United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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. The United States requested a hearing on
the Motion, which the Court held.
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.
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.
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.
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.
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. 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.
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.
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.
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.
THE UNITED STATES' MOTION TO DISQUALIFY
United States contends that Salazar's and
Kneale's 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).
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 ...