United States v. Deleon (291 F. Supp. 3d 1283, 2017)

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the United States' Sealed Motion Regarding Attorney Conflict, filed May, 4, 2017 (Doc. 1126)("Attorney Conflict Motion"). The Court held hearings on November 8-9, 2017, Transcript of Hearing (held November 8, 2017), filed November 20, 2017 (Doc. 1456)("Nov. 8 Tr."); Transcript of Hearing (held November 9, 2017), filed November 20, 2017 (Doc. 1457)("Nov. 9 Tr."), and again on November 27-29, 2017, Draft Transcript of Motion Hearing (taken November 27-29, 2017)("Second Hearing Tr."). The primary issue is whether Michael V. Davis' ethical duties to his former client, Defendant Roy Paul Martinez, prevent Mr. Davis from representing Defendant Carlos Herrera in this case. The Court determines that Mr. Davis' represented R.P. Martinez in a matter that is substantially related to this case and that R.P. Martinez' interests are materially adverse to Herrera's. Accordingly, the Court concludes that Mr. Davis' ethical duties to R.P. Martinez prevent him from representing Herrera in this matter.

FACTUAL BACKGROUND

Before setting out its findings of fact, the Court will provide background information regarding the Syndicato de Nuevo Mexico ("SNM") as well as background information regarding each of the Defendants in this case and the charges that they face. The Court takes its background facts from the Superseding Indictment, filed April 21, 2016 (Doc. 367). The facts are largely unchanged from those that the Court provided in its Memorandum Opinion and Order, filed October 28, 2016 (Doc. 753). See United States v. DeLeon, 2016 WL 7242579 (D.N.M. 2016) (Browning, J.). See also Memorandum Opinion and Order, filed March 8, 2017 (Doc. 943); United States of America v. Angel DeLeon, 2016 WL 3124632 (D.N.M. 2016) (Browning, J.). The Court does not set forth these facts as findings or the truth. The Court recognizes that the factual background is largely the United States' version of events and that the Defendants are all presumed innocent.

This case deals with crimes that SNM allegedly committed through its members. See Superseding Indictment at 2. SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, "including murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking." Superseding Indictment at 2. SNM constitutes an enterprise "as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce." Superseding Indictment at 3.

SNM is a violent prison gang formed in the early 1980s at the Penitentiary of New Mexico ("PNM") after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. Superseding Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See Superseding Indictment at 3. After the PNM riot, SNM expanded throughout the state's prison system and has had as many as 500 members. See Superseding Indictment at 3. SNM has approximately 250 members, run by "a 'panel' or 'mesa' (Spanish for table) of leaders who issued orders to subordinate gang members." Superseding Indictment at 3. SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Superseding Indictment at 3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and profit from narcotics trafficking. See Superseding Indictment at 4. Members who fail "to show continued loyalty to the gang [are] disciplined in various ways, [ ] includ[ing] murder and assaults." Superseding Indictment at 4. SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Superseding Indictment at 4. If another gang does not abide by SNM's demands, SNM manages to assault or kill one of the other gang's members to show its power. See Superseding Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Superseding Indictment at 4. SNM further engages in violence "to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others." Superseding Indictment at 4-5. To show its strength and influence, SNM expects its members to confront and attack any suspected law-enforcement informants, cooperating witnesses, homosexuals, or sex offenders. See Superseding Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Superseding Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Superseding Indictment at 7. SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials inspired the present investigation. See United States v. Garcia, 221 F.Supp.3d 1275, 1277 (D.N.M. 2016) (citing United States' Response to Defendant's Motion to Designate Complex (Doc. 56) at 1, filed May 3, 2016 (Doc. 70) ). The other relevant facts giving rise to this case are as follows.

In March of 2014, a Doña Ana County, New Mexico, grand jury indicted Defendants Jerry Montoya and Jerry Armenta on charges of first-degree murder and four other felonies related to the death of Javier Enrique Molina, Montoya and Armenta's fellow inmate during their incarceration at the Southern New Mexico state prison. See United States v. DeLeon, 2016 WL 7242579, at *3. The New Mexico Third Judicial District Attorney's Office accused Montoya and Armenta of fatally stabbing Molina with a shank in a gang-related attack. See United States v. DeLeon, 2016 WL 7242579, at *3. That grand-jury indictment charged Montoya and Armenta with: (i) Molina's murder; (ii) possessing a deadly weapon; (iii) tampering with evidence; and (iv) two counts of conspiracy. See United States v. DeLeon, 2016 WL 7242579, at *3. The Doña Ana County District Attorney then dismissed the charges against Montoya and Armenta-as well as separate charges against alleged accomplice and Defendant Mario Rodriguez, who had been charged with possession of a deadly weapon by a prisoner, tampering, and conspiracy-in November of 2015. See United States v. DeLeon, 2016 WL 7242579, at *3. "A spokesperson for the District Attorney's Office indicated the charges were dismissed because the cases were going to be prosecuted at the federal court level." United States v. DeLeon, 2016 WL 7242579, at *3.

The United States now brings this case against thirty Defendants, charging them with a total of fifteen counts. See Superseding Indictment at 1. All Defendants are accused of participating in the operation and management of the enterprise and committing unlawful activities "as a consideration for the receipt of, and as consideration for a promise and an agreement to pay, anything of pecuniary value from SNM and for the purpose of gaining entrance to and maintaining and increasing position in SNM, an enterprise engaged in racketeering activity." Superseding Indictment at 6-31. Defendants Arturo Arnulfo Garcia, Gerald Archuleta, Benjamin Clark, Mario Rodriguez, Anthony Ray Baca, Robert Martinez, R.P. Martinez, and Daniel Sanchez are the alleged enterprise leaders. See Superseding Indictment at 6. The other twenty Defendants are allegedly members or associates who acted under the direction of the enterprise's leaders. See Superseding Indictment at 6. The SNM gang enterprise, through its members and associates, allegedly engaged in: (i) racketeering activity as 18 U.S.C. §§ 1959(b)(1), 1961(1) define that term; (ii) murder and robbery in violation of New Mexico law; (iii) acts, indictable under 18 U.S.C. §§ 1503, 1512, 1513, "involving obstruction of justice, tampering with or retaliating against a witness, victim, or an informant"; and (iv) offenses involving trafficking in narcotics in violation of 21 U.S.C. §§ 841, 846. Superseding Indictment at 9. In all, the Superseding Indictment alleges fifteen different counts against the various Defendants.

Specifically, the Superseding Indictment provides that, on March 26, 2001, Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia allegedly murdered "F.C." Superseding Indictment at 9. On the same day, Defendants Lujan, B. Garcia, Eugene Martinez, Allen Patterson, and Christopher Chavez allegedly murdered "R.G." Superseding Indictment at 12. On June 17, 2007, Defendants Javier Alonso, Troup, A.A. Garcia, Clark, and Ruben Hernandez allegedly murdered "F.S." Superseding Indictment at 15. On November 12, 2012, J. Gallegos and Defendant Andrew Gallegos allegedly conspired to murder "A.B." Superseding Indictment at 18. On the same day, J. Gallegos and A. Gallegos allegedly murdered A.B. See Superseding Indictment at 19. In March 2014, Defendants Jerry Armenta, Montoya, Rodriguez, Timothy Martinez, Baca, Mauricio Varela, Sanchez, Carlos Herrera, and Rudy Perez allegedly conspired to murder "J.M." Superseding Indictment at 20-21. On March 7, 2014, Defendants Armenta, Montoya, Rodriguez, T. Martinez, Baca, Varela, Sanchez, Herrera, and Perez allegedly murdered J.M. See Superseding Indictment at 21.

Further, starting in or around 2003-and until about July 13, 2015-Baca, Archuleta, and Defendant Conrad Villegas allegedly conspired to commit assault resulting in serious bodily injury to "J.R." Superseding Indictment at 27. Starting "on a date uncertain, but no later than 2013," and until the date of the Superseding Indictment-April 21, 2014-Baca, R.P. Martinez, and Defendant Robert Martinez allegedly conspired to murder "D.S." Superseding Indictment at 28. During the same period of time, Baca, R.P. Martinez, R. Martinez, and Defendant Christopher Garcia allegedly conspired to murder "G.M." Superseding Indictment at 28. On November 29, 2015, C. Garcia, a convicted felon, allegedly unlawfully possessed a firearm. See Superseding Indictment at 29. On the same day, C. Garcia, a convicted felon, allegedly knowingly used and carried a firearm in relation to a charge of conspiracy to murder. See Superseding Indictment at 29.

On March 17, 2015, J. Gallegos allegedly committed assault with a dangerous weapon against "J.G." Superseding Indictment at 30. From February 1, 2016, until February 27, 2016, J. Gallegos, and Defendants Santos Gonzalez, Paul Rivera, Shauna Gutierrez, "and others known and unknown to the grand jury," allegedly conspired to murder "J.G." Superseding Indictment at 30. The final count alleges that, on February 27, 2016, J. Gallegos, Gonzalez, Rivera, and Gutierrez allegedly attempted to murder J.G., and committed assault with a dangerous weapon and assault resulting in serious bodily injury to J.G. See Superseding Indictment at 31.

FINDINGS OF FACT

The Court will make explicit findings of fact, because "[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record," Fed. R. Crim. P. 12(d), even though rule 12(d) of the Federal Rules of Criminal Procedure" 'does not require detailed findings of facts as long as the essential basis of the court's decision is apparent,' " United States v. Burbage, 365 F.3d 1174, 1178 (10th Cir. 2004) (Hartz, J.)(quoting United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir. 1997) ). The Court sets out the following explicit findings of fact:

1. In 2000, Mr. Davis was appointed to represent R.P. Martinez in a New Mexico state murder prosecution. See Affidavit of Michael V. Davis ¶ 5, at 2, filed May 25, 2017 (Doc. 1164-1)("Davis Aff.").

2. "[T]here were allegations that the murder was related to SNM, [but] the existence of the SNM and Martinez' gang affiliation [were] never an essential part of the case, nor an element of the homicide charges." Davis Aff. ¶ 6, at 2.

3. "Martinez and others, were alleged to have strangled an inmate at BCDC [Bernalillo County Detention Center] in retaliation for some SNM information." Davis Aff. ¶ 7, at 2.

4. On June 24, 2002, R.P. Martinez pled guilty to second-degree murder in violation of N.M. Stat Ann. §§ 30-2-1 and 28-2. See Attorney Conflict Motion at 2.

5. "Martinez was sentenced in that case to fifteen years incarceration." Attorney Conflict Motion at 2.

6. On May 3, 2016, the Honorable Karen B. Molzen, United States Magistrate Judge, appointed Mr. Davis to represent Herrera. See CJA Appointment, filed May 3, 2016 (Doc. 430).

7. On September 7, 2016, Herrera asked the Court to "provide him a second chair counsel in this matter," and noted that he "is not requesting 'learned counsel' in this matter." See Ex Parte Motion for Second Counsel and Appointment Pro Hac Vice at 1, 3, filed September 7, 2017 (Doc. 674).

8. The Court obliged, and appointed Carey Bhalla to represent Herrera. See Ex Parte Order Approving Second Counsel and Appointment Pro Hac Vice at 1, filed September 22, 2016 (Doc. 697).

9. Count 6 and 7 of the Superseding Indictment charge Herrera-along with Armenta, Montoya, Rodriguez, T. Martinez, Baca, Varela, Sanchez, and Perez-with the murder of J.M. and conspiracy to commit that murder. See Superseding Indictment at 20-21.

10. R.P. Martinez and Herrera are co-defendants. See Superseding Indictment at 1.

11. Count 9 of the Superseding Indictment charges R.P. Martinez-along with Baca and R. Martinez-with conspiracy to murder D.S. See Superseding Indictment at 27-28.

12. Count 10 of the Superseding Indictment charges R.P. Martinez-along with Baca, R. Martinez, and Garcia-with conspiracy to murder G.M. See Superseding Indictment at 28.

13. R.P. Martinez and the United States entered into a Plea Agreement. See Plea Agreement at 1, filed September 15, 2016 (Doc. 686).

14. The Plea Agreement is pursuant to rule 11(c)(1)(A) of the Federal Rules of Criminal Procedure, and the United States agrees "not to bring additional criminal charges against the defendant arising out of the facts forming the basis of the present Superseding Indictment." Plea Agreement ¶ 14, at 7.

15. The Plea Agreement is also pursuant to rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, and the United States and R.P. Martinez stipulate to a 2-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and that, if R.P. Martinez satisfies U.S.S.G. § 3E1.1(b)'s requirements, then the United States will move for an additional 1-level reduction for acceptance of responsibility. See Plea Agreement ¶ 9, at 5.

16. In the Plea Agreement, R.P. Martinez admits the following facts:

In 1995, while incarcerated at the Penitentiary of New Mexico, I became a member of the Syndicato Nuevo Mexico (SNM) prison gang. The SNM is an ongoing criminal organization whose members, prospects and associates engage in acts of violence and other criminal activities, including murder, kidnapping, attempted murder, and conspiracy to manufacture/distribute narcotics. The SNM operates in the District of New Mexico and elsewhere. The SNM constitutes an enterprise (individuals associated in fact that engaged in, or the activities of which, affected interstate commerce) that is engaged in racketeering activity.

In 2013, I was an active member of the SNM. On or before 2013 I conspired with Robert Martinez, a.k.a. "Baby Rob," Anthony Baca, a.k.a. "Pup," and others to murder G.M. and D.S. Specifically, Anthony Baca was angry at the New Mexico Corrections Department (NMCD) for moving him out of State. Baca, as the purported leader of the SNM at the Time, ordered the murders of G.M. and D.S. As a result, in 2015, I agreed to write letters to SNM gang members ordering the murders and in fact, did write letters ordering the members to kill G.M. and D.S. I did this by virtue of my membership in the SNM and to maintain and increase my position in the SNM.

Thus, from 2013 to continuing into 2015, I conspired with members of the SNM gang to murder G.M[.] and D.S.

Plea Agreement ¶ 7, at 4.

17. R.P. Martinez pled guilty in a hearing before the Honorable Gregory B. Wormuth, United States Magistrate Judge. See Plea Minute Sheet, filed September 15, 2016 (Doc. 687).

18. The Court has not yet sentenced R.P. Martinez or accepted his Plea Agreement.

19. The United States plans to call R.P. Martinez as a witness against Herrera. See Attorney Conflict Motion at 2.

20. The United States intends to have R.P. Martinez testify regarding SNM and its racketeering activity, including the state murder prosecution where Mr. Davis represented R.P. Martinez. See Nov. 8 Tr. at 11:18-12:2 (Armijo, Court).

21. The United States also intends to have another co-defendant, Gerald Archuleta, testify regarding that murder. See Nov. 8 Tr. at 12:17-25, 14:1-3 (Armijo).

22. The United States predicts that R.P. Martinez will testify "that Carlos Herrera is an SNM gang member that he knows." Nov. 8 Tr. at 13:5-6 (Armijo).

23. R.P. Martinez does not consent to Mr. Davis' representation of Herrera in this case. See Notice of Attorney Conflict ¶ 3, at 1, filed September 22, 2017 (Doc. 1471).

24. Herrera wants Mr. Davis to remain as his attorney in this case notwithstanding Mr. Davis' earlier representation of R.P. Martinez. See Supplemental Authority in Support of Defendant's Response to Government's Motion Regarding Attorney Conflict [Doc. 1126] at 2, filed November 22, 2017 (Doc. 1469).

CONCLUSIONS OF LAW

Having set out its findings of fact, the Court now articulates its conclusions of law. It begins by providing procedural background regarding this case. The Court then states the law regarding issues relevant to the Court's analysis. Finally, the Court conducts its analysis

PROCEDURAL BACKGROUND

1. As noted above, the Superseding Indictment charges Herrera with both conspiracy to murder J.M. and the murder of J.M., Counts 6 and 7, respectively. See Superseding Indictment at 20-21. Also as noted above, the Superseding Indictment charges R.P. Martinez with both conspiracy to murder D.S. and conspiracy to murder G.M., counts 9 and 10, respectively. See Superseding Indictment at 27-28. On May 3, 2016, the Honorable Karen B. Molzen, United States Magistrate Judge, appointed Mr. Davis to represent Herrera. See CJA Appointment, filed May 3, 2016 (Doc. 430). On September 7, 2016, Herrera asked the Court to "provide him a second chair counsel in this matter," and noted that he "is not requesting 'learned counsel' in this matter." See Ex Parte Motion for Second Counsel and Appointment Pro Hac Vice at 1, 3, filed September 7, 2017 (Doc. 674). The Court obliged, and appointed Carey Bhalla to represent Herrera. See Ex Parte Order Approving Second Counsel and Appointment Pro Hac Vice at 1, filed September 22, 2016 (Doc. 697).

2. On September 15, 2016, Plaintiff United States of America and R.P. Martinez filed their Plea Agreement with the Court. See Plea Agreement at 8-9, filed September 15, 2016 (Doc. 686). Accordingly, R.P. Martinez pled guilty in a hearing before the Honorable Gregory B. Wormuth, United States Magistrate Judge. See Plea Minute Sheet, filed September 15, 2016 (Doc. 687). Conflict-of-interest issues remain, notwithstanding R.P. Martinez' guilty plea, because the United States "anticipate[s] that Martinez will be a witness in this case and his testimony will include this murder," i.e., the murder for which Mr. Davis represented R.P. Martinez. Attorney Conflict Motion at 2.

1. The Attorney Conflict Motion.

3. On May 4, 2017, the United States filed the Attorney Conflict Motion. See Attorney Conflict Motion at 15. The United States asserts that it has a duty to bring conflicts of interest to the Court's attention. See Attorney Conflict Motion at 2. The United States also asserts that the Court has a duty to investigate once it is aware of a possible conflict of interest, and a duty to determine whether to disqualify an attorney if its investigation reveals a potential or actual conflict of interest. See Attorney Conflict Motion at 3.

4. The United States argues that a defendant's "Sixth Amendment right to conflict-free counsel" extends beyond situations where defense counsel simultaneously represents codefendants. Attorney Conflict Motion at 4. Instead, according to the United States, that right applies whenever defense counsel " 'owes conflicting duties to the defendant and some other third person.' " Attorney Conflict Motion at 4 (quoting United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988) ). The United States acknowledges that "[t]he Sixth Amendment also guarantees a defendant the right to counsel of his own choice," but contends that this right is not absolute, because, " '[e]ven when a defendant seeks to proceed with conflicted counsel by waiving the conflict, a district court retains authority to reject the proffered waiver to preserve ethical standards and preserve a fair trial.' " Attorney Conflict Motion at 5-6 (quoting United States v. Evanson, 584 F.3d 904, 909 (10th Cir. 2009) ).

5. The United States argues that Mr. Davis' prior representation of R.P. Martinez "may be adverse to Herrera's interests in the instant case," because, "[i]f Herrera goes to trial, Mr. Davis may be in a position where he would have to cross-examine his former client, and the scope of that cross-examination could include the murder in which Martinez pled guilty in 2002 while Mr. Davis represented him." Attorney Conflict Motion at 6-7. It follows, according to the United States, that "Mr. Davis might not be able to uphold the duties of zealous advocacy and loyalty that he owes Herrera." Attorney Conflict Motion at 7. "Due process requires that a criminal defendant be represented by conflict-free counsel[,] ... [so a] Defendant may not waive such an actual conflict, [and] new counsel would be necessary." Attorney Conflict Motion at 7.

6. The United States then notes that the United States District Court for the District of New Mexico applies the New Mexico Rules of Professional Conduct in its criminal proceedings. See Attorney Conflict Motion at 6. See also D.N.M. LR-Cr R. 57.2 ("In all criminal proceedings, attorneys will comply with the Rules of Professional Conduct adopted by the Supreme Court of the State of New Mexico, unless modified by local rule or Court order."). The United States argues that-apart from any constitutional issues-those ethical rules mean that "Mr. Davis' representation of Defendant may not continue, even if Defendant were to consent." Attorney Conflict Motion at 7.

7. The United States identifies three distinct ethical issues that prevent Mr. Davis from representing Herrera. First, the United States contends that Mr. Davis cannot represent Herrera, because the New Mexico Rules of Professional Conduct state that attorneys " 'should not represent a client whose interests are adverse to those of a present client, or whose interests are adverse to those of a former client on a matter that is the same or substantially related to the previous matter.' " Attorney Conflict Motion at 8 (quoting In re Stein, 2008-NMSC-013, ¶ 22, 143 N.M. 462, 177 P.3d 513, 519 ). See N.M. R. Prof'l Conduct 16-109(A)("A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.").

8. Second, the United States argues that Mr. Davis cannot represent Herrera, because the New Mexico Rules of Professional Conduct prevent lawyers from using information related to a prior representation "to the disadvantage of the former client except ... when the information has become generally known; or ... reveal[ing] information relating to the representation." N.M. R. Prof'l Conduct 16-109(C). See Attorney Conflict Motion at 8. The United States

does not pretend to know all of the information Mr. Davis has which relates to his representation of Martinez; however, neither Mr. Davis nor anyone else can say with any certainty that some aspect of such information is not, and will not later turn out to be, relevant to Herrera's case. Moreover, whether Mr. Davis has information relating to his representation of Martinez that is relevant in Herrera's case may well be later judged in hindsight by persons who will then know what Herrera and/or others will bring forth as relevant links between the cases.

Attorney Conflict Motion at 8-9.

9. Third, the United States observes that the New Mexico Rules of Professional Conduct provide that " 'a lawyer shall not represent a client if the representation involves a concurrent conflict of interest,' " and that a concurrent conflict of interest exists when " '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 a personal interest of the lawyer.' " Attorney Conflict Motion at 9 (quoting N.M. R. Prof'l Conduct 16-107(A) ). The United States asserts that Mr. Davis' duties to R.P. Martinez could limit Mr. Davis' representation of Herrera, because if R.P. Martinez testifies, then he

would likely be cross-examined about his involvement as an SNM member. During his representation of Martinez, Mr. Davis dealt with that very issue. Mr. Davis would be prohibited from using that information to assist Herrera in his defense because Mr. Davis acquired that information in connection with his representation of Martinez.

Attorney Conflict Motion at 11 n.6. The United States elaborates that, " '[w]hen defense counsel has previously represented a government witness in a related case, the primary conflict-of-interest concern is that defense counsel may not be able to effectively cross-examine the witness for fear of divulging privileged information.' " Attorney Conflict Motion at 12 (quoting United States v. Bowie, 892 F.2d 1494, 1501 (10th Cir. 1990) ).

10. The United States asserts that those three ethical issues mean that, "[e]ven assuming that the conflict in this case is 'potential' in nature, the negative consequences which would arise if the conflict did develop are so significant that new counsel should be appointed," and that the "issue should be addressed now in order to avoid such a significant injury to the administration of justice in this case." Attorney Conflict Motion at 12. The United States adds, in the alternative, that rule 44 of the Federal Rules of Criminal Procedure indicates that "a hearing should be held to permit the district court to affirmatively participate in a defendant's waiver decision ... to determine whether he knowingly and intelligently made the decision to continue with the conflicted counsel." Attorney Conflict Motion at 13. The United States also notes that the Court has discretion regarding whether to accept Herrera's waiver, even if the Court finds that such a waiver is knowing and voluntary. See Attorney Conflict Motion at 14-15.

2. The Response.

11. Herrera filed his Response on May 25, 2017. See Defendant Carlos Herrera's Response to Government's Ex Parte Motion to [sic] Regarding Attorney Conflict [Doc. 1126] at 14, filed May 25, 2017 (Doc. 1164)("Response"). Herrera begins by noting that, "[s]ince representing Mr. Martinez, [Mr. Davis] has handled thousands of cases, including murder cases, destroyed Mr. Martinez's file years ago, and has no recollection of any contact, direct or indirect, with Mr. Martinez other than what is a matter of public record in reports and court filings." Response at 2. Herrera supports those assertions by attaching the Davis Aff. to his Response, and that affidavit states:

5. Nearly seventeen (17) years ago, in 2000, while under contract with the New Mexico Public Defender Department, I was appointed to represent Defendant, Roy Martinez, on a State of New Mexico Murder charge related to the strangulation death of an inmate at the Bernalillo County Detention Center (BCDC).

6. Although there were allegations that the murder was related to SNM, the existence of the SNM and Martinez' gang affiliation was never an essential part of the case, nor an element of the homicide charges.

7. Martinez and others, were alleged to have strangled an inmate at BCDC in retaliation for some SNM information, the nature of which I do not recall.

...

10. I destroyed my file many years ago and have no written records of my representation of Mr. Martinez.

11. More importantly, I have absolutely no recollection of any communications I had with Mr. Martinez. In fact, all of the information I have placed in this affidavit regarding his case resulted from a public records search of Mr. Martinez' case. Consequently, I have no client confidences that would harm Mr. Martinez by my continued representation of Defendant Herrera.

12. I have fully explained all of the above to my client Carlos Herrera, and he has no concerns regarding my prior representation of Mr. Martinez and subsequently waives any potential conflict.

Davis Aff. ¶¶ 5-12, at 2-3 (footnote omitted).

12. In response to the United States' argument that the Court should hold a hearing under rule 44 of the Federal Rules of Criminal Procedure, Herrera argues that rule 44 does not apply. See Response at 3. Rule 44 does not apply, according to Herrera, because it addresses the propriety of joint representation-i.e., where one lawyer represents two defendants in the same proceeding-whereas this case involves successive representation. See Response at 3-4. Herrera acknowledges, however, that "the Court may proceed to consider this motion within its inherent authority." Response at 4 (citing Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) ).

13. "The question then becomes, what ethical duties does counsel have in this situation regarding his current client, Mr. Herrera and his former client, Mr. Martinez." Response at 4. Herrera asserts that Mr. Davis has two duties to R.P. Martinez as a former client: (i) Mr. Davis cannot represent " 'a client whose ... interests are adverse to [R.P. Martinez'] on a matter that is the same or substantially related to a previous matter,' " see Response at 4-5 (quoting N.M. R. Prof'l Conduct 16-109(A) ); and (ii) Mr. Davis cannot " 'use [or reveal] information relating to the representation to the disadvantage of [R.P. Martinez] except ... when the information has become generally known,' " see Response at 5 (quoting N.M. R. Prof'l Conduct 16-109(C) ).

14. Herrera argues that neither of those duties prevent Mr. Davis from representing Herrera. As to the first duty, Herrera contends that this case is not substantially related to Mr. Davis' earlier representation of R.P. Martinez. See Response at 6. Herrera states that two matters are substantially related " 'if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.' " Response at 6 (emphasis omitted)(quoting Committee Commentary to N.M. R. Prof'l Conduct 16-109 cmt. 3). Herrera also observes that

Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related.

Response at 6 (emphasis omitted)(quoting Committee Commentary to N.M. R. Prof'l Conduct 16-109 cmt. 3). Herrera concludes that, "[s]ince this case does not involve the homicide seventeen (17) years ago and [Mr. Davis] has no confidential information, the cases are not substantially related." Response at 7 (emphasis in original). As to Mr. Davis' second duty to R.P. Martinez, the duty not to use or reveal confidential information, Herrera contends that there is no danger that Mr. Davis will violate that duty, because Mr. Davis has no confidential information to use or reveal. See Response at 9 (citing Davis Aff. ¶ 11, at 3).

15. Herrera then addresses whether Mr. Davis' duties to R.P. Martinez will inhibit his representation of Herrera. See Response at 8. Herrera acknowledges that "an actual conflict exists if counsel is unable to effectively cross examine the government's witness, Mr. Martinez, because he previously represented him." Response at 8. Herrera asserts, however, that, "[s]hould Mr. Martinez testify, counsel intends to vigorously cross examine him concerning any adverse testimony related to Defendant Herrera.... None of his cross examination will be based on any confidences from his prior representation because he has no recollection of any confidential communications." Response at 9.

3. The First Hearing.

16. The Court held a hearing on November 8-9, 2017. See Nov. 8 Tr. at 1:9-11; Nov. 9 Tr. at 1:9-11. The Court decided that, although it had twenty-one motions on its docket, it would begin the hearing by addressing the Attorney Conflict Motion. See Nov. 8 Tr. at 8:2-4, 9:6-13 (Court). The Court articulated its understanding:

(i) that "the Government wants Mr. Davis off the case," Nov. 8 Tr. at 9:14-15 (Court); (ii) that "Mr. Martinez is not consenting to [Mr. Davis] staying on the case and waiving any conflict," Nov. 8 Tr. at 9:20-21 (Court); (iii) that "[i]t looks to me like it's an actual conflict" of interest, because "we're sitting right here in the same courtroom," and it "was always [Edward] Bennett Williams' Rule on Conflicts, [that] if you're in the same room, then it's probably an actual conflict," Nov. 8 Tr. at 9:21-10:2 (Court); and (iv) that it could accept a waiver of an actual conflict of interest, "[b]ut I'm not so certain I [can] cram [one] down ... over an objection," Nov. 8 Tr. at 10:8-9 (Court). The Court then asked the United States to confirm that its "worst fear" regarding Mr. Davis is that he will "end up ... cross-examining Mr. Martinez." Nov. 8 Tr. at 10:21-21 (Court). The United States indicated that its concern was, indeed, based on R.P. Martinez' anticipated testimony and Mr. Davis' cross-examination:

I think that what's important is-especially important in this case-is the fact that he represented Mr. Martinez on an SNM murder.

Mr. Martinez will be testifying in the trial that Mr. Herrera is set to be tried, the first group, the Javier Molina murder and the other conspiracy murders. He will be testifying in that case. He will be talking about the SNM. He will be talking about the racketeering activities, et cetera. And as part of that, he will be talking about murders that he committed. Specifically, he killed a person with the last name of Cavalier, at the Metropolitan Detention Center.

Nov. 8 Tr. at 11:10-23 (Armijo). The United States then clarified that Mr. Davis represented R.P. Martinez in the Cavalier murder, and that Mr. Davis' representation of R.P. Martinez in connection with that murder is "the one that's the true issue." Nov. 8 Tr. at 12:1-2 (Armijo). The United States elaborated:

We based our [motion] upon the J & C in his Cavalier murder case. But I learned this morning that [Mr. Davis] represented Mr. Martinez on two murder cases. One of the murder cases he got off on because, I believe, shortly before trial, one of the witnesses was a former client of Mr. Davis'.

Then he went on to represent him in the other murder case, which is the case that I was telling you about, which will be testified about.....

Nov. 8 Tr. at 12:11-19 (Armijo). The United States elaborated further regarding R.P. Martinez' anticipated testimony:

So we have Mr. Martinez testifying about this murder, talking about it with-talking about other people involved, other SNM gang members. And he will also be testifying that Carlos Herrera is an SNM gang member that he knows. So those are things that he will be testifying about. I'm sure that the defense team, Herrera defense team, may question him about how he knows Carlos Herrera, how he knows he's a gang member. I'm sure they'll test that, you know, to the best of their ability cross-examine him on all of his testimony regarding the gang, the enterprise, the racketeering activities, about the previous murders that he committed, which Mike Davis was involved in two of them; one that he already got off on because of the conflict.

Nov. 8 Tr. at 13:1-16 (Armijo). The United States then informed the Court that "Mr. Martinez has told me through his attorney that he is not willing to waive the conflict. One of his concerns is that Mr. Davis knows how to push his buttons" in a way that "would impact him being cross-examined" by Mr. Davis. Nov. 8 Tr. at 14:19-22, 15:3-4 (Armijo).

17. The United States closed by preemptively addressing two arguments that it anticipated from Mr. Davis. First, the United States addressed the argument that Mr. Davis could avoid the conflict-of-interest issue by permitting co-counsel to cross-examine R.P. Martinez. See Nov. 8 Tr. at 13:17-21 (Armijo). According to the United States, another witness will testify regarding the murder underlying Mr. Davis' representation of R.P. Martinez, which raises the question whether Mr. Davis would need to avoid cross-examining that witness. See Nov. 8 Tr. at 13:22-14:7 (Armijo). The United States also observed that, in closing arguments, Mr. Davis will likely, "want[ ] to talk about the veracity of Mr. Martinez' testimony, then does that mean he isn't allowed to argue that." Nov. 8 Tr. at 14:4-7 (Armijo). Second, the United States responds to "[t]he fact that [Mr. Davis] indicates he doesn't really have an independent recollection of communications with Mr. Martinez," by raising the potential scenario where "in the middle of [R.P. Martinez'] testimony things start to resonate, he starts to remember." Tr. 14:8-12 (Armijo). The United States concluded by stating that those two issues cast doubt on whether "we can separate him and cure the problem." Nov. 8 Tr. at 14:16-18 (Armijo).

18. Mr. Davis then came to the podium, and stated that "I like to think I have a close relationship with all of my clients," but "once 17 years passes, I have very little, if any, recollection, which is the case here." Nov. 8 Tr. at 15:15-19 (Davis). Mr. Davis argued that he does not have an actual conflict of interest, because he does not remember any confidential information regarding his representation of R.P. Martinez, and "[a]n actual conflict would be, is if I represented a witness in the case in another separate legal matter, and in the course of that legal matter that I would receive some confidences that somehow I could use to benefit Mr. Herrera." Nov. 8 Tr. at 16:13-17 (Davis). According to Mr. Davis, that R.P. Martinez' testimony might refresh his memory is, at most, a potential conflict of interest. See Nov. 8 Tr. at 16:23-24 (Davis). Mr. Davis added that, even "if the Court takes a different position," it could "obviate any concern of a conflict by simply allowing [his co-counsel] to conduct the cross-examination." Nov. 8 Tr. at 22:25-23:1 (Davis).

19. The Court then invited R.P. Martinez' attorney in this case, Marcia Milner, to speak on the conflict-of-interest issues, but she declined. See Nov. 8 Tr. at 23:6-10 (Court, Milner). The Court indicated that it had a few questions for her anyhow. See Nov. 8 Tr. at 23:11-12 (Court). "Seriously, what do we mean here by Mr. Davis pushes [R.P. Martinez'] buttons?" Nov. 8 Tr. at 16-17. She responded:

I guess, during the course of their relationship-I mean, they were difficult cases, I'm sure that there were issues. But Mr. Martinez made it very clear to me, once he realized that Mr. Davis was on the case, that he had concerns that based on their relationship, Mr. Davis would know how to push his button, without disclosing what those actual issues were.

Nov. 8 Tr. at 23:18-25 (Milner).

20. The Court gave "the final word on this" to the United States. Nov. 8 at Tr. 24:21-22. The United States took that opportunity to explain that this case is substantially related to R.P. Martinez' earlier prosecution:

We have to prove that there was an enterprise, in this case the SNM. We have to prove our interstate commerce. We have to prove racketeering activity, the murder, and the motive in the case.

And I'm just going to give the Court an example of how-why Mr. Davis' representation is important. He says that, you know, it was just a murder case. But in that case, as I indicated before, it was an SNM hit. But if I am recalling-there could be something that Mr. Martinez told Mr. Davis back during that representation. For instance, he could have said: It isn't an SNM hit, it was a personal beef. I just wanted to kill this guy. So I'm taking the rap for anybody involved. Nobody else was involved. I'm pleading guilty. And this was not gang related.

And I don't know if that conversation took place. But let's say for argument's purposes it did take place. And now Mr. Martinez is taking the stand, now that he is cooperating, and he's going to say that this was an SNM hit, and he's going to name other people that committed the crime with him, that were co-conspirators. And Mr. Davis then could say, you know what, he told me something different. He told me that it wasn't an SNM hit. And that's where the issue comes up.

Nov. 8 Tr. at 25:5-26:6 (Armijo).

21. On the next day, Mr. Davis asked the Court to take up the conflict-of-interest issue again. See Nov. 9 Tr. at 48:17-19 (Davis). The Court agreed. See Nov. 9 Tr. at 49:5-6 (Court). According to Mr. Davis, the Court should consider-before disqualifying Mr. Davis-three factors: (i) "the likelihood that the conflict will occur," Nov. 9 Tr. at 78:8-9 (Davis); (ii) "the severity of the threat to counsel's effectiveness to Mr. Herrera," Nov. 9 Tr. at 78:25-79:1 (Davis); and (iii) "whether there are alternative measures available other than disqualifying" Mr. Davis, Nov. 9 Tr. at 79:6-8 (Davis). Mr. Davis argued that each of those factors militated against disqualifying him. See Nov. 9 Tr. at 78:8-79:16 (Davis). Mr. Davis added that "there are some serious consequences to my removal, Judge." Nov. 9 Tr. at 79:17-18 (Davis). Mr. Davis explained:

If you remove me from this, Ms. Bhalla is left alone on this case. And she was brought in as second chair. She's not the lead counsel on this case. She was to assist in research, writing, assisting me in the trial work on the case.

And, frankly, I don't even know who is left on the CJA panel, if I'm removed from this case. I've taken a quick look at the conflicts panel, and it's pretty thin pickings.

The next thing is, if I am replaced, the new attorney is going to need time to get up to speed on a case that I've been working for a year-and-a-half. And, Judge, I'm not ready, and I still have things I have to do, and the trial is in two months. That sets up a motion for a continuance, or a motion for severance from the main group, because Mr. Herrera will not be prepared to go to trial. And forcing him to trial could lead to a claim of ineffective assistance of counsel.

Nov. 9 Tr. at 79:18-80:11 (Davis).

4. Supplemental Authority.

22. After the hearing, Herrera filed his Supplemental Authority in Support of Defendant's Response to Government's Motion Regarding Attorney Conflict [Doc. 1126], filed November 22, 2017 (Doc. 1469)("Supplement"). Herrera asserts that he is "prepared to state on the record that he waives any conceivable conflict and wishes to be represented by his attorney for last one and a half years, undersigned counsel." Supplement at 2. Herrera argues, however, that no conflict of interest exists. See Supplement at 3. "[T]he Government is unable to cite the Court to any instances of a conflict other than the mere fact that the current case involves the SNM and the prior representation of Martinez seventeen (17) years ago also involved the SNM." Supplement at 3. Herrera contends that Martinez, likewise, "cites to no instances of conflict other than to cavalierly state that undersigned counsel 'knows how to push his buttons.' " Supplement at 3. Herrera asserts that "the only connection with this case and the prior case is that both cases involve activities of the SNM," which is not enough to render them substantially related for the purposes of the New Mexico Rules of Professional Conduct, because "a mere resemblance of the two cases is not sufficient to establish a conflict." Supplement at 4-5.

23. Herrera also argues that "[t]he Court clearly recognizes a presumption in favor of Defendant's choice of counsel." Supplement at 6 (citing Wheat v. United States, 486 U.S. at 153, 108 S.Ct. 1692 ). Herrera admits that Mr. Davis "is appointed and not retained," but he argues that "this is a distinction without a difference":

Undersigned counsel has been working with the Defendant for over one and a half (1½) years. They have met well over thirty-five (35) times during this period. Counsel has become close with Defendant and his close friends. The attorney/client relationship is strong and undersigned counsel is Herrera's "preferred attorney". If the Defendant chose to hire an attorney, he would hire undersigned counsel. It is his counsel of choice, Michael Davis, that is the relevant inquiry. Not the fact that he's court appointed.

Supplement at 6. According to Herrera, the Court can respect Herrera's choice of counsel while simultaneously resolving any potential conflict by having Mr. Davis' co-counsel cross-examine R.P. Martinez. See Supplement at 7.

5. Notice Regarding Attorney Conflict.

24. On November 22, 2017, R.P. Martinez notified the Court that, as the Court has requested, Herrera's "[c]ounsel sent a copy of the [November 8-9 hearing] transcript to Mr. Martinez for his review and consideration of the additional arguments made by Carlos Herrera." Notice of Attorney Conflict ¶ 2, at 1, filed September 22, 2017 (Doc. 1471)("Notice"). "On November 21, 2017, counsel for Mr. Martinez reviewed the transcript by telephone with him." Notice ¶ 2, at 1. After the telephone conference, R.P. Martinez "advised that he was still not willing to waive the actual attorney conflict." Notice ¶ 3, at 1.

6. The Second Hearing.

25. The Court held a second hearing on November 27-29, 2017. See Second Hearing Tr. at 1:9-11. As it began the hearing on November 27, 2017, the Court indicated that it was working on its opinion regarding the Attorney Conflict Motion and that "right now it's drafted as a grant for the motion to disqualify." Second Hearing Tr. at 7:18-24 (Court). Mr. Davis then asked whether "the Court considered the possibility of just disqualifying me from handling Mr. Martinez, as opposed to removing me from the entire case as an alternative to disqualification?" Second Hearing Tr. at 8:12-16 (Davis). The Court answered that it considered that possibility, but "I'm not sure I can really sort that out and leave you in the case." Second Hearing Tr. at 8:17-20 (Court). In response to a second question from Mr. Davis, the Court indicated that Mr. Davis should stay in court and continue representing Herrera until it issued its written opinion. See Second Hearing Tr. at 8:24-9:7 (Davis, Court).

26. In the afternoon of November 29, 2017, the Court asked the parties: "[W]hat is it you'd like me to be more precise, more accurate, more thoughtful, more detailed [about, or to] reconsider?" Second Hearing Tr. at 778:13-16 (Court). The Court then indicated that "I want either three from each side as a batting order, or if y'all can agree ... give me your top three." Second Hearing Tr. at 778:11-16 (Court). The Court then addressed Mr. Davis:

Mr. Davis I'll say it now, I don't get any joy out of the entering the order that I'm probably going to enter when I get back to Albuquerque. I respect you a lot and thank you for your hard work. And if I don't see you again good luck. You and I have done a lot of stuff over the years so I appreciate all your hard work.

Second Hearing Tr. at 778:17-23 (Court).

LAW REGARDING ETHICAL DUTIES TO FORMER CLIENTS

27. In criminal cases, the United States District Court for the District of New Mexico requires attorneys to "comply with the Rules of Professional Conduct adopted by the Supreme Court of the State of New Mexico." D.N.M. LR-Cr R. 57.2. Those rules state: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." N.M. R. Prof'l Conduct 16-109(A). "The scope of a 'matter' for the purposes of this rule depends on the facts of a particular situation or transaction." N.M. R. Prof'l Conduct 16-109 cmt. 2. Whether a lawyer was involved in a particular matter "can also be a question of degree." N.M. R. Prof'l Conduct 16-109 cmt. 2. "The underlying question" when determining whether a lawyer is disqualified because the lawyer represented a former client in the same matter "is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question." N.M. R. Prof'l Conduct 16-109 cmt. 2.

28. The New Mexico Rules of Professional Conduct define "substantially related" matters:

Matters are "substantially related" for purposes of this rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter..... Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related.... A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

N.M. R. Prof'l Conduct 16-109 cmt. 3. Phrased alternatively, "[a] substantial relationship exists 'if the factual contexts of the two representations are similar or related.' " Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1384 (10th Cir. 1994) (quoting Smith v. Whatcott, 757 F.2d 1098 1100 (10th Cir. 1985) ). "An objective standard is used when determining whether the lawyer reasonably could believe that the representation of a client with interests adverse to those of another client would not adversely affect the lawyer's relationship with the other client."

In re Stein, 2008-NMSC-013, ¶ 22, 143 N.M. 462, 177 P.3d at 519. Even when a former client's representation is not substantially related to "the subject matter of [a current client's] trial," the two representations can still be substantially related when the current client's "defense would necessarily involve refuting [the former client's] testimony." Pickney v. United States, 851 A.2d 479, 487-88 (D.C. Ct. App. 2004).

29. In addition to restricting a lawyer's ability to participate in certain matters connected to their representation of a former client, the New Mexico Rules of Professional Conduct state:

A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.

N.M. R. Prof'l Conduct 16-109(C). "The New Mexico Supreme Court has disbarred attorneys pursuant to this rule where, in part, an attorney's use of information related to his prior representation of a client involved defrauding that client out of more than $100,000.00 in the course of representation regarding a will and testament." Abila v. Funk, 2016 WL 5376323, at *6 (D.N.M. Sept. 20, 2016) (Browning, J.)(citing In re C'de Baca, 1989-NMSC-070, ¶¶ 1-7, 109 N.M. 151, 782 P.2d 1348 ).

LAW REGARDING THE SIXTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND ATTORNEY CONFLICTS

30. The Sixth Amendment grants criminal defendants the right to the effective assistance of counsel. One aspect of the effective assistance of counsel is the absence of conflicts of interest. The Sixth Amendment also grants defendants the right to counsel of their choice. When the right to conflict-free counsel is in tension with the right to counsel of one's choice, a defendant may knowingly and voluntarily waive the former to effectuate the latter. A court, however, has discretion to reject such a waiver.

1. The Right to Conflict-of-Interest-Free Counsel.

31. The Sixth Amendment guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Const. amend. vi. Furthermore,

[t]hat a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command.... An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest." Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. 2052. "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). A violation of applicable ethical rules, however, does not necessarily amount to an actual conflict. See United States v. Gallegos, 39 F.3d 276, 279 (10th Cir. 1994) ("[I]t is apparent also that a violation of the rules [of professional conduct] will not in itself constitute a constitutional violation under Cuyler and related cases."). Instead, "[a]n actual conflict exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client." United States v. Bolivar, No. CIV 12-0128, 2012 WL 3150430, at *11 (D.N.M. July 20, 2012) (Browning, J.)(quoting Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) ). When an actual conflict of interest significantly impacts defense counsel's performance, reversal is automatic; no further showing of prejudice is required. See Strickland v. Washington, 466 U.S. at 692, 104 S.Ct. 2052.

32. Reversal is also automatic when a defendant objects to multiple representation-i.e., one lawyer representing multiple defendants in a single proceeding-and a trial judge neither acts to remove the potential conflict of interest by appointing separate counsel nor "take[s] adequate steps to ascertain whether the risk [is] too remote to warrant separate counsel." Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). See Mickens v. Taylor, 535 U.S. 162, 168, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (Scalia, J.)(" Holloway thus creates an automatic reversal rule only where defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict."). See also United States v. Perez, 325 F.3d 115, 125 (2d Cir. 2003) ("[A]n attorney has a potential conflict of interest if 'the interests of the defendant may place the attorney under inconsistent duties at some time in the future.' " (quoting United States v. Kliti, 156 F.3d 150, 153 n.3 (2d Cir. 1998) ) ).

33. Although "a possible conflict inheres in almost every instance of multiple representation," a trial court has an "affirmative duty to inquire into the propriety of multiple representation" only when it "knows or reasonably should know that a particular conflict exists." Cuyler v. Sullivan, 446 U.S. 335, 346-48, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). See United States v. Rogers, 209 F.3d 139, 143 (2d Cir. 2000) ("[A] court that learns of a possible conflict must investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all."(internal citations omitted) ). If a trial court fails to undertake that inquiry, however, reversal is not automatic. See Mickens v. Taylor, 535 U.S. at 173-74, 122 S.Ct. 1237 ("[S]ince the trial court's failure to make the Sullivan -mandated inquiry does not reduce the petitioner's burden of proof; it was at least necessary, to void the conviction, for petitioner to establish that the conflict of interest adversely affected his counsel's performance.").

34. When the government is aware of a conflict of interest, it "has a duty to bring it to the court's attention and, if warranted, move for disqualification." United States v. Migliaccio, 34 F.3d 1517, 1528 (10th Cir. 1994). Defense counsel has a similar duty. See Cuyler v. Sullivan, 446 U.S. at 346, 100 S.Ct. 1708 ("Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.").

35. "These principles concerning conflicts of interest are not restricted to cases of joint representation of co-defendants at a single trial." United States v. Winkle, 722 F.2d 605, 610 (10th Cir. 1983). "[I]n a case of joint representation of conflicting interests the evil-it bears repeating-is in what the advocate finds himself compelled to refrain from doing," Holloway v. Arkansas, 435 U.S. at 490, 98 S.Ct. 1173 (emphasis in the original), and that same evil "is a potential problem in cases where a defendant's attorney previously represented a Government witness," United States v. Winkle, 722 F.2d at 610. Accordingly, the United States Court of Appeals for the Tenth Circuit was "persuaded by the views expressed in Ross v. Heyne , 638 F.2d 979, 983 (7th Cir. 1980), that an actual conflict would arise where defense counsel is unable to cross-examine a Government witness effectively because the attorney also represented the witness." United States v. Winkle, 722 F.2d at 610. See Ross v. Heyne, 638 F.2d 979, 983 (7th Cir. 1980) ("An actual conflict would arise where defense counsel is unable to cross-examine a prosecution witness effectively because the attorney also represented the witness."); id. ("The problem that arises ... is that the attorney may have privileged information obtained from the witness that is relevant to cross-examination