People v. Manila

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 ) Criminal Case No. CFO:iO~OS 4 PEOPLE OF GUAM, )

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6 vs. ) DECISION AND ORDER: People's ) Motion to Disqualify David Q. Manila's 7 ) Counsel of Record )

8 DAVID Q. MANILA, )

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9 DefundanL ) 10 INTRODUCTION

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12 This matter came before the Honorable Anita A. Sukola on February 25, 2013, for a

13 hearing on the People of Guam's ("the People") Motion to Disqualify Defendant David Q. 14 Manila's Counsel of Record. Assistant Attorney General Nelson J. Werner represented the 15 People. David Q. Manila ("Defendant") was represented by Attorney William B. Pole.

16 Following the hearing, the Court took the matter under advisement. Upon review of the 17

18 evidence, written arguments, and legal authorities presented by both parties, the Court hereby

19 issues this Decision and Order GRANTING the People's Motion. 20 BACKGROUND

21 On November 16, 2012, Defendant was indicted by a Superior Court of Guam Grand 22 Jury on the following charges: (1) Conspiracy to Compel Prostitution (as a 3rd Degree Felony)

23 (2) Conspiracy to Promote Prostitution (as a 3rd Degree Felony) (3) Conspiracy to Commit 24 Kidnapping (as a 2nd Degree Felony) (4) Conspiracy to Commit Felonious Restraint (as a 3rd 25 Degree Felony) (5) Solicitation to Compel Prostitution (as a 3rd Degree Felony) (6) Solicitation 26 to Promote Prostitution (as a 3rd Degree Felony) (7) Solicitation to Commit Kidnapping (as a 2nd 27 Degree Felony) (8) Solicitation to Commit Felonious Restraint (as a 3rd Degree Felony) (9)

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Page 1 of 7 CF020-08: People v. David Q. Manila

Nine counts of Compelling Prostitution (as a 3rd Degree Felony) (I 0) Sixteen counts of 1 Promoting Prostitution (as a 3rd Degree Felony) (11) Attempt to Promote Prostitution (as a 3rd 2 Degree Felony) (12) Two counts of First Degree Criminal Sexual Conduct (as a 1st Degree 3 Felony) (13) Two counts of Second Degree Criminal Sexual Conduct (as a 1st Degree Felony)

4 (14) Criminal Intimidation (as a Misdemeanor) (15) Official Misconduct (as a Misdemeanor)

5 and (16) Abetting Prostitution (as a Misdemeanor). Superseding Indictment (Nov. 16, 2012).

6 A Second Superseding Indictment was handed down on Friday, November 23, 2012 7

8 charging Defendant with the following: (1) Conspiracy to Commit Kidnapping (as a 2nd Degree

9 Felony) (2) Nine counts of Kidnapping (as a 2nd Degree Felony) (3) Conspiracy to Commit 10 Felonious Restraint (as a 3rd Degree Felony) (4) Nine counts of Felonious Restraint (as a 3rd 11 Degree Felony) (5) Conspiracy to Compel Prostitution (as a 3rd Degree Felony) (6) Nine counts 12 of Compelling Prostitution (as a 3rd Degree Felony) (7) Conspiracy to Promote Prostitution (as a 13

14 3rd Degree Felony) (8) Eleven counts of Promoting Prostitution (as a 3rd Degree Felony) (9)

15 Solicitation to Commit Kidnapping (as a 2nd Degree Felony) (1 0) Solicitation to Commit 16 Felonious Restraint (as a 3rd Degree Felony) (11) Solicitation to Compel Prostitution (as a 3rd 17 Degree Felony) (12) Solicitation to Promote Prostitution (as a 3rd Degree Felony) (13) Attempt 18

to Compel Prostitution (as a 3rd Degree Felony) (14) Attempt to Promote Prostitution (as a 3rd 19

20 Degree Felony) (15) Two counts First Degree Criminal Sexual Conduct (As a 1st Degree

21 Felony) (16) Two counts of Second Degree Criminal Sexual Conduct (As a 1st Degree Felony) 22 (17) Criminal Intimidation (as a Misdemeanor) (18) Official Misconduct (as a Misdemeanor)

23 (19) Abetting Prostitution (as a Misdemeanor) and (20) Criminal Facilitation (as a 24

25 Misdemeanor). Second Superseding Indictment (Nov. 23, 2012).

26 Defendant remains in the custody of the Guam Detention Facility pending the posting of

27 cash bail set in the amount of $250,000.00. Commitment Order (Nov. 19, 2012). On 28 November 19, 2012, Defendant filed a Motion to Modify Bail Conditions. Def's. Mot. to

Page 2 of 7 CF020-08: People v. David Q. Manila

Modify Bail Conditions; Memo of Points & Authorities (Nov. 19, 2012). On November 21, 1 2012, the People filed their opposition to the motion for release or reduction in bail. The Court 2 heard oral arguments on Defendant's motion on November 21, 2012, and issued its Decision 3 and Order on November 23, 2012, denying Defendant's motion.

4 Defendant also moved the Court to modify bail conditions on December 3, 2012. Def.

5 Manila's Second Motion to Modify Bail Conditions (Dec. 3, 2012). The People filed an 6 opposition to Defendant David Q. Manila's Second Motion to Modify Bail Conditions on 7 December 14, 2012. On December 17, 2012, Defendant filed supplementary evidence and 8 response in support of his release. The Court heard the matter on December 19, 2012, and 9 issued its Decision and Order on January 3, 2013, denying Defendant's motion.

10 On February 13, 2013, the People filed a Motion to Disqualify Defendant's Counsel of 11

12 Record. Defendant filed a Response and Opposition to the People's Motion on February 21,

13 2013. 14 1 The Court heard oral arguments on February 25,2013.

15 DISCUSSION

16 The People move to disqualify Defendant's counsel of record. The People first contend 17

18 that as part of its ongoing efforts to comply with the Court's order to fulfill their discovery

19 obligations, "it was discovered that Defendant Manila's current counsel, William B. Pole, acted 20 as a prosecutor in a matter related to the Blue House prosecution in 2008, had access to the 21 GPD Blue House report in 2008 and an additional report generated in 2008." People's Motion 22

to Disqualify Def.'s Counsel of Record at 2 (Feb. 13, 2013). The People further contend that 23

24 "[a]s a result of his involvement as a prosecutor in the Blue House matter, Mr. Pole was

25 certainly exposed to the Blue House police report at the very early stages of the investigation, 26

27 1 On March 15, 20 13, a Third Superseding Indictment was handed down by a Superior Court of Guam Grand Jury

28 relative to the instant case.

Page 3 of 7 CF020 08: People v. David Q. Manila including victim interviews conducted by the police." !d. at 3. Secondly, the People contend 1

2 that "[w]hile neither Defendant Manila nor his la\vyer have raised the issue of a conflict of

3 interest the People have a sufficient interest in preserving the integrity of criminal proceedings 4 and moving for disqualification when confronted by an attorney conflicted in a criminal 5 proceeding." !d. at 4. Thirdly, the People contend that "[o]ften, conflicts of interest between a 6

criminal defendant and his la\yYer can lead to claims of ineffective assistance of counsel.

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8 [W]hen an attorney labors under an actual conflict of interest, the defendant need not show

9 prejudice in order to obtain a reversal of his conviction." !d. (citing Burger v. Kemp, 483 U.S. 10 776, 783, 107 S.Ct. 3114, 3120, 97 L.Ed.2d 638 (1987). Lastly, the People contend that 11 whether a Defendant waives a conflict, "waiver is not absolute and does not have to be accepted 12

by the court." !d. at 7. Moreover, in citing Guam Rules of Professional Conduct, Rule 13

14 1.8(d)(1), 2 the People contend that "where the conflict involves the former representation of the

15 People and one accused of a crime by the People, in a case in which the defense counsel worked 16 as a prosecutor the waiver would have to come from both ends of the conflict. !d.

17 Defendant opposes the People's Motion. Defendant principally argues that "there is no 18

19 conflict between Defendant Manila and his counsel of record." Def's. Opp'n Mot. at 1 (Feb.

20 21, 2013 ). Furthermore, Defendant argues that "even if one is found it has been waived." !d. at 21 4. Defendant also argues that "[he] has asserted his right to a speedy trial and a three month 22 delay in bringing the Government's motion is unreasonable under the circumstances. Motions 23

to disqualify are generally disfavored." !d. at 6.

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28 2 The Guam Rules of Professional Conduct (2003) does not have a Rule 1.8(d)(l).

Page 4 of 7 CF020-08: People v. David Q. Manila

The Guam Rules of Professional Conduct provides a provision for special conflicts of 1

2 interest for former and current goverrnnent officers and employees. Rule 1.11 reads in relevant

3 part: 4 (a) Except as law may otherwise expressly permit, a lawyer who has formerly 5 served as a public officer or employee of the government:

(1) is subject to Rule 1. 9( c); and 6 (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or 7 employee, unless the appropriate government agency gives its informed 8 consent, confirmed in writing, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), no 9 lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such matter unless:

10 (1) The disqualified lawyer is timely screened from any participation in the matter 11 and is apportioned not part of the fee therefrom; and (2) Written notice is promptly given to the appropriate goverrnnent agency to 12 enable it to ascertain compliance with the provisions of this rule.

(c) Except as law may otherwise expressly permit, a lawyer having information 13 that the lawyer knows is confidential government information about a person 14 acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which 15 the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means 16 information that has been obtained under governmental authority and which, 17 at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is 18 not otherwise available to the public. A firm with which that lawyer is 19 associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and 20 is apportioned no part of the fee therefrom. 21 3 Guam R. Profl Conduct 1.11(a)-(c) (emphasis added).

22 The Court is cognizant of the Defendant's Sixth Amendment constitutional right to 23 counsel which is also outlined in the Organic Act of Guam § 1421 b and 8 GCA § 1.11. "The 24

25 Sixth Amendment right to counsel includes a criminal defendant's right to secure counsel of his

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27 3 The Guam Rules of Professional Conduct was adopted from the 2002 ABA Model Rules of Professional

28 Conduct. It was adopted on September 29, 2003 pursuant to Promulgation Order No. 04-002).

Page 5 of 7 CF020-08: People v. David Q. Manila choice." See State v. De La Osa, 28 So.3d 201, 203 (Fla. App. 4th Dist. 2010). "Although 1

2 there is a presumption in favor of the defendant's choice of counsel, the presumption may be

3 overcome if the [sic] there is a showing of an actual conflict or 'serious potential for conflict."' 4 !d. (citing Wheatv. United States, 486 U.S. 153,164,108 S.Ct. 1692,100 L.Ed.2d 140 (1988)).

5 The United States Supreme Court also held that "the district court must be allowed substantial 6

latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual 7

8 conflict may be demonstrated before trial, but in the more common cases where a potential for

9 conflict exists which may or may not burgeon into an actual conflict as the trial progresses." 10 Wheat, 486 U.S. 153, 163 (1988).

11 In the instant case, the Court is extremely concerned of Defendant Manila's counsel's 12

involvement as a prosecutor at the very early stages of the investigation related to this matter.

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14 In the Court's review of the motion at bar and the corresponding misdemeanor case charged out

15 by Mr. Pole, the Court recognizes that the victim in CM86-08 is also a witness in the present 16 case affecting Defendant Manila. Mr. Pole charged out the Magistrate Complaint in the 17 misdemeanor case along with a corresponding Declaration filed which obviously makes 18

19 mention of the victim, who is now a named witness in CF20-08. While the Court again

20 recognizes a Defendant's right to choose counsel of his choice, Mr. Pole's former government 21 employer has not consented in writing to waive any such conflict as required by GRPC 22 1.11(a)(2). The Court to date has only seen a waiver signed by the Defendant. Therefore, the 23 Office of the Attorney General does not consent to Mr. Pole's continued representation of 24

25 Defendant in light of the conflict. Moreover, in an abundance of caution and noting a showing

26 of an actual conflict or "serious potential for conflict," the Court finds in favor of the People. 27 See Wheatv. UnitedStates,486U.S.153, 164, 108S.Ct.1692, 100L.Ed.2d 140(1988)).

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Page 6 of 7 CF020 08: People v. David Q. Manila

CONCLUSION

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2 By preponderance of the evidence and based on the foregoing reasons, the Court

3 GRANTS the People's Motion to Disqualify Defendant David Q. Manilas' Counsel of Record. 4 SO ORDERED this _L__,__ day of MARCH, 2013.

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8 -1i'oNORABLE A~IT A A. SUKOLA 9 Judge, Superior Court of Guam

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