Case 3:07-cr M Document 319 Filed 07/15/2008 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

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1 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA V. NUMBER 3:07-CR-289-M (9) JIBREEL A. RASHAD (ECF) a/k/a Vernon Cooks Jr. DEFENDANT JIBREEL A. RASHAD S MOTION TO DISQUALIFY RAY JACKSON, ATTORNEY FOR CO-DEFENDANT DON HILL, WITH SUPPORTING AUTHORITIES TO THE HONORABLE BARBARA M. G. LYNN: COMES NOW the Defendant, Jibreel A. Rashad, by and through his attorney of record, and moves this Court for an Order disqualifying Attorney Ray Jackson from continuing his representation of Co-Defendant Donald W. Hill in this case and from appearing as trial counsel for any party. In support of this Motion, he would respectfully show the Court the following: I. Summary Defendant Jibreel Rashad utilized Attorney Ray Jackson as his own counsel for many years. The representation included efforts that are specifically identified in the Indictment as activities that supposedly demonstrate that Rashad was a participant in the alleged conspiracy and that he allegedly engaged in specific acts of criminal wrongdoing. Attorney Jackson will be a key witness for Rashad. Therefore, Rashad urges that Attorney Jackson should not be allowed to represent Hill or any of the other co-defendants in this matter because of the prejudice inherent in Jackson s expected role as lawyer and witness, because of the clear conflict arising from the substantial to Disqualify Co-Defendant Don Hill s Counsel -- Page 1

2 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 2 of 16 relationship between Jackson s current representation of Hill and Jackson s prior representation of Rashad, and because of the appearance of impropriety these circumstances present. II. Facts -- Argument -- Authorities Attorney Rayshun Jackson, also known as Ray Jackson, is a blood relative of the Defendant, Jibreel Rashad, in that they have the same biological father. Although the brothers grew up locally in different households, they were, and still are, very close. They have shared many privileged communications on a variety of subjects, including matters pertaining to the present indictment. These privileged communications date as far back as 1996, when Jackson first became licensed to practice law in the State of Texas, and they continued until early into the formal defense of this case. Jackson previously represented Rashad in Cause Number 3:06-CR-0085-L. He tried that case twice to a jury on behalf of Rashad, also known as Vernon Cooks Jr., because Judge Sam Lindsay declared a mistrial to end the first trial. Rashad was convicted on March 19, 2007, and he is currently serving a 135-month sentence and a 120-month sentence. Jackson remained Rashad s counsel of record until February 26, 2008, when an appellate attorney was appointed for the appeal to the Fifth Circuit Court of Appeals. That appeal is pending. In addition, Jackson was also Rashad s long-time counsel on a variety of corporate and trial matters. This representation included matters that the government now claims are evidence of Rashad s alleged wrongful conduct, including the formation of business to Disqualify Co-Defendant Don Hill s Counsel -- Page 2

3 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 3 of 16 entities and related items. See Indictment at p (RA-Mill incorporation) and p (opening of RA-Mill bank account). A. Unfair Prejudice Would Result From Jackson s Dual Role as a Defense Witness and as Attorney for the Government s Obvious Main Target in This Case Rashad intends to call Jackson as a fact witness. In fact, Rashad has a compelling need for the testimony of his attorney on the legal advice expressly and impliedly given and his reliance on such advice. Rashad s articulation of his defensive theories and Jackson s anticipated testimony is somewhat vague in this motion, by design. He is more than willing to provide a detailed in-camera ex-parte submission or proffer and, should the Court desire more complete information, requests an opportunity to provide it this way. See United States v. Beckford, 964 F. Supp. 1010, 1030 (E.D. Va. 1997)(explaining that an ex-parte or sealed process, albeit in a Rule 17 procedure, may be authorized when public filings would disclose defense theory and tactics). Rashad simply prays that the Court avoid forcing him to give the government this sort of preview of the defense strategy and evidence, particularly at this early stage of the case. At trial, Rashad intends to use Jackson s testimony to, among other things, explain and counter certain aspects of the government s evidence against him. This testimony will help establish what he actually was doing as compared with what the government has alleged he was doing. Admittedly, ignorance of the law is not a generally recognized defense. However, Rashad s reliance on legal advice in a relatively complicated matter, and his good faith belief that he was acting within the law, negate to Disqualify Co-Defendant Don Hill s Counsel -- Page 3

4 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 4 of 16 the required culpable mens rea for certain activities the government cites in the Indictment. United States v. Flitcraft, 803 F.2d 184, 187 (5 th Cir. 1986). Rashad will present testimony from Jackson based upon his extensive knowledge concerning the formation of Rashad Investments, Inc., RA-Mill, and Rashad- Millennium, LLC, d/b/a RA-Mill. Jackson is listed in corporate filings with the Texas Secretary of State as the registered agent for all of the entities. He is intimately familiar with the reasons for the following, all of which are referred to in the Indictment as evidence of criminal activity: The formation of Rashad Investments, Inc., RA-Mill and Rashad-Millennium, LLC, d/b/a RA-Mill; the business plans or goals for Rashad Investments, Inc., RA-Mill, and Rashad- Millennium, LLC, d/b/a RA-Mill; the reasons for the particular names in the articles of incorporation for Rashad investments, Inc. RA-Mill; and Rashad-Millennium, LLC, d/b/a RA-Mill; the reasons why amended articles of incorporation were filed for Rashad Investments, Inc.; and Why such reasons ultimately impacted filings pertaining to Rashad-Millennium, LLC, d/b/a RA-Mill. Jackson also will be called upon to testify as to the content of various conversations with Rashad. The following documents, which show Jackson s involvement as Rashad s corporate attorney and counselor, are attached hereto as exhibits and incorporated herein for all purposes: Exhibit A - Articles of Incorporation for Rashad Investments; Exhibit B - Articles of Amendment for Rashad Investments; Exhibit C - Articles of Organization for Rashad-Millennium, LLC; Exhibit D - Assumed Name Certificate for RA-Mill, LLC. to Disqualify Co-Defendant Don Hill s Counsel -- Page 4

5 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 5 of 16 Pursuant to Rule 3.08, TEX. DISCIPLINARY R. PROF L CONDUCT, a lawyer should not continue employment as an advocate once he knows or believes that he may be a witness necessary to establish an essential fact on behalf of his client. 1 The rule reads in full: Rule 3.08 Lawyer As Witness (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; (4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure. (c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter. There is no witness other than Jackson who is capable of giving this critical testimony concerning Rashad and the legal and factual justifications for corporate acts that are laid out in the Indictment. Disqualification of Jackson as a co-defendant s attorney therefore is appropriate. Accord United States. v. Manners, Case No. 3:05-CR- 1 Defendant Rashad admittedly is a former client of Jackson at this time. However, given that Jackson represented Rashad in this case as well as in some of the matters at issue in the Indictment, Rashad submits that the same ethical considerations should be applied. to Disqualify Co-Defendant Don Hill s Counsel -- Page 5

6 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 6 of M, Oct. 25, 2006 (N.D. Tex.)(J. Lynn)(Court rejected defendants motion to disqualify prosecutor where other witnesses could provide the same testimony.) There are compelling reasons to avoid the spectacle of trial counsel appearing as a witness on critical contested facts. A principal concern of allowing a lawyer to serve as both an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact. TEX. DISCIPLINARY R. PROF L CONDUCT 3.08, cmt Jackson s dual role as witness for Rashad, a comparatively minor player in the Indictment, and as the attorney defending Hill, the government s obvious main target, likely will confuse the jurors and unfairly prejudice Rashad. The Fifth Circuit touched on the risks of improper prejudice that may result when a lawyer trying a case is called to the witness stand. In Fontaine v. Patterson, the defendant s lawyer was called in order for the prosecutors to impeach him. The Court held: The role of a lawyer as courtroom advocate, though well understood by Judges and fellow lawyers, is not always so clear to jurors or other laymen. It takes no vivid imagination to foresee that if the suspicion of the jury is aroused about the basic credibility of the lawyer as a witness, the client s whole cause, regardless of its merits, might well fall with the discredited lawyer-witness. The prejudicial error in the admission of this evidence necessitates a reversal and the ordering of a new trial. 2 There are a number of exceptions to this rule, such as when an attorney is testifying about an uncontested issue or on attorney s fees, but those exceptions do not apply here. to Disqualify Co-Defendant Don Hill s Counsel -- Page 6

7 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 7 of F.2d 124, 130 (5th Cir. 1962)(Taxpayer s attorney called as witness against him in case involving date of taxable event and dispute over submission of contract to revenue department.) Jackson s dual roles will provide the jurors with more than ample time and opportunity to become confused. Unfortunately, they most likely will draw inferences and conclusions that will not inure to the benefit of Rashad and would in fact be highly and unfairly prejudicial. For these reasons, disqualification is necessary. B. Jackson is Caught in an Ethical Conflict That Cannot be Overcome Rashad s constitutional rights to effective assistance of counsel and to confrontation under the Sixth Amendment to the United States Constitution lend further support to Rashad s argument that a critical witness on his behalf should not also represent the obvious main target in the case. Rashad s counsel has a duty to call Jackson as a favorable witness on a number of issues. Likewise, Hill s counsel -- Jackson -- has a duty to cast doubt on all evidence that might adversely impact his client. Jackson cannot do both during the same trial. In addition, John Lewis, Attorney Jackson s former law partner, is a co-defendant in this indictment. In all professional functions, a lawyer should zealously pursue client's interests within the bounds of the law. TEX. DISCIPLINARY R. PROF L CONDUCT preamble. Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client's behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a to Disqualify Co-Defendant Don Hill s Counsel -- Page 7

8 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 8 of 16 client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer. TEX. DISCIPLINARY R. PROF L CONDUCT 1.01, cmt. 6. Here, Jackson is obligated to help Rashad on matters for which he gave legal advice. He is just as obligated to defend Hill against Rashad and against even his own evidence, should any conflicts arise between these defendants during trial. It is unlikely that this can be accomplished. In order to facilitate his constitutional rights, and under the same Sixth Amendment, Rashad has a right to compulsory process to compel the appearance of witnesses and documents to aid in his defense or in mitigation of both guilt-innocence and punishment. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. United States Prantil, 764 F.2d 548, 552 (9 th Cir. 1985). The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. United States v. Nixon, 418 U.S. 683, 709, 41 L. Ed. 2d 1039, 94 S. Ct (1974). to Disqualify Co-Defendant Don Hill s Counsel -- Page 8

9 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 9 of 16 A denial of any or all of these constitutional rights, or interference with these rights, would necessarily result in a denial of due process as guaranteed under the 14 th amendment to the United State Constitution. C. Jackson Must Be Disqualified Because he Previously Represented Rashad on Substantially Related if not Identical Matters Jackson exchanged countless confidences with Rashad in the context of their attorney-client relationship in the months and years that led up to the Indictment. These confidences concerned matters related to the corporate formations and strategies that are laid out in the Indictment. In addition, Jackson was the attorney of record in the Dallas County District Courts in at least two matters involving Rashad under the names Vernon Cooks, Jr., and Jibreel Rashad, and one case involving Rashad Investments, the immediate precursor to Rashad-Millennium, LLC, d/b/a RA-Mill. More specifically, the Indictment identifies RA-Mill, LLC as being a combination of Rashad Investments, of which Mr. Rashad was an alleged principal, and Millennium Investments Group, which was allegedly owned by a co-defendant, Rickey E. Robertson. Indictment, p. 24. Attorney Jackson is identified as the attorney and registered agent for RA-Mill in corporate documents, as previously mentioned. In addition, the government has turned over at least one lengthy recorded consensual encounter with a main government witness, identified on page 94 of the Indictment and elsewhere as Developer, wherein Jackson is identified by Rashad as the attorney for RA-Mill. In addition, there was at least one alleged attempt by the Developer to contact Jackson by telephone in late 2004 or early to Disqualify Co-Defendant Don Hill s Counsel -- Page 9

10 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 10 of 16 Furthermore, Jackson initially was Rashad s attorney in this matter and confidences were necessarily exchanged. Docket records in this cause indicate that Jackson entered an appearance on behalf of Jibreel Rashad in this case on October 5, The appearance was made through attorney Kobby Warren, an associate of The Jackson Law Firm. A true and correct copy of the Minute Entry made for the initial appearance and arraignment proceedings held before Magistrate Judge William F. Sanderson Jr., is attached hereto as Exhibit E and Exhibit F respectively, and incorporated herein for all purposes. Jackson later entered an appearance as attorney of record for the lead defendant, Don Hill, on October 8, A copy of Mr. Jackson s Entry of Appearance of Counsel on behalf of Donald W. Hill is attached hereto as Exhibit G and incorporated herein for all purposes. Jackson remained Rashad s attorney in this case until October 23, At that time, Rashad executed a financial affidavit (CJA 23), and the matter was referred to a Magistrate Judge for appointment of counsel. The undersigned was appointed the same day. Despite diligent efforts, the undersigned has only recently discovered the extent of the attorney-client relationship and its potential impact on this case. Accordingly, this motion is not untimely. When a court is on notice that a possible conflict of interest exists in the representation of a criminal defendant by a specific attorney, it must take adequate steps to safeguard against any conflict developing. See Wheat v. United States, 486 U.S. 153, 160 (1988). "Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by to Disqualify Co-Defendant Don Hill s Counsel -- Page 10

11 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 11 of 16 unregulated multiple representation." Id. Indeed, "[f]ederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id.; accord United States v. Vasquez, 995 F.2d 40, 42 (5th Cir. 1993) (per curiam). The Fifth Circuit, reviewing a conflict in hindsight, determined that "if a criminal defendant is represented at trial by an attorney, either appointed or retained, who labors under an actual, and not merely a potential, conflict of interest, the defendant has been denied effective assistance of counsel as a matter of law." United States v. Martinez, 630 F.2d 361, 362 (5th Cir. 1980). Moreover, prejudice need not be shown. Id.; United States v. Newell, 315 F.3d 510, 516 (5th Cir. 2002). An attorney that has represented one defendant and then seeks to represent another co-defendant in a criminal matter has a conflict of interest. See United States v. Benavidez, 664 F.2d 1255, 1259 n.6 (5th Cir. 1982) (discussing a number of cases addressing such conflicts of interest). "A lawyer places himself in an impossible situation when the defense of one client is perforce to the detriment of another client." Newell, 315 F.3d at 516. As the Fifth Circuit further explained in Newell: When multiple representation exists, the source and consequences of the ethical problem are straightforward: counsel represents two clients with competing interests and is torn between two duties. Counsel can properly turn in no direction. He must fail one or do nothing and fail both. " See also United States v. Bills, 2008 U.S. Dist. LEXIS 5100, 3-5 (S.D. Tex. Jan. 23, 2008). The Rashad-Jackson attorney-client relationship does not stop with the corporate formation matters or earlier trials. Although there is no written record of this, Jackson to Disqualify Co-Defendant Don Hill s Counsel -- Page 11

12 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 12 of 16 also represented Rashad when government representatives attempted to turn him into a prosecution witness in this case. This effort began when Rashad voluntarily surrendered after his indictment in Cause No. 3:06-CR-0085-L, the case in which Jackson was his trial counsel throughout two jury trials. Rashad and his former attorney, Pete Thompson, now deceased, had a brief but intense encounter with the government agents who unsuccessfully attempted to elicit Rashad s cooperation in order to help himself in that case as well as in the pending City Hall investigation that led to this case. Later, apparently several weeks before the first trial in Cause No. 3:06-CR L, Rashad and his attorney, Jackson, met with assistant United States Attorneys prosecuting that case. At that time, there was a failed attempt to work out a plea agreement. A substantial relationship requiring disqualification exists where the party seeking disqualification proves that the facts and issues involved in both the former and present litigation are so similar that there is a genuine threat that confidences revealed to the party's former counsel will be divulged to his present adversary. In re Epic Holdings, Inc., 985 S.W.2d 41, 51 (Tex 1998)(orig. proceeding); NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398, (Tex. 1989) (orig. proceeding); In re Bell Helicopter Textron, Inc., 87 S.W.3d 139, 146 (Tex. App.-Fort Worth 2002, orig. proceeding); see also Texaco, Inc. v. Garcia, 891 S.W.2d 255, 257(Tex. 1995) (orig. proceeding) (holding that substantial relationship existed where cases involve similar liability issues, scientific issues, defenses, and strategies). Since the subject matter of the case against Hill is at least in part substantially related, if not identical, to the subject matter of Jackson s long-time representation of to Disqualify Co-Defendant Don Hill s Counsel -- Page 12

13 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 13 of 16 Rashad, there is a presumption that the Rashad-Jackson confidences will be shared with or for Hill. E.g., In re George, 28 S.W.3d 511, 518 (Tex. 2000)(orig. proceeding). Rashad has not waived the privilege that protects these confidences and has not waived this conflict. In fact, he does not wish to do either for the benefit of Defendant Hill. Moreover, Hill s and Rashad s interests may not be aligned on multiple key points. To the extent that Rashad and Hill are not aligned, TEX. DISCIPLINARY R. PROF L CONDUCT 1.09 may be triggered. This rule prohibits a lawyer, without prior consent, from thereafter representing another person in a matter adverse to the former client. The undersigned certainly cannot predict what is going to happen in the future with regard to the present Indictment, but there is certainly potential for conflict if, for example, Don Hill was to plead guilty in this case and seek a motion for downward departure from the government pursuant to of the United States Sentencing Guidelines or Rule 35, FED. R. CRIM. P., by acting as a cooperating witness in alleged matters possibly adverse to his former client, Rashad. In addition, Rashad has every interest in distancing himself as much as possible from Hill. In the event that Rashad were to testify in any proceeding, he would be subject to cross-examination by his former attorney, Jackson, on some of the same matters at the heart of their attorney-client relationship. Such a situation is untenable. In such cases courts have disqualified counsel. United States v. Moscony, 927 F.2d 742, 750 (3 rd Cir. 1991); United States v. Cannistraro, 794 F. Supp (D.N.J. 1992). Where, as here, defense counsel has been involved in events underlying the charges against his client, he may be viewed by the jury as an "unsworn witness," even if he is not called to testify. In such cases, the mere presence of defense counsel at trial can to Disqualify Co-Defendant Don Hill s Counsel -- Page 13

14 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 14 of 16 distort the fact-finding process, and jurors can draw negative inferences and cause prejudice to the Defendant. United States v. Simon, 2003 U.S. Dist. LEXIS 8354, 3-4 (E.D. La. May 14, 2003). WHEREFORE, PREMISES CONSIDERED, the Defendant, Jibreel Rashad, respectfully requests that this motion be in all things granted, or in the alternative, that the matter be set for a full evidentiary hearing in order to more fully develop and preserve facts necessary for a just and fair determination of the issues herein presented. Respectfully submitted, /s/ Vic Sasso Vic Sasso Texas Bar Card No Preston Road Suite 300 Dallas, Texas Telephone: (214) Facsimile: (214) vicsasso@earthlink.net COUNSEL FOR DEFENDANT JIBREEL RASHAD A/K/A VERNON COOKS JR. to Disqualify Co-Defendant Don Hill s Counsel -- Page 14

15 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 15 of 16 CERTIFICATE OF CONFERENCE I hereby certify that on July 10, 2008, a conference was held with Mr. Marcus Busch, Assistant U.S. Attorney, and at this time the government takes no position on the merits of the attached and foregoing motion to disqualify counsel for Defendant, Don Hill. Furthermore, I have discussed this motion with Ray Jackson, attorney for Donald W. Hill, and have discussed facts with Mr. Jackson pertaining to the subject matter of this motion. The last conversation was on a lengthy telephone conversation commencing at approximately 8:12 a.m., on Friday, June 27, On Friday, July 11, I ed a short note to Ray Jackson, along with this motion as an attachment. Today, July 14, I attempted to contact Mr. Jackson to determine his position on the matter. He was in trial, but his paralegal, Kimberly Nwokedi, text messaged Mr. Jackson with regard to the subject matter of my call, and received a text message back that he was opposed to the above and foregoing motion. /s/vic Sasso Vic Sasso to Disqualify Co-Defendant Don Hill s Counsel -- Page 15

16 Case 3:07-cr M Document 319 Filed 07/15/2008 Page 16 of 16 CERTIFICATE OF SERVICE I hereby certify that on July 14 th, 2008, the foregoing and attached document was electronically filed with the clerk of the Court for the U.S. District Court, Northern District of Texas, using the electronic case filing (ECF) system of the Court. /s/ Vic Sasso Vic Sasso. to Disqualify Co-Defendant Don Hill s Counsel -- Page 16