Opinion
DOCKET NO. A-1559-13T3 A-1566-13T3
02-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TALADEEN ROSS, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. PEDRO VICKERS, Defendant-Appellant.
Joseph M. Mazraani argued the cause for appellant in A-1559-13 (Mazraani & Liguori, L.L.P., attorneys; Mr. Mazraani, of counsel and on the brief). Carlos Diaz-Cobo argued the cause for appellant in A-1566-13. Bina K. Desai, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent in both cases (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Desai, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Ashrafi and St. John.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-06-0870.
Joseph M. Mazraani argued the cause for appellant in A-1559-13 (Mazraani & Liguori, L.L.P., attorneys; Mr. Mazraani, of counsel and on the brief). Carlos Diaz-Cobo argued the cause for appellant in A-1566-13.
Bina K. Desai, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent in both cases (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Desai, of counsel and on the brief). PER CURIAM
We granted leave to defendants Taladeen Ross and Pedro Vickers to appeal from interlocutory orders of the Law Division dated November 7, 2013, by which their court-appointed attorneys were disqualified from representing them in defense of a multi-count, multi-defendant racketeering indictment. The Law Division concluded that the attorneys' prior representation of other clients created a disqualifying conflict of interest. We now affirm the Law Division's orders in a single opinion with respect to attorney Joseph Mazraani's representation of Ross (A-1559-13) and attorney Carlos Diaz-Cobo's representation of Vickers (A-1566-13).
In May 2013, the Middlesex County Public Defender's Office assigned Mazraani and Diaz-Cobo from a "pool" of private criminal defense attorneys to represent Ross and Vickers respectively in this complex criminal case. In July 2013, a Middlesex County grand jury returned a seventy-nine count indictment against twenty-five defendants. Twenty-one of the defendants, including Ross and Vickers, are charged with being members of a criminal enterprise described in the indictment as "the Bloods Criminal Street Gang." The indictment charges that the Bloods engaged in a series of criminal offenses including narcotics dealing and robberies, and that the gang used physical violence against rivals and other persons to preserve and augment its power, territory, and profits.
Ross, the first-named defendant in the indictment, was charged in eleven counts, including for racketeering, N.J.S.A. 2C:41-2; leader of organized crime, N.J.S.A. 2C:5-2(g); conspiracies to commit weapons and violent crimes, including murder, N.J.S.A. 2C:5-2; attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1); weapons offenses, N.J.S.A. 2C:39-4(a) and 2C:39-5(b); and narcotics offenses, N.J.S.A. 2C:35-4, 2C:35-5(a), and 2C:35-10(a)(1).
Vickers was the fourth-named defendant in the indictment. He was charged in nine counts, including for racketeering, N.J.S.A. 2C:41-2; conspiracies to commit weapons and violent crimes, N.J.S.A. 2C:5-2; attempted murder and conspiracy to commit murder, N.J.S.A. 2C:5-1, 2C:5-2, and 2C:11-3(a); aggravated assault, N.J.S.A. 2C:12-1(b)(1); and narcotics offenses, N.J.S.A. 2C:35-5(a) and 2C:35-10(a)(1).
Two other defendants named in the indictment are relevant to the issues on appeal. Nadrell McMillan is charged with being a member of the criminal enterprise and also with murder, conspiracy to commit murder, aggravated assault, and weapons offenses. Attorney Diaz-Cobo recently represented Nadrell McMillan on a municipal court charge of possession of marijuana. Tereak Butler is charged in the present indictment with being a member of the enterprise and also with attempted murder, armed robbery, aggravated assault, and weapons and narcotics offenses. Attorney Mazraani recently represented Rajon McMillian on a separate indictment in which McMillian and Tereak Butler were jointly charged with some of the same offenses contained in the present indictment. Those charges against McMillian were dismissed pursuant to a plea agreement by which he pleaded guilty to a weapons offense from yet a separate indictment.
In September 2013, the State filed a motion to disqualify Mazraani and Diaz-Cobo because of their prior representation of Rajon McMillian and Nadrell McMillan. Both attorneys opposed the motion, arguing that there was no conflict of interest in their present representation of Ross and Vickers and their past representations of the other clients. Ross and Vickers indicated to the court that they wanted to keep Mazraani and Diaz-Cobo as their attorneys in this case.
The Law Division considered the facts as developed through the motion filings and arguments of counsel. The State alleges that the defendants in the present indictment are affiliated with competing factions of the Bloods street gang operating in New Brunswick and surrounding areas. Internecine violence erupted among the Bloods factions after a dice game in December 2011. New Brunswick police and the Middlesex County Prosecutor's Office investigated several shootings involving gang members. The violent episodes culminated in the death of an innocent person not related to the gang activity but who had the misfortune of living next door to one of the gang members.
On May 4, 2012, members of one of the Bloods factions sprayed bullets at the residence of a member of another faction. Richard Chang lived next door and was killed in his own home when a bullet traveled through a window and struck him in the head. Chang had nothing to do with the gang or their factional disputes. He and his family were innocent victims of gang violence in the streets. The State alleges that Nadrell McMillan was one of the persons directly involved in the homicide of Chang. The heightened police investigation led to the numerous charges of the indictment we have described.
While the investigation of Chang's death was proceeding, Nadrell McMillan was charged in the municipal court of New Brunswick with possession of marijuana. McMillan retained attorney Diaz-Cobo in June 2012 to represent him on that charge, which was subsequently dismissed in the municipal court in December 2012. A month earlier, McMillan had been arrested for Chang's homicide. His mother spoke to Diaz-Cobo about the cost to represent him for the homicide case. Later, McMillan either retained or was appointed a different attorney to represent him on the homicide charge and the present racketeering indictment, and Diaz-Cobo was appointed to represent Vickers.
According to Diaz-Cobo, he and McMillan never had any communication about the homicide or any other charges related to the present indictment. Diaz-Cobo represents that he and McMillan's mother only spoke about the costs of representing McMillan for the homicide charge. Diaz-Cobo contends that both Vickers and McMillan either have or are willing to sign certifications waiving any potential conflict of interest in his representation of Vickers in this case.
Attorney Mazraani had previously represented Rajon McMillian on two indictments spanning August 2011 to February 2013. In those cases, McMillian was charged with attempted murder when he and Tereak Butler allegedly shot and stabbed an individual in New Brunswick in March 2011. Mazraani developed evidence, however, to demonstrate to the prosecution that McMillian was some seven hours away at college in another state at the time of the March 2011 incident. He then negotiated a plea agreement with the State, including that the March 2011 charges against McMillian would be dismissed. McMillian pleaded guilty to an unrelated weapons offense, and he was sentenced to three years in prison in February 2013. The attempted murder and other charges were dismissed in February 2013 as part of the plea agreement. The prior indictment against Tereak Butler arising from the March 2011 incident was superseded by several counts of the present July 2013 racketeering indictment.
The State claims it may call Rajon McMillian as a witness in its prosecution of this case. Mazraani responds that, because McMillian had an alibi and was not involved in the shooting and stabbing incident, he has no relevant information pertinent to this prosecution and is not likely to be called as a witness. Mazraani represents that he obtained no information from McMillian during his prior representation that is relevant to his defense of Ross in this case. He contends that, even if the State does call McMillian to testify, Mazraani would not likely have any questions for him in cross-examination. He also contends that both defendant Ross and McMillian either have or are willing to sign certifications waiving any potential conflict of interest in Mazraani's representation of Ross.
The State maintains that Mazraani's and Diaz-Cobo's representation of Ross and Vickers will conflict with their prior representation of Rajon McMillian and Nadrell McMillan because all four clients are involved in some way with the charges of the present case. The State contends that the attorneys will not be able to defend their current clients effectively without violating a duty to their former clients.
The Law Division granted the State's motions to disqualify the attorneys, placing oral decisions on the record as to each attorney. The Law Division temporarily stayed its orders, and we granted leave to appeal, extending and clarifying the nature of the stay pending appeal.
On the appeal before us, both defendants make the following arguments:
THE LOWER COURT GROSSLY ERRED IN DISQUALI-FYING [THE ATTORNEY] AS COUNSEL FOR [THE DEFENDANT] AND BY RULING THAT THIS ALLEGED CONFLICT OF INTEREST CANNOT BE WAIVED.
A. No Disqualifying Interest Is Present Because This Attorney's Continued Participation as Defense Counsel Does Not Pose Any "Significant Likelihood of Actual Prejudice to the Defendant."
B. The Trial Court Refusal to Extend State v. Bell, 90 N.J. 163 (1982), in This Case Only Is Reversible Error.
We exercise plenary review of a trial court's order disqualifying counsel. State v. Bruno, 323 N.J. Super. 322, 331-32 (App. Div. 1999). Where as here the facts are not significantly in dispute, we do not defer to the trial court's findings or ultimate decision. Ibid.; see also J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 222 (App. Div. 2006) ("[T]he question of whether a conflict of interest existed [is] a question of law.").
As part of a defendant's right to counsel, a defendant should be given "a fair opportunity" to retain counsel of his choosing. State ex rel S.G., 175 N.J. 132, 140 (2003). However, in a criminal case, the court has a superior duty to prevent an actual conflict of interest that undermines the integrity of the court proceedings. Ibid.; State v. Davis, 366 N.J. Super. 30, 38 (App. Div. 2004); see also Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 1698, 100 L. Ed. 2d 140, 149 (1988) (noting independent nature of judiciary's interest in ensuring conflict-free representation); State v. Loyal, 164 N.J. 418, 433 (2000) (emphasizing trial court's responsibility for "assuring the fairness and reliability of the trial"). In criminal cases, "special vigilance is required because an attorney's divided loyalty can undermine a defendant's Sixth Amendment right to effective assistance of counsel." S.G., supra, 175 N.J. at 139.
An attorney's conflict of interest in the representation of clients is addressed in our Rules of Professional Conduct (RPC) 1.7 and 1.9. RPC 1.7 states that "[a] concurrent conflict of interest exists if . . . there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to . . . a former client." RPC 1.9(a) precludes an attorney from representing a client where the interests of that client "are materially adverse" to those of a former client involved "in the same or a substantially related matter."
RPC 1.7 states in full:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
(1) each affected client gives informed consent, confirmed in writing, after full disclosure and consultation, provided, however, that a public entity cannot consent to any such representation. When the lawyer represents multiple clients in a single matter, the consultation shall include an explanation of the common representation and the advantages and risks involved;
(2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(3) the representation is not prohibited by law; and
(4) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
In relevant part, RPC 1.9 provides guidance on an attorney's duty to former clients:
(a) A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.
. . . .
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Despite the consent provisions of RPC 1.7(b) and 1.9(a), in some circumstances a conflict cannot be waived. Loyal, supra, 164 N.J. at 433-34; In re Garber, 95 N.J. 597, 613-14 (1984); State v. Rivera, 232 N.J. Super. 165, 179-80 (App. Div.), certif. denied, 117 N.J. 169 (1989); see also Wheat, supra, 486 U.S. at 160-63, 108 S. Ct. at 1697-99, 100 L. Ed. 2d at 149-51 (noting willingness of federal courts to consider claims of ineffective assistance of counsel even where defendant has waived any claim based on the attorney's conflict of interest). In criminal matters, where the public has its own interest in the perception of fair proceedings and the protection of all parties' rights, consent of the clients may not resolve a conflict of interest. Garber, supra, 95 N.J. at 613-14; see also In re Abrams, 56 N.J. 271, 276 (1970) (Consent to a conflict of interest is not relevant "when the subject matter is crime and when the public interest in the disclosure of criminal activities might thereby be hindered.").
With these principles in mind, we must make a "fact sensitive" inquiry to determine whether attorneys Mazraani and Diaz-Cobo are able to represent Ross and Vickers vigorously in this case despite their prior representation of Rajon McMillian and Nadrell McMillan. See State v. Jimenez, 175 N.J. 475, 486 (2003). The appearance of impropriety, although no longer a violation of the Rules of Professional Conduct, may still constitute grounds for disqualification. Davis, supra, 366 N.J. Super. at 43-44. We must determine whether the attorneys' "representation poses an unwarranted risk of disservice either to the public interest or the interest of the client." Id. at 44 (quoting Supreme Court of New Jersey, Administrative Determinations in Response to the Report and Recommendation of the Supreme Court Commission on the Rules of Professional Conduct ("the Pollock Commission"), Commission Comment, RPC 1.7 (2003)).
Here, Mazraani previously represented Rajon McMillian on very serious charges arising from the March 2011 shooting and stabbing of a victim in New Brunswick. This representation lasted for well over a year. McMillian's co-defendant on those charges was Tereak Butler, who now stands indicted on the same charges in this case. Although the charges against McMillian were dismissed in February 2013, a conflict might arise in the current prosecution if McMillian is called as a witness to testify about his knowledge of the March 2011 incident. Mazraani's current client, Ross, is charged with engaging in a criminal enterprise and in various conspiracies that include the violent March 2011 incident. Mazraani might have to cross-examine McMillian, using any information available to him to impeach McMillian's credibility. There is a substantial risk of McMillian revealing before the jury his prior relationship with Mazraani and placing Mazraani in an untenable position of appearing to have breached his duty of loyalty to one client or the other.
Mazraani maintains that McMillian could not possibly have provided him with information pertinent to the March 2011 incident because McMillian was not present in New Brunswick during that time. According to Mazraani, McMillian's alibi makes the State's allegations of conflict merely theoretical or speculative. See O Builders & Assocs., Inc. v. Yuna Corp. of N.J., 206 N.J. 109, 130 (2011).
However, even if McMillian were to testify that he knows nothing about the March 2011 incident, the fact that he pleaded guilty to a weapons charge would be revealed to the jury, and his prior relationship with Mazraani might appear to have colored his testimony in favor of Ross and the other defendants. See State v. Needham, 298 N.J. Super. 100, 104-05 (Law Div. 1996). In that regard, Mazraani's option of not cross-examining McMillian might appear to be part of collusive minimizing of the witness's knowledge and tailoring of his testimony to meet the needs of the defense in this case. Under either circumstance, there is a potential conflict in Mazraani's current representation of Ross and his prior representation of McMillian.
It is little help for Mazraani to cite O Builders, supra, 206 N.J. at 130, to argue that any conflict is speculative. In that case, the matters disclosed to the attorney were neither "the same [n]or substantially related to the subject matter of the lawsuit." Ibid. By contrast, any matters disclosed to Mazraani regarding the March 2011 incident are directly related to the present indictment. Furthermore, O Builders was a civil case and did not require the "special vigilance" of the court in a criminal case to protect a defendant's Sixth Amendment right to effective assistance of counsel, see S.G., supra, 175 N.J. at 139, and to preserve the public perception of fair and uncorrupted criminal proceedings, see Davis, supra, 366 N.J. Super. at 44.
We conclude there would be a potential conflict and a perception of impropriety that warrants Mazraani's disqualification from representing Ross in this case.
With respect to Vickers, attorney Diaz-Cobo represented Nadrell McMillan, who is a co-defendant of Vickers in this case. The marijuana charge against McMillan was pending in municipal court from June to December 2012, that is, during the months immediately after McMillan's alleged participation in the May 2012 homicide that is charged in this case. Although the previous municipal case is not related to the current prosecution, the fact that Diaz-Cobo was representing McMillan at times relevant to the present offenses creates the perception that Diaz-Cobo may have obtained some relevant confidential information from McMillan. That confidential information might be used against McMillan in the course of Diaz-Cobo's defense of Vickers. See Needham, supra, 298 N.J. Super. at 106-07.
Diaz-Cobo maintains that he did not have any discussions regarding the murder charge with McMillan. Accepting the accuracy of that representation, a potential conflict is nevertheless present because Vickers and McMillan may have conflicting interests in this case. Should either enter a plea of guilty and make admissions pertinent to the charges of this indictment, those admissions may redound to the detriment of the other client. See Abrams, supra, 56 N.J. at 276 (attorney's duty to inform client of the potential of seeking leniency by pleading guilty and aiding the State's prosecution). Diaz-Cobo has a duty to Vickers of exploring the possibility of all plea offers, including the potential that Vickers could testify in this case in a manner that is harmful to McMillan's defense. Diaz-Cobo's obligations to Vickers should not be influenced by his prior attorney-client relationship with McMillan.
On the other hand, should McMillan plead guilty and either testify willingly or make admissions in his plea colloquy, those admissions may be damaging to Vickers' defense. Diaz-Cobo would then be compelled to cross-examine McMillan or otherwise discredit him, perhaps to the judge if not to the jury. He would not be able to withhold information about McMillan that he learned during his representation of him for the municipal court matter. Such adverse interests of the present and former client cause an actual conflict that interferes with Diaz-Cobo's duty of loyal service to both clients arising from charges during the same time period.
Similar to the circumstances we described regarding Mazraani, Diaz-Cobo's prior representation could also create a public perception that he would not cross-examine McMillan vigorously in the trial of this case. See Needham, supra, 298 N.J. Super. at 105-06. The fact that Diaz-Cobo's representation of McMillan overlapped in time with the charges of the present indictment creates a potential conflict of interest that calls into question his ability to represent Vickers without conflicting loyalties.
Both counsel argue that their present and former clients have waived or are willing to waive claims based on any conflict of interest. Some conflicts, however, cannot be waived even with full disclosure and consent of the clients. Garber, supra, 95 N.J. at 613-14. In criminal matters, "[t]he public itself has the greatest stake in the propriety of the legal relationships that are created." Id. at 614; see Abrams, supra, 56 N.J. at 276.
We are aware that the circumstances of Garber were egregious in that it appeared that the attorney had been retained by an organized crime leader to represent a potential adverse witness and to prompt the witness to recant damaging evidence against the organized crime leader. See Garber, supra, 95 N.J. at 600-04. Although no similar accusation can or should be countenanced against Mazraani and Diaz-Cobo, whose integrity and reputations are not questioned in our decision, this case too involves alleged organized criminal activity where a perception might exist that the hierarchy of a street gang is capable of quashing potentially adverse witness testimony.
Through no fault of the attorneys, a potential witness such as Rajon McMillian may be reluctant to cooperate and to testify truthfully. In addition, both McMillian and Nadrell McMillan may feel compelled to agree to waive any conflict of interest in the attorneys' current representation of Ross and Vickers. The trial court may have difficulty in accepting the voluntariness of all the waivers in this case.
Furthermore, while in some cases it may be possible to conduct a meticulous hearing in open court to obtain a waiver by all clients of potential future conflicts, see Davis, supra, 366 N.J. Super. at 48-49, clearly, the certifications of the clients are insufficient without their appearance in open court and waivers under oath. In any event, if the holding of Garber and similar cases is to be modified regarding the acceptability of waivers in a criminal case such as this, the Supreme Court must act to make such a change in the law.
Finally, we reject the arguments of both attorneys that the potential conflicts in this case should be controlled by the Supreme Court's decision in State v. Bell, 90 N.J. 163 (1982). That case pertained to potential conflicts in the Public Defender's Office in representing different clients over a period of time. The Court held that a presumption of conflict does not exist in such representations because of the nature of the Public Defender's Office as a governmental agency as opposed to attorneys in private practice. Id. at 168. The court reasoned that attorneys in the Public Defender's Office do not have the same financial incentive to retain clients as do attorneys in private practice. Ibid. A Deputy Public Defender can be expected to withdraw when the client might be prejudiced by a conflict, and the matter can be assigned to a different member of that office. Ibid.
Defendants argue that the holding of Bell should be extended to "pool" attorneys. Despite an identical fiduciary duty to the client as that of a Deputy Public Defender, Davis, supra, 366 N.J. Super. at 40, a pool attorney is financially compensated in a manner akin to private practice. See, e.g., Office of the Public Defender, OPD Pool Attorney Application Process 4, available at http://www.state.nj.us/defender/ PoolAttorneyGuidelines.pdf (last visited Feb. 7, 2014). A pool attorney is paid based on the number of billable hours the attorney works on a particular case. Ibid. Compared to some law firms, the billable rates of pool attorneys are modest, but the general structure of remuneration is the same. We conclude the reasoning of Bell is not applicable to pool attorneys.
Having reviewed the record and considered all the arguments of counsel, we agree with the Law Division's reasoning and conclusions. To the extent we have not specifically addressed other arguments made by defendants, we affirm essentially for the detailed reasons stated in the oral decisions of Judge Bradley Ferencz in the Law Division.
We will extend the stays we granted by our orders of November 18, 2013, for fifteen days to permit counsel to determine whether any further appeal will be attempted. After fifteen days, the stays ordered by this court shall be lifted automatically. Any application for an additional stay shall be initially presented to the Law Division.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION