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United States v. Wollweber

United States District Court, D. New Mexico

July 26, 2018



         THIS MATTER is before the Court on the United States' Sealed Motion to Disqualify Defense Counsel Daniel M. Salazar (“Motion”). [Doc. 88] The United States included with its Motion (1) a transcription of a recorded conversation between Salazar, his work associate Gabriella Kneale, and Jane Doe, the alleged victim in this case. Govt.'s Ex. 1; (2) the recorded interview between Lee Salazar and Kneale, Govt.'s Ex. 3; (3) a transcribed interview between Doe and Bureau of Indian Affairs Special Agent Fischer, Govt.'s Ex. 2; (4) a memorandum by Agent Fischer summarizing her interview with Doe and Fischer, Govt.'s Ex. 1.[1] The United States requested a hearing on the Motion, which the Court held.

         I. BACKGROUND

         At the Motion hearing, the United States called Doe to the stand to give her account of events. Her testimony and the United States' other evidence shows the following.

         Attorney Daniel M. Salazar is Defendant's retained counsel in Defendant's underlying charge for abusive sexual contact in Indian country under 18 U.S.C. § 2244(a)(1) and 18 U.S.C. § 1153. On July 17, 2018, about one week before this matter was set for trial, Salazar and Kneale visited Doe at the prison where she is currently detained for state criminal charges unrelated to this case. This visit was done without notice to the United States. According to Salazar, the United States never gave him Doe's statements, so he and Kneale visited Doe to take her recorded statement. They interviewed her for about an hour, recording 38 minutes of the conversation. According to Doe, Salazar and Kneale introduced themselves as Defendant's defense team. Mot. Hr'g Tr. 11:20-23. Salazar told her he needed her statement, but she told him she did not want to talk to him. Id. 12:6-12. She talked to them anyway, feeling she had no choice. Id. 15:13. But throughout the one hour conversation she repeated about five or six times that she did not want to talk to them. Id. 13:3.

         According to Doe, Kneale asked Doe if the “feds” were making her testify. Id. 17:3. When Doe replied no, Kneale said “oh, they haven't threatened your kids yet?” Id. 17:3-9. Kneale told Doe to “not be surprised” if the federal government threatened her children, and told her “you know, you don't have to testify. It's up to you. You don't have to if you don't want to.” Id. 20:18-22. Doe testified that these statements made her feel threatened. Id. 17:13. Salazar and Kneale told Doe she had to “honor” a subpoena from the United States, but that she did not have to testify. Def. Interview with Jane Doe, Doc. 88-1, p. 39:11 (“Def. Interview”). Salazar told Doe that there would be consequences for not complying with a subpoena, but said nothing more than “I'm not your lawyer.” Id. 39:19-21. Kneale told Doe to “show up” but that she did not “have to say a word.” Id. Both Kneale and Salazar told her they could not give her legal advice, but both told her that she did not have to testify.

         At the Motion hearing, when asked whether Salazar asked her about her underlying state criminal charge, Doe answered no. Mot. Hr'g Tr. 18:20-21. However, Doe then explained that Salazar asked her why she was jailed and how much probation time she received on her state charge. Id. 18:22-25 - 19:1-2. He also explained to her that she could face a probation “tail” - which Doe understood to mean she could go to prison following probation. Id. 19:1-25. She felt that Salazar was “basically threatening me with jail time.” Id. 20:9. Doe also told BIA Agent Fischer that Salazar “wanted to know more” about her state case, and that he brought up a state judge's name. Fischer Interview, 4:4-5, Doc. 88-2. Doe told him, “that's my judge, too, ” and Salazar replied, “oh, well she don't like me but I'm pretty sure I can work something out.” Id. 5:1-6. Salazar told Doe about appearing before the same judge on behalf of a previous client. Mot. Hr'g Tr. 21:7-19. He told Doe how he “put up a fight” with the judge “to get [his] client to get free.” Id. 21:17-19. Salazar explained at a bench conference that Kneale, not he, made these statements to Doe. Id. 23:1-2.

         Additionally, Doe explained to BIA Agent Fischer that Salazar and Kneale suggested to her that that the United States Attorney had “done nothing to get [Doe] out of jail” considering the United States had “good pull.” Fischer Interview, 4:13; 4:15-17, Doc. 88-2. Doe said that she had the impression that Salazar could help get her out of jail.[2] Id. 4:15-17. Kneale additionally told Doe “if you need help, we're here to help you.” Id. 14:21-22. But recognizing the discord of this offer, Doe asked Salazar, “why are you guys going to help me if you guys are helping [Defendant]?” Id. 14:23-24.

         According to Doe, at some point Salazar switched off the recorder. Mot. Hr'g Tr. 26:10-11. In an unrecorded portion of the conversation, Doe contends that Kneale asked for Doe's mother's telephone number. Id. 27:17-18. Kneale proposed to give Doe's mother free legal advice, and then her mother would then pass the advice to Doe. Id. 19-25. Doe understood Kneale's statement to mean Kneale would help her get free legal advice. Id. 40:12. Doe testified that only at the end of the interview did Salazar ask whether Doe had an attorney. Id. 17:17-19.

         On Salazar's cross-examination of Doe, he elicited from Doe that did not ask to represent her as her lawyer. Id. 37:14-19. She remembered Salazar telling her to comply with the subpoena and his statement that she should consult with a lawyer to understand consequences of failing to comply with a subpoena. Id. 38:9-12.

         Kathleen Rhinehart, a criminal defense attorney currently representing Jane Doe in her state criminal charges, gave a proffer to the Court. Rhinehart stated that Salazar texted her two days after he visited Doe. Id. 48:4-5. Without identifying Doe in his text message, Salazar wrote Rhinehart, “do you remember about a year ago us talking about one of your former clients, now in DT, basically me trying to get in touch with her?” Id. 48:7-9. Rhinehart texted Salazar that she had no memory of such a conversation. Id. 48:11. Rhinehart said that she and Salazar later talked on the telephone, and that Salazar explained to her that he had visited Doe and that she did not want to talk to him. Id. 49:1-4. Rhinehart told the Court that Salazar did not have her permission to speak with Doe. Id. 51:15-17.


         The United States contends that Salazar's and Kneale's[3] communications with Doe ignited numerous ethical violations, and so moved for disqualification of Salazar as counsel. See United States v. Migliaccio, 34 F.3d 1517, 1528 (10th Cir. 1994) (holding that when the government is aware of a conflict of interest, it “has a duty to bring it to the court's attention and, if warranted, move for disqualification.”). It makes two broad arguments for why Salazar's loyalty to Defendant is compromised, necessitating his removal as counsel. First, the United States contends that Salazar “strongly suggested” he could represent Lee vis-à-vis Kneale's suggestive comments about helping Doe and her mother obtain free legal advice and Doe's belief that Salazar could favorably assist her in her state charges. The United States contends that Salazar is therefore potentially representing two clients with adverse interests - Doe and Defendant - placing him under inconsistent duties. See Mot. at 12 (stating that a lawyer “should not represent a client whose interests are adverse to those of a present client, or whose interests are adverse to those of a former client on a matter that is the same or substantially related to the previous matter.”) (quoting In re Stein, 2008-NMSC-013, ¶ 22, 143 N.M. 462, 177 P.3d 513, 519)). The United States suggests that Salazar may be unable to properly cross-examine Doe effectively because he is representing, or strongly suggested to Lee that he could represent her. Salazar is therefore working under an actual or potential conflict of interest, the United States argues, in violation of New Mexico Rule of Professional Conduct 16-107 (Conflict of Interest; Current Clients).

         Second, the United States argues that Salazar violated a slew of ethical standards that speak to his overall ineffectiveness and inability to continue in this case. For instance, the United States asserts that Salazar and Kneale violated the ethical standards governing statements to third persons. Salazar, the United States argues, communicated with Doe about her state criminal charge knowing she was represented by Rhinehart and without Rhinehart's consent in violation of NMRA, Rule 16-402 (Communications with Persons Represented by Counsel). To the extent Salazar thought he was dealing with an unrepresented person, the United States argues that Salazar impermissibly failed to let Doe know that he was not looking out for her interests in violation of NMRA, Rule 16-403 (Communications with Unrepresented Persons). Finally, the United States asserts that Salazar and Kneale violated the following other ethical standards:

. NMRA, Rule 16-304(A) and (F) (Fairness to Opposing Party and Counsel), requiring a lawyer to not obstruct another party's access to evidence and to not request of a person to refrain ...

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