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United States v. Kight

United States District Court, N.D. Georgia, Atlanta Division

November 27, 2017

BENNETT L. KIGHT, Defendant.



         This matter is before the Court on Defendant Bennett L. Kight's (“Defendant” or “Kight”) Motion to Reconsider the Court's October 16, 2017 Order [91] (“Motion to Reconsider”).

         I. BACKGROUND[1]

         On December 19, 2016, the Government moved to disqualify Barry J. Armstrong and his law firm, Dentons USA LLP (the “Firm” or “Defense Counsel”) from representing Kight in this criminal action. The Government argued disqualification was warranted on the grounds that Armstrong previously represented Kight and William C. Lankford (“Lankford”), a cooperating witness here, in a state court civil action (the “Civil Action”) that was substantially related to the charges brought against Kight in this case. (Motion to Disqualify Defense Counsel [45] (“Motion to Disqualify”)). On February 14, 2017, Defendant filed an Unopposed Request for Oral Argument on the Government's Motion to Disqualify Defense Counsel [55] (“Unopposed Motion for Oral Argument”).

         On October 16, 2017, the Court granted the Motion to Disqualify and denied the Unopposed Motion for Oral Argument [87] (the “October 16th Order”). As to the Motion to Disqualify, the Court held that “the subject matter of Armstrong's representation of Lankford in the Civil Action [was] substantially related to the subject matter of his representation of Kight, ” and therefore “an actual conflict of interest” existed as to Armstrong's representation of Kight in this case. ([87] at 32-33). The Court then rejected Kight's waiver of the actual conflict because of Lankford's continued refusal to waive the attorney-client privilege.[2] ([87] at 34). As to Defendant's Unopposed Motion for Oral Argument, the Court found that oral argument was not necessary because Defendant did not identify the issues he contended were raised for the first time in the Government's Reply, Defendant's claimed “worsening mental health issues” were the subject of extensive briefing and communications with the Court after the filing of the motion, and the “complex facts and issues implicating federal, state, and constitutional law” were adequately and accurately addressed by the parties in their briefs and submissions. ([87] at n.1; see also [55] at 1-2).

         On October 27, 2017, Defendant filed his Motion to Reconsider. In it, he raises three grounds for reconsideration, including: (1) the Court was required to hold a hearing prior to disqualifying Defense Counsel; (2) the evidence in the record makes clear that Lankford and Kight's interests are not materially adverse; and (3) given the significant prejudice that will inure to Defendant if Defense Counsel is disqualified, and the “speculative nature” of the potential adversity, the Court should have instead appointed separate counsel to cross-examine Lankford.


         A. Legal Standard[3]

         Motions for reconsideration, assuming they are even appropriate in criminal cases, “‘should be reserved for certain limited situations, namely the discovery of new evidence, an intervening development or change in the law, or the need to correct clear error or prevent a manifest injustice.'” Brinson v. United States, No. 1:04-cr-0128-01-RWS, 2009 WL 2058168, at *1 (N.D.Ga. July 14, 2009) (quoting Deerskin Trading Post, Inc. v. United Parcel Serv. of Am. Inc., 972 F.Supp. 655, 674 (N.D.Ga. 1997)). “Given the narrow scope of motions for reconsideration, they may not be used in a variety of circumstances.” Brinson, 2009 WL 2058168 at *1. They may not offer new legal theories or evidence that could have been presented in a previously filed motion or response, unless a reason is given for failing to raise the issue at an earlier stage in the litigation. Id. They may not be used to “‘present the court with arguments already heard and dismissed or to repackage familiar arguments to test whether the court will change its mind.'” Id. (quoting Bryan v. Murphy, 246 F.Supp.2d 1256, 1259 (N.D.Ga. 2003). Finally, a motion for reconsideration “is not an opportunity for the moving party . . . to instruct the court on how the court ‘could have done it better' the first time.” Brinson, 2009 WL 2058168, at *1 (quoting Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Engineers, 916 F.Supp. 1557, 1560 (N.D.Ga. 1995) (aff'd 87 F.3d 1242 (11th Cir. 1996)).

         B. Analysis

         Defendant's Motion for Reconsideration reargues issues previously raised and decided by this Court, and fails to present any issues involving the misapplication of or failure to apply relevant statutes, case law, or rules of procedure. For the reasons discussed below, the Court denies Defendant's Motion for Reconsideration.

         1. Hearing Prior to Disqualification

         Defendant first argues that the Court was required to afford Defendant a hearing prior to disqualifying it. ([91] at 6-9). Defendant makes this argument based on three grounds: (1) the Government needed to confirm, on the record, its intention to call Lankford as a witness at trial; (2) the Court needed to consider Defendant's competency, or lack thereof; and (3) the Court needed to secure, on the record, Defendant's waiver of any conflict. (Id.).

         The Government argues, as to the first ground, that Defendant's argument is “not a specification of error by the Court, [but rather] Defendant's repackaging of the argument that Lankford is really a defense witness.” ([92] at 2). The Government confirms its intention to call Lankford as a witness in its case-in-chief, and notes that “Defendant cites no relevant statutes, case law[, ] or rules of procedure that the Court misapplied or failed to apply in disqualifying counsel based ...

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