Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 1 of 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 1 of 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA * CRIMINAL NO: v. * SECTION: C DOMINICK FAZZIO * * * * GOVERNMENT S RESPONSE IN OPPOSITION TO DEFENDANT S MOTION TO RE-ENROLL AS COUNSEL OF RECORD May it please the Court: The United States of America hereby opposes defendant Fazzio s motion to allow reenrollment of counsel who were disqualified by this court because of a conflict of interest. The United States believes that disqualified counsel has an insurmountable and incurable conflict of interest that precludes their re-enrollment based upon the reasons below. This Honorable Court correctly determined, inter alia, that the River Birch corporate resolution bestowing a conditional financial benefit upon its employees has created a manifest and manifold conflict of interest between Fazzio and his attorneys. (Rec.doc 104). Most importantly, because of this thinly veiled effort to silence Fazzio, purchase his allegiance and deny him whatever benefits follow a cooperating defendant before bar, if Fazzio is to continue to be

2 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 2 of 9 represented by disqualified counsel, such representation subverts the interest of justice and creates a pathway for collateral attack if Fazzio is convicted. More to the point, Fazzio s disqualified counsel s convenient and transparent post-hearing representations not to partake of the River Birch indemnification resolution should be an affront to this court. This court has no jurisdiction to force River Birch to rescind or modify the indemnification resolution. Moreover, this court has no jurisdiction to force Fazzio to resign his position with River Birch or to have River Birch terminate Fazzio s employment. As of the time of this filing, River Birch and others enjoy the safe redoubt of the corporate resolution. Indeed, the River Birch indemnification resolution survives this disqualification order and there is nothing this Court can do to change that reality, other than to maintain its disqualification order.(rec Doc. 104). To tangle matters more, the flawed, reconstituted representations by Messrs. London, Cobb and Haedicke not to accept payment pursuant to the River Birch indemnification resolution does not preclude Fazzio from availing himself of the benefits provided by the River Birch indemnification resolution without any limitation. River Birch has coiled Fazzio in the mortal fear of losing his job and concomitant loss of income and the disqualified counsel are well-placed to enforce his silence. The United States submits that any order of this Honorable Court to enforce present assurances by disqualified counsel not to avail themselves of the indemnification would be impractical, tedious, cumbersome and legally impossible. For example, how could the Court prevent Fazzio from securing any benefit of the River Birch resolution post-trial or post-appeal of the Garner Services matter? Indeed, the United States submits Fazzio is already the beneficiary of the malignant resolution for he is still an employee of River Birch and subject to its designed -2-

3 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 3 of 9 benefits. Additionally, how could this Honorable Court effectively regulate Fazzio s benefits which could easily be disguised as raises or bonuses, but are actually attorney s fees? Most interesting, Mr. London already admitted receiving fees from River Birch and 1 sharing them with Mr. Haedicke (Rec. Doc 104-Court s Order p. 2),and Mr. London is still representing Fazzio in the River Birch matter in which he is unquestionably being paid his fees by River Birch. This situation presents an untenable dilemma because certainly Mr. London would still be communicating with River Birch due to the joint defense agreement in place. Ultimately this would result in an ongoing conflict and how could the court adequately regulate and control this representation. Further, the Court s order does not require Mr. London to return all attorney s fees paid by River Birch and shared with Mr. Haedicke. If it had, it would not have removed the taint which London, Cobb and Haedicke suffer. The United States submits that disqualified counsel is unable to purge the taint and has exacerbated the taint by sharing confidential information with River Birch attorneys as indicated in the Court s order. This would be tantamount to trying to put toothpaste back into the tube. Thus, the United States submits the damage has already been done and no amount of furtive maneuvering by Messrs. London, Cobb and Haedicke can restore Fazzio with their conflict-free representation. The United States further submits that it is disingenuous for Messrs. London, Cobb and Haedicke to now agree not to be paid or indemnified by River Birch and they would immediately cease confidential discussions with River Birch and their attorneys. This conflict was patent before this Honorable Court s Order and went wholly unrecognized by all three veteran attorneys. 1 The government advises the court that Mr. London is also representing Fazzio s wife in the River Birch matter. Mr. London has previously contacted the United States on her behalf when she was subpoenaed for documents. The United States submits this presents a further conflict. -3-

4 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 4 of 9 Thus, the United States submits that if Messrs. London, Cobb and Haedicke were honestly representing Fazzio and only Fazzio s interest, they would have advanced this remedy at the time of the hearing and proposed it as an alternative to the court and not waited for this Honorable Court to suggest it. The Supreme Court in Wheat v. United States, 486 U.S. 153 (1988) found that the right of counsel does not override the broader societal interest in the effective administration of justice or the maintenance of the public confidence in the integrity of our legal system. The Supreme Court in Wheat said thus while the right to select to 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 to ensure that a defendant will be inexorably represented by the lawyer whom he prefers. See Wheat at 159. The United States submits that for this court to preserve the appearance of integrity of the judicial process and to further prevent counsel from tainting the trial with their conflict-ridden representation of Fazzio, it must maintain its Order disqualifying Messrs. London, Cobb and Haedicke, for to do otherwise would irreversibly cast doubt upon the integrity of the judicial process, especially after this Honorable Court has already ruled that Fazzio s current attorneys have potential conflicts and divided loyalties. Accordingly, counsel who have either potential or actual conflicts may be disqualified. United States v. Dockens, 253 F.3d 706, 707 (5th Cir. 2001) While this Honorable Court attempted to remediate the immutable conflicts operating between Messrs. London, Cobb, Haedicke and Fazzio by extending an invitation to counsel to abjure from their compensatory and cozy relationship with River Birch and cease communications with River Birch s counsel, this offer truly betrays the consubstantial relationship which exists -4-

5 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 5 of 9 between counsel, River Birch and River Birch s counsel. The United States submits that there is no plausible way to assure this Honorable Court that Messrs. London, Cobb and Haedicke s hollow averments will reverse the hands of time and thus enjoy judicial sanctification of their representation of Fazzio. To do otherwise and allow Messrs. London, Cobb and Haedicke to escape the justifiable disqualification by this Honorable Court, would only provoke derision and suspicion of our judicial processes and erode confidence in any outcome of this case. While it is permissible for this Honorable Court to inquire as to whom is paying Fazzio s legal services, it would be unseemly and impractical to have the Court act as a monitor to any future relationship between Messrs. London, Cobb, Haedicke and Fazzio. This would require the court to periodically require defense counsel to demonstrate the origin of their fees. The reliability of their representations would be fraught with dubiety, as River Birch has many progenitors, progeny and prongs, all with interlocking owners, directors, and officers. Simply put, the damage has been done and is irreparable and no precatory assurances can cure the defect wrought by Messrs. London, Cobb and Haedicke and their benefactor, River Birch. There s another matter which compounds the irreversible conflict which operated between Messrs. London, Cobb, Haedicke and the Fazzio; that s the specter of a contingency fee in a 2 criminal case. Pursuant to Louisiana Code of Professional Conduct Rule 1.5(d)(2), it is well- established that a lawyer should not enter into an arrangement or charge or collect a contingency fee for representing a defendant in a criminal case. In the Order issued by this Honorable Court on th December 9, 2011, the Court made an overture to Messrs. London, Cobb and Haedicke to make 2 Rule 1.5(d) A lawyer shall not enter into an agreement for, charge or collect: (2) a contingent fee for representing a defendant in a criminal case. -5-

6 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 6 of 9 averments which would purge them of their tainted representation of Fazzio. Messrs. London, Cobb and Haedicke wasted no time and in accepting the Court s invitation and asserted...unless th this court s December 9 order is later vacated or modified, they will not be paid or indemnified by River Birch for work on the defense of Mr. Fazzio. Messrs. London, Cobb and Haedicke further aver that this is their only option, as the Court s second overture is violative of Louisiana Law. See, Rec. Doc 108, pg 2. Counsel s assertion is pure illusion. Any attempt to accept indemnification from any source would be the function of a contingency fee arrangement, as the services which are to be indemnified would, by virtue of any definition of indemnification, have to have been rendered before the indemnification. Moreover, the indemnitor would have to agree to pay for the services if they are rendered and after the fact. Thus, the United States observes that while this Honorable Court had the best of intentions, it submits there is no way to comply with the Rules of Professional Conduct by allowing Messrs. London, Cobb and Haedicke to reenroll as counsel for Fazzio. Whoever is to represent Mr. Fazzio has to be paid in advance, without any warranty of indemnification from any third party and be unaffiliated with Messrs. London, Cobb and Haedicke. In the final analysis, the United States reminds this Honorable Court that Messrs. London, Cobb and Haedicke have had confidential communications with their benefactor, River Birch and or their attorneys about Fazzio s representation. They have been paid by River Birch for representing Fazzio. Fazzio is a current employee of River Birch and enjoys the emoluments of his employment, namely the corporate resolution promising indemnification for his attorney s fees. To put it quite plainly, he is gagged and shackled, and Messrs. London, Cobb and Haedicke s alacrity in seeking re-enrollment of this case is a product of not pursuing justice, but -6-

7 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 7 of 9 to perpetuate Fazzio s subservience to River Birch and its principals. As this Honorable Court correctly noted, it would not inure to Fazzio s benefit if he decided to cooperate with the United States in this case. The colloquy with the court is very revealing and portends the irreparable damage to the judicial process if Messrs. London, Cobb and Haedicke are allowed to re-enroll in this case. The United States submits that the evidence of guilt in this case is overwhelming and therefore, it is likely in Fazzio s best interest to pursue meaningful, conflict-free discussions to limit his criminal liability. But if Messrs. London, Cobb and Haedicke are allowed to re-enroll, Fazzio s fate will be decided upon the altar of company loyalty, not the fair, conflict-free administration of justice. A fair trial is Fazzio s right and the Government welcomes that avenue as well but only with the assurance that the conviction will not be reversed because the appeals process exposes the utter inappropriateness of the London Cobb Haedicke relationship. Accordingly, the United States submits that the only remedy available to Fazzio is for this Honorable Court to deny Messrs, London, Cobb and Haedicke s motion to re-enroll and to require new counsel, whoever Fazzio selects, to be liberated from any Fazzio-related contacts - past, present or future - with Messrs, London, Cobb, Haedicke, River Birch or River Birch s attorneys. Moreover, new counsel should be required to affirm to this Honorable Court that they have not and will not have contact with Messrs, London, Cobb, Haedicke, River Birch or River Birch s counsel and that whatever attorneys fees he or she charges are to be derived from Fazzio only. WHEREFORE, the United States of America prays that Messrs. London, Cobb and Haedicke s Motion to Re-Enroll as Counsel of Record be DENIED and that this Honorable Court -7-

8 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 8 of 9 direct the appropriate Unites States Magistrate to conduct a hearing to determine conflict-free counsel to represent Dominick Fazzio in this matter. Respectfully submitted, JIM LETTEN UNITED STATES ATTORNEY /s/ James R. Mann JAMES R. MANN (20513) Assistant United States Attorney 650 Poydras Street, Suite 1600 New Orleans, Louisiana Telephone: (504) /s/ Salvador Perricone SALVADOR PERRICONE (10515) Assistant United States Attorney 650 Poydras Street, Suite 1600 New Orleans, Louisiana Telephone: (504) /s/gregory Kennedy GREGORY KENNEDY (20896) Assistant United States Attorney 650 Poydras Street, Suite 1600 New Orleans, Louisiana Telephone: (504)

9 Case 2:11-cr HGB-ALC Document 112 Filed 12/27/11 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on December 27, 2011, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. Also, we have mailed a copy postage prepaid to Steve London at his mailing address of 2950 Energy Center, 1100 Poydras Street /s/ James R. Mann JAMES R. MANN Assistant United States Attorney -9-