Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, v. RICK REESE, TERRI REESE, and RYIN REESE, Defendants-Appellees. ) ) ) ) ) ) ) ) ) )

No. 13-2037

DEFENDANTS-APPELLEESJOINT RESPONSE IN OPPOSITION TO THE GOVERNMENTS OPPOSED MOTION FOR RULING ON JOINT REPRESENTATION Pursuant to Rule 27, Fed. R. App. P., and in compliance with the Order of this Court dated May 1, 2013, Defendants-Appellees, Rick Reese, Terri Reese, and Ryin Reese, by and through their attorneys Michael R. Connelly, and Herbert W. Titus and William J. Olson of William J. Olson, P.C. , file this Joint Response in Opposition to the Governments Opposed Motion for Ruling on Joint Representation. As grounds for this joint response, Defendants-Appellees make the following Statement and Argument. STATEMENT On March 5, 2013, the United States Government (the Government) filed its Notice of Appeal from the Memorandum Opinion and Order of the United States District Court for the District of New Mexico which had granted

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 2

Defendants-Appellees Motion for a New Trial on the four counts on which convictions had been returned by a jury on a 30-count indictment.1 See Memorandum Opinion and Order, p. 2 (February 1, 2013) (Doc. 404) (attached hereto) (hereinafter New Trial Order). On March 15, 2013, Rick Reese, Terri Reese, and Ryin Reese, individually and jointly, engaged the services of Michael Connelly and William J. Olson, P.C. to represent them in this appeal. On March 19, 2013, pursuant to their engagement agreement, Michael Connelly, and William J. Olson and Herbert W. Titus of William J. Olson, P.C., entered their appearances in this Court on behalf of Rick, Terri, and Ryin Reese.2 On May 1, 2013, based upon an allegation that there may be a potential conflict of interest among Rick, Terri, and Ryin Reese, the Government, in what it described as an excess of caution, filed its Opposed Motion for Ruling on Joint Representation, requesting this Court to rule whether Herbert W. Titus,

The jury convicted Rick Reese of one count, Terri Reese of one count, and Ryin Reese of two counts, each of which charged a separate violation of having knowingly made a false statement in connection with the acquisition of firearms. The jury acquitted the three Reeses on all other counts, except for two counts which had been previously dismissed by the district court. Id. Also entering notices of appearance on March 13, 2013 and March 19, 2013, respectively, were Jason Bowles representing Ryin Reese and Robert Gorence representing Rick Reese, each of whom had represented his respective client at trial.
2

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 3

William J. Olson, and Michael Connelly may continue to represent the Reeses jointly on appeal. Opposed Motion for Ruling on Joint Representation (Jt. Repr. Motion), pp. 4-5, 8. At issue in this motion is whether the Reeses are entitled to be jointly represented by counsel of their choice, or whether they would be required to be represented by separate counsel. ARGUMENT According to Wheat v. United States, 486 U.S. 153 (1988), this Court must recognize a presumption in favor of [the Reeses] counsel of choice. Id. at 164. In order to overcome that presumption, there must be either a demonstration of actual conflict [or] a showing of a serious potential conflict. Id. The Government has made a showing of neither. As the Government has acknowledged, the United States Supreme Court has recognized that joint representation on appeal is ... often appropriate. See Jt. Repr. Motion at 8. Hence, unlike Rule 44(c)(2) of the Federal Rules of Criminal Procedure, the Federal Rules of Appellate Procedure do not impose a duty upon an appellate court to make inquiry regarding the propriety of joint representation. Nor is an appellate court obligated to order representation by separate counsel, as would a district court, [u]nless there is good cause to believe that no conflict of interest is likely to arise. See id. Rather, on appeal where joint representation is

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 4

often appropriate, the presumption favoring representation of counsel of choice should not be overcome except by a positive showing of an actual conflict of interest or a serious potential for such conflict. Cf. Wheat, 486 at 164. A. The Trial Judges Ruling on Joint Representation at Trial is Not Relevant on Appeal.

The Government has attached to its motion the district courts 19-page Memorandum Opinion and Order, entered prior to trial, denying joint representation of the Reese family defendants. See Jt. Repr. Motion. Although the Government initially stated that the document was attached only for the Courts convenience (id. at 3 n.1), the Government subsequently offered it in support of its motion, thereby implying that it is relevant, although not determinative whether [the Reeses] may be jointly represented in this appeal. See id. at 7-8. Remarkably, however, the Government made no serious effort to demonstrate how the district courts decision before trial is relevant to the Governments appeal from the district courts post-trial order granting the Reeses joint motion for new trial, much less supportive of requiring separate counsel. It would thus be a mistake to infer from the fact that because the district court required separate counsel of the Reeses in the trial below, joint representation of the Reeses on appeal would be improper. As it has been reported

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 5

by the United States Court of Appeals for the Eighth Circuit, a trial judge in that circuit once stat[ed] that cases involving the efficacy of dual representation at trial are not of value in analyzing issues of joint representation on appeal. See Derringer v. United States, 441 F.2d 1140, 1141 (8th Cir. 1971). That certainly is the case here. The Government further admitted that that the issue presented in this appeal is substantially more limited than the myriad of issues facing the Reeses shortly after their indictment. Id. at 7. But, it was precisely the issues at trial being myriad that convinced the district court to rule against joint representation, the court finding that the anticipated trial proceeding was pregnant with potential conflicts arising from numerous legal issues, factual issues, and general defensive strategy, including examinations and cross-examination of witnesses, and the strategic decision regarding whether any one or more of the Reese defendants would testify. See Memorandum Opinion and Order, pp. 7-12 (Nov. 11, 2013) (Doc 77) (hereinafter Jt. Repr. Trial Order). In contrast, on this appeal there is only one legal issue: Whether the government violated its Giglio obligations concerning one of its trial witnesses, a law enforcement officer who himself had been the subject of an FBI investigation, to the prejudice of the three Reeses convicted at trial. See Jt. Repr. Motion at 2-3.

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 6

Additionally, this single issue is straightforward, not complex, arising from the Governments fail[ure] to provide potential impeachment material on a single witness ... regarding a single interaction he had with Terri Reese on August 30, 2010. Id. at 4. Not only are the issues here dramatically reduced both in number and complexity, the single issue on this appeal is totally different from the kinds of issues that prompted the district court to deny the Reeses joint legal representation at trial. Before trial, the district court expressed concern that it would be difficult, if not impossible, to know if potential conflicts could arise, defense counsel having (i) not discussed the facts ... in any detail, with clients; (ii) not yet had access to discovery materials provided by the government; and (iii) not acquired sufficient knowledge of Defendants varying levels of alleged involvement and culpability. Jt. Repr. Trial Order at 8. Additionally, the district court pointed out that, in a trial based upon an indictment (i) alleg[ing] complex firearms and money laundering conspiracy spanning a period of sixteen months, and (ii) involving defendants of varying stature, facing various charges, conflicts could arise concerning blame shifting which could be highly favorable to one client because it would necessarily implicate the guilt of another. Id. at 9-10.

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 7

The ruling of the district court is of no real relevance to, and offers no support for, the governments motion. B. The Government Has Failed to Identify a Realistic Conflict.

In contrast to the trial setting, the Government has been able to posit only two theoretical conflicts attending to joint representation on appeal. One of those is based upon its own appellate argument strategy attacking the trial courts order granting a new trial of all three Reeses that the Government only suggests could possibly pit Terri Reese in conflict with her son and her husband. See Jt. Repr. Motion at 4. The other possibility is based upon the prospect of the parties engag[ing] in plea negotiations during the pendency of the appeal, [wherein] each of the Reeses may wish to consult conflict-free appellate counsel to determine the likelihood of his or her success in defending against the government appeal. Id. at 5. Unlike the potential conflicts which the district court found to have overcome the Reese familys request for joint representation at trial, both of the Governments concerns are wholly speculative, completely inadequate to overcome the Wheat presumption in favor of [the Reeses] counsel of choice. Id. at 164. See, e.g., United States v. Freeman, 619 F.2d 1112, 1122 (5th Cir. 1980). Typically, conflicts of interest requiring separate defense counsel arise from

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 8

the possibility of a defense strategy involving a witness whose testimony might be favorable to one defendant, but unfavorable to another. See, e.g., Jt. Repr. Trial Order at 10, 11-12. See also United States v. Alvarez, 696 F.2d 1307, 1309-10 (11th Cir. 1983). But that is not the case here. The Government states that, under its appellate strategy, it expect[s] [to] distinguish between Rick and Ryin Reese, on the one hand, and Terri Reese, on the other, regarding the effect of [the withheld] testimony on their respective convictions. Jt. Repr. Motion at 8. The Government, then, presumes that this distinction could present a potential conflict of interest between the Reeses because the withheld testimony allegedly only inculpated Terri Reese, not Rick or Ryin and, therefore, had no effect on Rick or Ryin Reeses convictions. Jt. Repr. Motion at 4. Actually, the Governments position is that the withheld testimony was no more material to Terris conviction than to Ricks and Ryins, avering only that a different analysis applies to the effect of the delayed disclosure with regard to Terri Reese. Id. at 4. While the Government may analyze the impact differently, it has not even claimed that those different analyses would tempt joint appellate counsel to argue that the withheld impeachment information would have inculpated Terri, but not Rick and Ryin, and thereby, to undermine her husbands and her sons right to a new trial. Rather, it has just asserted that Terris legal

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 9

position vis-a-vis Rick and Ryin is different, not that it is incompatible. However, in order to demonstrate a real conflict of interest, the interests must be inconsistent, that is, helpful to one client, but harmful to the other. See United States v. Nemecek, 1991 U.S. App. LEXIS 8576, *5 (6th Cir. 1991). The Governments motion ignores the district courts memorandum opinion supporting its order granting a new trial applied generally to all three Reese defendants: The evidence was favorable to the Defendants as it ... would have put the entire investigation in a negative light.... Any information that would have cast doubt on the integrity of the investigation would have been favorable to the defense. [New Trial Order at 7.] Deputy Batts credibility was vitally important at trial.... Knowledge of the illegality of the sales was a central issue at trial.... Defendants were deprived of an opportunity to present [the withheld witnesss] motivation to lie to the jury. Simply put, the ability to impeach [the witness] would have favored the Defendants. [New Trial Order at 9.] As for any potential conflict arising out of plea negotiations, the Government rests its entire argument upon the distinction that the United States intends to draw between Rick and Ryin Reese, on the one hand, and Terri Reese on the other. See Jt. Repr. Motion at 5. The Government has not provided this Court with any scenario of a problematic plea negotiation that could arise during the pendency of the appeal. The Government implies the price of obtaining justice for some of the Reese family members would be for one family member to fall on

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 10

10

his or her sword. If so, a plea agreement would require cooperation among the defendants, not division, which, however unlikely, would be facilitated, not impaired, by joint representation. WAIVER In its Opposed Motion, the Government has stated that joint counsel represented that because defense counsel believe there is no potential conflict, no waivers have been obtained from Rick, Terri and Ryin Reese regarding any potential conflict. However, before the Government filed its motion, and consistent with Rule 1.7(b) of the Rules of Professional Conduct, such waivers were obtained not because they were believed necessary, but merely out of an excess of caution. Although there are instances in which separate counsel are required despite such a waiver, this is not one of them. Conflict-free counsel is required if this Court should find an actual conflict of interest or a serious potential for conflict. Wheat, 486 U.S. at 164. There is no actual conflict; nor has the Government even claimed one. A waiver may be overridden only if there is a showing that an actual conflict is very likely (id. at 158 n. 2), such as in the murk[y] pretrial context when relationships between parties are seen through a glass darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict. Id. at 162. Familiar with the

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 11

11

entire trial proceeding, the district court found that the Governments Giglio violation was vitally important, involving a critical witness as evidenced by the repeated references to his testimony in closing arguments. New Trial Order at 9 and 10. At no point in its memorandum opinion did the district court consider whether the withheld evidence adversely impacted on Terri Reese more than the other Reeses. CONCLUSION In light of the weakness of the grounds upon which the Governments motion is based, this Court should guard against the risk that the argument has been manufactured by the Government to lay a predicate for its defense of its own behavior at trial based on an alleged disparity of impact of the Governments impropriety, or to drive a wedge to weaken the Reese familys resolve to wage a common defense, with the effect of imposing unnecessary financial burdens on the family. See New Trial Order at 5-6. It is not the Reeses who have brought this appeal. It is the Government. This Court should not allow the Government to imagine a potential conflict among the Reese family defendants just because defense by separate counsel would be more coincident with the Governments appellate strategy of a claimed disassociation among defendants. See Mesch v. United States, 407 F.2d 1290, 1291 (10th Cir. 1969). In this appeal, joint

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 12

12

representation of the Reese family defendants would ensure them of a common defense against the Governments planned divisive attack. See United States v. Bradshaw, 719 F. 2d 907, 915 (7th Cir. 1983). Therefore, joint representation would not only be appropriate, but even advantageous to the Reese support for the trial courts determination that the withheld Giglio information was both favorable and material to all three Reese defendants. See United States v. Martorano, 610 F.2d 36, 39 (1st Cir. 1979). Respectfully submitted,

/S / MICHAEL CONNELLY U.S. JUSTICE FOUNDATION 932 D Street Suite 2 Ramona, CA 92065

/S / HERBERT W. TITUS WILLIAM J. OLSON WILLIAM J. OLSON, P.C. 370 Maple Ave. W., Ste. 4 Vienna, VA 22180-5615 (703) 356-5070 wjo@mindspring.com Attorneys for DefendantsAppellees

May 14, 2013

Appellate Case: 13-2037

Document: 01019054298

Date Filed: 05/14/2013

Page: 13

13

CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION I HEREBY CERTIFY that the foregoing Response was filed with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by emailing the Response to clerk@ca10.uscourts.gov and requesting that the Clerk file the Response through the CM/ECF system on this 14th day of May, 2013. I ALSO CERTIFY that Laura Fashing, attorney for the United States, and Robert Gorence, attorney for Rick Reese, and Jason Bowles, attorney for Terri Reese, are registered CM/ECF users, and that service will be accomplished by the appellate CM/ECF system. I ALSO CERTIFY that any required privacy redactions have been made. I FURTHER CERTIFY that the digital submission of this document has been scanned for viruses with scanning program Symantec Endpoint Protection, version 11.0.7300.1294, most recently updated on May 14, 2013, and according to the program, the file is free from viruses.

/s/ HERBERT W. TITUS William J. Olson, P.C. Attorney for Rick, Terri and Ryin Reese