Opinion
Criminal No. 03-137(CCC).
June 28, 2004
ORDER ON GOVERNMENT'S MOTION FOR RECONSIDERATION OF REPORT AND RECOMMENDATION
On January 7, 2004, the government requested this Magistrate-Judge to reconsider the Report and Recommendation issued on October 29, 2003, in regards to conflict of interest. For the reasons set forth in a separate order, the government's request ( at Docket No. 33) is DENIED.
This Order on Motion for Reconsideration of a Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) and Local Criminal Rule 157.1 of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Rule 72(d), Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to timely file specific objections is a waiver of the right to review by the District Court. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Order by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).
SO ORDERED.
I. Procedural Background
At San Juan, Puerto Rico, this 28th day of June, 2004.
On October 21, 2003, a Report and Recommendation issued on October 20, 2003, was filed ( Docket No. 25). Within said report factual and legal conclusions were made regarding the existence of conflicting interests posed by the legal representation of Attorneys Ricardo Pesquera and José Gaztambide to defendant Miguel Rivera-Hernández. Said factual and legal conclusions were based on the evidence presented to this Magistrate-Judge at an evidentiary hearing held on July 18, 2003 ( Docket No. 24: Minutes of Proceedings).
The transcript of the proceedings held on July 18, 2003, were filed on record on November 10, 2003 ( Docket No. 29).
The Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72(a), granted the parties ten (10) days in which to file specific objections to the same ( Docket No. 25 at pp. 19-20).
As approved and effective on September 29, 2003.
The record reflects that on October 29, 2003, the government requested an extension of time (10 working days upon filing of transcripts) to submit a request for reconsideration ( Docket No. 26). The Court granted said request on October 30, 2003, and instructed the government to provide notice of when it received the transcript ( Docket No. 27). The transcript of proceedings were filed and made part of the record on November 10, 2003 ( Docket No. 29). It was not until December 16, 2003, when the government filed an Informative Motion indicating it had become aware that the transcript of proceedings had been filed ( Docket No. 30). No indication of when it was received was made. The fact remains the government was granted until January 7, 2004, in which to file its response ( Docket No. 33).
The government moved for reconsideration in a motion filed on January 7, 2004, which the defense opposed on March 3, 2004 ( Docket Nos. 33 and 37).
Id.
In its motion the government asserts that:
1. "the factual scenario used by the Honorable Magistrate Judge is not completely accurate;" and that
2. "conclusions reached by the Court in its Report and Recommendation were done without allowing AUSA Kellogg to address the issues and are therefore incorrect."
In addition, the government submits other allegations such as:
1. The evidentiary hearing held on July 18, 2003, was not a conflict of interest hearing, inasmuch as Assistant U.S. Attorney Rebecca Kellogg, counsel with personal knowledge of the facts at issue, was not present ( Docket No. 33, pp. 19-20) and was "not granted the opportunity to rebut or even corroborate for the Court if what was being stated as to conversations was true and accurate" ( Id., at p. 18).
2. The Report and Recommendation "places AUSA Kellogg at the evidentiary hearing when it was common knowledge that she was outside the jurisdiction at that time and had so informed the Court."
3. At footnote No. 15 the government attributes factual errors to the undersigned's statement (while making reference to Manuel Rivera-Díaz's testimony before the Grand Jury) that "at some point during the noon recess Rivera-Díaz was able to consult and seek advice from Attorney Gaztambide." The government clarifies it was a mid-morning break during the Grand Jury session.
4. At footnote No. 16 the government highlights this Magistrate-Judge incorrectly concluded that "Attorney Gaztambide was invited by AUSA Kellogg to surrender Rivera-Hernández to either the U.S. Attorney's Office or the FBI he declined the invitation and proceeded to take Rivera-Hernández to Pretrial." The government clarifies defendant was taken to the FBI Office and not to Pretrial Services.
5. This Magistrate-Judge may not base her recommendations and assessment as to whether a conflict of interest exists based on the existence of other evidence, such as testimonial evidence
The issue of whether there was a noon or mid-morning recess of the Grand Jury session in which client (Rivera-Díaz) and counsel were able to confer is irrelevant to the crucial issues at hand. The fact remains they both did consult and that Rivera-Díaz concluded his Grand Jury testimony without evasiveness. This assignment of error by the government will not be further addressed as totally superfluous and irrelevant to the controversy.
The government makes reference to page 18 of the hearing transcript, lines 10 through 16, to establish that Rivera-Hernández surrendered at the FBI offices. While the government misrepresents said statement as a factual conclusion, what appears at page 7, paragraph 1, of the Report and Recommendation, is a summary of Attorney Gaztambide's assertions. While it is correct that defendant Rivera-Hernández was first taken to the FBI offices and then to Pretrial Services, the government in its argument fails to cite the portion of the testimony depicted at page 18, lines 5 through 12. ( See Docket Entry No. 29: transcript.) This point this Magistrate-Judge refuses to address further, inasmuch as whether defendant Rivera-Hernández was first taken to the FBI for processing and thereafter to Pretrial Services or vice versa is also irrelevant as to the existence or not of an actual or potential conflict of interest.
III. Analysis
A. Factual Scenario Is Not Completely Accurate
While so arguing, the government has failed to point to substantial factual discrepancies. In its description of facts the government alludes to the chronological sequence of procedural events and to the extent of conversations held between AUSA Kellogg and either Attorneys Ricardo Pesquera or José Gaztambide or with both of them.
In regards to the chronological or procedural aspects, the government first points to the fact that it was on June 9, 2003, and not June 11, 2003, when the government requested a hearing to address the issue of conflicting interests. The government is correct. Notwithstanding, this Magistrate-Judge's assertion was based on the inked stamp within the motion in the Court's file which was barely legible. Notice is taken of the fact that the government moved the Court for a Conflict of Interest Hearing on July 9, 2004. Nonetheless, this assignment of error is inconsequential.
It is also inconsequential that the government in its motion asserts that defendant's motion requesting hearing was filed on June 17, 2003 ( Docket No. 33, p. 3) when in fact it was filed on June 13, 2003 ( Docket No. 15). It is also of no consequence the government's misstatement when alluding to an order setting the conflict of interest hearing for July 18, 2003, as "issued on July 9, 2003" when in fact it was issued on July 7, 2003, and entered on July 9, 2003.
B. AUSA Kellogg Was Denied the Opportunity to Address the Issues
AUSA Kellogg basically complains of the fact that her version of facts was never considered by this Magistrate-Judge prior to submitting the Report and Recommendation. Without clearly asserting it, she appears to state the government was somehow compelled to proceed into a hearing without being prepared. The record speaks of a different reality. First, it is to be noted that between the time the conflict of interest hearing was set and the actual hearing (July 18, 2003), the attorney for the government had at least eight (8) days in which to submit its written version of facts, given her imminent absence from the jurisdiction. It was not done. Secondly, at the hearing the government was represented by Assistant U.S. Attorney Nereida Meléndez, Deputy Chief for the White Collar Crime Division, and Assistant U.S. Attorney Sonia Torres, Deputy Chief for the Criminal Division. Both are AUSA Kellogg's supervisors. Both duly represented the government and appeared fully prepared for the hearing. Actually, a binder with a chronological depiction of factual events and written communications among counsel was submitted (see gov't Exh. 1). Third, it is incorrectly argued that it was AUSA Kellogg the sole attorney with personal knowledge of most communications with defense attorneys (Pesquera and Gaztambide). Most of these conversations, as well as its contents, were corroborated by written documents submitted to the Court's consideration within government's Exhibit I. More so, AUSA Meléndez was a participant at proceedings before the Grand Jury on the date defendant Rivera-Hernández was called in to testify. She was also a witness of the events transpiring before the Grand Jury and the conversation the attorneys for the government and Attorney Gaztambide had with immunized witness Rivera-Díaz.
Fourth, between July 18, 2003, and November 10, 2003, the government never submitted post-hearing briefs or memoranda. In spite of the hearing transcript availability since November 10, 2003, it took the government until January 7, 2004, to submit its motion.
This Magistrate-Judge has examined the government's averments regarding the subject matter of the conversations held between AUSA Kellogg and either one or both Attorneys Pequera and Gaztambide. Still, this Magistrate-Judge is not persuaded that a conflict of interest exists in having Attorneys Pesquera and Gaztambide represent defendant Rivera-Hernández after Attorney Gaztambide's representation of a government immunized witness came to an end.
It is clear from the Report and Recommendation this Magistrate-Judge was aware and considered that Attorney Pesquera in 2003 had initially submitted corporate documents subpoenaed from Multi-Equipment Corp., which no longer existed as of 2002. Those documents or corporate records (i.e., vouchers, receipts, invoices) were the ones used to confront Rivera-Díaz during his Grand Jury testimony. It was Attorney Gaztambide who represented Rivera-Díaz during his appearance before the Grand Jury. Whether Attorney Gaztambide was privy to the existence of those corporate records the government used to confront Rivera-Díaz (fact which Attorney Gaztambide denied) or whether he became aware of their existence at the time Rivera-Díaz consulted with him during a recess on the date he appeared before the Grand Jury, does not pose a significant variance. First, because in the Report and Recommendation it is acknowledged that the "parties' factual allegations commence to differ on the same date Rivera-Díaz appeared before the Grand Jury on May 12, 2003" ( Docket No. 25: Report and Recommendation at p. 4); "that Rivera-Díaz was able to consult and seek advice from Attorney Gaztambide in regards to the invoices and checks with which he was being confronted" ( id., at p. 5); that Attorney Gaztambide narrated and recalled that "at the time Rivera-Díaz showed him or talked to him about some vouchers and invoices he was being shown and confronted with as well as payments made to Rivera-Hernández's wife ( id., at p. 6). Be as it may, the threshold remains on the fact that, even if Attorney Gaztambide knew or saw the documentary evidence in the government's possession (previously submitted by Attorney Pesquera in response to a subpoena), counsel instructed Rivera-Díaz to testify truthfully. Then and there the witness' evasiveness ceased and the government elicited the testimony it sought from Rivera-Díaz.
Secondly, the defense has admitted that after the Grand Jury testimony there was a meeting with Rivera-Díaz at which both attorneys did participate. Rivera-Díaz's testimony and Rivera-Hernández's future arrest were matters discussed.
Accordingly, in this regard, the statements AUSA Kellogg now proffers adds little, if anything, to the factual scenario considered by this Magistrate-Judge.
The government's motion also contains a lengthy description of the defense's previous attempts to quash the subpoenas against Multi-Equipment and Rivera-Díaz and the delay of Rivera-Díaz's appearance before the Grand Jury. A full page is devoted to explain conversations held with Attorney Jorge Pagan, who had no significant and actually has no participation in the case. The information so provided, while probably relevant to the "animus" between the partes, is not relevant to the crux of this case.
AUSA Kellogg strenuously asserts and repeatedly emphasized in her motion the fact it was "common knowledge" she was outside the jurisdiction and still within the Report and Recommendation this Magistrate-Judge places her as present at the hearing ( Docket No. 33 at pp. 2, par. 4, footnote No. 1; 4, par. 3-4; 16, par. 4-5; 17, par. 1-2; 18; 19; 20). Unless the government intends to assert bias or is attempting to ridicule this Magistrate-Judge's Report and Recommendation, the undersigned fails to grasp and understand why an experienced government attorney, who knows the difference between a relevant assignment of error or an error that is the product of inadvertence and bears no consequence to the ultimate issue, has to be bolstered as to create the implication the Report and Recommendation is plagued with factual incorrectness.
While it is correct that at page 2 of the Report and Recommendation, under the Procedural Background section, it is incorrectly reflected that "at the hearing Assistant U.S. Attorney Rebecca Kellogg and Nereida Meléndez proffered a summary of the evidence," such statement has no bearing in the ultimate course of action recommended to the Court. The record clearly reflects that at the July 18, 2003 hearing, it was AUSA's Nereida Meléndez and Sonia Torres, Deputy Chief, the ones who appeared ( Docket No. 14: Minutes of Proceedings). More so, the transcript of proceedings beyond doubt contains this Magistrate-Judge's opening remarks in which AUSA Kellogg's absence from the jurisdiction was acknowledged ( Docket No. 29 at pp. 2-3).
This Magistrate-Judge, however, takes notice of AUSA Kellogg's clarification to the effect that she never indicated to Attorney Gaztambide on May 12, 2003, that a true bill had been rendered by the Grand Jury ( Docket No. 33, p. 18). Notice is also taken of the fact that AUSA Kellogg's assertion is that upon Rivera-Hernández's arrest, she never asked Attorney Gaztambide to join the defense of defendant Rivera-Hernández nor to have him taken to her office subsequent to his arrest. Inasmuch as the transcript of proceedings reflect a different version by Attorney Gaztambide, these two facts must be considered in dispute. Nonetheless, this fact as well remains of no consequence to the ultimate issue. The relevant fact remains that Attorney Gaztambide, following defendant Rivera-Hernández's arrest, was asked by the Rivera family to join Attorney Pesquera as part of the defense team and that in accordance therewith he filed his notice of appearance on May 14, 2003 ( Docket No. 7).
C. The Recommendation is Made Based on the Availability of Other Testimonial Evidence or Witnesses
The government misrepresents the basis for the Magistrate-Judge's recommendation to the Court. While the availability of other incriminating direct evidence was considered among other factors, at no point was the availability of such other evidence the determining factor or has this Magistrate-Judge determined which evidence the government should choose to present. Actually, the government quotes case law from the Seventh Circuit Court of Appeals that relates to exclusion of a government witness by the Court in view of the availability of other evidence ( Docket No. 33, pp. 34-35). It must be clear this Magistrate-Judge has not excluded government's evidence or witnesses nor has such recommendation been issued to the trial court.
While Rivera-Díaz may remain "a necessary piece of the puzzle that cannot be brought forth by others," Rivera-Díaz remains as a potential and viable government witness. The fact he is the father of defendant Rivera-Hernández cannot be changed. Whatever emotional strains he has to endure while testifying once again on the government's behalf, he has at all times been instructed "to tell the truth." He did before the Grand Jury. In its motion the government questions, while arguing the need to disqualify Attorneys Pesquera and Gaztambide, as to what will happen if at trial, during direct examination, Rivera-Díaz changes his testimony from that submitted to the Grand Jury. AUSA Kellogg knows the course of action will be not to call Attorney Gaztambide, who was not present in the Grand Jury room during Rivera-Díaz's testimony, but rather have him impeached with the Grand Jury testimony or have Rivera-Díaz prosecuted for perjury or obstruction of justice. Secondly, the government contends defense counsel will be in a predicament were Rivera-Díaz to deny or assert having no recollection of his meeting with AUSA Kellogg. Once again, other than Attorney Gaztambide, the government may resort to the testimony of AUSA Nereida Meléndez and the case agent who also witnessed the meeting held between AUSA Kellogg and immunized witness Rivera-Díaz.
The government's assertion and evidence do fail to establish a real and actual conflict. Still going beyond the specter, there is a difference between a probable and a possible conflict.
D. Other Issues
The government requests that the Report and Recommendation be sealed, inasmuch as this Magistrate-Judge has made reference to contents of the Grand Jury transcripts that were submitted to in-chambers examination. The government asserts that "the Court makes reference to these transcripts and in instances cites passages from the transcripts as such breaching the sealed nature of the transcripts" ( Docket No. 33, p. 36).
This Magistrate-Judge has carefully examined the Report and Recommendation and cannot identify any "cited passages" except for an excerpt from the Grand Jury testimony of Rivera-Díaz. The same was utilized to depict the fact that the witness had stopped giving evasive answers. Though said Grand Jury transcript (the one of Rivera-Díaz) has not yet been disclosed to defense counsel, the same does not allude or make public any other aspect not already made public by the government when discussing the scope of the conversation held with defense counsel, the type of evidence that was subpoenaed from Multi-Equipment, and the evidence used to confront the witness. The references made by this Magistrate-Judge to other Grand Jury transcripts alludes to the transcripts of two other testimonies; however, no witnesses' names were provided. Said testimonies are depicted as constituting direct evidence against Rivera-Hernández, inasmuch as they provide the government with details regarding the planning and participation in the scheme charged ( Docket No. 25: Report and Recommendation pp. 7; 15, footnote No. 3; and 17).
This, in my opinion, contains no specific details not already known to defense counsel or made known by the government, no reference is made to specific testimonies given by other government witnesses and certainly, much less, no quotation or references to the testimonies of such other government witnesses.
It must be noted that at the July 18, 2003 hearing the government had made public and known to defense counsel that the Grand Jury testimonies of two cooperating witnesses had been submitted for consideration ( Docket No. 29, p. 4).
It is further noted that the Report and Recommendation was filed on October 21, 2003. It goes unexplained why, if the government had a concern for secrecy of proceedings, it took over two (2) months to raise such a concern either formally or by calling this Magistrate-Judge's attention to the fact.
Not being in agreement with the government's contention, it is considered that there is no reason to have the Report and Recommendation sealed, more so when faced with such a delayed reaction by the government.
Lastly, this Magistrate-Judge reinstates and incorporates by reference the legal analysis and recommendation contained within the October 29, 2003 Report and Recommendation.
Consequently, the U.S. Request for Reconsideration under Docket No. 33 is DENIED. Defendant's opposition at Docket No. 37 is NOTED.