Case 2:15-cr AWA-RJK Document 39 Filed 03/03/16 Page 1 of 6 PageID# 220

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1 Case 2:15-cr AWA-RJK Document 39 Filed 03/03/16 Page 1 of 6 PageID# 220 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division UNITED STATES OF AMERICA, v. Criminal No. 2:15cr116 WESLEY PAUL HADSELL, Defendant. MOTION TO WITHDRAW AS COUNSEL COMES NOW Keith Loren Kimball, Kirsten Kmet and the Office of the Federal Public Defender, counsel for defendant Wesley Paul Hadsell, and move the Court for leave to withdraw as counsel of record for Mr. Hadsell. In support of this motion, counsel for Mr. Hadsell represent to the Court that defense counsel have confirmed that a conflict of interest exists which prevents the Federal Public Defender s Office from continuing to represent Mr. Hadsell. Mr. Hadsell is pending sentencing after having pled guilty to Count One of the Superseding Indictment charging him with Possession of Ammunition by a Convicted Felon in violation of 18 U.S.C. 922(g). The sentencing hearing is scheduled for March 18, The Pre-Sentence Report ( PSR ) has been prepared and the probation officer has classified Mr. Hadsell as an armed career criminal pursuant to 18 U.S.C. 924(e). The defense has notified the probation officer of Mr. Hadsell s objection to this determination 1. The issue of whether Mr. Hadsell is an armed career criminal and thus subject to an increased statutory range of imprisonment (i.e. 15 years to life) will be a contested issue at sentencing. Counsel recently became aware that the Office of the Federal Public Defender represents 1 The defense has also raised objections to the guideline calculations contained in the PSR.

2 Case 2:15-cr AWA-RJK Document 39 Filed 03/03/16 Page 2 of 6 PageID# 221 another individual whose interests are adverse to those of Mr. Hadsell. Specifically, this other client has certain information about Mr. Hadsell and the other client wants and intends to cooperate with the Government. In fact, this other client has already provided his/her information to law enforcement/the Government with the hope that he/she receives a reduction in his/her state sentence and federal sentence for substantial assistance. Other client s information is not directly related to the charge for which Mr. Hadsell is to be sentenced. However, other client s information is potentially related to Mr. Hadsell s sentence. Thus, it is counsel s understanding that the information from other client could potentially be utilized at Mr. Hadsell s sentencing. Additionally, based upon information and belief, there is a strong possibility that the other client could ultimately become a potential witness against Mr. Hadsell if he is prosecuted - in state or federal court - with a crime relating to his adopted daughter s disappearance and/or death. In cases where conflicts of interest arise, the affected lawyers within the Office of the Federal Public Defender discuss the issues in house and, where appropriate, the advice of the Virginia State Bar Ethics Counsel is sought. In this instance, the affected lawyers sought the advice of the Virginia State Bar Ethics Counsel and were advised that defense counsel should move to withdraw as Mr. Hadsell s counsel. Accordingly, undersigned counsel respectfully request that the Federal Public Defender s Office be granted leave to withdraw as Mr. Hadsell s counsel. LAW AND ARGUMENT Rule 1.4(c) of the Virginia State Bar Rules of Professional Conduct applies to this circumstance. Rule 1.4(c) states: A lawyer shall inform the client of facts pertinent to the matter

3 Case 2:15-cr AWA-RJK Document 39 Filed 03/03/16 Page 3 of 6 PageID# 222 and of communications from another party that may significantly affect settlement or resolution of the matter. However, in this instance, Rule 1.6(a), which relates to preserving confidences and secrets of a client, prohibits defense counsel from disclosing information - facts pertinent to the matter and of communications - gained from other client and thus complying with Rule 1.4(c). In other words, Rule 1.6(a) requires that the information defense counsel knows from other client be preserved. This puts defense counsel in a conflict. Defense counsel s duty of communication to Mr. Hadsell cannot be satisfied because of defense counsel s duty of confidentiality to other client. Rule 1.7 of Virginia State Bar Rules of Professional Conduct also applies to this situation. Specifically, Rule 1.7 provides that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third person or by personal interest of the lawyer. Id. Here, counsel has determined that there exists a concurrent conflict of interest. Both subsections of Rule 1.7 are relevant to the present circumstance. Specifically, the interests of the two clients are clearly and directly adverse and there is a significant risk that continued representation of Mr. Hadsell would be limited by the representation of the other client. As noted above, other client claims to have incriminating information about Mr. Hadsell. Other client intends to cooperate with the Government with the hope that his/her sentence will be reduced based, at least in part, on the alleged information he/she has about Mr. Hadsell. The conflict is clear - the best interests of other client is to help the Government prosecute and convict Mr. Hadsell while Mr. Hadsell would have to attack the credibility of other client to further his interests. There is direct

4 Case 2:15-cr AWA-RJK Document 39 Filed 03/03/16 Page 4 of 6 PageID# 223 adversity between other client and Mr. Hadsell. Rule 1.7(b) permits a lawyer to represent a client notwithstanding the existence of a concurrent conflict of interest but only if each affected client consents after consultation and: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) the consent from the client is memorialized in writing. However, defense counsel can not obtain informed consent since defense counsel is prohibited from disclosing information from other client to Mr. Hadsell based on Rule 1.6(a). In sum, defense counsel is presented with a conflict of interest. Other client has expressed his/her desire to offer incriminating information against Mr. Hadsell. The Federal Public Defender s Office is not able to advise other client on this topic because any advice that would further other client s interests would be detrimental to Mr. Hadsell s interests. Defense counsel cannot attend to their duty of communications to Mr. Hadsell because they are prohibited from revealing the information other client is attempting to offer against Mr. Hadsell since that information was learned in the course of the Federal Public Defender s Office s representation of other client and is therefore confidential. Finally, defense counsel cannot disclose the information necessary to obtain informed consent from other client and Mr. Hadsell without revealing information that is detrimental to other client or Mr. Hadsell or to both of them. Therefore, defense counsel respectfully requests that they and the Federal Public Defender s Office be granted leave to withdraw as Mr. Hadsell s counsel in this matter.

5 Case 2:15-cr AWA-RJK Document 39 Filed 03/03/16 Page 5 of 6 PageID# 224 Respectfully submitted, WESLEY PAUL HADSELL By: /s/ Keith Loren Kimball VSB No Supervisory Assistant Federal Public Defender Attorney for Defendant Wesley Paul Hadsell Office of the Federal Public Defender 150 Boush Street, Suite 403 (757) (telephone) (757) (telefax) keith_kimball@fd.org Kirsten R. Kmet VSB No Assistant Federal Public Defender Attorney for Defendant Wesley Paul Hadsell Office of the Federal Public Defender 150 Boush Street, Suite 403 (757) (telephone) (757) (telefax) kirsten_kmet@fd.org

6 Case 2:15-cr AWA-RJK Document 39 Filed 03/03/16 Page 6 of 6 PageID# 225 CERTIFICATE OF SERVICE I certify that on the 3 rd day of March 2016, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to: Benjamin Hatch, Esquire Managing Assistant United States Attorney Office of the United States Attorney 101 W. Main Street, Suite 8000 benjamin.hatcht@doj.gov I also certify that a true and correct copy of this motion is being sent to Darryl Upshur, United States Probation Officer by way of electronic mail on this date. I also certify that a true copy of this motion is being delivered to Mr. Wesley Paul Hadsell at the Western Tidewater Regional Jail, 2402 Godwin Blvd., Suffolk, Virginia on this date. /s/ Keith Loren Kimball VSB No Supervisory Assistant Federal Public Defender Attorney for Defendant Wesley Paul Hadsell Office of the Federal Public Defender 150 Boush Street, Suite 403 (757) (telephone) (757) (telefax) keith_kimball@fd.org