United States v. Rosario-Rodriguez

992 F. Supp. 499, 1998 U.S. Dist. LEXIS 1667, 1998 WL 61141
CourtDistrict Court, D. Puerto Rico
DecidedFebruary 10, 1998
DocketCriminal No. 95-029 (JAF)
StatusPublished

This text of 992 F. Supp. 499 (United States v. Rosario-Rodriguez) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rosario-Rodriguez, 992 F. Supp. 499, 1998 U.S. Dist. LEXIS 1667, 1998 WL 61141 (prd 1998).

Opinion

OPINION AND ORDER

FUSTE, District Judge.

The instant matter before the court involves the appropriateness of attorney Lydia Lizarribar simultaneously representing two codefendants, Richard Rosario-Rodríguez and José Rivera-Meléndez for a variety of criminal charges related to the SantiagoLugo drug organization.1

I.

On February 2, 1998, this court conducted a Foster hearing to determine whether there was an actual or potential conflict of interest in counselor Lizarribar’s joint representation of these two defendants. At the hearing, the court questioned both Rivera-Meléndez and Rosario-Rodríguez regarding the joint representation and thoroughly explained its potential inhibition upon Mrs. Lizarribar’s effective representation of each. Both defendants consistently maintained that they understood and accepted the risks the joint representation may pose.

Upon the court’s inquiry, the two defendants stated that they were not friends and did not know each other. Each defendant has a very basic education, and stated that he had not discussed the consequences of having the same attorney. Rivera-Meléndez retained Mrs. Lizarribar, with the financial assistance of his family, after she had accepted a Criminal Justice Act appointment to represent Rosario-Rodríguez.

[501]*501The court also asked both attorney Lizarribar and the government to defend or oppose her simultaneous representation of the two defendants. Mrs. Lizarribar stated that she examined the discovery materials for the government’s case against Richard RosarioRodríguez, and was unable to find any conflict. In its argument that attorney Lizarribar should not be permitted to represent both defendants simultaneously, the government first pointed out the gravity of the stakes involved — José Rivera-Meléndez is facing a possibility of at least life in prison, and possibly the death penalty. The government argued that the tremendous amount of work involved in representing only one defendant made the effective representation of two defendants too grueling to be effective. Furthermore, the government stated that there was a real possibility that, during the course of her representation, attorney Lizarribar would be forced to make decisions that benefit one client at the expense of the other. The government contended that the indictment charges that José Rivera-Meléndez was, in effect, trying to kill the RosarioRodríguez brothers, including Richard Rosario-Rodríguez, after the drug-trafficking organization headed by Israel Santiago-Lugo split and the Rosario-Rodríguez brothers withdrew and engaged in a separate, adversary drug conspiracy, and a drug war ensued between the two factions.

II.

To ensure fairness in the adversary criminal process, where an unaided layman may not have the legal skill to argue successfully, the Sixth Amendment to the Constitution guarantees the accused the right to the assistance of counsel. U.S. Const., amend. XI; United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). In Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), the United States Supreme Court specifically addressed the question of the extent to which a criminal defendant’s right under the Sixth Amendment .to choose counsel is qualified by the fact that the attorney has represented other defendants charged in the same criminal conspiracy.

Joint representation of codefendants raises a conflict of interest by tending to prevent an attorney from ardently pursuing her duties. For example, a conflict may prevent an attorney from challenging the admission of evidence prejudicial to one client but favorable to another; or where a plea bargain is conditioned on one defendant testifying against-another; or from arguing at the sentencing hearing the relative involvement and culpability of one of his clients in order to minimize the culpability the other. Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); United States v. Hemandez-Lebron, 23 F.3d 600, 602 (1st Cir.1994) Waivers by all affected defendants do not cure all the problems created by multiple representation.

The interests involved include that of the criminal defendant in securing effective representation, and that of both the prosecution and system of justice in reaching a just verdict and avoiding the need for a repetition of the proceedings. Meanwhile, the trial court is stuck between a rock and a hard place. If it agrees to the multiple representation, and counsel is ineffective as a result, the defendant may claim that he did not receive effective assistance in contravention of the Sixth Amendment.- See, e.g., Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). However, if the- court denies the multiple representation, the defendant may claim that his right to choose counsel under the Sixth Amendment was impaired. See, e.g., Wheat v. United States, 486 U.S. 153,108 S.Ct. 1692,100 L.Ed.2d 140 (1988) Given this thin ground upon which district courts -must tread when deciding such a delicate issue, we are given substantial latitude in refusing waivers of conflicts of interest. Wheat v. United States, 486 U.S. at 163.

Federal Rule of Criminal Procedure 44(c) seeks to alleviate the potential for serious danger under such circumstances by requiring trial judges to make a prompt inquiry into the matter of joint representation, and personally advise each defendant of his right to separate, effective representation. Under Rule 44(e), the trial court must “promptly inquire with respect to such joint representa[502]*502tion and ... personally advise each defendant of the right to the effective assistance of counsel, including separate representation.” Fed.R.Crim.P. 44(c). Moreover, “[u]nless it appears that there is good cause to believe no conflict of interest is likely to arise, the court ... [must] take such measures as may be appropriate to protect each defendant’s right to counsel.” Id. The First Circuit has an antecedent to Rule 44(c) which is found in United States v. Foster, 469 F.2d 1 (1st Cir.1972). There, the court stated:

[I]t shall be the duty of the trial court, as early in the litigation as practicable, to comment on some of the risks confronted where defendants are jointly represented to insure that defendants are aware of such risks, and to inquire diligently whether they have discussed the risks with their attorney, and whether they understand that they may retain separate counsel appointed by the court and paid for by the government.

Id. at 5.

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Related

Holloway v. Arkansas
435 U.S. 475 (Supreme Court, 1978)
United States v. Morrison
449 U.S. 361 (Supreme Court, 1981)
Burger v. Kemp
483 U.S. 776 (Supreme Court, 1987)
Wheat v. United States
486 U.S. 153 (Supreme Court, 1988)
United States v. Hernandez Lebron
23 F.3d 600 (First Circuit, 1994)
United States v. Kenneth Lee Mazzaferro
865 F.2d 450 (First Circuit, 1989)

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Bluebook (online)
992 F. Supp. 499, 1998 U.S. Dist. LEXIS 1667, 1998 WL 61141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rosario-rodriguez-prd-1998.