United States District Court, D. Minnesota
Thomas Calhoun-Lopez, United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota 55415, for Plaintiff.
Jephtah Olupo, Olupo Law Office, Elder Jones Building, 1120 East 80th Street, Suite 107, Bloomington, Minnesota 55420, for Defendant.
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on the Government's Motion for Inquiry Regarding Conflict of Interest [Doc. No. 29]. In response, this Court held a hearing on April 15, 2014, to inquire as to any potential conflict between the representation of Defendant by his current counsel, Jephtah Olupo, and Mr. Olupo's prior representation of a potential government witness in this case, an individual named A.L.
Defendant is charged with smuggling goods from the United States (Count 1) and making a false statement during the purchase of a firearm (Count 2). (Indictment [Doc. No. 1].) It is alleged that Defendant arranged for the shipment of vehicles in which firearms were hidden with another individual named A.L., whom the Government intends to call as a witness in this case. (Government's Mot. for Inquiry Re: Conflict of Interest at 2 [Doc. No. 29].) Mr. Olupo currently represents Defendant. Previously, Mr. Olupo represented A.L. in two matters: (1) naturalization proceedings before the United States Citizenship and Immigration Services, and (2) proceedings to expunge a charge of endangering a child from his criminal record. (Apr. 15, 2014, Hr'g Tr. at 4 [Doc. No. 39].) A.L. is neither a co-defendant nor a co-conspirator with Defendant. ( Id. at 6-7; Def.'s Resp. to Mot. for Inquiry, Re: Conflict of Interest at 2 [Doc. No. 33].) The Government agrees that A.L. has no knowledge of the hidden firearms, which are the subject of the Indictment.
On March 24, 2014, the Government moved this Court for a hearing to assess whether Mr. Olupo's previous representation of A.L. creates a conflict of interest in this case. (Government's Mot. for Inquiry Re: Conflict of Interest [Doc. No. 29].) On April 4, 2014, Defendant opposed the Government's Motion. (Def.'s Resp. to Mot. for Inquiry, Re: Conflict of Interest [Doc. No. 33].) On April 15, 2014, the Court inquired into the potential conflict of interest with the parties and Defendant. (Court Mins. [Doc. No. 35].) The Court marked two sets of documents provided by Mr. Olupo as Exhibits A and B, respectively: (1) A.L.'s "naturalization record, " and (2) A.L.'s "expungement record." (Apr. 15, 2014, Hr'g Tr. at 4.) After the Court made its inquiry, the Government agreed with Defendant that a conflict of interest does not appear to exist. ( Id. at 6.) Defendant provided a sworn, oral waiver of any unforeseen conflicts in the future by virtue of Mr. Olupo's prior representation of A.L., and Mr. Olupo agreed to provide a waiver in writing to the Government as well. ( Id. at 11-12.)
The Court takes guidance from United States v. Agosto , 675 F.2d 965 (8th Cir. 1982) in considering the potential for a conflict of interest in this context-that is, successive representation, where an attorney representing a defendant previously represented co-defendants or trial witnesses. A conflict of interest between a prior client and a present client may impinge on a defendant's constitutional rights under the Sixth Amendment. Agosto , 675 F.2d at 970-71. One potential for conflict is the attorney's receipt of privileged information from the former client, which might affect his advocacy on behalf of his current client in two ways:
(a) the attorney may be tempted to use that confidential information to impeach the former client; and/or
(b) counsel may fail to conduct a rigorous cross-examination for fear of misusing his confidential information.
Id. at 971. Another major potential for conflict is that the attorney's pecuniary interest in possible future business may lead him to make trial decisions with a view toward avoiding prejudice to his former client. Id . Courts generally give substantial weight to defense counsel's representations regarding conflicts of interest. Id. at 972.
Against this backdrop, the Court inquires as to whether there is good cause to believe that a conflict of interest is likely to arise in this case. Id. at 971. To determine ...