United States v. Mulero-Vargas

375 F. Supp. 3d 166
CourtUnited States District Court
DecidedApril 17, 2019
DocketCriminal No. 17-297 (FAB)
StatusPublished

This text of 375 F. Supp. 3d 166 (United States v. Mulero-Vargas) is published on Counsel Stack Legal Research, covering United States District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mulero-Vargas, 375 F. Supp. 3d 166 (usdistct 2019).

Opinion

BESOSA, District Judge.

*168Defense counsel Jedrick Burgos-Amador ("Burgos") and Ricardo Lozada-Franco ("Lozada") request that the Court reconsider the imposition of sanctions and the disgorgement of attorneys' fees. (Docket No. 213.) For the reasons set forth below, the motion for reconsideration is DENIED.

I. Background

On May 10, 2017, a grand jury charged defendants José Mulero-Vargas ("Mulero") and Luis Merced-García ("Merced") with possession of a machinegun in furtherance of a drug trafficking crime, possession of a firearm in furtherance of a drug trafficking crime, and possession with intent to distribute a detectable amount of cocaine, in violation of 18 U.S.C. § 924(c)(1)(B)(ii), 18 U.S.C. § 924(c)(1)(A)(i), and 21 U.S.C. § 841(a)(1), respectively. (Docket No. 16.) Mulero completed a CJA 23 Financial Affidavit, setting forth his income, assets, obligations and debts at the time of his arrest. (Docket No. 3.) Magistrate Judge Bruce J. McGiverin "deemed it appropriate to appoint counsel." (Docket No. 5.) Four privately retained attorneys, however, appeared on Mulero's behalf within the next two years. (Docket Nos. 10, 11, 123 and 124.)1

On September 5, 2018, the United States moved for an inquiry to determine "where the money for multiple private attorneys [came] from." Docket No. 142 at p. 5; citing Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) ("Inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise" constituted a "clear possibility of a conflict of interest"). The Court referred the United States' motion to Magistrate Judge Marshal D. Morgan. (Docket No. 143.)

The magistrate judge conducted an evidentiary hearing on September 17, 2018 to identify the source of Mulero's attorneys' fees. (Docket No. 181 at p. 10.) Burgos and Lozada invoked the Fifth Amendment, however, refusing to testify "[o]ut of an abundance of caution." Id. at pp. 78 and 80.2 Before the evidentiary hearing concluded, the magistrate judge stated that:

*169[Burgos and Lozada] have both indicated that [they] raise the Fifth Amendment. I want to be abundantly clear to everyone in this room and that the record be clear that [Burgos and Lozada] refuse to take the stand, [to] be placed under oath because [they] understood that to answer the questions, [they] would be implicating [themselves] in criminal activity. That is the understanding of the Court and that is what the record will so reflect.

Id. at pp. 80-81. Burgos answered "yes." Id. at p. 81. Consequently, the magistrate judge recommended that the Court disqualify Burgos and Lozada, appoint counsel from the CJA Panel to represent Mulero, and order Burgos and Lozada to return the fees they received to represent Mulero. United States v. Vargas, Case No. 17-297, 2018 WL 6990659, 2018 U.S. Dist. LEXIS 219053 (D.P.R. Nov. 30, 2018) (Morgan, Mag. J.).

The Court adopted the R & R. United States v. Mulero-Vargas, 358 F.Supp.3d 183 (D.P.R. 2019) (Besosa, J.). Because Burgos and Lozada frustrated the purpose of the evidentiary hearing through their obstructionist conduct, the Court ordered defense counsel to show cause as to "why they should not be fined $ 250.00." Id. 196, 2019 WL 522595, at *10. Both attorneys filed a response to the Order to Show Cause. (Docket Nos. 206 and 208.) Subsequently, the Court ordered that Burgos and Lozada "each pay the $ 250 sanction." (Docket No. 209.) Burgos and Lozada now request that the Court vacate the $ 250 sanction, and allow them to keep the fees they received to represent Mulero. (Docket No. 213.)

II. Legal Standard

The Federal Rules of Criminal Procedure do not explicitly provide for motions for reconsideration. See United States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014) ("[M]otions for reconsideration in criminal cases are not specifically authorized either by statute or by rule.") (internal citation omitted). The First Circuit Court of Appeals, however, applies the legal standard pursuant to Federal Rule of Civil Procedure 59(e) (" Rule 59(e)") to motions for reconsideration arising in the criminal context. See, e.g., United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009) (applying the legal standard for Rule 59(e) to a motion for reconsideration in a criminal case). Although Burgos and Lozada do not identify the statutory source for their motion to reconsider, the Court nonetheless applies the Rule 59(e) legal standard to Burgos and Lozada's motion.

Pursuant to Rule 59(e), a district court will alter its original order only if it "evidenced a manifest error of law, if there is newly discovered evidence, or in certain other narrow situations." Biltcliffe v. CitiMortgage, Inc.

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United States v. José Mulero-Vargas [1]
358 F. Supp. 3d 183 (U.S. District Court, 2019)

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