Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Cortez

United States District Court, E.D. Virginia, Alexandria Division

August 30, 2016

UNITED STATES OF AMERICA
v.
ALLAN CORTEZ, et al.

          MEMORANDUM OPINION

          T. S. Ellis, III United States District Judge

         In this child pornography case, defendant Allan Cortez and his co-defendants are charged in an indictment with conspiring to produce, distribute, and receive child pornography. To defend him against these charges, defendant has retained an experienced defense lawyer who, as it happens, also recently represented, and arguably continues to represent, a person who pled guilty to and was convicted of engaging in the same conspiracy to distribute and receive child pornography as is alleged here against defendant. At issue pretrial, therefore, is whether defendant's retained counsel is disqualified from representing defendant in this case because counsel's previous representation of another member of the alleged conspiracy constitutes an actual or potential conflict of interest. The matter has been fully briefed and argued and is now ripe for consideration and partial disposition.

         I.

         A grand jury in the Eastern District of Virginia indicted defendant and his two co-defendants, charging them with the following three offenses: (i) conspiracy to produce child pornography, in violation of 18 U.S.C. § 2251(a) and (e); (ii) conspiracy to distribute and receive child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); and (iii) conspiracy to possess and access with intent to view child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).

         According to the indictment, defendant and his co-conspirators located minors on public social media sites and induced them into private chatrooms on myvlog.net, and there enticed these minors to engage in and record via web camera lewd and lascivious conduct, including masturbation. Although the alleged co-conspirators apparently never met face-to-face, they purportedly communicated via the internet, where they shared information and tips on how to coax minors into engaging in this sexually explicit conduct on the video camera.

         To defend against these serious charges, defendant has retained John Kiyonaga ("Defense Counsel"), an experienced criminal defense attorney. As it happens, this attorney's fund of experience includes the representation of another individual convicted of participating in the same child pornography conspiracy as is alleged in this case.

         Specifically, last year, Defense Counsel, pursuant to the Criminal Justice Act, [1] was appointed to represent Stephen Funk, who was accused of engaging in the same conspiracy on the same website as is alleged in the instant case. In December 2015, Funk pled guilty to engaging in the conspiracy and, as a result, was sentenced to 252 months' imprisonment and 20 years of supervised release subject to a number of stringent conditions. See United States v. Stephen R. Funk, No. 1:15-CR-172 (E.D. Va. Apr. 1, 2016) (Judgment). Funk's plea agreement incorporated a statement of facts in which he admitted to having engaged in conduct essentially similar to that alleged against defendant in this case, namely to induce minors to engage in lewd and lascivious conduct to be recorded on web camera. United States v. Stephen R. Funk, No. 1:15-CR-172 (E.D. Va. Dec. 18, 2015) (Statement of Facts). In addition, Funk's plea agreement included an obligation (i) to "cooperate fully and truthfully with the United States, and [to] provide all information known to the defendant regarding any criminal activity as requested by the government, " and (ii) to "testify truthfully and completely at any grand juries, trials, or other proceedings." United States v. Stephen R. Funk, No. 1:15-CR-172 (E.D. Va. Dec. 18, 2015) (Plea Agreement).

         Importantly, defendant Cortez, by counsel, agrees that the conspiracy to which Funk pled guilty involved the same website at issue in this case. In his submission to the Court, Defense Counsel observed that Funk, "[a]s part of his plea agreement... admitted to using the same website, myvlog, which Defendant [Cortez] is now accused of using" (Doc. 76). Not only did the two men use that website, but they used it at the same time, in the same chat rooms; indeed, at oral argument Defense Counsel noted that defendant and Funk were "in the chat room at the same time on three occasions." United States v. Allan Cortez, No. 1:16-CR-128 (E.D. Va. Aug. 19, 2016) (Hearing Transcript ("Tr.") 16:22-23).

         Defense Counsel did not ignore the potential for a conflict of interest arising in this case as a result of his representation of defendant and Funk. Accordingly, on April 27, 2016, Defense Counsel alerted the government to this potential conflict. He also sought guidance from the Virginia State Bar Association and, as a result, received an email on April 28, 2016 advising Defense Counsel that the state bar's ethics counsel did not see a conflict "unless the prospective client and former client turn against the other" (Doc. 65-3).

         Nearly three months later, on July 21, 2016, the government filed a Statement of Issues Relating to Potential Conflict (Doc. 59). In its Statement, the government expressed concern that Defense Counsel faced an actual or potential conflict of interest, precisely because he had also represented Funk in a prosecution involving the same child pornography conspiracy described in defendant's indictment. In this regard, the government noted that it remained possible that the government, pursuant to Funk's plea agreement requiring his cooperation, might compel Funk to testify against defendant and his alleged co-conspirators. Were that to occur, the government noted, Defense Counsel would face the prospect of cross-examining his own client, a clear conflict of interest.

         Defense Counsel responded by presenting the opinion of an attorney who purported to be an expert on the Virginia Rules of Professional Conduct. Relying in part on this attorney-expert's opinion, Defense Counsel argued that no conflict existed because the government had declined Funk's offer to cooperate. Specifically, Defense Counsel asserted that the government would accept Funk's cooperation only if Funk could "illuminate physical abuse of a victim[2] or... illuminate another website similar to those at bar" (Doc. 65). Defense Counsel further offered to present the testimony of that attorney-expert at a hearing on the issue of an actual or potential conflict of interest.

         Soon thereafter, the parties appeared for a hearing on the issue whether an actual or potential conflict of interest existed. In the course of the hearing, Defense Counsel again noted that the government had indicated that there were only two subjects on which Funk's cooperation would be accepted and Funk permitted to testify against defendant and his co-conspirators in this case-the identification of new websites unknown to the government or of additional physical abuse. Tr. 27:20-18:l.[3] The government disputed this assertion, contending instead that the two grounds Defense Counsel recited were the most likely, but not the exclusive, avenues for Funk to cooperate in future cases. Tr. 20:16-21:1.[4] Defense Counsel responded that the government had changed its previous position and therefore should be "promissorily estopped" from calling Funk as a witness at defendant's trial. Tr. 22:17-21.[5] Although the government represented that it did not presently intend to call Funk as a witness at defendant's trial, the government, when pressed, could not rule out the possibility of calling Funk to testify against defendant as to the manner and means by which the child pornography website operated in the course of the alleged conspiracy. Tr.21:13-22.[6]

         A ruling on the matter was reserved, however, because neither the government nor Defense Counsel had addressed in their written submissions the governing standard regarding potential or actual conflicts of interest in a criminal case-namely, the Sixth Amendment. Accordingly, Defense Counsel was afforded an opportunity to submit a supplemental pleading to address the Constitutional issues involved. Defense Counsel complied by filing an Addendum to Defendant's Response to Government's Statement of Issues Relating to Potential Conflict by Defense Counsel (Doc. 76).

         II.

         The threshold issue is the question of governing law. Both the government and Defense Counsel in their memoranda addressing the conflict of interest issue focused solely on the Virginia Rules of Professional Conduct. This focus was mistaken; the governing body of law under which the actual or potential conflict of interest of an attorney representing a defendant in a federal criminal prosecution should be assessed is the Sixth Amendment and federal decisional authority interpreting it, for it is this Amendment that guarantees the right to conflict-free counsel. See Strickland v. Washington, 466 U.S. 668, 688 ("Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest."); Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir. 1990) ("[T]he Sixth Amendment right to counsel includes the right to effective assistance free of conflicts of interest[.]"). In the words of Justice O'Connor, "[prevailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable [pursuant to the Sixth Amendment right to effective counsel], but they are only guides." Strickland, 466 U.S. at 688.

         To be sure, a state bar's professional rules of conduct have a role to play, [7] but not a dispositive one. Indeed, because state ethical rules are, as the Supreme Court has noted, "only guides" in the context of the Constitutional right to counsel, compliance with a state ethical rule will not always satisfy the Sixth Amendment. See Id. The converse is also true, for a "breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel." Nix v. Whiteside, 475 U.S. 157, 165 (1986).

         In sum, the Sixth Amendment and federal decisional authority applying that Amendment are the proper source of governing law as to whether Defense Counsel has an actual or potential conflict of interest and, if so, whether that conflict may be waived.

         III.

         A second threshold question arises by virtue of Defense Counsel's assertion that it was inappropriate for the government to raise the question whether Defense Counsel has an actual or potential conflict. Defense Counsel is incorrect; both the Sixth Amendment and the Virginia Rules of Professional Conduct invite, indeed compel, prosecutors to alert a trial court to a defense attorney's potential or actual conflict. See, e.g., Wheat v. United States, 486 U.S. 153, 155 (1988) (affirming disqualification of a criminal defense attorney for a potential conflict that the government had brought to the trial court's attention); Va. R. Prof 1 Conduct 1.7 cmt. 9 ("In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question."). This is a sensible requirement, as it is neither in defendant's nor the government's interest to proceed with a case that is infected with an incurable conflict of interest.[8]

         IV.

         A third preliminary question must be addressed here, as Defense Counsel seeks to offer the expert testimony of a Virginia lawyer on the proper interpretation and application of the Virginia Rules of Professional Conduct to the facts of this case. Thus, the third question is whether such testimony is properly admissible under Rule 702, Fed.R.Evid. It is not.

         Rule 702(a) provides, in pertinent part, that a qualified expert may testify to an opinion if "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."[9] Testimony that merely states a legal conclusion as to the meaning or application of a rule or statute is not "helpful, " as required by Rule 702, Fed.R.Evid. Judge Easterbrook, in his typically pithy fashion, has concisely noted that "[t]he only legal expert in a federal courtroom is the judge." United States v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008). Therefore, "the meaning of [a] statute and regulations [is] a subject for the court, not for testimonial experts." Id. Similarly, the Fourth Circuit has held that an expert opinion is "generally inadmissible" if it "states a legal standard or draws a legal conclusion by applying law to the facts[.]" United States v. Mclver, 470 F.3d 550, 562 (4th Cir. 2006) (citation omitted).

         Simply put, an expert telling a judge how to interpret a rule or statute does nothing more than give an attorney a redundant means of presenting legal argument to the Court. Nothing prevented Defense Counsel from making his arguments through his briefs or oral argument. As one treatise notes, "[e]ven during a bench trial there seems no compelling reason to allow live testimony by conflicting experts on the law, as written briefs, supplemented by oral argument by counsel if appropriate, will serve the same function." The New Wigmore: A Treatise on Evidence: Expert Evidence § 2.3.

         These principles, applied here, make clear the inadmissibility of Defense Counsel's state-law expert. Based on Defense Counsel's proffer, the testimony would comprise an attorney-witness's conclusions on whether the facts at bar presented a conflict under the Virginia Rules of Professional Conduct. Such testimony runs afoul of Mclver"s prohibition of expert legal testimony that "states a legal standard or draws a legal conclusion by applying law to the facts[.]" See 470 F.3d at 562. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.