Opinion
Nos. 1:04-cr-186, 1:04-cr-188.
February 15, 2005
MEMORANDUM AND ORDER
The United States filed motions for judicial inquiry in each of these cases. [Court File No. 30, 1:04-cr-186; Court File No. 35, 1:04-cr-188]. In these motions the United States asks the Court to determine whether attorney Fred T. Hanzelik has a conflict of interest and should be permitted to represent the defendants in these cases. On February 10, 2004, the Court held a hearing on the government's motions, and allowed attorney Hanzelik to respond as to whether he has a conflict of interest.
The United States also filed such a motion in United States v. DiFilippo, No. 1:04-cr-159, in the United States District Court for the Eastern District of Tennessee. However, attorney Hanzelik has moved to withdraw in that case, and the Court has granted that motion.
As it stands at this time, three relevant indictments have been returned by the Federal Grand Jury. They are:
(1) Case No. 1:04-cr-188. This is a superseding indictment charging Gary Michael Brock, Jerry Giles Brock, and Darrin T. Webb with a conspiracy to commit extortion under color of official right, in violation of 18 U.S.C. § 1951 (the Hobbs Act). In this superseding indictment, the government alleges that all three of these defendants had an interest in Brock Bonding Company and that in furtherance of their desire to aid Brock Bonding Company and to "fix" citations, they paid off a court clerk to accomplish these objectives. These three defendants are also charged with participating in a mail fraud scheme, in violation of 18 U.S.C. § 1341. Darrin T. Webb is charged with making a false statement, 18 U.S.C. § 1001.
(2) Case No. 1:04-cr-186. Darrin T. Webb is charged in an amended indictment with one count of distributing information relating to destructive devices, in violation of 18 U.S.C. § 842(p)(2)(A) and (B).
(3) Case No. 1:04-cr-159. Dean DeFilippo is charged, along with others, in various arson-related matters.
At the hearing on the government's motion for inquiry, the government presented testimony that all of these indictments can be supported by interlocking proof. The government has evidence that the Brocks, as well as Webb, have an economic interest in Brock Bonding Company. The Brocks and Webb are charged jointly in a superseding indictment, and attorney Hanzelik now represents both Gary Michael Brock and Darrin T. Webb, who are co-defendants in this case. This presents a scenario that is rife with potential conflicts of interest. It could easily happen, as it frequently does in conspiracy cases, that it would be in the best interest of one of these clients to plead guilty and testify against the other. If this occurs, attorney Hanzelik would not be able to effectively represent both of his clients. If both clients are convicted, some sentencing issues may arise which could make it impossible for attorney Hanzelik to represent both clients. For example, Hanzelik may be in a position of contending that one or the other of his clients should receive a mitigating role under the FEDERAL SENTENCING GUIDELINES and thus a lesser sentence than the other. U.S.S.G. §§ 3B1.1 and 3B1.2.
It is also very possible that Dean DiFilippo could be a witness in defendant Webb's incendiary device case. The government has presented evidence that Webb provided the information about how to make the device that DiFilippo in fact used in one or more of the arsons charged against DiFilippo. While Webb did not directly instruct DiFilippo, DiFilippo knew that the method of creating this device had come from Webb. Since attorney Hanzelik has, up until now, represented Dean DiFilippo, he may not be in a position to effectively represent Webb in cross examining DiFilippo, because he will not be able to use information gained during the course of his representation of DiFilippo in the course of any such cross examination. Clearly, we have here, at the very least, potential conflicts of interest on attorney Hanzelik's part. The Court tried to point those out to Mr. Hanzelik at the hearing on the government's inquiry motions. Mr. Hanzelik has now withdrawn from representing Mr. DiFilippo, but wishes to continue representing Messrs. Gary Michael Brock and Darren T. Webb, and has obtained affidavits from these defendants wherein they assert there are no conflicts, but nevertheless they waive those conflicts if there are any.
This Court in appropriate cases may reject waivers of conflicts of interest. Wheat v. United States, 486 U.S. 153, 162 (1988). This can be done where the mere potential for conflict exists. Id. at 163. The Court is particularly concerned with the efficacy of the waivers signed by defendants Darrin Webb and Gary Michael Brock because in these waivers (affidavits) they do not acknowledge that Mr. Hanzelik may have a conflict. This is despite the fact that each of them was present at the inquiry hearing and heard testimony offered by the government. This testimony, as well as questions asked by the Court, clearly revealed potential conflicts for attorney Hanzelik. This is a clear indication that Darrin Webb and Gary Michael Brock do not clearly comprehend the risks here and, this, in turn, is a clear indication that they do not know what they are waiving. The Court, therefore, respectfully rejects these waivers.
The Court recognizes that under ordinary circumstances defendants in criminal cases are entitled to counsel of their own choice. This is a qualified right, however, and where, as here, there is a serious potential for a conflict on the part of counsel, that right must give way to the necessity of engaging separate counsel. Wheat, 486 U.S. at 164; Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1351-54 (6th Cir. 1993); see also United States v. Mays, 69 F.3d 116, 122 (6th Cir. 1995).
Since there are serious questions as to whether attorney Hanzelik can effectively represent both Gary Michael Brock and Darrin T. Webb as co-defendants in the same case (No. 1:04-cr-188); and since there are also serious questions as to whether attorney Hanzelik will be able to effectively represent Darrin Webb in Case No. 1:04-cr-186; he is therefore DISQUALIFIED from representing either of these defendants in any of these cases. Defendants Gary Michael Brock and Darrin T. Webb may obtain new and separate counsel. To allow these defendants to obtain new counsel, cases No. 1:04-cr-186 (currently set for trial on February 22, 2005) and No. 1:04-cr-188 (currently set for trial on March 1, 2005), as well as the final pretrial conferences, are hereby CONTINUED. New scheduling orders will be entered in these cases as soon as new counsel enter an appearance.
SO ORDERED.