United States District Court, D. Delaware
GREGORY M. SLEET, Chief District Judge.
At Wilmington this 21st day of May, 2014, having considered the submissions, both written and oral, offered by the parties in connection with plaintiff's motion for disqualification of counsel, the court concludes that disqualification is warranted based on the following analysis:
1. Background. On March 5, 2013, a federal grand jury returned a four-count indictment charging defendant Christopher Sanchez ("Sanchez") with: (1) conspiracy to commit robbery, in violation of 18 U.S.C. § 1951; (2) conspiracy to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. § 846; (3) possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c); and (4) possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g). John S. Malik, Esquire ("Malik"), was appointed to represent Sanchez.
2. Sanchez is alleged to have planned and prepared for an armed robbery of what he believed was a drug stash house. (D.I. 51) The stash house was, however, part of a reverse-sting operation set up by the Bureau of Alcohol, Tobacco, Firearms and Explosives. Sanchez recruited Donte Banks and Charles Banks ("the Banks brothers") to assist in this planned home invasion robbery of the stash house. The Banks brothers were introduced to Sanchez by a third party, described as an African American male, approximately forty-five years of age, who drove a white BMW model 750; this individual served twenty-five years in prison for murder and was nicknamed "Quadree."
3. On March 11, 2013, Charles Banks waived indictment and entered a plea of guilty to an information charging him with conspiracy to commit a robbery affecting interstate commerce and use of a firearm in furtherance of a crime of violence. United States v. Banks, Crim. No. 13-16-GMS. On March 27, 2013, Donte Banks also pleaded guilty to the same charges. United States v. Banks, Crim. No. 13-17-GMS. During their plea colloquies, both of the Banks brothers admitted their roles in the armed robbery conspiracy and entered into cooperation agreements with the government. The Banks brothers are expected to testify at trial against Sanchez. (D.I. 53 at 10)
4. On June 13, 2013, a federal grand jury returned an indictment charging defendant Walter Thomas with: (1) conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846; and (2) distribution of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Malik was also appointed to represent Thomas.
5. The Sanchez case was scheduled to proceed to trial on February 3, 2014. Sanchez' pretrial filings suggest that he will present an entrapment defense at trial. (D.I. 53 at 10) In the course of trial preparation, Malik discovered that the description of Quadree was similar to some of the information he knew about his client, Walter Thomas. During a January 27, 2014, meeting with counsel for plaintiff, Malik advised that he had a potential conflict of interest because the description of Quadree was similar to information he knew about Thomas. Prior to this meeting, counsel for plaintiff was unaware that Quadree might be Thomas.
6. Shortly thereafter, Malik met (separately) with Sanchez and with Thomas to disclose the information about the conflict and "what some of the various scenarios could be." (D.I. 53 at 6-7) Each defendant was willing to waive any conflict of interest so that Malik could continue his representation.
7. On January 30, 2014, after advising the court of the potential conflict of interest, the Sanchez trial was postponed. Malik sought guidance from Charles Slanina, Esquire,  an expert on matters of professional responsibility in Delaware, on whether Malik had an obligation to withdraw from the case(s).
8. In a February 11, 2014 letter to the court in the Thomas case, Malik advised of the potential conflict of interest and requested a teleconference to further discuss the situation. ( Thomas, at D.I. 145, 159, 174) On April 25, 2014, plaintiff filed (under seal) a motion to disqualify in both cases. (D.I. 51)
9. On May 5, 2014, a joint evidentiary hearing was convened in both the Sanchez and Thomas cases, with both defendants in attendance. (D.I. 51) Since the parties agreed that the basic facts were undisputed, a full evidentiary hearing was not conducted. Instead, they proceeded by proffer and did not call either defendant to testify. ( Id. at 28)
10. Plaintiff contends that disqualification is warranted because Malik's representation of defendants Sanchez and Thomas is materially limited. Specifically, in the Sanchez case, Malik could potentially represent both defendant Sanchez and a potential unindicted co-conspirator (Quadree), resulting in a conflict of interest from divided loyalties, making Malik unable to advise Sanchez on trial strategy without divulging information about Thomas. With regard to defendant Thomas, plaintiff is unable to present a cooperation plea agreement because Malik cannot counsel Thomas on the merits of such an agreement, as doing so would be in direct conflict with his duty of loyalty to Sanchez.
11. Discussion. The Sixth Amendment of the United States Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. Wheat v. United States, 486 U.S. 153, 158 (1988); United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir. 1996). The purpose of providing assistance of counsel is to ensure that criminal defendants receive a fair trial. Lockhart v. Fretwell, 506 U.S. 364, 368 (1993).
12. Derivative of the right to effective assistance of counsel is a defendant's right to representation by counsel of his choice. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). The primary purpose of these rights is to afford a criminal defendant control over the conduct of his defense since it the defendant who "suffers the consequences if the defense fails." United States v. Moscony, 927 F.2d 742, 748 (3d Cir.1991). A defendant's right to counsel of his choice, however, can be circumscribed ...