United States District Court, N.D. Georgia, Atlanta Division
TOTENBERG UNITED STATES DISTRICT JUDGE
extensive and well-reasoned Report and Recommendation,
(R&R) [Doc. 146], Magistrate Judge Catherine M. Salinas
recommends that this Court grant the Government's motion
to disqualify Attorney Bruce S. Harvey as co-counsel for
Defendant Jared Wheat, [Doc. 88]. Defendant Wheat objects.
district judge has broad discretion to accept, reject, or
modify a magistrate judge's proposed findings and
recommendations. United States v. Raddatz, 447 U.S.
667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the
Court reviews any portion of the R&R that is the subject
of a proper objection on a de novo basis and any non-objected
portion on a “clearly erroneous” standard. Based
on Defendant's objections, this Court has reviewed the
record in this case on a de novo basis and concludes that the
Magistrate Judge is correct.
describing the background, which is set forth in much more
detail in the R&R, [Doc. 146 at 1-9], Defendant Wheat
operates a company named Hi-Tech Pharmaceuticals, Inc.
(Hi-Tech). Wheat, along with Hi-Tech and Hi-Tech employee
John Brandon Schopp, stands indicted for several crimes
including charges of conspiracy, wire fraud, money
laundering, introduction of misbranded drugs into interstate
commerce, and the manufacture and distribution of a
controlled substance. As a part of its investigation in this
matter, in 2014, the Government subpoenaed Choat Soviravong,
who was also a Hi-Tech employee, to testify before the grand
jury. Attorney Harvey represented Soviravong in the subpoena
response and arranged for Soviravong to be interviewed by the
Government pursuant to a “use immunity” agreement
in lieu of testifying before the grand jury. Attorney Harvey
has now entered a notice of appearance on behalf of Wheat in
this matter, and the Government contends that Attorney Harvey
cannot represent Wheat because of the potential conflict.
time that the Government filed its motion to disqualify
Attorney Harvey, the Government identified Soviravong as a
witness and a “subject” of its investigation.
Soviravong has now been indicted of four counts of lying to
investigators in connection with the Government's
investigation into Wheat and his codefendants. United
States v. Soviravong, No. 1:19-CR-0146-AT.
hearing held pursuant to Fed. Crim. R. 44(c) before Judge
Salinas, prior the Government's indictment of Soviravong,
both Wheat and Soviravong expressly and knowingly waived any
potential conflict. Wheat has also expressly waived his right
to appeal any conviction based on Attorney Harvey's
alleged ineffective assistance that is related to the
the Rule 44 hearing and further briefing by the parties,
Judge Salinas issued her R&R in which she comprehensively
reviewed the background of this matter and the applicable
law. Notably, Judge Salinas recognized that because of the
possibility that Soviravong might be called to testify
against Wheat, the risk of an actual conflict of interest
arising was significant. According to Judge Salinas,
Where a prior client's testimony directly concerns a
current client's conduct, there is a serious risk that
such testimony as a government witness will not be fully
aligned with the current client's (Wheat's)
interests, but instead would be materially adverse. The
Eleventh Circuit has stated that when, like here, “an
actual conflict of interest exists, the client is denied
effective assistance of counsel, and the attorney may be
disqualified.” [United States v. Ross, 33 F.3d
1507, 1523 (11th Cir. 1994)]; see also [Wheat v.
United States, 486 U.S. 153, 164 (1988)] (“A
showing of a serious potential for conflict” overcomes
the presumption in favor of the defendant's counsel of
[Doc. 146 at 18-19].
of this risk, Judge Salinas concluded that Attorney Harvey
must be disqualified. In his objections, Wheat first points
(1) both [Soviravong] and Mr. Wheat clearly, knowingly, and
voluntarily waived any actual or potential conflict of
interest; (2) Mr. Wheat voluntarily waived his right to
appeal any conviction based on Mr. Harvey's ineffective
assistance due to the conflict; and (3) Mr. Harvey confirmed
that he possesses no confidences from his short,
limited-scope representation of [Soviravong] that, in his
view, could possibly affect his representation of Mr. Wheat.
[Doc. 159 at 2].
further notes that (1) Soviravong's testimony is
well-established, (2) because Attorney Harvey has a
co-counsel, he could avoid any conflict by not
cross-examining Soviravong, (3) Attorney Harvey's
representation of Soviravong was brief, and (4) any
confidential information that Attorney Harvey received
through his limited representation of Soviravong is
exculpatory. Wheat thus contends that the risks posed by the
potential conflict are minor and that this Court should
accept Wheat's and Soviravong's knowing and voluntary
waivers and not deny Wheat his right to his counsel of
Court recognizes Wheat's strong interest in having the
legal representation of his choice and admits that, because
of that interest, this Court harbored reservations about
disqualifying Attorney Harvey from this case. Because of
those reservations, and as part of its de novo review, this
Court held another hearing to hear directly from the parties.
In spite of the fact that neither Soviravong nor his attorney
were able to attend the hearing, this Court was able to hear
from the parties to this action, and the Government made a
strong case that Attorney Harvey's disqualification was
appropriate because, even if an actual conflict did ...