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March 27, 1997


The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 This criminal matter requires this court to determine whether the representation of these two co-defendants by their chosen counsel, two attorneys who propose to represent each defendant jointly, raises actual or serious potential conflicts of interest, and, if so, whether the defendants may waive any such conflict of interest. These questions compel this court to examine the perils of joint representation in light of Rule 44(c) of the Federal Rules of Criminal Procedure, and the cases which have interpreted it.

 I. Facts and Procedural History

 On November 7, 1996, defendants, Juan Garcia Martel ("Garcia") and Jose Solis ("Solis") were arrested by New Jersey State Police detectives at a gas station in Jersey City, New Jersey. Solis was approached at the scene by Detective James E. Price who asked for and obtained Solis's permission to search the van he was driving, which bore Texas license plates. Several adults and minors were found in the van.

 State Police detectives subsequently contacted the Immigration and Naturalization Service ("INS"). INS agents detained Garcia and Solis, along with the occupants of the van, all of whom were determined to be illegal aliens. On November 14, 1996, defendants were indicted on one count of conspiracy to transport illegal aliens within the United States in violation of 18 U.S.C. § 371, and one count of transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18 U.S.C. § 2.

 Defendants originally testified that they were indigent, and counsel were appointed by the court to represent each defendant. Richard J. Coughlin, Esq., the Federal Public Defender for the District of New Jersey was appointed to represent Solis, and Michael A. Robbins, Esq., was appointed to represent Garcia. Initially, Garcia expressed his willingness to enter a plea of guilty pursuant to a plea bargain negotiated by his counsel with the United States Attorney. Some days before Garcia was to enter his plea, however, he indicated that he wished to be represented by other counsel and would stand trial.

 Attorneys, H. Wayne Bettis, Esq., and Brent Liedtke, Esq., both members of the Bar of the Supreme Court of Texas, have applied for permission to represent Jose Luis Solis and Juan Garcia Martel in this matter. On February 21, 1997, the court conducted a hearing with all counsel and both defendants present, and inquired of each defendant, whom he desired to have represent him in this matter. Solis chose to be represented by Mr. Bettis, and Garcia chose to be represented by Mr. Liedtke. The court then ordered Mr. Bettis and Mr. Liedtke to brief the issue of whether this representation would be "joint representation" within the meaning of Fed. R. Crim. P. 44(c), and, if so, whether a conflict of interest would arise from the joint representation.

 In view of the fact that Mr. Liedtke, who is a sole practitioner, and Mr. Bettis, who is associated with the law firm of B.J. Hooks, represented that they had worked together on several prior cases, the court directed Mr. Bettis and Mr. Liedtke to address the factors set forth in United States v. Stalks, 1994 U.S. Dist. LEXIS 15765, 1994 WL 606060 (D.N.J. Nov. 1, 1994), which analyzes the question whether attorneys who are not formally affiliated in a single firm, may nonetheless be considered to be jointly representing two or more clients.

 In response, attorneys Bettis and Liedtke, filed essentially identical affidavits, in which they listed a number of cases in the state courts of Texas in which they are currently involved as co-counsel. In their affidavits, Mr. Bettis and Mr. Liedtke unequivocally expressed their intention to represent Garcia and Solis jointly. The affidavits further set forth their belief that no conflict of interest would arise in the joint representation because "both defendants have consistent defenses." Affidavit of J. Brent Liedtke at 3.

 In response to the court's Order of February 21, 1997, the Government filed a Motion For an Inquiry Into Potential Conflict of Interest pursuant to Fed. R. Crim. P. 44(c), and a brief, outlining what the Government viewed as the potential areas of conflict arising from the proposed joint representation of Garcia and Solis by Messrs. Bettis and Liedtke. On March 21, 1997, the court held a hearing to address the potential conflicts of interest raised by the Government's motion and to determine: (1) whether, if any potential conflicts existed, Garcia and Solis were willing to waive any conflicts of interest in order to be jointly represented by Mr. Bettis and Mr. Liedtke; and (2) whether a waiver of any such conflict could be accepted by the court consistent with Fed. R. Crim. P. 44(c) and the cases construing it.

 At the March 21, 1997, hearing, the court initially observed that it was no longer necessary to decide the question whether Mr. Bettis and Mr. Liedtke were actually associated in the practice of law in view of their affidavit testimony that their representation of Garcia and Solis should be considered "joint representation." Transcript of Mar. 21, 1997 (hereinafter "Tr.") at 5. Accordingly, the court need not address the issues raised in Stalks, and will proceed directly to an analysis of the factors governing joint representation of criminal defendants under Rule 44(c).

 II. Standards Governing Joint Representation

 Rule 44(c) of the Federal Rules of Criminal Procedure provides, in pertinent part:

Whenever two or more defendants . . . are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel.

 Fed. R. Crim. P. 44(c).

 The right to the assistance of counsel of one's choice in a criminal prosecution is guaranteed by the Sixth Amendment to the Constitution. The right, however, is not absolute. "The essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." United States v. Wheat, 486 U.S. 153, 159, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988). To this end, although a criminal defendant's choice of counsel enjoys a heavy presumption in its favor, this Sixth Amendment right must be balanced against the court's "independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id. at 160.

 Although a criminal defendant may waive a conflict of interest, it is not always a simple matter for counsel or the court to inform a defendant of all possible conflicts of interest so that the defendant's waiver of the right to independent, conflict-free counsel is both knowing and voluntary. As the Supreme Court has noted, "a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly." Id. at 162.

 For this reason, the Supreme Court has made it clear that a trial court need not accept a defendant's waiver of a conflict of interest. "The district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." Wheat, 486 U.S. at 163.

 III. Discussion

 This case presents a number of potential conflicts of interest arising out of the proposed joint representation of both defendants by Messrs. Bettis and Liedtke, which are both serious and troubling. Although the Supreme Court has allowed district courts "substantial latitude" in deciding whether to accept a criminal defendant's waiver of the Sixth Amendment right to conflict-free assistance of counsel, the fact that a Rule 44(c) hearing will almost uniformly take place in the early stages of a criminal proceeding, before the factual record is well developed, has meant that the cases decided since Wheat do not set forth a clear framework in which to make this important decision. As one district court aptly noted:

It appears that Rule 44(c) and the cases cited offer scant guidance for district courts in the exercise of the wide discretion Wheat affords, beyond directing that they apply a presumption in favor of counsel of choice and permitting but not requiring them to accept waivers of actual conflict unless to do so would seriously compromise the integrity of the judicial process. These authorities define no easily articulated rule, and appear to require not only the weighing of interests neither precisely measurable nor easily compared (positively weighted value of defendants' choice balanced against integrity of the judicial process), but also the evaluation of relationships that are not now clear (how one defendant's interests compare with another's) and an augury of a future that cannot be certain (whether defendants will testify at trial and if so whether they will incriminate one another, whether cross-examination of a government witness will be aided by confidential information received from one defendant that would help another but perhaps injure the defendant who provided the information).

 United States v. Rahman, 837 F. Supp. 64, 70 (S.D.N.Y. 1993) (internal citations omitted). The following discussion illuminates the areas of potential conflict which emerged during the March 21, 1997, hearing.

 A. The Employment of Bettis and Liedtke by Adrian Garcia

 After their arrest, Garcia and Solis declared their indigency and were appointed separate defense counsel. The court has not been notified of any change in defendants' status as indigents. Attorneys, Bettis and Liedtke, in their affidavits, stated that they were retained on behalf of Garcia and Solis by "family members." See, e.g., Affidavit of J. Brent Liedtke at 4. Furthermore the affidavits state that B.J. Hooks, the law firm which employs H. Wayne Bettis, had represented "this family in other unrelated legal matters." Id.

 At the March 21, 1997, hearing, however, it developed that Adrian Garcia, who is the brother of defendant, Juan Garcia, and the brother-in-law of defendant, Solis, had retained Messrs. Bettis and Liedtke to represent the defendants in this matter. Adrian Garcia is also a principal of Eben-ezer Van Tours, the owner of the van which defendants were driving at the time of their arrest. According to the Government's brief in support of its motion for a Rule 44(c) hearing, Adrian Garcia is an unindicted co-conspirator in this action. *fn1" It was established at the March 21, 1997, hearing, that Adrian Garcia retained B.J. Hooks, Esq., with whom Mr. Bettis is associated and from whom Mr. Liedtke rents office space, to attempt to recover possession of the van which was driven by Garcia and Solis and seized by the Government. This was the only prior representation of Adrian Garcia, or his company, Eben-ezer Van Tours, by anyone connected with this case. Tr. at 18-19, 68-69.

 In post-arrest statements taken by agents of the INS, the accuracy and validity of which is vigorously challenged by Messrs. Bettis and Liedtke, both defendants implicated Eben-ezer Van Tours in an on-going conspiracy to transport illegal aliens. At the March 21, 1997 hearing, the court expressed its concern that, if these statements are ultimately admitted into evidence at trial, Mr. Bettis and/or Mr. Liedtke may be unable to exploit the possible role of Adrian Garcia in this matter to the advantage of Garcia and Solis. The following colloquy ensued:

THE COURT: . . . . My question is are you in a position to cast blame upon Adrian Garcia as opposed to your client when Adrian Garcia is paying your fees?
MR. LIEDTKE: Am I, am I in a position to do that?

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