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American British French. Access complete market analysis. Art History. Book Reviews. Search History. Reginald Baxter 20th Century. Hand-painted Leopard Console Table. View All Artworks. Untitled Horse By Reginald Baxter. Wyoming Art Auction. Palm Beach Modern Auctions. Fitzgibbons remembered that the conflict issue was discussed and that at some point he was told that he might have to step in and try the case as first chair.

Approximately two weeks before the trial date, Sharp informed Collazo that the defendant would proceed to trial. The government's motion also implicated attorney Richard Hibey in the wrongdoings. Hibey, a well-known Washington D. Hibey was a close personal friend of Sharp. The government alleged in the disqualification motion that after Baxter's indictment, but before the defendant's indictment, the defendant arranged a meeting between Sharp and Baxter.

In that meeting, Baxter allegedly discussed the facts of the April, , importation with Sharp and Sharp arranged to meet with Baxter again in the future. The motion further stated that at a later date Sharp introduced Baxter to Hibey, and the three of them agreed that the defendant would pay for a portion of Baxter's legal fees. In the motion, the government stated that Baxter would testify that Hibey had discussed with Baxter a version of the events to tell the government that was false and that Baxter would testify as to Sharp's role in concocting that story.

Defendant's Evidentiary Hearing Exhibit 1. The disqualification motion identified three separate grounds for disqualification of the firm of Sharp and Lankford from the defendant's representation:.

In the motion, the government argued that if the defendant proceeded to trial, Sharp's disqualification was mandatory and could not be waived by the defendant. The defendant argues that a fourth ground for disqualification, which is the basis for the instant motion to vacate, was created by the government's making the disqualification of Sharp and Lankford conditional upon the defendant's proceeding to trial.

The defendant argues that making the disqualification contingent upon whether the defendant went to trial made it in the firm's best interest to avoid the publication of Sharp's alleged unethical and criminal conduct at trial by convincing the defendant to plead guilty.

The Court notes that the disqualification motion was never filed with the Court. At the evidentiary hearing on the instant motion, Sharp vehemently denied Baxter's accusations of impropriety.

According to Sharp's testimony at the evidentiary hearing, Sharp only met with Baxter once. At that meeting, Baxter started to relate to Sharp the facts of a marijuana importation. Baxter mentioned the defendant's name and at that point in the conversation Sharp stopped Baxter and told him "I don't even want to talk anymore. I certainly can't represent you. Baxter begged Sharp to take his case and Sharp refused. Baxter kept calling Sharp and asking him to represent him.

Finally, Baxter asked Sharp if he could refer Baxter to another attorney. Sharp called Hibey and asked Hibey if he would agree to talk to Baxter. Hibey agreed to do it. Hibey then became Baxter's counsel. The testimony presented at the hearing revealed that as soon as the firm of Sharp and Lankford received the copy of the disqualification motion, they started preparing a response.

Paul Castellito, an associate at the firm, was the attorney assigned to draft the response to the disqualification motion. The response to the motion was never filed with the Court. Paul Knight, an attorney at the firm of Sharp and Lankford at the time, testified at the hearing that Sharp was overly concerned with regard to the disqualification motion, and that the disqualification issues became Sharp's primary focus and concern in the days before trial.

Further, Castellito testified that Sharp was concerned about the allegations of improper conduct and their effect on him personally. In his testimony, Sharp admitted that he was concerned about the government's allegations of impropriety. However, Sharp stated that he always placed the defendant's interests first. During his testimony, Sharp said "[i]f you begin with yourself, you are doing it wrong. Sharp further stated "I was concerned about myself. I don't want to discount that at all But also, make no mistake about it, I was not going to sell [my client] out for myself.

On November 28, , the day the defendant's case was scheduled for trial, Bernie Getchman entered a guilty plea and identified the defendant, Joe Pegg, as one of his co-conspirators. After Getchman entered his guilty plea, Sharp asked the Court for a moment to speak with co-counsel.

Sharp testified that he believed that Getchman's testimony could tilt the balance against the defendant. Getchman pled guilty to the charges in the indictment without the benefit of a plea agreement. Sharp believed that because Getchman did not have a plea agreement, there was a good possibility that after the plea Collazo would offer Getchman a reduced sentence in return for Getchman's testimony against the defendant.

Sharp consulted with Fitzgibbons and the other attorneys from his firm that were present at the time. Fitzgibbons testified that, at that point, it became "pretty clear fairly quickly that Judge Kovachevich [the undersigned] would be the sentencing judge. Fitzgibbons advised Sharp that if the defendant pled guilty and this Court were to impose the defendant's sentence, if the defendant agreed to cooperate with the government, this Court would reward the defendant's cooperation.

Fitzgibbons told Sharp that this Court was known to reward and give lenient sentences to cooperators. Sharp believed that by pleading guilty, the defendant could avoid the Getchman problem and perhaps get a favorable venue for his sentencing.

Gagliardi, that he believed the parties could resolve the case without going to trial and requested a ten-day continuance. Judge Gagliardi denied the request for a ten-day continuance and gave the parties 24 hours to resolve the issue of whether the defendant would plea or would proceed to trial. At the time Sharp informed Judge Gagliardi that he believed the case could be resolved without a trial, the defendant's plea agreement had not been drafted and Sharp had not discussed the possibility of a plea with the government in at least two weeks.

The government provided the defendant with a proposed plea agreement sometime during the day on November 28, Pursuant to the plea agreement, in return for the defendant's cooperation and forfeiture, the government would dismiss one of the counts of the indictment, would not file second offender papers, and would recommend a reduction in the defendant's sentencing score sheet for acceptance of responsibility.

If the defendant failed to provide the government substantial assistance, his guideline sentence range would be months to life imprisonment. The defendant agonized over whether he should plead guilty or go to trial. Before signing the plea agreement, the defendant had extensive meetings with his attorneys. During those meetings, the defendant voiced his concern with regard to the forfeiture amount.

The defendant asked Sharp "Where are we going to get that money? Sharp stated "I think that was a realistic assumption. Before proceeding to explain his belief that Bucky Pegg could provide the forfeiture money was a realistic, Sharp asked the defendant's counsel whether that information was within the scope of the attorney-client privilege that had not been waived by the defendant.

Without responding to Sharp's inquiry, the defendant's counsel withdrew the question. Sharp then stated, "I was sure [the defendant and his brother] could come up with [the money]. Also, during the meetings the attorneys discussed with the defendant the issues raised by the government's disqualification motion and the different conflicts of interest raised in the motion. Fitzgibbons testified that the conflict issue was discussed by the lawyers in front of the defendant on several occasions. However, the defendant was adamant that he wanted Sharp to represent him.

Sharp and Fitzgibbons testified that they did not advise the defendant of his right to consult an independent counsel on the conflict issue because they believed that the defendant would refuse to do it. Sharp testified that at one point he considered that it could be better to address Baxter's allegations in court and deny them.

However, before making the final determination Sharp had to take into account the impact that Sharp's testimony, if he was required to testify, would have on the defendant's case. Sharp stated that if he were to take the stand to contradict Baxter's allegations, there was a strong possibility that Sharp would have to testify regarding the contents of his first conversation with Baxter and that in that conversation Baxter implicated the defendant in the importation.

Accordingly, Sharp believed that his testimony at trial could severely hurt the defendant's case. Finally, after much deliberation, the defendant signed the plea agreement sometime late on November 28, Sometime before the defendant pled guilty, Collazo had made it clear that neither Sharp nor Hibey was the target of a government investigation. It is not clear from the record whether Collazo informed Sharp personally or someone else conveyed the information to Sharp.

Sharp did not remember whether it was Collazo or Hibey who had told him that he was not a target. Also, the record is not clear as to whether Sharp learned that he was not a target on or before November 28, , date in which the trial was scheduled to begin.

On November 29, , the defendant pled guilty pursuant to the plea agreement. At the plea hearing Judge Gagliardi inquired regarding the conflict issues. Specifically, the inquiry consisted of the following:. Fitzgibbons testified that when the defendant pled guilty he was satisfied with the defendant's understanding of the conflict of interest issues.

Fitzgibbons stated that ethically he had no doubt in his mind that, when the defendant was questioned by Judge Gagliardi on the conflict issue, the defendant understood the conflict. Further, Fitzgibbons testified that, when the defendant entered his guilty plea, Fitzgibbons believed it was in the defendant's best interest to do so. Fitzgibbons stated. After the defendant entered his guilty plea, he informed his lawyers, including Fitzgibbons, on several occasions that he wanted to withdraw his plea.

However, Fitzgibbons believed that the defendant was just in an internal turmoil and was going back and forth as to what he wanted to do. Fitzgibbons testified that the discussions never reached the point where the defendant instructed his lawyers unequivocally that he wanted to withdraw his plea.

Fitzgibbons stated "if he gave me an instruction to withdraw the plea, of course I would have filed something, or had the Washington lawyers file something. The defendant's sentencing date was continued on two occasions. On February 16, , the date of the defendant's sentencing, Fitzgibbons moved for a third continuance. At a side bar conference, Fitzgibbons explained to the court that the defendant needed more time to cooperate with the government and to comply with the terms of the plea agreement.

Further, Fitzgibbons expressed that the defendant was placed in an untenable situation before he pled guilty because of the accusations against his attorneys. However, Fitzgibbons told the Court that when the defendant pled guilty the defendant's attorneys:.

S, p. The Court denied the continuance and proceeded with the sentencing. The Court asked the defendant if he had discussed the presentence report with his lawyer. The defendant stated that he had not. Fitzgibbons stated that he had discussed the presentence report with the defendant about six months before the sentencing and asked for a moment to confer with his client.

After conferring with the defendant, Fitzgibbons moved to withdraw the defendant's guilty plea. The Court denied the motion to withdraw. At the evidentiary hearing, Fitzgibbons testified that he did not believe, based on his professional experience, that an appeal of the motion to withdraw would succeed because Fitzgibbons did not feel the Court had abused its discretion in denying the motion. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assistance of counsel.

The right to assistance of counsel includes the right to conflict free representation. A counsel's duty of loyalty to his client includes "a duty to avoid conflicts of interest," which the Supreme Court considers "perhaps the most basic of counsel's duties. Washington, U. The right to conflict free counsel applies to plea proceedings as well as trials.

Hill v. Lockhart, U. Sullivan, U. When the defendant shows that an actual conflict adversely affected his counsel's performance, prejudice is presumed and the defendant is entitled to relief. Holloway v. Arkansas, U. In cases like the one now before the Court, where the alleged conflict of interest involves the attorney's self-interest, an actual conflict exists when:. Fulton, 5 F. The Fulton court held that when this happens. Butterworth, F. McLain, F. A defendant who demonstrates the existence of an actual conflict must then show that the conflict had an adverse effect on the defendant's counsel's representation.

Pursuant to Freund v. Butterworth , to prove adverse effect a defendant must satisfy three elements:. Freund v. Butterworth , F. The Freund Court underlined that "[p]rejudice is presumed only if the defendant demonstrates that The Court finds that the Freund test applies to the defendant's claim.

A criminal defendant can waive his right to conflict free counsel. United States v. Garcia, F. Before allowing a defendant to relinquish his right to conflict free representation certain procedures must be followed:. The government argues that the defendant waived his right to conflict free counsel during the plea colloquy before Judge Gagliardi.

The government's allegations are not supported by the record. The colloquy between Judge Gagliardi and the defendant failed to establish by "clear, unequivocal, and unambiguous language" the nature and consequences of the defendant's waiver.

Even though the Court has no doubt that the defendant understood the nature and consequences of the waiver, the Court reached that conclusion after hearing the testimony at the evidentiary hearing, not from the face of the colloquy.

Further, the record shows that the defendant was never informed of his right to an independent counsel. Whether or not the defendant would have acceded to that representation is irrelevant. The Court finds that the defendant's waiver colloquy did not satisfy the Garcia requirements and therefore did not constitute a valid waiver.

Accordingly, the Court will address the merits of the defendant's claim. The defendant's main contention is that the government's conditioning of Sharp's disqualification on whether or not the defendant pled guilty created a conflict of interest. The Court disagrees. The conflict of interest was not created by the government's conditioning Sharp's disqualification on whether or not the defendant pled guilty. The conflict of interest was created by Baxter's allegations of Sharp's unethical and criminal activity.

The government's conditioning the disqualification on the guilty plea did not make the conflict any less or any more real. The defendant contends that by the defendant pleading guilty, Sharp and his firm avoided the publication at trial of Baxter's allegations of improper conduct against Sharp.

Sharp's interest did not change by the government's conditioning the disqualification on the plea. However, the defendant has clearly established the existence of an actual conflict of interest based on Baxter's allegations. Baxter, a government witness, alleged that Sharp was involved in criminal conduct related to the crimes charged against the defendant in the indictment. Pursuant to Fulton, if the allegations of the attorney's criminal acts are proved to be true, the defendant need not show that the conflict adversely affected the lawyer's performance.

If the allegations are false, the defendant has the burden of proving an adverse effect.

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Accenture los angeles	Marketing Solutions. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assistance of counsel. Reginald Baxter is an painter who was born in the 20th Century. However, Fitzgibbons believed that the defendant was just in an internal turmoil and was read article back and forth as to rebgie he wanted to do. Search History. Proceeding to trial was not clearly in conflict with Sharp's interests. Further, Fitzgibbons testified that, when the bsxter reggie baxter his guilty plea, Fitzgibbons believed it was in the defendant's best interest to do so.
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Reggie baxter	The defendant must be at baaxter to question reggie baxter district gaxter as to the nature and consequences of his legal representation. THE COURT: You are happy, you are content, in light of the fact that there may reggie baxter a problem click the following article respect to their representation of you in this matter? Sharp believed that because Getchman did not have a plea agreement, there was a good possibility that after the plea Collazo would offer Getchman a reduced sentence in return for Getchman's testimony against the defendant. I would not do it. Fitzgibbons stated that he had discussed the presentence report with the defendant about six months before the sentencing and asked for a moment to confer with his client.
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