Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 1 of 20 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

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1 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 1 of 20 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION UNITED STATES OF AMERICA, Plaintiff, Case No: SA-15-CR-820-DAE v. JEFFREY FAYE PIKE (2), Defendant. GOVERNMENT=S SUPPLEMENTAL MOTION TO DISQUALIFY KENT SCHAFFER AND JAMES KENNEDY FROM THE REPRESENTATION OF JEFFREY FAYE PIKE BASED UPON UNWAIVABLE CONFLICT OF INTEREST The United States of America, by and through the United States Attorney for the Western District of Texas, respectfully moves for the disqualification of attorneys Kent Schaffer and James Kennedy from the representation of the above Defendant, Jeffrey Faye Pike, because of an unwaivable conflict of interest as set forth below: I. INTRODUCTION 1. On or about January 6, 2016, Jeffrey Faye Pike was arrested pursuant to an indictment charging him with Conspiracy to Participate in the Affairs of a Racketeer Influenced and Corrupt Organization in violation of Title 18, United States Code 1962(d), Violent Crimes in Aid of Racketeering in violation of Title 18, United States Code 1959(a)(6), and Conspiracy to Interfere with Commerce by Extortion in violation of Title 18, United States Code 1951, as docketed under this cause number.

2 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 2 of On January 14, 2016, attorneys Kent Schaffer and James Kennedy filed their appearance on behalf of Pike. Trial is scheduled to commence on August 7, 2017 before this Court. 3. The charges set forth in the indictment arise from the Defendant s leadership and involvement in the Bandidos Outlaw Motorcycle Organization (OMO). Specifically, the Defendant is the National President of the Bandidos OMO. The indictment alleges that the Bandidos OMO is a criminal enterprise that engaged in murder, attempted murder, robbery, extortion, and trafficking of controlled substances, among other things. 4. On October 11, 2016, the Government filed a Motion to Disqualify Mr. Schaffer and Mr. Kennedy due to unwaivable conflicts of interest (Doc. 143). A hearing was set for November 30, Counsel filed its response that same day (Doc. 167). 5. The Magistrate Court ultimately denied the Government s Motion without prejudice, stating that it did not find a conflict so serious as to require disqualification at the time. The Court made clear it may need to revisit the issue when the evidence the Government proffered what government witnesses would say and that two government witnesses were previously represented by Mr. Schaffer was put before the Court. (Transcript, Doc. 168 at 72-75). The Government now submits that evidence for the Court s consideration. Background II. FACTUAL BASIS FOR CONFLICT 6. The Government has alleged in its Indictment that the Bandidos Outlaw Motorcycle Organization is a criminal enterprise. And among other things, the Indictment 2

3 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 3 of 20 alleges that the Bandidos OMO protected its reputation and power in part by forbidding its members and associates from cooperating with law enforcement. Members who cooperated were subject to physical violence, threats and intimidation. 7. As presented in its original Motion for Disqualification, Bandidos OMO members were intercepted during the investigation discussing actions related to Mr. Schaffer, namely: Bandidos OMO members discussed that Mr. Schaffer would review legal paperwork for the enterprise to determine if individuals cooperated. Bandidos OMO members discussed that Mr. Schaffer would permit Mr. Pike to review video evidence, in violation of a State District Court order. Bandidos OMO members discussed Mr. Schaffer s role as enterprise counsel. Transcripts of these intercepted conversations were submitted to the court with the original Disqualification Motion as attachments A, B and C (Doc. 143). 8. The Government now supplements that evidence with the Affidavit of DEA Special Agent Chad Lloyd. Agent Lloyd summarized statements by several witnesses as they pertain to these issues: Multiple Bandidos OMO members will testify that Bandidos OMO members were required to turn in legal paperwork when they were arrested on criminal charges to higher-ranking members so that the paperwork could be reviewed for signs of cooperation. The paperwork was often taken to attorneys for professional opinions. Several members will testify that Mr. Schaffer was one of the attorneys that paperwork was taken to. Two witnesses will testify that the Bandidos OMO maintained a retainer with Mr. Schaffer for future work in defending its leadership from criminal charges. Two witnesses were previously represented by Mr. Schaffer on their own criminal cases. Neither witness will waive client confidentiality. Explanation of Conflicts 3

4 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 4 of The government s evidence demonstrates that Mr. Schaffer entangled himself, be it knowingly or unknowingly, to an extraordinary degree in the activities of the Bandidos OMO. Numerous witnesses will testify that Mr. Schaffer reviewed legal paperwork for the Bandidos OMO and at least one recorded conversation supports that. Mr. Schaffer has denied that allegation. But as the Court has noted, the issue at this time is not the veracity of the allegations even without going into the factual merits, this very dichotomy raises a number of issues which give rise to an unwaivable conflict of interest that respectfully must be addressed by the Court: a. First, testimony and recordings stating that Mr. Schaffer reviews paperwork for the Bandidos OMO creates a serious potential for an unwaivable conflict situation and unsworn-witness problems. Although the government is not averring that Mr. Schaffer is involved in criminal conduct, it could be inferred by the finder-of-fact that Mr. Schaffer was complicit in the narrative in some way, or that Bandidos OMO members utilized Mr. Schaffer when he represented them to review legal paperwork for ulterior enterprise motives, or that the enterprise used Mr. Schaffer s name as part of their scheme to silence and intimidate members without Mr. Schaffer s knowledge or consent. The latter could prove consistent with Mr. Schaffer s proffers to the Court thus far. Either way, Mr. Schaffer becomes a fact witness. b. Second, the government anticipates that Mr. Schaffer will vigorously cross-examine these witnesses about the above events and his client s role in perpetuating the review. Their honest responses will raise Mr. Schaffer s involvement in the affairs of the enterprise. Mr. Schaffer through defense of his client could cast himself in the position of arguing his own credibility to the jury, or suggesting alternative interpretations of the contacts with the government witnesses. Under either scenario, Mr. Schaffer would be assuming the 4

5 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 5 of 20 dual role of witness and advocate before the jury. He would place himself in the position of an unsworn witness and implicitly put his own credibility at issue. This creates detrimental consequences for both the government and the defendant. c. Assuming Mr. Schaffer is demonstrably innocent of any wrongdoing, Pike s defense will nevertheless be impaired because Mr. Schaffer cannot cross-examine witnesses on these matters or question these witnesses credibility during summation without thereby becoming an unsworn witness. Moreover, the revelation that his attorney even might have been involved in furthering the enterprise s objectives could surely prejudice Pike in the jury s eyes. And Mr. Schaffer would be left in the position of defending his own actions and/or reputation at the potential expense of his client. d. The intercepted conversations involving the videotape evidence from Waco described in Attachment B of Doc. 143 at least arguably put Mr. Schaffer at direct odds with his client Pike. While Mr. Schaffer has offered a specific denial of having facilitated the review of any video evidence, the communications of Pike, when read in context, arguably state the opposite. This clash creates a two-fold conflict for Mr. Schaffer: (1) he is again placed in a situation where he could become an unsworn witness and (2) a possible impropriety creates the potential that Mr. Schaffer s personal interest will diverge from those of Pike. e. Further, the government expects Mr. Schaffer to contest that the Bandidos OMO are even an enterprise. But putting forth this defense would require Mr. Schaffer to become a fact-witness and possibly to hold back because of prior client confidentiality concerns. Testimony and recorded conversations that the Bandidos OMO paid Mr. Schaffer a retainer in expectation that he be available for their needs helps establish the existence of the criminal 5

6 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 6 of 20 enterprise under RICO by showing the connections among the participants. See United States v. Simmons, 923 F.2d 934, 949 (2 nd Cir.) (holding that government can use evidence of benefactor payments to prove existence of enterprise), cert. denied, 500 U.S. 919 (1991); United States v. Castellano, 610 F.Supp (S.D.N.Y. 1985) (disqualifying attorney because attorney s acceptance of benefactor payments could be used to prove existence of enterprise). This again puts Mr. Schaffer in the position of becoming an unsworn witness should that fact be contested at trial. It also raises concerns of divided loyalties that could be validly pursued on a 28 U.S.C claim for ineffective assistance of counsel. And evidence of passing paperwork up the hierarchy chain, eventually leading to Mr. Schaffer and other legal counsel, and utilizing Mr. Schaffer to circumvent State District Court orders, both offer strong evidence of the existence and structure of the Bandidos OMO enterprise. To refute this evidence, Mr. Schaffer would become a fact witness. 10. Mr. Schaffer s prior representation of two government witnesses poses a separate problem beyond the unsworn witness issue. To cross-examine prior Bandidos OMO clients, even on matters not specifically alleged in this indictment, runs afoul of the Texas Disciplinary Rules of Professional Conduct. Though Mr. Schaffer admits in his response that he has represented other Bandidos OMO members in the past, he claims they were for criminal actions independent of the Bandidos organization. 1 (Doc. 167 at 9). This position is contrary to the government s theory of the case and what it expects the testimony to support. And this carefully 1 Notably, except for the present cause and a 2005 Western District of Washington RICO prosecution, the Bandidos OMO has not recently faced RICO or criminal enterprise charges. So any Bandidos member facing criminal charges would have only been charged in their individual capacity. Mr. Schaffer did represent one of the defendants in the 2005 Western District of Washington case. 6

7 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 7 of 20 worded denial does not diminish the significance of the co-conspirator allegations. More importantly, it will place Mr. Schaffer in a position to either violate client confidentiality or hold back in his cross examination of those witnesses, both of which support disqualification from his representation of Pike. 11. Again, as this Court has noted, this Court need not make any factual determinations because the very nature of the evidence itself places Mr. Schaffer in a position of cross-examining former clients and being an unsworn witness. Mr. Schaffer s denial of the allegations is representative of the problem that will occur at trial; his continued representation of Pike will jeopardize any conviction. III. DISCUSSION OF RELEVANT LAW AUnder the Sixth Amendment, a defendant has a constitutional right to >representation that is free from a conflict of interest.=@ United States v. Vasquez, 298 F.3d 354, 360 (5 th Cir. 2002). While a defendant may knowingly and intelligently waive conflicts of interest, the district court is allowed substantial latitude to refuse such waivers in cases of either actual or potential conflict. Wheat v. United States, 486 U.S. 153, 163 (1988); United States v. Gharbi, 510 F.3d 550, 553 (5 th Cir. 2007) ( There is a presumption in favor of a defendant s counsel of choice, but that presumption may be overcome by an actual conflict of interest, or by a showing of a serious potential for conflict. ). While the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the 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. Wheat at 159. Thus, a defendant s 7

8 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 8 of 20 right to counsel is not absolute, and must not interfere with the court s administration of justice. Specifically: Notwithstanding the importance of the right to counsel of choice, that right is not absolute. In determining whether or not to disqualify defense counsel, the court must balance two Sixth Amendment rights: (1) the right to be represented by counsel of choice and (2) the right to a defense conducted by an attorney who is free of conflicts of interest... The need for fair, efficient and orderly administration of justice overcomes the right to counsel of choice where an attorney has an actual conflict of interest United States v. Ross, 33 F.3d 1507, 1523 (11 th Cir. 1994)(emphasis added) (citing Wheat, 486 U.S. at 163) and United States v. Casiano, 929 F.2d 1046, 1052 (5 th Cir. 1991); see also United States v. Dolan, 570 F.2d 1177, 1184 (3 rd Cir. 1978)(A[W]hen a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant=s chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant.@). In other words, a defendant s right to counsel of his choice must yield to the higher interest of the effective administration of the courts, and disqualification may occur even with a waiver of any conflict of interest. See Gandy v. Alabama, 569 F.2d 1318 (5 th Cir. 1978); Wheat, 486 U.S. at 159. The determination of whether the defendant s Sixth Amendment right overrides the conduct of his attorney is committed to the trial court s discretion. United States v. Dinitz, 538 F.2d 1214, 1219 (5 th Cir. 1976). Courts have considered disqualification where the chosen counsel could become an unsworn witness for the accused. See, e.g., United States v. Locasio, 6 F.3d 924 (2 nd Cir. 1993), cert. denied 114 S.Ct (1994), United States v. Evanson, 584 F.3d 904 (10 th Cir. 2009), and United States v. Pineda, 2010 WL (E.D.T.X.-Beaumont, 2010) (all holding that the 8

9 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 9 of 20 potential of an attorney becoming an unsworn witness at trial was sufficient to support disqualification). In addition to the constitutional guarantees arising under the Sixth Amendment, the Texas Disciplinary Rules of Professional Conduct govern attorney ethics in the Western District of Texas. 2 The Rules specifically address conflict of interest issues. Pertinent to the conflict issues raised here, Rule 3.08(a) provides, in part, that a lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact, unless certain exceptions are met. 3 The government respectfully submits that none of the exceptions are applicable here. When an actual conflict of interest impairs the ability of a defendant's chosen attorney to meet constitutional standards and comply with ethical codes, the court is not required to tolerate an inadequate representation of the defendant. Such representation not only constitutes a breach of professional ethics, it also invites disrespect for the integrity of the court, and is detrimental to the independent interest of the court to be free from future attacks on verdicts through claims that defense counsel s conflict of interest resulted in constitutionally ineffective performance. Wheat at The solution to such problems is for counsel to withdraw voluntarily or for the court to issue an order disqualifying him from representation. In such 2 The local rules of the United States District Court for the Western District of Texas adopt the standards of professional conduct set out in the Texas Disciplinary Rules of Professional Conduct for attorneys practicing before it. 3 Texas Disciplinary Rules of Professional Conduct Rule 3.08(a) identifies these exceptions to include testimony related to an uncontested issue, a matter of formality with no reason to believe evidence will be offered in opposition, the nature and value of legal services rendered in the case, when the lawyer is a party to the action and is appearing pro se, and when disqualification would work substantial hardship on the client. 9

10 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 10 of 20 cases, the defendant must retain new conflict-free counsel, or, if necessary, counsel will be appointed. One of the ways a conflict of interest arises between an attorney's interest and that of his client is where the attorney tries to be an advocate in a case where he is also a fact witness. Such a conflict exists in the instant case, where Mr. Schaffer, trial counsel for Pike, is also a witness to facts that establish the existence of the Bandidos OMO enterprise alleged in the indictment. The roles of advocate and witness are inherently inconsistent: Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively. United States v. Zepp, 748 F.2d 125, 138 (3rd Cir. 1984)(quoting model ethical rules). Where defense counsel is or ought to be a witness in the case he wishes to try, an actual conflict of interest exists and disqualification is required. Id.; Locascio at 924. When failure to disqualify results in ineffective assistance of counsel, an otherwise validly entered judgment of conviction must be overturned and a new trial accorded the defendant. Disqualification for actual conflict of interest must occur where the defense counsel has first-hand knowledge of some of the events likely to be presented at trial. See United States v. Gotti, 9 F.Supp.2d 320, 324 (S.D.N.Y. 1988). This is so whether or not the attorney is ever called to the witness stand: Even if the attorney is not called, however, he can still be disqualified, 10

11 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 11 of 20 since his performance as an advocate can be impaired by his relationship to the events in question. For example, the attorney may be constrained from making certain arguments on behalf of his client because his own involvement, or may be tempted to minimize his own conduct at the expense of his client. Moreover, his role as advocate may give his client an unfair advantage, because the attorney can subtly impart to the jury his first-hand knowledge of the events without having to swear an oath or be subject to cross-examination. Locascio at 933; See also United States v. Cain, 671 F.3d 271 (2nd Cir. 2012) (no abuse of discretion in district court s determination that the risk of defense counsel becoming a witness at trial was sufficient to justify disqualification of defendant s counsel); United States v. Jones, 381 F.3d 114 (2nd Cir. 2004). The trial court should also consider unfairness to the government in allowing a defense attorney with first-hand knowledge of the facts to become in effect an unsworn fact witness. This unfairness to the government is also a valid reason for disqualification. So is the impairment to the judicial process that results from a defense attorney improperly serving as advocate and de facto witness: Locascio at 934. When an attorney is an unsworn witness... the detriment is to the government, since the defendant gains an unfair advantage, and to the court, since the fact finding process is impaired. Waiver by the defendant is ineffective in curing the impropriety in such situations, since he is not the party prejudiced. The other way in which a conflict of interest arises between the personal interests of defense counsel and the interests of his client is the situation where evidence will suggest that counsel has engaged in conduct that could make him subject to professional disciplinary sanctions or even potential criminal liability. It is unnecessary that there be any direct evidence 11

12 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 12 of 20 of wrongdoing by trial counsel, or even any assumption of wrongdoing by him in order to establish an actual conflict of interest requiring disqualification. See Zepp at 136. Where defense counsel has independent personal information regarding the facts underlying his client's charges and/or faces potential liability for those charges, he has an actual conflict of interest which requires his withdrawal or disqualification by the court because he cannot be expected to vigorously pursue his client's best interest entirely free from the influence of his concern to avoid his own incrimination. Id.; See United States v. Crockett, 506 F.2d 759 (5 th Cir.), cert denied, 423 U.S. 824 (1975). Accord United States v. Fulton, 5 F.3d 605, (2d Cir. 1993) and Mannhalt v. Reed, 847 F.2d 576, 581 (9th Cir. 1988). The existence of an actual conflict requiring disqualification does not turn on whether the allegations of improper conduct on the part of defense counsel are true or false, or with or without "some foundation." Either way, an actual conflict is created. If the charges are true, defense counsel may fear that a spirited defense could uncover convincing evidence of his guilt or provoke the government into action against him. Moreover, the attorney is not in a position to give unbiased advice to his client on such matters as whether or not to testify or to plead guilty and cooperate, as these options might provide evidence against counsel. On the other hand, if counsel is innocent and the charges are false, the defense is still impaired because vital crossexamination becomes unavailable to the defendant as ethical rules prevent counsel from acting as both advocate for his client and witness on his client's behalf. If the attorney were permitted to question a witness concerning the allegations against him, he would effectively become an unsworn witness, which would be unfair to the government and improperly impair the integrity of the judicial process. United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984); Fulton at

13 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 13 of 20 11; United States v. Evanson, 584 F.3d at Prior Representation of Government Witnesses Mr. Schaffer s prior representation of two government witnesses poses a second, independent, reason for disqualification. On this issue, the analysis of the relevant rules begins with a lawyer s duty of confidentiality, the cornerstone of attorney-client relationships. The duty of confidentiality is much broader than simply that which is protected by the attorney-client privilege; it extends to virtually everything that a lawyer learns in the course of representing a client. Rule 1.05 of the Texas Disciplinary Rules of Profession Conduct permits a lawyer to disclose information gained in a representation when a lawyer has obtained the client s informed consent to the disclosure. It provides that a lawyer shall not knowingly reveal confidential information of a client or a former client except, in pertinent part, when the client consents after consultation. Consultation means communication of information and advice reasonably sufficient to permit the client to appreciate the significance of the matter in question. In essence, Rule 1.05 prohibits Mr. Schaffer from using or revealing information relating to the representation of these clients unless he has obtained their informed consent to do so (because no other exceptions to the Rules would apply in this case). In this case, the two witnesses Mr. Schaffer previously represented are unwilling to waive client confidentiality. Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct states, in pertinent part, that a lawyer shall not represent a person if the representation of that person involves a substantially related matter in which that person s interests are materially and directly adverse to 13

14 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 14 of 20 the interests of another client of that lawyer or the lawyer s firm. Rule 1.09 of the Texas Rules of Professional Conduct states, in pertinent part, that, without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client if the representation in reasonable probability will involve a violation of Rule 1.05 (client confidentiality, discussed above), or if it is in the same or a substantially related matter. The indictment in this cause charges that defendant Pike was the leader of an enterprise, the Bandidos Outlaw Motorcycle Organization, and that Pike and members of the enterprise engaged in a pattern of racketeering activity. Witness 1 and Witness 2 have disclosed to agents that they have information implicating Pike and the Bandidos enterprise; each has agreed to testify at Pike s trial. Mr. Schaffer represented Witness 1 and Witness 2 on criminal matters which have not been included in the indictment, but do provide evidence proving the existence of the enterprise, which is material to the offense charged in the indictment. 4 This representation presents clear conflict issues under Rules 1.06 and 1.09 in that Witness 1 and Witness 2 s interests now appear contrary to that of Pike, and Mr. Schaffer will be in the position of crossexamining former clients without their consent and waiver of confidentiality. The Fifth Circuit has said: An attorney operates under an actual conflict when he represents a criminal defendant after having previously represented a government witness in a 4 Counsel for Pike suggested at the November 30, 2016 conflict hearing that any information possessed by these witnesses is not material to the offense charged in the indictment in this cause. It bears pointing out that the indictment charges a conspiracy. As such, it is not necessary that the witnesses have had any dealings with Defendant Pike for the information to be material to the racketeering conspiracy. In fact, it is not even necessary that the witnesses know or have ever met Defendant Pike for the information to be relevant to the conspiracy or the enterprise. 14

15 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 15 of 20 related matter. Casiano at 1051 (citing United States v. Martinez, 630 F.2d 361 (5th Cir. 1980)). A statement by defense counsel that the defendant and the witness have waived any conflict is not sufficient to overcome the situation which is inherently conducive to divided loyalties. Id. (citations omitted). It is well established that the defendant is denied the effective assistance of counsel in those instances where an attorney is unable to cross-examine, or is chilled in the cross-examination of, a government witness because of the attorney-client privilege arising from counsel's prior representation of the witness or from his duty to advance the interests of the witness as a current client. United States v. Soudan, 812 F.2d 920, 927 (5th Cir. 1986). Here, Witness 1 and Witness 2 will not consent and waive client confidentiality. Mr. Schaffer would thus be forced to represent Pike with less fervor than he might otherwise. Mr. Schaffer owes a duty of confidentiality to the information gleaned from his prior representations of Witness 1 and Witness 2, which leaves him hamstrung in his current representation of Pike. This chilled representation result epitomizes the concerns of the Fifth Circuit. But the Fifth Circuit has held that courts may disqualify attorneys in this scenario even if all the involved parties waive all conflicts because of the still-existing appearance of divided loyalties and the Court s independent interest to ensure that the proceedings comport with ethical standards and appear fair to those who observe them. In United States v. Millsaps, 157 F.3d 989 (5th Cir. 1998), the Fifth Circuit recognized that the Supreme Court has previously upheld the disqualification of defense counsel over the defendant's Sixth Amendment objection when the counsel also represented a potential government witness. Id. at In Millsaps, the Fifth Circuit upheld the district court's rejection of the defendant's choice of counsel: Although [the attorney] had terminated her 15

16 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 16 of 20 relationship with [the witness], and [the witness] agreed to waive his attorney-client privilege, the potential still existed that [the attorney] would have divided loyalties [and]... the potential for divided loyalties here was serious' enough to justify the district court's exercise of its discretion in disqualifying [the attorney]. Id. In Sanchez Guerrero, the Fifth Circuit noted that a defendant's waiver of conflicts of interest will certainly operate to waive his rights, but it will not stop this court or district courts from ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Sanchez Guerrero, 546 F.3d at 333 (quoting Wheat, 486 U.S. at 160). The Fifth Circuit s decision in Sanchez Guerrero eliminated any question whether absolute waivers are to be allowed: To the extent that Garcia allowed an absolute waiver of any conflicts of interest, it is no longer good law. Id. at 334. See United States v. Garcia, 517 F.2d 272, 276 (5th Cir. 1975) (conflict of interest may be waived), abrogated on other grounds, 465 U.S. 259 (1984). Thus, it would be soundly within this Court s discretion whether to remove Mr. Schaffer from representing Pike due to the existing conflicts and potential for conflicts even if the Witnesses were willing to waive their conflicts, which they are not. Mr. Kennedy similarly has a conflict because he is a member of the same firm as Mr. Schaffer. Rule 1.09(b) provides that conflicts of interest for former clients extend to all members of or associated with a firm when any one of them practicing alone would be prohibited from doing so. It is inconsequential whether Mr. Kennedy ever personally represented either of these witnesses, though further inquiry suggests that he too has a direct 16

17 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 17 of 20 conflict. 5 Because Mr. Schaffer would be prohibited from representing Pike due to his former representation of Witness 1 and Witness 2, under Rule 1.09, this conflict extends to Mr. Kennedy as well. IV. CONCLUSION The facts and circumstances of this case present a conflict that is serious and unwaivable. Mr. Schaffer has placed himself in the dual role of trial counsel and witness. The Government s evidence will show that Mr. Schaffer, be it knowingly or unknowingly, has personal knowledge of and involvement in the activities of the Bandidos OMO. As such, he was a participant in events to be developed at Pike s trial. Mr. Schaffer has proffered a denial of the evidence. But this Court need make any factual determinations at this time the very existence of a factual dispute is telling and should be left for the factfinder. When counsel can become an unsworn witness at trial, the government is at a disadvantage because the defendant gains an unfair advantage because Mr. Schaffer can convey first-hand knowledge of events, or even a denial, without having to swear an oath or be subject to cross-examination. It is also detrimental to the Court since the fact-finding process is impaired. Locascio at 934. Mr. Schaffer s professional obligation to Pike would require him to vigorously crossexamine government witnesses. It is most difficult to comprehend how he could accomplish that without being affected by the impact of their testimony on his own role in furthering the objectives of the enterprise, even unknowingly. Therefore, even if counsel is not called to the 5 At the November 30, 2016 hearing, Mr. Schaffer stated that Mr. Kennedy has been with me about 15 years and he s been involved in every Bandido case I have. (Doc. 168 at 36). 17

18 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 18 of 20 witness stand, he may be constrained from making arguments for Pike because of counsel s own involvement, or he may be tempted to minimize his own conduct at the expense of the client. On the other hand, anything he would tend to interject at trial would amount to unsworn testimony, which is also improper. Ethical rules also prohibit Mr. Schaffer from representing Pike because Mr. Schaffer has previously represented two government witnesses who will testify at Pike s trial. Neither of those witnesses consents to waiving confidentiality. Because Mr. Schaffer would be hamstrung in his representation of Pike because of his duty of confidentiality to the information gleaned from those prior representations, he cannot ethically represent Pike. And neither can Mr. Kennedy, as a member of the same firm. WHEREFORE, based upon the facts of this case, the relevant case law governing conflicts of interest, and the Texas Disciplinary Rules of Professional Conduct, the government respectfully requests that Kent Schaffer and James Kennedy be disqualified from the representation of Jeffrey Faye Pike in this case. Should Mr. Schaffer and Mr. Kennedy continue to decline to withdraw voluntarily, the Court is respectfully requested to direct Mr. Schaffer and Mr. Kennedy to respond specifically and with particularity, in writing, in accordance with the deadlines outlined in the local rules, so that the parameters of any disagreement about the facts and conflicts can be promptly determined and the necessity for, and scope of, any further hearing can be established. 18

19 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 19 of 20 Respectfully submitted, RICHARD L. DURBIN, JR. UNITED STATES ATTORNEY /s/. Eric J. Fuchs Assistant United States Attorney Texas Bar No NW Loop 410, Suite 600 San Antonio, Texas (210) CERTIFICATE OF SERVICE I hereby certify that on December 20, 2016 a true and correct copy of the foregoing instrument was electronically filed with the Clerk of the Court using the CM/ECF System which will transmit notification of such filing to Counsel of Record. /s/ Eric J. Fuchs Assistant United States Attorney 19

20 Case 5:15-cr DAE Document 173 Filed 12/20/16 Page 20 of 20 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION UNITED STATES OF AMERICA, Case No: SA-15-CR-820-DAE Plaintiff, v. JEFFREY FAYE PIKE (2), Defendant. ORDER Came on this date to be considered the Government=s Supplemental Motion to Disqualify Kent Schaffer and James Kennedy from the Representation of Jeffrey Faye Pike. The Court is of the opinion that the Defendant should respond in writing, which particularity, to the matters presented herein and do so pursuant to the deadlines as prescribed in the local rules. IT IS SO ORDERED. SIGNED AND ENTERED this day of, HENRY J. BEMPORAD UNITED STATES MAGISTRATE JUDGE