United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, Senior District Judge.
This matter is before the Court on DEFENDANT'S PRO SE MOTION TO DISQUALIFY COUNSEL (Docket No. 92) and DEFENDANT'S PRO SE MOTION FOR MISTRIAL AND DISMISSAL OF ALL CHARGES (Docket No. 94). An evidentiary hearing was held on March 20, 2014. The Court ordered supplemental briefing, and the parties filed their respective briefs (Docket Nos. 116 & 117). For the reasons that follow, the DEFENDANT'S PRO SE MOTION TO DISQUALIFY COUNSEL (Docket No. 92) and DEFENDANT'S PRO SE MOTION FOR MISTRIAL AND DISMISSAL OF ALL CHARGES (Docket No. 94) will be denied.
Robert Lee Pernell's motions are somewhat convoluted and confusing. Reduced to their essence, the motions argue that his former lawyer had a conflict of interest in simultaneously representing Pernell in an antecedent state case and a witness in this case, Taj Gregory; that his former lawyer revealed confidential information to the prosecuting Assistant United States Attorney and to Gregory who then used it in testifying against Pernell; and that the prosecuting Assistant United States Attorney had a conflict of interest in prosecuting Pernell in this case and Gregory in another unrelated case. Therefore, says Pernell, the prosecuting United States Attorney and the Office of the United States Attorney should be disqualified; a mistrial should be declared; and all charges against him should be dismissed. Finally, in a brief filed by Pernell's counsel, it is argued that, because of the former lawyer's conflict, Pernell should be granted a retrial at which Pernell should be allowed to cross-examine Gregory about whether he tailored his testimony based on information about Pernell obtained from Pernell's former counsel, or that Gregory should not be allowed to testify at any retrial.
A brief historical excursion into the events that form the basis of Pernell's motions will help in resolving them.
A. Pernell's State Case: September 2009-April 2010
The story starts on April 18, 2009, when Pernell attempted to rob Terry Fife in the City of Richmond, Virginia. During that incident, Pernell discharged a firearm, and the bullet struck Casey King in the ankle. Pernell was later arrested on warrants charging him with attempted robbery, malicious wounding, and violations of firearm laws. In September 2009, Pernell retained Jeffrey Everhart to represent him in that criminal case ("the State Case"). Everhart negotiated a plea bargain, and, on February 12, 2010, Pernell entered a guilty plea in the State Case to the reduced charge of unlawful wounding and was sentenced, on the same day, to five years of imprisonment with six months suspended. Later in February 2010, after the sentencing, Pernell wrote Everhart a letter, and Everhart responded on February 24 and again on March 9, 2010. Then, on April 4, 2010, Pernell wrote Everhart asking for a copy of his plea agreement in the State Case. On April 6, 2010, Everhart's secretary provided Pernell with a copy of the plea agreement. There has been no further communication between Everhart and Pernell.
B. Pernell's Federal Case: December 2009 to Date
On December 15, 2009, Pernell was charged in a three-count Indictment in the Eastern District of Virginia, Richmond Division ("Pernell's Federal Case") based on conduct that was not at all related to the conduct in the State Case. In Pernell's Federal Case, the Indictment charged as follows: Count One charged Pernell with Conspiracy to Interfere with Commerce by Threats and Violence (a Hobbs Act robbery), in violation of 18 U.S.C. § 1951; Count Two charged Pernell with Attempted Interference with Commerce by Threats and Violence and Aiding and Abetting, in violation of 18 U.S.C. §§ 1951 and 2; and Count Three charged Pernell with Use, Carry, Brandish, and Discharge a Firearm During/In Relation to a Crime of Violence, specifically the Hobbs Act robbery, in violation of 18 U.S.C. § 924(c).
The charges in Pernell's Federal Case arose from an alleged attempted robbery committed by Pernell and an unidentified person at a residence on Lockett Ridge Road in Chesterfield County, Virginia on May 15, 2009. However, Pernell's Federal Case did not proceed immediately thereafter because, when the Indictment was returned on December 15, 2009, Pernell was incarcerated on the State Case. Therefore, a federal detainer was lodged while Pernell served the sentence imposed in the State Case. On October 17, 2012, a Petition and Order for Writ of Habeas Corpus ad Prosequendum was issued, and Pernell appeared on November 17, 2012 for an initial appearance and arraignment. William H. Sooy was appointed as counsel and Pernell entered not guilty pleas to all three counts. A jury trial was initially scheduled to begin on February 4, 2013, but it was delayed because Pernell decided to retain new counsel. Pernell's family retained Christopher J. Collins to represent him, and the trial was rescheduled to begin on April 30, 2013.
On April 22, 2013, Assistant United States Attorney Olivia Norman issued a notice under Fed. R. Crim. P. 404(b) that the United States intended to introduce into evidence in Pernell's Federal Case shell casings that were found at the scene of the crime in the State Case because they matched a shell casing recovered from Lockett Ridge Road, the scene of Pernell's Federal Case. That evidence subsequently was admitted through a stipulation. On May 2, 2013, the third day of trial, the jury returned a verdict of guilty on all three counts.
C. Taj Gregory's Federal Case: October 2009 to April 14, 2010
On October 22, 2009, Taj Gregory was charged in the Eastern District of Virginia, Richmond Division, in a criminal complaint with possession with the intent to distribute controlled substances ("Gregory's Federal Case"). He was arrested and made an initial appearance on that same day.
Gregory was one of two drug dealers who lived in the house on Lockett Ridge Road that was the subject of the Indictment in Pernell's Federal Case. When police searched that house in connection with the attempted robbery, they found a large quantity of cocaine base, as well as lesser quantities of cocaine hydrochloride and marijuana, and $125, 805.00 in cash. Gregory admitted that ...