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United States v. Rodriguez

United States District Court, S.D. Mississippi, Southern Division

June 6, 2014

UNITED STATES OF AMERICA
v.
HECTOR RUIZ RODRIGUEZ et al.

ORDER GRANTING GOVERNMENT'S MOTION [102] FOR JUDICIAL INQUIRY AND DISQUALIFYING WINIFRED AKINS PASTORINI AS COUNSEL FOR DEFENDANT HECTOR RUIZ RODRIGUEZ

HALIL SULEYMAN OZERDEN, District Judge.

BEFORE THE COURT is a Motion [102] for Judicial Inquiry, filed by the United States of America, requesting that the Court inquire regarding an in-person interview of Defendant Ashley Howell conducted by Winifred Akins Pastorini, counsel for Codefendant Hector Ruiz Rodriguez, and to inquire regarding a subsequent telephone conference between Defendant Howell and attorney Daphne Silverman. At the time of these communications, a sealed federal indictment was pending against Howell, charging her with involvement in the same trafficking conspiracy as alleged against Defendant Rodriguez, Ms. Pastorini's client. Karl C. Hightower had been appointed by the Court as Howell's counsel in the federal case, but Mr. Hightower was not aware of and did not grant permission for Ms. Pastorini or Ms. Silverman to communicate with Howell.

The Government contends and has provided evidence it submits supports the conclusion that Ms. Pastorini knowingly violated Mississippi Rule of Professional Conduct 4.2, which provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law.

Miss. Rules of Prof. Conduct 4.2.

Ms. Pastorini has filed a Response [137] to the Motion for Judicial Inquiry, and the Government has filed a Reply [139]. On May 13, 2014, the Court held an evidentiary hearing on the Government's Motion. After hearing testimony from Howell and argument from counsel, the Court ordered the Government and Ms. Pastorini to submit briefing regarding whether Ms. Pastorini's communication with Howell warrants Ms. Pastorini's disqualification as counsel for Defendant Rodriguez. The Government and Ms. Pastorini have filed their Responses [163, 164] to the Court's briefing Order [155]. The Government has also filed a Supplemental Response [165], submitting new information that it contends supports the conclusion that Ms. Pastorini continued to interview Howell after learning that Howell was represented by counsel and coerced Howell to cease cooperation with the Government and her Court-appointed attorney. Ms. Pastorini has filed a Reply [166] to the Government's Supplemental Response denying that she engaged in any ethical violations, and she has provided Affidavits of her associate attorney, Son Tran, who accompanied her during the meeting with Howell, to support this conclusion.

Having thoroughly considered the parties' submissions, the record, and relevant legal authorities, the Court finds that based on the totality of the circumstances, no better alternative exists than to disqualify Ms. Pastorini as counsel for Defendant Rodriguez. Such action is required to preserve the integrity of the proceedings and to prevent a serious potential for a conflict of interest at, and the disruption of, the trial of this matter.

I. BACKGROUND

On July 23, 2013, Defendant Hector Ruiz Rodriguez and six other Defendants were charged in a one-Count Indictment [3] with conspiring to possess with intent to distribute 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana as prohibited by 21 U.S.C. ยงยง 846 and 841(a)(1)(Count 1). On December 10, 2013, Ashley Howell was indicted separately for her alleged role in the same conspiracy in Criminal No. 1:13-cr-99-HSO-RHW. According to the Government, Howell was indicted separately because she was cooperating with the Government and had provided statements about her own involvement in the conspiracy, as well as the involvement of others, including Defendant Rodriguez, whom Howell labeled as a leader in the trafficking conspiracy. Gov.'s Reply [139] 2.

The Government submits that Howell ceased cooperating with the Government in early April 2014, a couple of months after she was arrested in February 2014. On April 8, 2014, Howell attempted to fire Mr. Hightower and informed him and the Government that she did not want to talk to the Government and would not be pleading guilty. The Government discovered that Howell had been interviewed on April 4, 2014, by Ms. Pastorini, counsel for Defendant Rodriguez. The interview occurred at the Stone County Correctional Facility where Howell was being housed due to a probation hold placed on Howell by the State of Louisiana. Exs. [102-1, 102-2, 102-3].[1] Howell had been arraigned and granted bond by this Court, but the probation hold prevented her from being released from jail. A motion to revoke Howell's probation in Mississippi was also pending at the time. Howell's probation issues were a direct result of her being indicted in this Court in Criminal No. 1:13-cr-99-HSO-RHW.

The Government also learned that another attorney, Daphne Silverman, conferred with Defendant Howell by telephone on April 10, 2014. Ex. [102-4]. Mr. Hightower represented Howell at the time of the communications between Howell and Ms. Pastorini, and between Howell and Ms. Silverman, but he was unaware of these contacts and did not grant permission for Ms. Pastorini or Ms. Silverman to confer with Howell.

On April 22, 2014, the Government filed the instant Motion [102] for Judicial Inquiry, requesting an inquiry into these questionable communications between Howell and attorneys other than Mr. Hightower that occurred without Mr. Hightower's knowledge or permission. Also on April 22, 2014, a Superseding Indictment [103] was filed, adding Howell as a Defendant and alleged conspirator in this case.[2] At her initial appearance in this case on April 30, 2014, Howell informed the United States Magistrate Judge that Ms. Silverman would be representing her and that she no longer wished for Mr. Hightower to represent her. Ms. Silverman was not present at that time, so the Court rescheduled Howell's initial appearance in order for Ms. Silverman to appear.

Ms. Silverman has not entered an appearance in this case, and Howell has since changed course. At Howell's rescheduled initial appearance on May 13, 2014, Ms. Silverman was not present, and Howell informed the Magistrate Judge that Ms. Silverman would not be representing her. Howell advised that she wished Mr. Hightower to remain as her counsel, and he is presently her counsel.

The evidentiary hearing on the Government's Motion for Judicial Inquiry was also held on May 13, 2014. At the hearing, Howell testified that she informed Ms. Pastorini at the beginning of a one-and-a-half-hour-long interview that she had been federally indicted, that the case was sealed, and that she was represented by Court-appointed counsel.

Ashley Howell: I told her that I was represented by Mr. Hightower. She asked me if I still wanted to talk to her. I didn't have a problem. I was really lost to my case, period, and I wanted to hear all I could. I let her know that I was incarcerated, that I had been given a bond by the United States Government, and that I had a hold on me in Louisiana. She let me know that she could probably do something about that.
The Government: Okay. And was there a specific about what she could do about it, or did she just say -
Ashley Howell: Someone close to me would send somebody to help me with that.
The Government: Okay. Did you understand that to be a lawyer or -
Ashley Howell: Yes, sir.
The Government: All right. Were there any specifics about what lawyer or when they'd contact you or what they would do for you?
Ashley Howell: She just told me that it was a friend of hers in Texas and she would mention her name when she contacted me. Ms. Silverman then contacted me and told me that she was a friend of Windi's.
...
The Government: Okay. After they left, you already mentioned that there was contact from Ms. Silverman.
Ashley Howell: Yes, sir.
The Government: There was a phone call?
Ashley Howell: Yes, sir. More than one.
...
The Government: All right. Again, without talking about the substance of this case, what did Ms. Silverman tell you?
Ashley Howell: That Ms. Windi had made contact with her and that they were working on getting the financial means to hire an attorney in Louisiana to go before the judge and lift my hold.
The Government: Okay. Concerning your bond over there in Louisiana?
Ashley Howell: Yes, sir.
The Government: All right. Did she talk about representing you in this case, in the federal case?
Ashley Howell: Yes, sir.
The Government: What did she say?
Ashley Howell: She just said that Windi had spoken to her about it and she was going to make contact with Hector and see if he was going to pay the attorney.
The Government: That's what Ms. ...

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