United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE
matter comes before the Court the Government's Motion to
Inquire About a Possible Conflict of Interest. The Court
conducted a hearing on the matter on October 31, 2018. This
Memorandum serves to explain the Court's ruling from the
bench and the preceding Order. For the reasons set forth
below, Trey R. Kelleter is hereby
DISQUALIFIED from further representation of
Byron Hale Delavan in this matter.
FACTUAL AND PROCEDURAL HISTORY
March 12, 2018, a Newport News Division Grand Jury from the
Eastern District of Virginia returned a twenty-three count
indictment against Byron Hale Delavan ("Defendant")
as well as co-defendant Neil Curry Smith. ECF No. 3. On July
17, 2018, the Defendant was charged in a thirty-five count
Superseding Indictment. ECF No. 36. Throughout the
proceedings, the Defendant has been represented by Trey R.
instant case involves tax fraud and money laundering charges
related to the Defendant's use of numerous entities that
he owned. Specific transactions are alleged in the
Superseding Indictment, including checks that were issued to
individuals signed by Missy Andrews ("Andrews") at
the direction of the Defendant. Id. Andrews was
familiar with various financial transactions conducted by the
Defendant as she was the Defendant's assistant and a
signatory on various accounts of the Defendant and his
businesses. She is an anticipated witness for the Government
and was interviewed by IRS-CID on December 15, 2016. ECF No.
from the instant case, the Defendant was previously the
subject of prior investigations by the Federal Bureau of
Investigation. Id. On July 12, 2010, Andrews was
interviewed by FBI agents in the course of the prior
investigation. Id. During that interview, Andrews
was represented by Kelleter. Id. Andrews was
questioned about her employment with the defendant, his
various business entities and the financial arrangements and
transactions related to those entities and the defendant.
Id. According to testimony by Special Agent Michael
McMahon, Kelleter indicated to federal investigators before
the interview and during the interview that he represented
Andrews. Throughout the interview, Kelleter
intermittently objected to lines of questioning and
instructed Andrews not to respond to various questions. A
twelve-page FBI FD-302 form ("the 302") was
prepared as a result of that interview, and Attorney's
Kelleter's representation of Andrews is reflected in the
first paragraph of the 302.
Government noticed the issue on October 25, 2018, and it
directly informed Attorney Kelleter about the issue of his
prior representation of an anticipated government witness at
trial. ECF No. 57.
Sixth Amendment guarantees a criminal defendant the right to
counsel of one's choosing. See Powell v.
Alabama, 287 U.S. 45, 53 (1932). However, this right is not
absolute, and "the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers." Wheat v.
United States, 486 U.S. 153, 159 (1988). A defendant
"should be afforded a fair opportunity to secure counsel
of his own choice," Powell, 287 U.S. at 53, and
the court "must recognize a presumption in favor of [a
defendant's] counsel of choice," Wheat, 486
U.S. at 164. However, "a court confronted with and
alerted to possible conflicts of interest must take adequate
steps to ascertain whether the conflicts warrant separate
counsel." Id. at 160; see also Fed. R.
Crim. P. 44(c)(2). In balancing the competing interests at
play, a district court has "substantial latitude"
to deny a waiver of the conflict upon a "showing of a
serious potential for conflict." Wheat, 486
U.S. at 163-64.
Court finds that Kelleter's continued representation of
Defendant represents a serious potential conflict due to his
prior representation of Andrews. The Government plans to call
Andrews as a witness to prove the existence and extent of a
tax fraud and money laundering scheme in which Defendant is
alleged to have committed. Thus, at trial, one of
Kelleter's objectives will be to impeach Andrews'
credibility. Kelleter may have obtained material information
during his brief representation of Andrews that may impact
his cross-examination of Andrews during trial. This situation
presents a clear conflict between Kelleter's current
representation of Defendant and Kelleter's duty of
loyalty to his former client, Andrews. Under similar
circumstances, the United States Supreme Court and several
lower courts have disqualified the defense attorney. See,
e.g., Wheat, 486 U.S. at 163-64; United States v.
Stewart, 185 F.3d 112, 121 (3d Cir. 1999) (". .
.[W]e have recognized that conflicts arise where a
'defendant seeks to waive his right to conflict-free
representation in circumstances in which the counsel of his
choice may have divided loyalties due to concurrent or prior
representation of another client who is a co-defendant, a
co-conspirator, or a government witness.'
") (citation omitted); United States v.
Millsaps, 157 F.3d 989, 995-96 (5th Cir. 1998)
(upholding district court's disqualification of a defense
attorney from representing a defendant where the attorney
also represented a government witness previously); United
States v. Moscony, 927 F.2d 742, 750 (3d Cir. 1991)
("Conflicts of interest arise whenever an attorney's
loyalties are divided, and an attorney who cross-examines
former clients inherently encounters divided
loyalties.") (citations omitted).
the Court endeavors to honor defendants' choice of
counsel, it also must ensure an effective advocate for each
defendant and here, this latter task requires disqualifying a
conflicted attorney. See Wheat, 486 U.S. at 159;
see also United States v. Gonzalez-Lopez, 548 U.S.
140, 151-52 (2006) ("Nor may a defendant. . . demand
that a court honor his waiver of conflict-free
the Court finds that Kelleter must withdraw from
representation of the Defendant. The case will be rescheduled
After the Defendant has secured new counsel, until which time
Defendant's additional motions, ECF Nos. 43-36, will not
be reviewed by the Court.