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quashing Rule 17(c) subpoena because the defendant simply believed the documents would be relevant to his case
Summary of this case from U.S. v. LibbyOpinion
Crim. Nos. 00-100 (JRT/FLN); 01-124 (JRT/ESS); 01-162 (JRT/FLN)
October 31, 2001
Mark D. Larsen and Michelle E. Jones, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, for plaintiff.
Larry Eugene Reed, HASSAN REED, Minneapolis, MN, for defendant Olusoji Michael Agboola.
Leon Adolphus Trawick, TRAWICK SMITH, Minneapolis, MN, for defendant Michael Eidiale Aihe.
MEMORANDUM OPINION AND ORDER
Olusoji Michael Agboola ("Agboola") and Michael Eidiale Aihe ("Aihe") are each defendants in two of the three cases currently before the Court. On April 13, 2000, Agboola was indicted for bankruptcy fraud and other charges in Criminal Case No. 00-100. On April 30, 2001, Aihe was indicted for obstruction of justice in Criminal Case No. 01-124. These charges were based on allegations that Aihe assisted Agboola, his brother-in-law, in fleeing from the authorities in connection with the bankruptcy fraud case (00-100). On June 13, 2001, both defendants were indicted for conspiracy in Criminal Case 01-162. The alleged conspiracy is in connection with a real estate "flipping" scheme, which was connected with some of the properties and companies involved in the bankruptcy fraud case against Agboola (00-100).
These cases are now before the Court on three separate matters. First, Agboola appeals the Order of Chief United States Magistrate Judge Franklin L. Noel dated August 17, 2001. In that Order, the Magistrate Judge disqualified Agboola's counsel, Larry Reed, for conflicts of interest, and refused to accept Agboola's waiver of those conflicts. Second, the government appeals the Order of Chief Magistrate Judge Noel dated July 20, 2001, which granted Agboola's motion to subpoena documents for delivery to counsel. These two appeals, while relevant to all three cases, are technically part of the conspiracy case (01-162). Third, the government moves to consolidate all three cases under Rule 13 of the Federal Rules of Criminal Procedure.
Although the Magistrate Judge's Order disqualified Reed from only the conspiracy case (01-162), it is clear from the Magistrate Judge's accompanying Opinion that the conflict infecting the conspiracy case equally infects the bankruptcy fraud case (01-100). Therefore, this Court will construe the Magistrate Judge's Order as disqualifying Reed in both the conspiracy and the bankruptcy fraud cases.
BACKGROUND
The three pending cases are based on the same basic set of facts. The government alleges that defendants engaged in a property "flipping" scheme, whereby defendants inflated the apparent value of real estate through fraudulent appraisals and other deceptive means, in an effort to obtain loan proceeds that exceeded the true value of the real estate. This scheme was allegedly conducted through companies controlled by Agboola, who allegedly concealed assets and sources of income from the United States Bankruptcy Court.
In April 2000, Agboola was indicted in Criminal Case No. 00-100 ("the bankruptcy fraud case") for bankruptcy fraud, money laundering, and perjury, related to a bankruptcy petition. The real estate transactions at issue in that indictment include properties that were part of the flipping scheme, which become the subject of Criminal Case 01-162 ("the conspiracy case"). In the meantime, Agboola disappeared, in an apparent attempt to evade arrest. As part of the investigation to locate Agboola, the government became suspicious that Agboola's brother-in-law, Aihe, was cooperating in Agboola's business activities and helping Agboola evade arrest. In April 2001, a grand jury indicted Aihe in Criminal Case No. 01-124 ("the obstruction of justice case") for obstructing justice in the bankruptcy case (00-100).
During this time, both defendants were represented by Larry Reed. Reed had formerly represented Aihe in civil and administrative matters regarding Aihe's appraisal license. Reed has asserted in defense memoranda and in an affidavit that, prior to Aihe being charged for obstruction of justice, Reed was retained to determine whether Agboola was wanted by federal authorities. According to Reed, he investigated whether there were any indictments for Agboola, and advised both Aihe and Agboola on how to proceed.
After the indictment was returned in the obstruction of justice case against Aihe (01-124), Reed described himself as a witness in that case, and withdrew from representing Aihe. Reed continued to represent Agboola. At a hearing before Chief Magistrate Judge Noel on July 18, 2001, Aihe sought to dismiss his public defender and retain an associate of Reed's law firm. This raised the issues of successive representation and conflicts of interest, and led the Magistrate Judge to conduct an inquiry under Rule 44(c) of the Federal Rules of Criminal Procedure. The Magistrate Judge questioned both defendants to determine if any conflicts of interest were present and, if so, whether the defendants wanted to waive the conflicts. The Magistrate Judge issued his findings in the Order dated August 17, 2001.
ANALYSIS
I. Defendant Agboola's Appeal of Magistrate Judge's Order Disqualifying Counsel
Agboola appeals the Magistrate Judge's Order disqualifying Larry Reed from representing him in the bankruptcy fraud (00-100) and conspiracy (01-162) cases. The Magistrate Judge determined that Reed's continued representation of Agboola would present a "substantial likelihood of conflicts." The Magistrate Judge listed seven specific conflicts, and added that Reed should also be disqualified based on Model Rule of Professional Conduct 3.7, which prevents a lawyer from acting as an advocate in a trial in which the lawyer is likely to be a necessary witness. The Magistrate Judge concluded that this case has so many potential conflicts that he "cannot imagine all of the possible ways in which the conflict might work to the detriment of each defendant."
The factors that the Magistrate Judge identified are:
(1) Mr. Reed is a potential witness in the Obstruction case against Mr. Aihe; and for that reason voluntarily withdrew from representation in that case; (2) Mr. Reed is possessed of confidential communications received from Mr. Aihe which might compromise his ability to effectively represent Mr. Agboola in this case; communications received by Mr. Reed both in connection with representation in the Obstruction case and in a civil case involving Mr. Aihe's real estate license[,] which may be a matter substantially related to the instant prosecutions; (3) Mr. Agboola makes a serious claim of vindictive prosecution as to which Mr. Reed may also be a witness; (4) Mr. Reed may be a witness in connection with the Motion to suppress evidence in this, the Conspiracy case; (5) despite Defendants' contentions of a joint and consistent defense, the potential for conflicts to arise is not eliminated by their current united front[,] because the Government may offer one or the other a more attractive plea bargain; (6) Mr. Reed's advocacy may be affected because he may be tempted to use that confidential information to impeach Mr. Aihe or fail to conduct a rigorous cross-examination for fear of misusing his confidential information; and (7) Mr. Reed's pecuniary interest in possible future business may cause him to make trial decisions with a view toward avoiding prejudice to Mr. Aihe.
Order at 9-10.
Agboola asserts that none of the Magistrate Judge's determinations are supported by the record, and that the potential conflicts are no more than speculation. Agboola further asserts that his waiver of any conflicts is valid, and should have been accepted by the Magistrate Judge. Agboola claims that if any conflicts are present, they can be eliminated by holding separate trials. Finally, Agboola contends that his choice of counsel should outweigh all other considerations identified by the Magistrate Judge.
This contention is an apparent reference to the government's motion to consolidate. The Court will address that issue in Part III of this Opinion.
In response, the government argues that Reed should be disqualified based on his status as a likely witness in all three cases. The government further argues that Reed currently has a conflict of interest, due to his previous representation of Aihe in civil and administrative disciplinary matters regarding Aihe's appraisal license. Finally, the government maintains that the record supports the Magistrate Judge's determination of conflicts, and that defendants' waivers were ineffective.
An order of a Magistrate Judge on nondispositive pretrial matters may be reversed only if it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). Upon review of the submissions, files, records and proceedings, the Court finds nothing in the record to suggest that the Magistrate Judge's disqualification order is clearly erroneous or contrary to law.
The Magistrate Judge identified multiple grounds upon which Reed might be disqualified. This Court finds that Reed's status as a likely witness in all three cases, combined with his possession of confidential information from his relationship with Aihe, are sufficient to disqualify him from representing Agboola.
A. Rules of Professional Conduct
The District Court is responsible for supervising the members of its bar. United States v. Agosto, 675 F.2d 965, 969 (8th Cir. 1982), abrogated on other grounds, Flanagan v. United States, 465 U.S. 259 (1984). To uphold this responsibility, the District of Minnesota has adopted the Minnesota Rules of Professional Conduct. See D. Minn. LR 83.6(d). Rule 3.7 generally prohibits a lawyer from acting as an advocate in a trial where he is likely to be a necessary witness. In the present circumstances, the Court agrees with the government that Reed's knowledge of the circumstances leading up to Agboola's arrest is probative in all three cases, and that Reed's representation of Agboola in any of them would violate his duties under Rule 3.7.
Because Reed is a potential witness in all three cases, he would be disqualified whether the cases are tried together, or in three separate trials.
Reed may not believe that he has personal knowledge related to all three cases, nor that he will be called as a witness in either the fraud (00-100) or conspiracy (01-162) cases. However, the Court must recognize that Reed's "independent professional judgment may be clouded by his, and his client's desire that he continue as counsel here." United States v. Siegner, 489 F. Supp. 282, 286 (E.D.Pa. 1980). In Siegner, the government argued that the defendant's attorney had personal knowledge of matters relevant to the indictment. Id. The court stated that while it was not clear whether the attorney actually had such knowledge, the government's belief that he did made the attorney a potential witness. Id. The court further noted that a different defense counsel might wish to call the attorney to testify on the defendant's behalf, but that the attorney's continued representation of the defendant "would preclude any such testimony as a defense witness, possibly to the detriment of his client." Id. The Siegner court concluded that a "different attorney would be in a better position to assess the existence and extent of any personal knowledge" by the attorney. Id. In the present case, as in Siegner, the government asserts that Reed has certain information that is highly relevant to the indictment, and to the possible guilt of his client. In particular, Reed may know information about Aihe's appraisals that could exonerate his client, Agboola. Reed's continued representation of Agboola, however, precludes such testimony, and may harm Agboola's case. Therefore, based on Rule 3.7, Reed should be disqualified.
B. Confidential Information
The threat of violating Rule 3.7 alone presents sufficient grounds for Reed's disqualification. Even without considering Reed's role as a potential witness, however, the Court finds that he has a significant conflict of interest because he possesses confidential information from Aihe, his former client. There is a presumption that an attorney receives confidential communications in the course of his representing a client. United States v. Shepard, 675 F.2d 977, 980 (8th Cir. 1982). Reed previously represented Aihe in matters regarding Aihe's appraisal license and business. Aihe's appraisals of property could be probative in the "flipping" charges against Agboola. Agboola might, in fact, defend himself by attacking the validity of Aihe's appraisals. In such circumstances, Reed's possession of confidential information from his former client, Aihe, would present a serious conflict with his duty to represent his current client, Agboola. As the Magistrate Judge noted, Reed may be tempted to use this confidential information to impeach Aihe, or Reed may fail to conduct a rigorous cross-examination of Aihe, for fear of misusing his confidential information. See Agosto, 675 F.2d at 971. See also United States v. Sanders, 688 F. Supp. 373, 374 (N.D.Ill. 1988) (holding that an attorney was "faced with a conflict of interest between his obligation to his current client . . . and his ethical obligation to [a] previous client," where attorney would be in a position to cross examine his previous client on a matter in which he represented that client, and would risk impermissibly using information acquired during his previous representation or would attempt to avoid that problem by overcompensating to the detriment of his current client.)
The presumption that counsel has confidential information does not apply when a knowledgeable client states that, in fact, no confidential communications were made. Agosto, 675 F.2d at 972. However, the record here does not show that Aihe has made any such statement. Furthermore, although Reed has suggested in memoranda that he might not possess confidential information, he has not submitted any sworn statements that he never received confidential information from Aihe. Therefore, Reed has a conflict of interest due to his presumed possession of confidential information from his former client. This conflict, the Court determines, would infringe upon the Sixth Amendment rights of Reed's current client, Agboola.
In Agosto, the Eighth Circuit held that a lawyer should not be disqualified from representing a defendant, when that lawyer previously represented grand jury witnesses in the case. The court stated that the attorney's affidavit stating that he received no confidential information from his former clients, combined with similar statements from those clients, was sufficient to override the ordinary presumption. See 675 F.2d at 972.
Although Agboola attempted to waive his right to conflict-free representation, the Magistrate Judge determined that the waiver was inadequate to protect Agboola's right to effective representation. See United States v. DeLuna, 584 F. Supp. 139, 142 (W.D.Mo. 1984) (stating that a defendant's Sixth Amendment right to effective assistance of counsel is "superior" to the Sixth Amendment right to choice of retained counsel). A defendant may waive his right to conflict-free representation if that waiver is knowing and intelligent. Agosto, 675 F.2d at 969-70. However, the Sixth Amendment does not provide absolute protection to a defendant's choice of retained counsel. Shepard, 675 F.2d at 980. Rule 44(c) of the Federal Rules of Criminal Procedure seeks to strike a balance between the right to conflict-free representation and the right to effective representation. The rule requires the court to inquire into cases where conflicts might arise due to multiple representation, and to take measures to protect defendants' right to counsel unless it appears that no conflict of interest is likely to arise. Fed.R.Crim.P. 44(c). In the present case, the Magistrate Judge conducted a proper inquiry as required by Rule 44(c) and the law of the Eighth Circuit. See United States v. Lawriw, 568 F.2d 98 (8th Cir. 1977). The Magistrate Judge found it impossible to conclude that no conflict of interest is likely to arise, and determined that Agboola therefore could not make a knowing waiver, given "all of the likely ways in which said conflicts might manifest themselves."
Agboola argues that his waiver should be accepted because he is competent to waive his right to counsel (i.e., to proceed pro se). This is the wrong legal standard for evaluating conflicts of interest. Agboola's competence is not at issue here, and his citation of Godinez v. Moran, 509 U.S. 389 (1993), is inapposite to the present case. A court's inquiry into a defendant's waiver of his right to conflict-free representation does not halt once it determines that the defendant is competent to stand trial. If that were so, Rule 44(c) would be unnecessary.
The Magistrate Judge applied the correct standard in evaluating whether Agboola's waiver was valid. He determined that this case was afflicted with so many potential conflicts, it was impossible to determine all the ways that Agboola's Sixth Amendment rights might be impaired. Although this Court acknowledges that "only twenty-twenty hindsight will tell us for certain whether a conflict occurs," the Court agrees that under the circumstances it is impossible for Agboola's waiver to truly be knowing and intelligent. See Sanders, 688 F. Supp. at 374. "[T]he right to effective counsel whose loyalty is undivided is so paramount . . . that it must in some cases take precedence over all other considerations, including the expressed preference of the defendants . . . and their attorney." Lawriw, 568 F.2d at 105 n. 12 (quoting United States v. Carrigan, 543 F.2d 1053, 1057-58 (2d Cir. 1976) (Lumbard, J., concurring)). Therefore, the Court determines that the Magistrate Judge did not clearly err by refusing to accept Agboola's waiver. Furthermore, the Court finds that the Magistrate Judge's decision to disqualify Reed was not clearly erroneous or contrary to law. Accordingly, the Court affirms the Order of the Magistrate Judge disqualifying Reed.
II. Government's Appeal of Magistrate Judge's Order to Subpoena Documents for Delivery to Counsel
The government has appealed the Order of Magistrate Judge Noel dated July 20, 2001, granting Agboola's motion to subpoena documents "for delivery to counsel." Rule 17(c) of the Federal Rules of Criminal Procedure provides:
Agboola moved to subpoena documents under Rule 17(c) of the Federal Rules of Criminal Procedure. The Magistrate Judge's Order, however, curiously stated that the motion was granted, "to the extent required by Rule 17(b) and 17(c)." It is unclear how Rule 17(b) is pertinent here. Rule 17(b) deals with the issuance of subpoenas to necessary defense witnesses when the defendant cannot pay witness fees. Defendant's motion deals with production of documents, not live witnesses. Moreover, defendant has retained counsel, and has made no showing of indigence. Accordingly, the Court feels that Rule 17(b) is not relevant to this inquiry, and its analysis will consider only Rule 17(c).
A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
Rule 17(c) was not intended as a discovery device. United States v. Nixon, 418 U.S. 683, 698 (1974); Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). Rather, the rule is more properly used as part of a "legitimate effort to review any evidentiary submissions that are reasonably expected to be admitted at trial." United States v. Najarian, 164 F.R.D. 484, 487 (D.Minn. 1995). See also Bowman Dairy Co., 341 U.S. at 220 (stating that the "chief innovation [of Rule 17(c)] was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials"); Charles Alan Wright, 2 Federal Practice and Procedure: Federal Rules of Criminal Procedure § 274 (2000).
When, as here, parties request production of documents prior to trial, courts have generally required the moving party to show that: (1) the documents are evidentiary and relevant; (2) they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) the party cannot properly prepare for trial without such production and inspection in advance of trial, and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) the application is made in good faith and is not intended as a general "fishing expedition." Nixon, 418 U.S. at 699-700; Najarian, 164 F.R.D. at 487; United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952).
In the present case, the Court finds that Agboola has made none of these required showings. Agboola's motion to subpoena documents states only that he wishes to subpoena "documents that he believes are relevant to his case." This is insufficient. Rule 17(c) is not a broad adjunct to the discovery provisions of Rule 16, and may not be used merely for "ferreting out information which may either be relevant or admissible." Najarian, 164 F.R.D. at 488. See also United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980) ("Courts must be careful that Rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in [Rule] 16."). It appears here that Agboola's motion is nothing more than a "fishing expedition" aimed at further discovery, and therefore it should have been denied.
The government claims in its brief that Agboola has submitted an application for a subpoena to this Court under seal. The only filing that the Court has in regard to Agboola's motion is the motion itself. The Court has no record of a sealed application, and can only conclude that the government's assertion is mistaken.
Even if Agboola properly supported his motion to produce documents prior to trial, the Court would find no reason to grant Agboola's request to deliver the documents directly to his counsel. The plain language of Rule 17(c) requires subpoenaed documents "to be produced before the court." See Najarian, 164 F.R.D. at 487 (ordering that legend on requested subpoena, which directed documents to be delivered to defense counsel, be struck); Fed.R.Crim.P. 17(c). Because the purpose of Rule 17(c) is to provide "a method by which the court may permit either side to inspect subpoenaed [items] prior to the trial under the supervision of the court," allowing documents to be produced outside the Court's presence would defeat the Court's role of managing the orderly screening of documentary trial evidence. Wright, Criminal Procedure § 274. See also Najarian, 164 F.R.D. at 487. Ex parte applications for a pretrial subpoena duces tecum are granted in only limited circumstances. Wright, Criminal Procedure § 274. In the present case, Agboola has made no showing that any evidentiary documents that he may request would warrant secrecy, or would, even inferentially, disclose any of his work product or litigation strategies. See Najarian, 164 F.R.D. at 488.
Therefore, the Court finds that Agboola has not shown that he is entitled to pretrial subpoenas of materials under Rule 17(c). Furthermore, even if such a showing had been made, Agboola has not shown that he is entitled to an ex parte subpoena, or to have subpoenaed materials "delivered directly" to his counsel. The Magistrate Judge did not apply the proper standard to Agboola's motion, and the Court finds that the Order of July 16, 2001 is clearly erroneous. Accordingly, the Order will be reversed.
III. Government's Motion for Consolidation
The government has moved to consolidate the three present cases — bankruptcy fraud (00-100), obstruction of justice (01-124), and conspiracy (01-162) — for trial. The government argues that all three cases are essentially based on the real estate transactions underlying the conspiracy charge (01-162), and that therefore, proving one set of facts would resolve all three cases without presenting the same evidence to three juries.
Both defendants claim they will be prejudiced by consolidation. Agboola adds that the conspiracy charge (01-162) is a vindictive prosecution, and that consolidation would deprive him of his choice of attorney. Because the Court has already ruled that Agboola's counsel must be disqualified regardless of any consolidation, his claim based on representation is moot.
See Part I of this Opinion.
A. Rule 13
Rule 13 of the Federal Rules of Criminal Procedure permits multiple indictments to be tried together if they could have originally been joined in a single charge. See Fed.R.Crim.P. 13. Rule 13 applies in two circumstances: when one defendant is charged with multiple offenses that could have been joined under Rule 8(a), and when multiple defendants charged in separate indictments could have been joined under Rule 8(b). Where, as here, both defendants are not charged in all counts, joinder is judged under Rule 8(b). United States v. Southwest Bus Sales, Inc., 20 F.3d 1449, 1453 (8th Cir. 1994). Therefore, in order for consolidation to be proper under Rule 13, the requirements of Rule 8(b) must be satisfied. Rule 8(b) requires that
Federal Rule of Criminal Procedure 8(a) provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common plan or scheme.
Federal Rule of Criminal Procedure 8(b) provides:
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
there be some common activity involving all of the defendants which embraces all the charged offenses even though every defendant need not have participated in or be charged with each offense. In order to be part of the "same series of acts or transactions," acts must be part of one overall scheme about which all joined defendants knew and in which they all participated.
United States v. Bledsoe, 674 F.2d 647, 656-57 (8th Cir. 1982) (citations omitted).
In deciding whether to permit joinder of defendants, the trial court must accept the factual allegations of the indictment as true. United States v. Cannington, 729 F.2d 702, 710 (11th Cir. 1984). The indictment in the conspiracy case (01-162) alleges a "flipping" scheme whereby defendants inflated the apparent value of real estate, based on fraudulent appraisals prepared by Aihe. The properties at issue in the bankruptcy fraud case (00-100) include some that were allegedly "flipped" by defendants. The obstruction case (01-124) alleges that Aihe assisted Agboola's flight from arrest for the bankruptcy fraud charges. The indictments and the record demonstrate facts showing that even though both defendants did not participate in each offense, both Agboola and Aihe knew about the overall scheme of real estate flipping, bankruptcy fraud, and obstruction of justice, and that each participated in that overall scheme. See Bledsoe, 674 F.2d at 656-57.
These allegations demonstrate that, to a great extent, the evidence required to prove any one of the cases would be interwoven with proof of the other two cases, and is "so closely connected that a separation of the evidence [is] not possible." See Williams v. United States, 265 F.2d 214, 216 (9th Cir. 1959). Therefore, the Court finds that the charges against Agboola and Aihe in all three cases are part of the same overall scheme. Accordingly, the cases should be consolidated under Rule 8(b) and Rule 13.
B. Prejudice
Defendants argue that they would be prejudiced by consolidation. Each defendant makes specific arguments about the nature of this prejudice: Agboola asserts that a joint trial would improperly influence the jury, while Aihe argues that he would be prejudiced because he might wish to testify in some of the cases, but not in others.
Agboola argues that consolidation would result in "substantial or injurious influence in determining the jury's verdict." Agboola Mem. Opposing Consolidation at 4. Agboola quotes from Kotteakos v. United States, 328 U.S. 750 (1946), but this doctrine is inapplicable here. The Kotteakos test, which was refined by the Supreme Court in United States v. Lane, holds that "an error involving misjoinder `affects substantial rights' and requires reversal only if the misjoinder results in actual prejudice because it `had substantial and injurious effect or influence in determining the jury's verdict.'" United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos, 328 U.S. at 776) (emphasis added).
The present case has not progressed to the point where the Court can make a determination of actual prejudice. Moreover, in trying to determine whether actual prejudice might occur, this Court determines that any facts which could lead a reviewing court to find prejudice do not exist here. In Lane, the Supreme Court suggested factors that might lead to a finding of prejudice due to misjoinder:
(1) failure to give limiting instructions; (2) evidence of guilt that is not overwhelming; (3) admission of evidence that would be inadmissible in a trial of only properly joined defendants and counts; (4) evidence on the improperly joined charges that is indistinct and not easily segregated; and (5) en masse trial of numerous defendants.
United States v. Sazenski, 833 F.2d 741, 745-46 (8th Cir. 1987); See Lane, 474 U.S. at 449-50 n. 13. In the present case, most of these factors are irrelevant, because the trial has not yet begun, much less reached the verdict stage. Those factors that are relevant — failure to give limiting instructions and an en masse trial — weigh against a finding of prejudice. First, there is clearly no risk of an "en masse" trial here, because there are only two defendants. Second, courts routinely give limiting instructions that restrict juries' ability to consider certain information. Such instructions are generally sufficient to prevent unfair prejudice from tainting a jury's deliberations in a consolidated case. See, e.g., United States v. Reeves, 674 F.2d 739, 746 (8th Cir. 1982) (holding that separate trials were not required where cross-examination of defendants spilled over to a case against remaining defendants, but trial court gave specific limiting instructions to jury on how to consider the evidence); Haggard v. United States, 369 F.2d 968, 975 (8th Cir. 1966) (upholding district court's denial of severance, where the trial judge, among other precautions, issued jury instructions that "meticulously separated the counts and the evidence as to each of the defendants").
In the present case, although the three indictments are intertwined, each defendant's role is clearly distinguishable from that of the other, see Kotteakos, 328 U.S. at 773, and the combined case still lends itself to "a logical, compartmentalized analysis." Reeves, 674 F.2d at 744. The conspiracy case (01-162) alleges that Agboola and Aihe generated income through loan proceeds from fraudulent real estate transactions. The bankruptcy fraud case (00-100) alleges that Agboola illicitly concealed his interest in certain companies, which were involved in the fraudulent real estate transactions. The obstruction case (01-124) alleges that Aihe helped co-defendant Agboola evade arrest for the charges in the bankruptcy fraud case (00-100). The Court finds no reason to believe that a jury, properly instructed, will be unable to appropriately compartmentalize this evidence as it relates to each defendant, to prevent any "spillover" findings of guilt. See United States v. Graham, 548 F.2d 1302, 1311 (8th Cir. 1977) (finding that multiple defendants charged with conspiracy would not be prejudiced by consolidating trial with a co-defendant who, in addition to being charged with the conspiracy, faced individual charges). Therefore, the Court rejects Agboola's assertion that consolidation would cause him prejudice.
Aihe argues that consolidating the three cases would cause him prejudice because he might wish to testify in some of the cases, but not in others. The Eighth Circuit has recognized the "danger" of prejudice in such circumstances. See Closs v. Leapley, 18 F.3d 574, 578 (8th Cir. 1994). The Court of Appeals has held, however, that in such circumstances the defendant can only demonstrate prejudice — and thus force separate trials — by making a "persuasive and detailed showing regarding the testimony he would give on the one count he wishes severed and the reason he cannot testify on the other counts." Id. (quoting United States v. Possick, 849 F.2d 332, 338 (8th Cir. 1988)). Mere statements that the defendant "didn't do it" do not qualify as a "persuasive and detailed showing." See Possick, 849 F.2d at 338 (holding that defendant's mere claim that he was "not a [drug] kingpin and did not supervise five or more persons or obtain substantial income" was not the type of detailed showing required to convince the court that a consolidated trial was improper).
In the present case, the Court finds that Aihe's showing on the issue of prejudice is neither persuasive nor detailed. In regard to the bankruptcy fraud case (00-100), Aihe simply states that he neither executed the allegedly fraudulent petition, nor "averred any of [its] factual underpinnings." Aihe Mem. Opposing Consolidation at 4. Aihe seems to rest on the fact that he has "nothing to do with the bankruptcy petition." Id. In Aihe's only reference to why he cannot testify on the other counts, he states merely that "there can be an envisioning of testimony" in the obstruction case (01-124), and that "it might further be concluded" that he would not wish to testify in the conspiracy case (01-162). Id. These oblique speculations amount to little more than a claim of "I didn't do it," and fall far short of the persuasive and detailed showing required to demonstrate prejudice. Therefore, the Court determines that neither Aihe nor Agboola has shown that he will be prejudiced by consolidating the three present cases.
C. Claims of Vindictive Prosecution
Agboola claims that consolidation is unnecessary, because the conspiracy case (01-162) and the obstruction case (01-124) should be dismissed for vindictive prosecution. Agboola claims that the government added the conspiracy indictment "simply because Agboola . . . elected not to accept the plea [bargain] and elected to proceed to trial." Agboola Mem. Opposing Consolidation at 6. Agboola further argues that the plea bargain offered by the government was unreasonable because it also required co-defendant Aihe to plead guilty.
Because Aihe did not raise the issue of vindictive prosecution, the Court now addresses only the charging of Agboola in the conspiracy case (01-162).
As a matter of law, there is nothing inherently coercive or improper about a prosecutor offering a "package deal" plea bargain to multiple defendants. Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, 5 Criminal Procedure § 21.2(b) (2d ed. Supp. 2001). "There is no constitutional right to plea bargain. It is the prosecutor's prerogative to offer a `package deal' or no deal at all." Nguyen v. United States, 114 F.3d 699, 704-05 (8th Cir. 1997) (citations and quotation marks omitted). Therefore, the government's offer of such a package plea bargain to Agboola and Aihe would not support Agboola's claim that he was prejudiced or deprived of any rights.
Agboola's claims of vindictive prosecution are misplaced, because offers made during pre-trial plea bargaining do not raise a presumption of vindictive prosecution. See Bordenkircher v. Hayes, 434 U.S. 357, 361-65 (1978). In Bordenkircher, the Supreme Court held that prosecutors may offer a plea bargain to an accused during pre-trial negotiations, threaten to bring additional charges if the accused does not accept the bargain, and then follow through on the threat if the accused refuses to plead guilty. See United States v. Goodwin, 457 U.S. 368, 377 (1982). Agboola seems to claim that this is exactly what happened in the present case. Therefore, he has no colorable claim of vindictive prosecution. Agboola has presented no evidence of actual vindictiveness by the government, nor has he demonstrated grounds for a presumption of vindictiveness. "[T]he mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified." Goodwin, 457 U.S. at 382-83; United States v. Pemberton, 121 F.3d 1157, 1165 (8th Cir. 1997). Therefore, the Court finds that Agboola's claims of vindictive prosecution are without merit.
Accordingly, having found that Rule 8(b) and Rule 13 are satisfied, that defendants will not suffer any prejudice, and that Agboola's claims of vindictive prosecution are without merit, the Court grants the government's motion to consolidate cases 00-100, 01-124, and 01-162.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that:
1. The Magistrate Judge's Order to subpoena documents for delivery to counsel [Case No. 01-162, Docket No. 48] is REVERSED. Defendant Agboola's motion to subpoena documents [Case No. 01-162, Docket No. 38] is DENIED.
2. The Magistrate Judge's Order to disqualify Larry E. Reed from representing defendant Agboola [Case No. 01-162, Docket No. 54] is AFFIRMED. IT IS FURTHER ORDERED that Larry E. Reed is disqualified from representing defendant Agboola in Case No. 00-100 for the reasons set forth in this order.
3. Defendant Agboola shall retain new independent counsel to represent him. If new counsel has not entered an appearance within ten days of the date of this Order, a member of the Federal Public Defender's Panel of Attorneys will be appointed to represent him, and the Court will order that Agboola compensate the Federal Public Defender for their services.
IT IS FURTHER ORDERED that:
4. Plaintiff's motion to consolidate [Case No. 00-100, Docket No. 76, Case No. 01-124, Docket No. 21 and Case No. 01-162, Docket No. 3] is hereby GRANTED.
5. Due to the consolidation and the necessary time for effective preparation, and pursuant to 18 U.S.C. § 3161(h)(8)(A), the Court moves to continue the trial date in all three cases, Nos. 00-100, 01-124, and 01-162, until further order of this Court. This finding is based on upon the Court's conclusion that the failure to continue the cases would unreasonably deny the parties a right to a fair and just hearing. The ends of justice are served by the continuance and outweigh the best interests of the public and the defendant in a speedy trial.