United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This Order addresses two remaining issues raised by the pending motions: (1) Defendants Kyle Archie ("Kyle") and Linda Archie's ("Linda") request for joint representation by out-of-state counsel, Robert E. Barnes ("Mr. Barnes"), and local counsel, Craig Denny ("Mr. Denny"); and (2) any potential conflict in Mr. Denny's representation of Defendants and his representation of Reno Rock Transport, LLC ("RRT"). The Court held a hearing on April 13, 2015. (Dkt. no. 49.) The Court also held an ex parte sealed hearing where it canvassed Defendants about their decision to pursue joint representation. The simultaneously filed sealed Order references Defendants' statements during this ex parte sealed hearing.
On February 26, 2014, Defendants were indicted on twelve counts of failure to account for and pay over withholding and taxes in violation of 18 U.S.C. § 7202, and aiding and abetting, in violation of 18 U.S.C. § 2. (Dkt. no. 1.) Each count recites the same underlying facts: Kyle was the responsible officer of Reno Rock, Inc. ("RRI"), GKPA, Inc. and Rockeries, Inc. (collectively "the Entities"); Linda was the bookkeeper for the Entities; Kyle deducted or caused to be deducted taxes, including Federal Insurance Contributions Act ("FICA") taxes, from his employees for certain enumerated quarters; and, with the help of Linda, Kyle allegedly willfully failed to truthfully account for and pay over to the Internal Revenue Services these withheld taxes. ( Id. at 1-2.)
On April 1, 2014, Kyle appeared for his initial appearance and arraignment with his retained counsel, Steve Wilson. (Dkt. nos. 8, 11.) On April 2, 2014, Linda appeared for her initial appearance and arraignment with her retained counsel, Richard Molezzo. (Dkt. nos. 13, 16.) On September 18, 2014, Mr. Barnes filed a verified petition for permission to appear pro hac vice to represent Kyle. (Dkt. no. 26.) Barnes designated Mr. Wilson as his local counsel. This petition was approved. (Dkt. no. 27.)
On February 24, 2015, Linda filed a motion to substitute Mr. Barnes as her counsel in place of Mr. Molezzo. (Dkt. no. 34.) The government filed an opposition and Mr. Barnes filed a reply. (Dkt. nos. 39, 40.)
A few weeks later, on March 4 and 6, Defendants filed separate motions to substitute Mr. Denny as their counsel in place of their respective counsel, Mr. Molezzo and Mr. Wilson. (Dkt. nos. 37, 38.) In response, the government moved to determine possible disqualification of Mr. Denny because of a potential conflict between Mr. Denny's representation of one or both Defendants and his representation of RRT. (Dkt. no. 43.) Defendants filed a response to this motion. (Dkt. no. 46)
Over a month after Linda filed her motion to substitute Mr. Barnes, on April 8, 2015, Mr. Barnes filed a petition for permission to appear pro hac vice on behalf of Linda, designating Mr. Denny as his local counsel. (Dkt. no. 44.)
On April 13, 2015, after hearing arguments on the pending motions, the Court denied Mr. Barnes' petition for permission to appear as pro hac vice on behalf of Linda. (Dkt. no. 49.) While this decision renders moot Linda's motion to substitute Mr. Barnes and the issue of joint representation of Defendants by Mr. Barnes, the Court will address the joint representation request in light of Defendants' motions to substitute Mr. Denny as their counsel.
The Court will first address the issue of joint representation, followed by the issue of Denny's former representation of RRTL.
A. Joint Representation
Pursuant to the Sixth Amendment, a criminal defendant has a right to representation free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271 (1981). This right must be balanced with a criminal defendants' right to select and be represented by his or her preferred attorney. See Wheat v. United States, 486 U.S. 153, 159 (1988). The Supreme Court has suggested that in weighing this balance, courts should favor effective advocacy: "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an ...