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United States v. Joyce

United States District Court, D. Massachusetts

May 4, 2018

United States of America
v.
Brian Augustine Joyce, Defendant.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.

         Defendant Brian Joyce (“defendant” or “Joyce”), a former Massachusetts State Senator, has been indicted by a grand jury on 113 counts including racketeering, honest services fraud, extortion under color of official right and conspiracy to defraud the IRS.

         The government moves that the Court disqualify Attorney Howard M. Cooper (“Attorney Cooper” or “Cooper”) from representing Joyce in this case. It contends that Cooper is a necessary percipient witness and that his representation of Joyce poses a conflict of interest. The government also proposes the issuance of a subpoena duces tecum to Attorney Cooper and requests that this Court perform an in camera, ex parte examination of Attorney Cooper's file to determine whether certain documents fall within the crime-fraud exception to attorney-client privilege.

         I. Background

         From 1998 to 2017, Mr. Joyce served as an elected State Senator in the Commonwealth of Massachusetts. He represented the Norfolk, Bristol and Plymouth district and served for nine terms. Joyce is also a member of the Massachusetts Bar and maintained a law practice while he held office which is permitted under Massachusetts law.

         In December, 2017, a federal grand jury returned a 113-count indictment against Joyce, charging him with criminal conduct spanning from early 2010 through February, 2016. The indictment alleges that, as a State Senator, Joyce attempted to exploit his official office for private gain in multiple corrupt schemes. The indictment was preceded by a series of articles in the Boston Globe, an investigation by the Enforcement Division of the Massachusetts State Ethics Commission, a federal grand jury investigation and a search of Joyce's law office in February, 2016.

         The first alleged scheme involves quid pro quo agreements with an energy insurance brokerage company which, for the time being, will remain anonymous and will hereinafter be referred to as “EIB”. According to the government, Joyce agreed to sponsor, file, amend and vote on property-assessed-clean-energy (“PACE”) legislation that benefitted EIB in exchange for monthly cash payments and EIB common stock. In addition, the indictment alleges that Joyce and EIB's CEO agreed that Joyce would act in his official capacity to influence the Massachusetts Division of Insurance (“DOI”) to act favorably toward EIB.

         In the second alleged scheme, Joyce accepted privately held EIB common stock from the EIB CEO in exchange for Joyce's official action with respect to PACE and the DOI. When the custodian of Joyce's IRA account would not authorize a purchase of EIB common stock as a tax-free rollover using Joyce's existing simplified employee pension IRA (“SEP-IRA”) assets, Joyce orchestrated a purchase of that common stock using fictitious retirement accounts he created for himself and his spouse.

         The third alleged scheme involved payments by a coffee franchise owner to Joyce for non-existent legal services and free deliveries of hundreds of pounds of coffee in exchange for the promotion, sponsorship and filing of state legislation by Joyce for the benefit of the franchise owner.

         Attorney Cooper began representing Joyce in March, 2015, after the Boston Globe began an investigation of his conduct as a senator, his law practice, alleged conflicts of interest and campaign finances. Cooper represented Joyce in his interaction with the Globe and with respect to a separate investigation by the Massachusetts Ethics Commission.

         The Government contends that Joyce engaged Cooper to make false representations to the Globe and the Ethics Commission. Those statements include, inter alia, a letter to the Ethics Commission stating that Joyce purchased EIB common stock with funds from his SEP-IRA and an email to the Ethics Commission including copies of a fraudulently backdated invoice and checks related to the purchase of coffee. Defendant denies that those communications included false statements.

         The Government filed the motion at issue in February, 2018. In addition to defendant's opposition to that motion, amicus briefs in support of defendant have been filed by the Massachusetts Bar Association and the Boston Bar Association.

         II. Disqualification of Attorney Cooper

         The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That right to counsel attaches when an individual is arrested and held to answer criminal charges. United States v. Gouveia, 467 U.S. 180, 185-186 (1984). One element of that right is the “right of a defendant who does not require appointed counsel to choose who will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006).

         A criminal defendant's absolute right to counsel “does not confer an absolute right to a particular counsel.” United States v. Diaz-Martinez, 71 F.3d 946, 949 (1st Cir. 1995) (citation omitted) (internal quotation omitted). A defendant cannot insist upon representation by a particular attorney where such representation “will obstruct reasonable and orderly court procedure”. United States v. Poulack, 556 F.2d 83, 86 (1st Cir. 1977). In a similar vein, a court may disqualify a defendant's attorney “where it finds either an actual conflict or a serious potential conflict.” United States v. Lanoue, 137 F.3d 656, 663 (1st Cir. 1998).

         Nonetheless, the government may not infringe upon the right to counsel of choice to gain a tactical advantage. United States v. Diozzi, 807 F.2d 10, 13-14 (1st Cir. 1986). Attorney disqualification is a “drastic remedy”, Fonten Corp. v. Ocean Spray Cranberries, Inc., 469 F.3d 18, 23 (1st Cir. 2006), that “should be a measure of last resort.” Diozzi, 807 F.2d at 12. Accordingly, “the government bears a heavy burden of establishing that disqualification is justified.” Id.

         A. Best Evidence Rule

         The government contends that Joyce enlisted Attorney Cooper's legal assistance to conceal and perpetuate the ongoing criminal schemes charged in the indictment. Accordingly, the government argues, Joyce turned Cooper into a percipient witness whom the government intends to call. The defendant insists that the government cannot demonstrate a legitimate need for Cooper's testimony that would outweigh Joyce's Sixth Amendment right to counsel of his choice.

         Prosecutors have an affirmative duty not to circumvent the protection afforded by the right to counsel. Maine v. Moulton, 474 U.S. 159, 171 (1985). Accordingly, attempts to call a defense attorney as a witness against his client are governed by the “best evidence rule”:

Where the government's proffer of a defense attorney's testimony will force the attorney's removal, the government may only call the attorney as a witness if, without his or her testimony, the government must settle for less than its best evidence.

United States v. Hallock, 941 F.2d 36, 44 (1st Cir. 1991) (citing United States v. Cortellesso, 663 F.2d 361, 363 (1st Cir. 1981)) (internal quotation marks omitted).

         Defendant has agreed to stipulate that he “reviewed, approved and authorized the submission of the specific statements” sent by Attorney Cooper to the Ethics Commission. He has also agreed to stipulate that he waives any right to rely on the advice of Cooper or the law firm of Todd & Weld concerning the disputed statements and that he knowingly, voluntarily and with advice of independent counsel waives any right to contend that Cooper represented him while under a conflict of interest.

         At the hearing on the motion to disqualify, the government argued that the stipulation was insufficient because it does not state that 1) Cooper disclosed to the Ethics Commission all material information that Joyce provided to him or 2) Joyce is the sole source of information provided to the Commission. Those concerns are unavailing. Joyce now stipulates that he is the sole source of the statements concerning his state of mind and contends that the fact that Cooper cannot testify that Joyce was the sole source of every statement is not a material factor in the pending motion to disqualify. The government offers no authority to the contrary. Given Joyce's revised stipulation, the government has failed to show that Cooper's testimony is necessary to its case.

         The drastic remedy of disqualification is unwarranted in light of Joyce's stipulation. See United States v. Diozzi, 807 F.2d 10, 16 (reversing, as constitutional error, disqualification of defense counsel where stipulation was adequate substitute for attorney's testimony). The Diozzi court rejected the government's argument that the jury could be confused by the written submission and that defense counsel's testimony would aid the effective ascertainment of truth, concluding that the government “failed to support the disqualification order on best evidence grounds.” Id. at 14.

         As in Diozzi, the government here has failed to demonstrate that, without Cooper's testimony, it will have to ...


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