) The Court expressed

this concern to Defendants when it stated that it “fe[lt] as though [it was] getting a monolithic

response” during the questioning portion of the hearing. (See Rule 44 Hearing Transcript, Doc.

74, at 52:6-9). As recognized by other courts, “the potential for conflict is heightened where

defendants have a close relationship.” United States v. Self, 2009 WL 5171729, at *4 (E.D. Pa.

Dec. 30, 2009) (citing United States v. Joyce, 257 Fed. Appx. 501, 505 (3d Cir.2007)). Thus, “a

conflict waiver from a co-defendant family member may be suspect, particularly where the joint

defendants’ best defense is to implicate one another.” Id.; see also United States v. Martel, 958

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F. Supp. 211, 216 (D.N.J. 1997) (“[T]he relationship between these two defendants and the other

‘family members’ who have retained counsel for them, while suggesting one reason they might

decide to present a united front, also suggests that the defendants may not fully appreciate the

important rights which are protected by separate counsel.”) Furthermore, the special dangers

posed by familial relationships in cases of joint representation are not limited to defendants’

initial proffer of waivers, but rather can affect defendants’ independent decision making

throughout the course of their defense.

The Sixth Amendment guarantees the right of effective counsel to individuals, and this

right takes precedence over Defendants’ desire to present a united front. Individual

representation does not preclude Defendants from offering a common defense. Facts gleaned

from discovery may lead each attorney to the conclusion that a unified defense would be the

most effective approach. Defendants may even opt for a joint defense agreement if the

circumstances favor such a strategy. Individual counsel should not be perceived as disbanding

the family unit, but rather as a tool for ensuring that Defendants are advised of their full range of

defensive options.

Finally, “the obligation placed upon the court by Rule 44(c) is a continuing one, and in a

particular case further inquiry may be necessary at a later occasion because of new developments

suggesting a potential conflict of interest.” United States v. Renda, 669 F. Supp. 1544, 1550 (D.

Kan. 1987). Were the Court to allow joint representation at this point in time, it would be

required to carefully monitor the progression of these proceedings in order to guard against

conflicts of interest that may develop or worsen as circumstances change. Should an actual and

clearly prejudicial conflict arise at some point in the future, Defendants’ prior waivers could be

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rendered invalid. See United States v. Migliaccio, 34 F.3d 1517, 1528 (10th Cir. 1994). In that

circumstance, any of the defendants could decide not to waive a new conflict or the Court could

determine that such a conflict was not waivable. Given the complexity of this case, the varying

charges against defendants, and the distance yet to be covered in these proceedings, such a

scenario does not stretch the Court’s imagination. Thus, were an actual conflict to arise,

Bregman & Loman, P.C. could potentially be disqualified from representing any member of the

Reese family and the defendants would be required to obtain new counsel lacking substantial

familiarity with the facts. See, e.g. Transcript of Rule 44 Hearing, Doc. 74, at 25:13-17 (court-

appointed attorney for Terri Reese, Leon Schydlower, stating: “If the Court does find a conflict,

we’re sitting on a lot of discovery, and it would be hard, if you find a conflict later on in the case,

for another counsel to jump back in and get up to speed on all that.”).

Although Defendants have attempted to waive all conflicts stemming from joint

representation – known and unknown – promising to waive such conflicts is significantly more

digestible before a conviction has been handed down. Should Defendants be convicted, there is

no guarantee they will not raise the issue of conflicted counsel as a basis to set aside their

convictions. Conducting one trial, with counsel free of conflicts, is more consistent with the

Sixth Amendment than a trial conducted with Defendants’ preferred but significantly conflicted

attorney, which could very well lay a foundation for substantial post-trial litigation attacking that

representation.

The Court has not undertaken this inquiry lightly, and has given great weight to the Reese

family’s choice of counsel. However, the perils of joint representation in this case render it

impossible for the Court to accept Defendants’ waivers in light of its obligation to ensure the

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effective advocacy guaranteed to every criminal defendant by the Sixth Amendment.

THEREFORE,

IT IS ORDERED that the law firm Bregman & Loman, P.C., currently counsel of record

for defendant Rick Reese, is prohibited from substituting as counsel for the remaining members

of the Reese family charged under the common Indictment.

ROBERT C. BRACKUNITED STATES DISTRICT JUDGE

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opposed motion for ruling on joint representation

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