Reese 11cr2294 Doc74

Case 2:11-cr-02294-RB Document 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR DEFENDANT RYIN REESE: FOR DEFENDANT TERRI REESE: FOR DEFENDANT RICK REESE:
APPEARANCES: UNITED STATES OF AMERICA v. RICK REESE, TERRI REESE, RYIN REESE, and REMINGTON REESE
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ) ) ) NO.: 11-CR-02294-RCB ) ) ) )
RULE 44 HEARING BEFORE THE HONORABLE ROBERT C. BRACK UNITED STATES DISTRICT JUDGE NOVEMBER 2, 2011
FOR THE GOVERNMENT: Mr. Nathan Lichvarcik Mr. Michael Nammar ASSISTANT UNITED STATES ATTORNEYS 200 East Griggs Avenue Las Cruces, New Mexico 88001
Mr. Sam Bregman BREGMAN & LOMAN, P.C. 111 Lomas Boulevard, Suite 230 Albuquerque, New Mexico 87102
Mr. Leon Schydlower LAW OFFICE OF LEON SCHYDLOWER 210 North Campbell Street El Paso, Texas 79901
Mr. Santiago D. Hernandez LAW OFFICE OF SANTIAGO D. HERNANDEZ 1219 East Missouri Avenue El Paso, Texas 79902
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APPEARANCES: (continued) FOR DEFENDANT Mr. Paul J. Rubino REMINGTON REESE: PAUL J. RUBINO, P.C. 5501 Superstition Drive, Suite 7 Las Cruces, New Mexico 88011
Mr. Jason Bowles BOWLES & CROW 201 Third Street NW, Suite 1370 Albuquerque, New Mexico 87102
Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription.
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THE COURT:
This is the United States of
America versus Rick Reese, Terri Reese, Ryin Reese, and Remington Reese, defendants. present this morning. The defendants are all
They are represented by
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Mr. Rubino on behalf of Mr. Remington Reese, Mr. -let's see -- Bregman is here on behalf of Rick Reese, the father. MR. BREGMAN: THE COURT: MR. LOMAN: THE COURT: That's correct, Your Honor. Mr. Loman as well. Yes, Your Honor. Thank you. Mr. Bowles is here
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as potential counsel for somebody. MR. BREGMAN: THE COURT: Yes, sir, Your Honor. All right, Mr. Bowles. I'm
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going to figure that out in a minute. Mr. Schydlower, tell me -MR. SCHYDLOWER: record for Terri Reese. THE COURT: For Terri Reese. And -I'm still counsel of
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MR. HERNANDEZ:
Your Honor, Santiago
Hernandez on behalf of Ryin Reese. THE COURT: All right. Thank you.
Mr. Lichvarcik and Mr. Nammar on behalf of the Government. there, I think. And I'm sorry. There's another lady
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Filed 11/14/11 Page 4 of 69 4 Your Honor, that's Brenda
MR. LICHVARCIK: Solis.
She works with me at the U.S. Attorney's Office. THE COURT: Perfect. Welcome.
We're here pursuant to Mr. Rubino's amended motion for Rule 44 hearing to determine counsel. read the motion. I've
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I've read the response thereto from
Mr. Bregman and, also, the Government's response, and, obviously, I've got concerns about where we go from here. Mr. Rubino, I've read the motion. I'll
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hear from you, but you don't need to tell me everything that's in there, of course, because I've -- I'm up to speed. MR. RUBINO: on the submitted papers. Your Honor, then I will stand To me, it's clear that joint As
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representation gives rise to conflict of interest.
the documents, you know, detail, there are two kinds: actual and potential. We're at the very beginning of this. We
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just got discovery, so the actual ones aren't jumping out at us. But as the cowboys in this area say, it This is going to be a long road
ain't my first rodeo.
to get to trial, and there's got to be a conflict of interest with such joint representation. And other than that, I'll leave it to the
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Court to ask the questions it needs answered in order to make a decision. THE COURT: Mr. Bregman, then. it. All right. Let me hear from
Mr. Bregman, let me -- let me find You indicated that you
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Here's your response.
visited each of the four defendants in their respective detention facilities to discuss the possibility of representing them. You said you did not discuss the
facts of the case with each defendant, but you did discuss with each defendant the possible existence of conflicts of interest. MR. BREGMAN: THE COURT: Yes, Your Honor. Now, if you didn't discuss the
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facts of the case, how did you discuss potential conflicts of interest? MR. BREGMAN: Your Honor, without getting
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into detailed discussions that I had with them, because of a possible attorney-client relationship with them conferring with me as attorney -THE COURT: But you didn't have that yet.
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You didn't have an attorney-client relationship with them at the time, did you? MR. BREGMAN: Your Honor, not technically,
but they were certainly talking to a lawyer at the time, so I don't know that that's not a protected -- but let
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me just answer your question, if I can, Your Honor. I asked them, first of all, in general, do they believe that they have any kind of conflicts amongst whether or not they think someone else in their family -- there are four members here. They're all
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family members, Your Honor -- whether or not they believe there was any -- without going into specifics, whether or not they believe anyone else did anything wrong. Their answer was no. Do they believe that
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anybody else is going to point any finger in the family at them? Their answer was no. I continually asked those type of general questions as to whether or not they believed any conflict was going to arise. I was satisfied, as an
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attorney, that I did not believe that any conflicts would arise. I still am today. I also believe they have a very unified defense, just looking at the indictment, Your Honor, and looking at the discovery that I've seen thus far, Your Honor. They don't believe they did anything wrong,
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every one of them to a T, and none of them believe that any of their family members did anything wrong, Your Honor. So I don't believe there's any conflict in
representing them. We were asked by the mother of Rick Reese
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to go visit with them and see if we could represent them and ask them if they wanted that. They all indicated
yes to me, Your Honor, and I suggest that in this Rule 44 hearing that, perhaps, the best place for you to make your determination is to ask them themselves whether or not they want me to represent them, whether or not they see any conflict. If you get into specific material issues, as far as any possible defenses, I believe the annotations or the -- or the comments to this rule require an in-chamber questioning of them to determine that, Your Honor, but overall, my understanding is, they all want me to represent them, number one. Number two, Your Honor, I do not believe or foresee any conflict in representing them, and so I'm satisfied, Your Honor. I understand that the Court may
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or may not have a concern, but that's what this hearing is for, is to ask them, and that's what I was -- that's what I would suggest to the Court that we do. THE COURT: Mr. Bregman, if you don't think
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there's any conflict or potential for conflict, what's Mr. Bowles doing here? MR. BREGMAN: Mr. Bowles is here, Your
Honor -- well, I plan on Mr. Bowles -- eventually, Your Honor, if there is no conflict and you've ruled there's
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no conflict, I intend on bringing Mr. Bowles in to help co-counsel with me. He's a very good lawyer, and we'd
like his -- we'd like -- we'd like his participation in it. If you believe that there is a conflict with one defendant or another, then Mr. Bowles, I believe, could certainly represent them, and I would suggest that he be allowed to do so. That's -- that's
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why Mr. Bowles is here, because one way or the other, I would anticipate Mr. Bowles to be involved in this case. THE COURT: So you've talked with your
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potential clients about the possibility of conflict, and in that way, have they approved of the hire of Mr. Bowles at some point? MR. BREGMAN: I don't think they've
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specifically stated yes to Mr. Bowles, in the sense that I went there representing to them that I would represent them if they wanted me to. THE COURT: So the likelihood of -- well,
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the possibility of Mr. Bowles representing anybody in this is still only in your mind. They haven't talked --
the defendants haven't talked to Mr. Bowles. MR. BREGMAN: THE COURT: defendants? No, they have not. Mr. Bowles hadn't talked to the
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Filed 11/14/11 Page 9 of 69 9 That's correct.
MR. BREGMAN: THE COURT:
And -- but the reason
Mr. Bowles came up originally -MR. BREGMAN: THE COURT: Yes. -- is because you acknowledged
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the possibility that there was a -- at least a potential conflict. MR. BREGMAN: Well, that was in response,
yes, Your Honor, to any -- they thought there was going to be a conflict. But after meeting with these
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individuals at their respective detention centers, Your Honor, I don't believe there is a conflict. But still to this day, if you -- if you, after speaking with them, believe there is a conflict, Your Honor, I have -- I have no objection to -- at that point, to Mr. Bowles representing someone who you believe we should not because we're representing Rick Reese and the others. THE COURT: When the defendants appeared
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before Judge Wormuth, he made a determination that your client, Mr. Rick Reese -- and do you represent Terri Reese as well? MR. BREGMAN: Well, I have -- in this -- I
have only appeared in this court right now, Your Honor, as representing Rick Reese. That's correct, Your Honor.
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THE COURT:
Judge Wormuth thought, though,
that there may be a time when Defendant Rick Reese and his wife might have to reimburse the Government because they had some illiquid assets, but they had assets. They weren't necessarily indigent. With regard to at
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least Remington, the determination was made that he didn't have any assets. Now, we're talking about retained counsel standing here, having driven down from Albuquerque. Don't we have potential conflict at least in the sense that somebody else is paying for your representation of Mr. Remington Reese? MR. BREGMAN: Your Honor, every day, other
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people foot the bill for people who are charged with crimes, and my duty is always to my clients, and it will always be that way, so -THE COURT: But not every day do defendants
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in the same cause pay for your representation and potentially other people's representation in the same cause; am I right? MR. BREGMAN: Well, Your Honor, I -- I
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don't know how far to go with describing who's paying for my representation, but the payment of the representation, I can assure you, doesn't have an effect on my representation of any four of them one way or the
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other.
If I'm representing them, I'm doing my job
representing them, whether or not I get paid or don't get paid or who pays me. I can tell you that none of the defendants have written me a particular check in this case, so I'm -- I don't think that's an issue, Your Honor. I
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don't think it can ever be an issue, that who pays for the representation of someone. THE COURT: it was an issue. Well, other courts have thought
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I didn't -- that's not something I
created out of whole cloth. MR. BREGMAN: I don't -- but my point is,
Your Honor, that while it may be so if -- in some theoretical way, I can tell you that that's not the case here, and I'm representing that to you as an officer of the court, Your Honor, that that's not the case here. THE COURT: Well, do I understand that you
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have secured retainer agreements from each of the four defendants at this point? MR. BREGMAN: I have re- -- I have -- they That's correct, Your
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have signed a retainer agreement. Honor. THE COURT:
So you have agreed to represent
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MR. BREGMAN:
Yes, Your Honor.
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THE COURT:
But at least with regard to the
two sons, you haven't ever discussed the facts of the case with them? MR. BREGMAN: THE COURT: Not in any detail, no. And, yet, you're suggesting to
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me that without having ever talked with them about the facts of the case, you're -- you have satisfied yourself that there's no actual conflict or potential conflict and that they have been instructed about their ability to waive any conflict? Is that what you're telling me? Have they been instructed I have not
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MR. BREGMAN:
about their ability to waive any conflict?
instructed them about their ability to waive any conflict. I have talked with them about conflict
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issues, and I am satisfied, yes, Your Honor. THE COURT: And you know the sort of
questioning I have to do of them -MR. BREGMAN: THE COURT: Yes. -- before I'm satisfied that
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they have made an intelligent waiver of any actual or potential conflict. MR. BREGMAN: THE COURT: Yes, Your Honor. Did you have anything close to
that in terms of discussion with them about conflicts? MR. BREGMAN: In the general sense,
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Filed 11/14/11 Page 13 of 69 13 I asked them if they -- if
absolutely, yes, Your Honor.
they -- if they understand that in criminal cases, from time to time, somebody may have one position and another -- and someone else may have another position, and as defendants, whether or not that's going to create a conflict. And I explained to them that I cannot
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represent them if there is a conflict that arises that causes me not to do a good job for one or the other, Your Honor. THE COURT: Mr. Bregman, in your
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conversations with Terri, Ryin, and Remington, are you satisfied that you haven't learned any confidential information that could ultimately lead to a conflict, if it doesn't already suggest one? MR. BREGMAN: Yes, I'm satisfied that I do
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not -- I'm not aware of any information, confidential information, that would cause a conflict. THE COURT: All right. Thank you.
Let me hear from Mr. Lichvarcik. MR. LICHVARCIK: Judge, the last thing I
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want to do is take up a lot of the Court's time, because I did file a lengthy brief in this case, so if I start getting too repetitive of anything in the brief, please stop me, but -THE COURT: I'll let you know.
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Filed 11/14/11 Page 14 of 69 14 My concern here is that it
MR. LICHVARCIK: is very early on.
There are -- I think, pretty much
every twist and turn that this case could possibly take is lurking around the corner, a very severe, serious potential conflict, and in all likelihood, they will burgeon into actual conflicts at some point. So my concern is, the last thing I want to do in a complex case like this -- you know, if a conviction is obtained, I fear that we're going to stand all back in this courtroom again in the year 2014 with a mandate from the Tenth Circuit Court of Appeals telling us to go ahead and do all that over again, but this time with conflict-free counsel. The case law -- and I know Your Honor is familiar with it and has dealt with these issues before, but sometimes actual conflicts and potential conflicts can be so severe, that they cannot be waived. And I
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tried to flag in the brief some of the conflicts that I saw in this case that I think will materialize, and I think they will be so severe that they cannot be waived. For instance, how -- in a joint representation scenario, a viable defense, I suppose, is to attempt to use relative culpability at every stage of the proceeding, and to a large extent, we've seen that already when Mr. Rubino advocated for Remington Reese's
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release, and in so doing, he convinced Judge Wormuth that Remington was 19, was the youngest of the group, so it was relative culpability. It didn't directly cast
blame on the rest of the defendants, but it indirectly singled Remington out as the young sheep of the group, and Judge Wormuth agreed and found that Remington was not a leader. That -- I guess, relative culpability has been effective, to some extent, so far, and I would argue that it could possibly be effective in the future, in terms of plea negotiations. terms of a trial strategy. There's a case -- I think it's Harjo versus Reynolds, where -- it's cited in my brief, but where the state public defender was representing four different co-defendants, and they told the judge, "Please, I mean, we -- one of our -- one of -- our viable defense here is, in closing argument, to argue relative culpability. We're conflicted from doing that, though, because to do so is going to implicitly cast blame on the other people we're representing." So the PD in that case knew they It could be effective in
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were being tugged in every single direction, and they couldn't zealously represent all four defendants. Relative culpability, if convictions are obtained, is going to be -- as Your Honor knows, in a --
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in a -- in a co-defendant case, sentencing -- under 18 USC 3553(A), a defense attorney would be, frankly, ineffective to not fully advocate why their client might be not as culpable or less to blame as the other defendants, in terms of asking for a lower sentence. relative culpability is a serious concern. There's going to be an actual conflict of interest at this point, and I don't know if it'll happen, but if a joint plea offer ever gets sent to the defendants, that's going to pose an actual conflict. There's a case, Thomas versus Foltz, that deals with this exact issue. It's a Sixth Circuit case cited in my So
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brief as well, 818 F2d 476. And the Court there said there was an -there was an actual conflict of interest, since there were competing interests at stake which Attorney Campbell could not pursue due to his joint representation and the all-or-nothing nature of the plea agreement. Because of Campbell's joint representation of all three defendants, he was effectively precluded from engaging in any separate plea negotiations on one of the defendant's behalf, which may have been detrimental to the interests of two of the other defendants.
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That could pose a very serious problem here. If a joint plea agreement were to go out, it may
be in Remington Reese's interest -- for instance, since he is 19 years old, since he does have a lot in front of him, it may be in his interest to go ahead and try to seek a great deal, but conflicted counsel needs to -would need to listen to all four different defendants. And Rick Reese, on the other hand, may -and that's why I referred to the interview Mr. Bregman gave on the radio. At some points, they -- he and
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the -- and the radio host referred to this case as a battleground in the fight for freedom and the battleground in the fight for individual rights, and if that kind of three-musketeer, all-for-one-one-for-all defense -- this is the standpoint in the battleground, that might not be in the defendants' best interests if a joint plea offer goes out. It's virtually impossible to counsel the various defendants on whether it's in their benefit or not to accept such a joint plea offer. At the plea
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stage as well, conflicted counsel would be unable to negotiate maybe a more beneficial plea by emphasizing one of their particular client's lesser culpability. And there's a Second Circuit case that deals with the problems of the -- of a plea offer, and
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Filed 11/14/11 Page 18 of 69 18 That's also cited in my
it's Sotelo, S-O-T-E-L-O.
brief, and that was a case in which the Second Circuit affirmed the trial judge's decision to disqualify counsel, and they essentially found that the defendants would not have been -- with conflicted counsel, they would not have been able to be effectively represented during the plea negotiation process. Again, another issue is, if this case ever goes to trial, how does conflicted counsel fully cross-examine a number of the Government's anticipated witnesses? And I'll just flag a couple of them.
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There's going to be an officer who took a postMiranda statement from Ryin Reese in which Ryin Reese made inculpatory statements, but also made some statements that seemed to exculpate his family members. So conflicted counsel would be representing Ryin and also would be representing, for instance, let's say, Remington, and they would be forbidden and precluded from effectively cross-examining that officer if -- in a conflict-free setting, someone who wasn't representing Ryin could emphasize, through that officer's testimony, how Ryin accepted full responsibility and indicated that he had no statements with any of his family members. If conflicted counsel
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were to do that with that witness, it would necessarily
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Filed 11/14/11 Page 19 of 69 19 It's a catch-22 in which That's one witness.
cast blame directly on Ryin.
there -- there's no way out of it.
Another witness is going to be an officer to whom Rick Reese bragged to -- and Your Honor may remember it from the detention hearing for Rick Reese -in which Rick Reese bragged about having met a cartel member in the presence of Terri and talked about how they could go down to Mexico to go shoot some guns, maybe a .50 caliber, and go drink some beer, I think. And, again, when that officer takes the stand, conflicted counsel is necessarily going to be handcuffed. They're necessarily going to have to pull
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punches that conflict-free counsel would other -otherwise be able to throw. Another example: Confidential witnesses
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are going to testify in this case, and they're going to testify about their dealings with various members of the family in 2010. For instance, a female confidential
witness would -- is essentially going to talk about interactions she had with Terri and how Terri had asked her, you know, "Listen, don't -- if you -- if you say anything to anybody about this, I'm going to deny it. We know that a gun was seized. this stuff." Conflicted counsel would be unable to We need to stop doing
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emphasize with that cooperating witness how, for instance, maybe on that date, Rick Reese wasn't even around that day, how maybe Remington Reese wasn't even around that day. They'd be -- they would be unable to
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emphasize those points. And granted, that might not necessarily be the best cross-examination. There may be other
cross-examinations that are also -- could be effective, but the point is -- and I think the Supreme Court has emphasized this in Holloway, in United States versus Wheat. The problem in a joint representation context is not necessarily what counsel does, that we can all see, but what they don't do, and a lot of those things of what they don't do or what they're not able to do are maybe not as visible to the naked eye. But I do guarantee that counsel's cross-examination, they would necessarily -- they would be -- let's talk about, like, a fork in the road. If
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they came to a fork in the road, conflict-free counsel would be able to choose: route? Do I want to take the right Conflicted
Do I want to take the left route?
counsel may necessarily need to choose the left route, just be- -- by virtue of the conflict that the right route poses, if that makes sense. It got a little
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confusing.
But the point is, they're necessarily going
to be limited. Another thing, what if one of the defendants wishes to take the stand? How does
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conflicted counsel even elicit a proper and thorough direct examination? Because even a direct examination
could start to step on the toes of the other defendants' interests. Let alone, how is that witness then fully And, again, cases
cross-examined by conflicted counsel? have run into this.
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And I'd also like to point the Court to a Fifth Circuit case that I cited, and it's United States versus Gharbi, G-H-A-R-B-I. It's 510 F3d 550. It's
page 17 of my brief, and it essentially affirmed the trial court's decision to disqualify conflicted counsel, because in that case, I believe it was a father-daughter co-defendants jointly represented. And the Court -- they said it loud and clear, and it was obvious. It was impossible to guess
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whether a joint defense team would pull punches on cross-examination with various witnesses. And
compounding these difficulties, the Fifth Circuit noted, was the close family relationship between jointly represented co-defendants which could create, quote, pressure, either real or perceived, end quote, on the
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direction of the co-defendants' possible testimony. Your Honor has already flagged it a little bit, but attorney's fees are another issue here. And
it's hard for me to ima- -- you know, Mr. Bregman said there may be some theoretical rule. theoretical rule. It's not a
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The cases have confronted these
issues and found that third-party payor arrangements pose their own host of issues. And as Your Honor knows, Remington and Ryin were deemed without any funds to hire counsel, and now, all of a sudden, they're being represented possibly, or at least they're seeking to be represented by two private Albuquerque law firms. The money comes from somewhere. How does that happen? I'm not pretending -I'm
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I'm not asking for a Nebbia hearing at this point.
not pretending to know where that money's coming from. But needless to say, I think the courts are generally concerned that while Mr. Bregman did articulate that he would be able to fully advocate for his client, he's going to -- if his scenario plays out, he's going to have four clients, so which one is he fully advocating for? And he's also going to be in a tough situation because the last thing they want to do is bite the hand that's feeding them, bite the hand that's
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paying for the representation.
where it's coming from, but I did reference that interview in which they do talk about a joint defense fund and that a lot of money is being put into this fund, maybe from various sources. And again -- but that goes to the conflict issue, because, you know, when they refer to this case as the battleground in the fight for freedom, it could be that Remington Reese doesn't want to be caught up in the middle of a battleground for a fight for freedom. It could be that he wants to seek the sweetest deal he could possibly get and get him out of this situation as fast as he could possibly get. Conflicted counsel is
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not going to be able to fully advise him and assist him in that -- in that regard. Another case I'd like to point the Court to -- and I cited it, but I didn't cite it for this reason in my brief, but it's -- I think it's pronounced "Migliacchio," M-I-G-L-I-A-C-C-H-I-O. F3d 1517, Tenth Circuit 1994. One of the important things, I think, of Migliacchio is the fact that it emphasizes -- the Tenth Circuit does -- how the Court has a continuing obligation to monitor conflicts that worsen as circumstances change, and as they worsen, they could Its cite is 34
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make any waivers that were -- that previously seen. Like, they might be all right. those waivers to be invalid. And because of this continuing obligation and because we're so early on, it seems like almost an unworkable concept. I mean, if we ended up getting to They couldn't force
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trial, depending on who wanted to testify, depending on how cross-examination went, we might almost have to have a conflict hearing about the waivers every 30 minutes, depending on how things played out. So, again, the courts recognize that just -- you know, sometimes there are just such actual conflicts that are going to occur down the road or such serious potential for conflicts, that it's just going to be unworkable. tell. And while defendants do have a right in their choice of counsel, they have a right to be fully and zealously represented, and the conflicts in this case prevent that right, and I think it's going to be an unworkable thing to monitor for the Court. THE COURT: anything to add? MR. SCHYDLOWER: On behalf of Terri Reese, Mr. Schydlower, do you have It's just going to be impossible to
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Your Honor, she has made the decision that Mr. Bregman
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is her lawyer.
You know, I'm -- who am I to get in the
way of her choice of counsel, and I'll honor that. The only thing that I'd like to point out to the Court after listening to the arguments today is that if you do find a conflict, Mr. Bregman has spoken with all four clients. So that said, if you find -- if
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you find a conflict as to one or more, there is a situation where if Mr. Bregman remains as Mr. Reese's counsel, he will have spoken -- he will have already spoken to all clients in this case, and I don't know if that's workable. But just on behalf of Mrs. Reese, she believes that Mr. Bregman is currently her lawyer. If
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the Court does find a conflict, we're sitting on a lot of discovery, and it would be hard, if you find a conflict later on in the case, for another counsel to jump back in and get up to speed on all that. all I've got to say. THE COURT: Thank you. So that's
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Mr. Hernandez? MR. HERNANDEZ: Your Honor, I have nothing
to add, other than I concur with Mr. Rubino and the Government's position. THE COURT: Mr. Bregman, let me have you
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MR. BREGMAN:
them state one specific conflict that would require me not to be able to represent the four of them. They
talked a lot about the possibilities, Your Honor, but I do know that there is something to be said for when the people's -- someone's right who's accused of a crime to choose the lawyer they want, and that's what's happening here, Your Honor. I don't believe there's any conflict after my discussions with them. I would not represent them if I
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I believed there was a conflict for one of them.
would not even entertain the idea of doing this, Your Honor. So I don't -- I can't -- it's hard for me to
respond to speculation on the part of the prosecution, other than to say that, Your Honor, if allowed, I believe there will not be a conflict, and we will represent a very vigorous defense to these allegations. And I would also say one thing about the radio show. He's using words from a radio host. I
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don't think it matters in this, but those were not necessarily my words specifically. They were -- so I
don't know that -- I just wanted to clarify the record for that. But, Your Honor, I do believe I can represent them, and I do believe that's their wishes.
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And I certainly believe that if at the end of the day there is a particular conflict right now that this Court can identify, then they're entitled to waive that conflict, if they'd like. THE COURT: questions: Well, okay. A couple of
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Do you acknowledge that there are some
conflicts that are irwaivable, if that's a word? MR. BREGMAN: THE COURT: I'm sorry? That they're not waivable; they
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are so significant, that they can't be waived? MR. BREGMAN: I don't know what you are
specifically referring to, Your Honor. THE COURT: I'm asking you as a general
theoretical question, is there a conflict that can't be waived because it's so egregious? MR. BREGMAN: I don't know. I guess, if a
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lawyer was -- a conflict between defendants, as we are in this -- in this instance, Your Honor. I don't know. I -THE COURT: Well, I think the cases tell me I don't know.
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that the answer to that question, theoretically, is yes. MR. BREGMAN: THE COURT: these proceedings. MR. BREGMAN: Yes. Okay. We are at a very early stage of
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THE COURT:
And while I may not be able to
identify a specific, actual conflict today, I can certainly identify today potential for conflict. is a -- this is a family unit and with potentially varying degrees of culpability. I don't know what's This
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there, but I certainly see the potential. Now, what do we do when we're 90 days or six months out, and all of those actual conflicts come to roost? Now, I can ask today a whole series of
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questions of these defendants about whether they waive any conflict, but waivers have to be knowing. I'm not
in any position, nor are you, to knowingly advise them about actual conflicts that may develop six months out. What do we do six months out when the train wrecks, when it jumps the tracks? MR. BREGMAN: Honor. That's the question, Your If the
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What do we do when the train wrecks?
train wrecks, we'd presume that this is -- this is all gone; in other words, there is no hope of resolving any conflicts. And I, Your Honor, from talking with them, do not believe that there is going to be a conflict, in that it's a unified defense. It's -- I don't see it. I
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don't know what the Government is planning on offering on plea deals, but when possible clients, in this
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instance, and one actual client all in unison say, "We did absolutely nothing wrong," and are very committed to that and also believe that no one else that's -- that are the other defendants did anything wrong, and they want me to represent them, I believe they should be entitled to be represented. THE COURT: Okay. I have the -- I have a
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problem with the notion of a unified defense, when the lawyer promoting that defense hasn't yet talked about the facts of the cases with the individuals. How do you
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know you're going to -- your defense is going to be unified? MR. BREGMAN: Well, Your Honor, in my
general discretion, I believe their defense is going to be unified with them. THE COURT: Theoretically, suppose one of
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the defendants has given a statement that's exculpatory of him, but -- inculpatory of him, exculpatory of the others. Excuse me. How does single counsel address
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that situation?
How do you deal with that? Your Honor, I don't -- well, I don't
MR. BREGMAN:
theoretically -- we're talking theoretically.
know that that's the case; that that happened in this instance. Theoretically, I think you deal with it like You determine what's best for your
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client's interest, and you move forward. And I can't tell you specifically. It
would depend on what exactly is said along those lines, and I don't -- I don't believe that that allegation or statement made by the Government right now is enough to disqualify us -- and I think he attributed it to Ryin -is enough to disqual- -- or say that we have a conflict and cannot represent him. At the same token, if you do
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believe that that is a possibility because of their specifics, then I would suggest to you that Mr. Bowles could represent one of them. THE COURT: Thank you.
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Mr. Rubino, anything else? MR. RUBINO: THE COURT: counsel? MR. SCHYDLOWER: THE COURT: No, Your Honor. No, sir. Anything else from any other
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Actually, Mr. Bowles, let me If I determine that
just inquire generally of you.
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there is a conflict that requires someone other than Mr. Bregman to represent one or more of the defendants -- you're an officer of the court. You've
appeared in front of me -- are you in a position to independently and aggressively represent the interests of those defendants, apart from any association with
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Mr. Bregman?
Because you've been postured in a couple
of ways this morning, as either co-counsel or independent counsel. You understand where that line is. Yes, sir, I do. And if I -- if I draw that line
MR. BOWLES: THE COURT:
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with you as independent counsel, you're capable of acting in that fashion? MR. BOWLES: you're right, Judge. Yes, I am, Your Honor, and
I was contacted by Mr. Bregman to
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either co-counsel, or if there was a need, to serve as independent counsel. I would understand the Court --
those rules, and I would respect those rules if the Court determined that. The only thing frankly -- and I know there's a lot of potential issues that I've heard that causes me some concern right now -- is the alleged statement by Ryin Reese. And I understand the
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Government's point on that, and they make some good points. I would just say, Your Honor -- and I appreciate you allowing me to speak. I think the Court,
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under Rule 44, if the Court wants to, should hear from them, those defendants, either in chambers or on the record. points. They've now heard very extensive arguments and
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And while you're right, Judge, we can't know what's going to happen six months down the road, at least you can make the record with these defendants today as to what they understand, what they understand the process to be, whether they want to pick Mr. Bregman, what they want to do. And if after making that record, this Court is still not satisfied, then I think you're absolutely correct. I think that's what Rule 44 talks about, that
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you can then take appropriate measures, including disqualifying somebody, including getting waivers, whatever the Court believes is appropriate. But I would
act in whatever role, if this Court wanted me to. THE COURT: course, wanted you to. Well, and the defendants, of I'm -Yes. I understand the need to
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MR. BOWLES: THE COURT:
inquire of the defendants about their desire to waive conflict, but my concern -- and I'll have you or any counsel inform my concern. How do I get a knowing
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waiver from them at -- I mean, we haven't even gotten out of the blocks yet. How do they in any way knowingly How do
waive conflict that nobody sees coming yet?
they -- Mr. Bregman went to talk to them, and he's satisfied there isn't any. Well, he hasn't even talked
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to them about the facts yet. I mean, we're way early in this process, and the potential is the only thing that's obvious to me at this point, and I think the potential is staggering, frankly, but that's all that's obvious to me. actual facts are not. The
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So how do I get a knowing waiver
from them under those circumstances? MR. BOWLES: Your Honor, I think that at
this point, it would be difficult to do so with Ryin Reese, just based on what I've heard. I think with
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respect to the other family members -- and this is a unique situation, where they are family members and where, in all likelihood, they will not want to point fingers at each other down the road. the past. They don't want to do that. I've seen that in Independent of a
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lawyer telling them, they just don't want to do that. I think this Court could inquire about some of the points the Government made, which are, do you understand there may be relative roles? You may get in
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a situation where somebody's culpability is more in a particular instance. Whether there was a sale made by
Remington or a sale made by Reese, do you understand the facts could point to different levels of culpability, and do you understand what that may mean? you could ask each of them. And I think
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Now, getting into the specific facts down the road, what might arise in discovery, you're absolutely correct, Judge, none of us can know those actual facts. But what I heard the Government speak in
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primarily this morning was generalities, except for the statement of Ryin Reese, and I think there is a problem with that statement. THE COURT: All right. Thank you.
And, Mr. Bregman, I'll hear from you briefly, trying to inform my concern about how I get a knowing waiver from these defendants at this early stage. MR. BREGMAN: I -- other than fully You
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advising them, I don't know how you get anything.
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can't have any assurances of what the discovery may hold in the future, Your Honor, or what may happen in the future, other than to make sure that they're going into this right now at this point with their eyes wide open, Your Honor. And I think that's what -- that's why -that's why the Rule 44 hearing is contemplated, Your Honor, just so that you can do that very thing. I mean,
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if there -- if there was going to be a rule that said nobody could ever represent two defendants or three defendants, whether or not they're family members or
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not, in a criminal case brought by the federal government, then there would be such a rule. specific rule that says that, Your Honor. THE COURT: Thank you. There's no
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Mr. Lichvarcik, my concern about a knowing
MR. LICHVARCIK:
Judge, I share the same
I mean, at this point, I -- and I'm sorry to
keep referring to the radio interview, but, you know, something that happened in that radio interview as well was Mr. Bregman -- and I don't -- I don't think that he did this intentionally, but he said -- essentially, cast the undercover operations as undercover agents and cooperators representing themselves as completely legitimate buyers. That's false.
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If anyone sat through the detention hearings, read the detention brief, or watched the videos, they would know that those undercover operations, the agents and the -- and the informants working with us, were not representing themselves as legitimate buyers. They were actually representing
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themselves, on one instance, as a buyer who is -- wanted to purchase about $20,000 worth of firearms for people in Mexico. And the reason I bring that up is because
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it is very early on.
I'm not sure that even purported
defense counsel has had an opportunity to digest the voluminous discovery in this case. If they haven't,
it's unlikely that they've been able to fully inform any clients about the potential pitfalls that I think exist in this case. And my last point on waiver is that regardless of -- it's a Second Circuit case. It's
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United States versus Schwartz, 283 F3d, I believe, 76. And the point of Schwartz is that there are conflicts that just can't be waived, and a lot of cases say this. And again, these -- you know, I know Mr. Bowles said that except for the statement regarding Ryin, that I'm speaking in generalities. speaking in generalities. I'm not
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There's more statements by
the defendants other than just that inculpatory statement. Like I said, at one point, Rick Reese bragged about having met a cartel member. We don't know
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if that's necessarily our confidential informant that he's bragging about, but the point that he's bragging about knowing cartel members, combined with the timing and what the undercover agents and confidential informants were telling him, it's a very inculpatory statement.
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It's going to be hard to cross-examine that officer by conflicted counsel, who's -- and I think that these -- all these issues aren't solved simply to allow Mr. Bowles to jump on as to Ryin. I think that no
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matter how it's hashed and sliced, there's going to be statements elicited during trial -- again, Terri Reese's statements are going to come out, that she told a confidential witness back in 2010 about how she's not supposed to be telling the witness anything, and she could get in trouble by law enforcement if she lets her know that she's alerting them about these firearms issues. These -- there's going to be instances where a cooperating witness went in first, and he primarily dealt with Ryin Reese, and effective, full cross-examination of him, again, would emphasize that maybe Rick wasn't there on the -- on those early instances. So there's going to be a lot of statements attributed specifically to each of the defendants that blame shifting or a relative culpability cross-examination, at a minimum, would be a viable option, and conflicted counsel would necessarily be handcuffed, and I think Schwartz talks to that, the Second Circuit case.
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And in that case, the lawyer didn't cross-examine one of the witnesses to the fullest because of a relationship, and the Second Circuit just found that that conflict was so severe, that it cannot be waived. And that's a 2002 Second Circuit case. So
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those are my concerns. THE COURT: Thank you.
I'd like the defendants to approach the lectern, please. Marshals, handle it however you'd
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like, in terms of keeping them separate, but... At the -- at the lectern right now are the four defendants, and they have all been present throughout the proceedings to this point. I assume that
they have all heard what's been said this morning. Am I correct in that assumption? DEFENDANT T. REESE: DEFENDANT RICK REESE: THE COURT: Yes. Yes, Your Honor.
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And as I ask this series of
questions, I'll need an individual response from each of you, and we'll start, just for purposes of convenience, with Ryin, who's on my left, and we'll go down the line. DEFENDANT RYAN REESE: THE COURT: have -Mr. Hernandez, do you have something? Yes, sir. Your Honor? Now, actually, I'll
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MR. HERNANDEZ: want me to approach? THE COURT:
No, but if at any point counsel
wants to -- wants to talk with their respective client, please just let me know, and I'll be glad to allow it. I want each of you to raise your right hands, please. (Defendants duly sworn.) THE COURT: Okay. Thank you.
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Now, my concern -- I'll begin my questioning by just making a few remarks. My concern is
that each of you is entitled to effective and zealous representation by an attorney of your particular interest. Do each of you understand that? DEFENDANT RYIN REESE: DEFENDANT RICK REESE: Yes, Your Honor. Yes, Your Honor. Yes, Your
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DEFENDANT REMINGTON REESE:
DEFENDANT T. REESE: THE COURT:
Yes, sir.
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Now, that means that -- well,
in any given situation, every defendant has potential liability and potential defenses, and it's likely, in a situation where there are four of you involved, that your -- the extent to which you are guilty or culpable -- that's the word we've been using this
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morning -- and the extent to which you have other defenses, those things are going to be different from each defendant to the next. Do you understand that? Yes, Your Honor. Yes, Your Honor. Yes, Your
DEFENDANT RYIN REESE: DEFENDANT RICK REESE:
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Yes, Your Honor.
And depending -- now, a moment
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ago, Mr. Bowles said, "Well, I see family situations all the time where nobody wants to point the finger at somebody else." I accept that that happens
occasionally, but I can tell you, too, I've seen family situations like this before where the father decides he wants to take all the responsibility and let the others be free of it. situation. But my point is, each of you has your own involvement in this situation and your own defenses, and a lawyer to which each of you is entitled, I've said, effective, zealous representation. A lawyer that's That's a potential outcome in any family
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representing Ryin's interests uniquely and apart from the rest may be able to do a job for you that he can't do if he's representing everyone. DEFENDANT RYIN REESE: Do you understand? Yes, Your Honor, I
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do. DEFENDANT RICK REESE: Yes, Your Honor. Yes, Your
DEFENDANT REMINGTON REESE: Honor. DEFENDANT T. REESE: THE COURT:
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Yes, sir.
I don't know anything about the
facts of this case yet, other than what has been talked about and we've read in the indictment itself, but I can bet that to the extent any of you is guilty or culpable, I'll bet the levels of culpability are different from one defendant to the other. I would -- I would just And at
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almost bet that that's the case, if anybody is. this point, you are presumed innocent.
You know --
everyone knows that you're presumed innocent, right? DEFENDANT RYIN REESE: been told, Your Honor. DEFENDANT RICK REESE: doesn't feel innocent. situation. Your Honor, it That's what I've
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My -- you know, from the
We're not being smarties, sir. DEFENDANT RYIN REESE: I'm not trying to be
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DEFENDANT RICK REESE:
But, Your Honor, I I appreciate
mean, it's -- it's a very serious thing.
you speaking to my eldest son about he's entitled to zealous representation, but I'll let him speak towards
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Filed 11/14/11 Page 42 of 69 42 And I believe all of my I appreciate that
his experiences with that.
family understands that, Your Honor. very much.
I also appreciate the fact that we are
innocent until proven guilty, regardless of what is said here, sir, you know, so -- so I think we understand what you're saying on that, sir. DEFENDANT REMINGTON REESE: Honor. DEFENDANT T. REESE: THE COURT: Yes. Yes, Your
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Well, when I asked that
question a moment ago, I got a slight smile from Ryin and some look of doubt from the dad, and I can tell you, in this court, in this country, you are presumed innocent until you're proven guilty beyond a reasonable doubt. That's a right that's zealously protected, and You can --
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it will always be protected in this court. DEFENDANT RYIN REESE: speak, Your Honor? THE COURT:
May I -- if I may
Yes, sir, but what I don't want
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to encourage is a dialogue right now. DEFENDANT RYIN REESE: THE COURT: No, sir. No, sir.
I mean, we're not going to talk
about constitutional theory -DEFENDANT RYIN REESE: THE COURT: No, sir.
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DEFENDANT RYIN REESE: in mind, sir. THE COURT:
I'll hear you. Your Honor, I wrote I've I had
DEFENDANT RYIN REESE:
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you a letter about -- about a month back, sir.
been told that you had been assigned to the case.
heard good things, like you just told me; that you are a fair and balanced judge, hear both sides. And from what I've heard today, from you asking questions of both the prosecution and the defense, we're -- you're trying to get the facts, make sure that everyone is rightly counseled, and I appreciate that, Your Honor. sir. That's all I have to say,
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I won't make a dialogue longer than that. THE COURT: My point in going forward this
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morning is to determine -- there's a rule that we have to go by, and the rule says that I have to promptly inquire about the propriety of joint representation, and that's what's been proposed. Mr. Bregman proposes to And I must
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represent all four of you jointly.
personally advise each of you of the right to the effective assistance of counsel. advised. You have been so
Including the right to be separately I've advised you of that as well. But the rule goes on. Unless there is good
represented.
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cause to believe that no conflict of interest is likely to arise -- and I don't think that's the situation here. I think the opposite is the situation here. I think a
conflict is likely to arise -- then I'm supposed to make sure to take appropriate measures to protect each defendant's right to counsel. That's what this
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question-and-answer thing is designed to do. You've heard me talk this morning about a knowing waiver. choosing. You have the right to counsel of your Do each of you
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Do you understand that?
understand that? DEFENDANT RYIN REESE: DEFENDANT RICK REESE: Yes, Your Honor. Yes, Your Honor. Yes, Judge. Yes, sir.
DEFENDANT REMINGTON REESE: DEFENDANT T. REESE: THE COURT:
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Yes, sir.
And, potentially, that right to
counsel of your own choice can run into this problem of conflicted counsel. That's why we're here. That's why
we're talking about it.
You can waive your right to
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conflicted counsel, but any waiver in this court has to be done on a knowing basis. My concern, as I've expressed to the lawyers already this morning and to you now, is, all I can see is the potential for conflict. any actual conflicts yet. I don't know of
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It's hard for me to get a
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knowing waiver of something that you don't know or even perceive at this point. That's my concern. But that's
where we're going with these questions. So the implications of one lawyer representing a family unit like this -- the implications are serious, and they involve serious conflicts. you've heard us talk about some of them: And
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different
levels of culpability, if at all; an interest on the part of one or more of you to protect others; ultimately, a liberty interest at sentencing, if that were ever to occur. The sentencing guidelines work such that those with the higher degrees of culpability get higher sentences, as opposed to those that don't. I have no
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way of knowing where we're going with this thing or whether that ever happens, but you have the right to be represented individually. And I'm concerned that that -- that that potential for conflict is going to erupt at some point into actual conflict. We're going to be well down the But
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road at that point, and we may have to start over. given the nature of joint representation, that might even be difficult at that point.
Do -- well, of course, you-all have just come from the detention centers, so I assume that
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neither -- none of you are under the influence of drugs or alcohol at this point. it fair? DEFENDANT RICK REESE: We never -- we never Am I fair to assume that? Is
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took drugs anyway, Your Honor, so -- but -DEFENDANT REMINGTON REESE: THE COURT: And no alcohol.
As you stand there today,
everybody is sober and clear headed, right? DEFENDANT RYIN REESE: DEFENDANT RICK REESE: Yes, Your Honor. Yes, Your Honor. Yes, Your
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Yes, sir. Now, do you
All right.
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understand that joint representation can affect the attorney's independent investigation in support of each defendant's case? DEFENDANT RYIN REESE: THE COURT: that? DEFENDANT RICK REESE: THE COURT: Please, Your Honor. I'm asking if Yes, Your Honor.
Would you like me to repeat
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I'll be glad to.
you understand that joint representation, one lawyer representing the four of you -DEFENDANT RICK REESE: Yes, sir.
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THE COURT:
-- can affect the attorney's
independent investigation in support of each of the discrete cases, each of the particular defendant's cases. Here's -- I see that there's still some question
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in your mind. DEFENDANT RICK REESE: THE COURT: Mr. Reese, by lawyer X -DEFENDANT RICK REESE: THE COURT: Yes, sir. Yes, Your Honor.
If you are represented,
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-- and your son by lawyer Y,
and there isn't any connection between lawyers X and Y, lawyer X's investigation of these facts is going to be designed to represent Ryin, and him alone, and lawyer X is going to be doing the same for you. DEFENDANT RICK REESE: THE COURT: Yes, sir.
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But where those cases came into
conflict, lawyer X and lawyer Y are certainly able to go at it full force, zealously on behalf of each of you and not pull any punches. you, maybe not so much. DEFENDANT RICK REESE: THE COURT: I understand. A lawyer that represents both of
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Do you understand? I understand that
DEFENDANT RICK REESE: concept, Your Honor, yes, sir. THE COURT: All right.
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Filed 11/14/11 Page 48 of 69 48 Yes, Your
DEFENDANT REMINGTON REESE: Honor. THE COURT: Ms. Reese?
Yes, sir. Do you understand
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All right.
that joint representation may inhibit or prevent independent plea negotiations? DEFENDANT REMINGTON REESE: Yes, Your
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DEFENDANT RICK REESE: that concept again, Your Honor. THE COURT:
I can understand
And these are just concepts,
DEFENDANT RICK REESE: THE COURT: apply to them yet. DEFENDANT RICK REESE: THE COURT:
Yes, sir.
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-- don't have any facts to
Yes, sir.
Particularly, in terms of
negotiating immunity or sentencing recommendations in exchange for testimony against the other defendants. you understand those concepts? DEFENDANT REMINGTON REESE: Honor. DEFENDANT T. REESE: DEFENDANT RICK REESE: Yes, Your Honor. Yes, sir. Yes, Your Do
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DEFENDANT RYIN REESE: down.) THE COURT:
Do you understand that the
attorney-client privilege might prevent the attorney from communicating information gathered from one defendant to the other? DEFENDANT RYIN REESE: DEFENDANT RICK REESE: Yes, Your Honor. Yes, Your Honor. Yes, Your
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Yes, Your Honor.
Lawyer X, representing Ryin
Reese, can't share everything that he knows and has learned in a confidential setting with lawyer Y, representing Mr. Reese, Sr. information. That's confidential
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There isn't any breaching of that
confidentiality across that wall with independent, unconflicted counsel. But when the same lawyer
represents you, there isn't any of that confidentiality between respective defendants. Do you understand? Yes, Your Honor. Yes, Your Honor. Yes, Your
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DEFENDANT REMINGTON REESE: Honor. DEFENDANT T. REESE:
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Yes, Your Honor.
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THE COURT:
Do you understand that joint
representation might affect the attorney's decision as to whether a jury trial should be waived by one or both or all defendants? DEFENDANT RYIN REESE: Could you please
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repeat the question, or please repeat that? THE COURT: I'm asking whether you
understand that joint representation might affect the attorney's decision as to whether a jury trial should be waived by one or more defendants. DEFENDANT RYIN REESE: DEFENDANT RICK REESE: Yes, Your Honor. Yes, Your Honor. Yes, Your
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Yes, Your Honor.
One defendant may say, "I want Another defendant
a jury to decide this case."
represented by another lawyer might think differently. They might want me to decide the case. But independent
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judgment is not something that conflicted counsel is famous for. Do you understand? DEFENDANT RYIN REESE: DEFENDANT RICK REESE: Yes, Your Honor. Yes, Your Honor. Yes, Your
DEFENDANT REMINGTON REESE: Honor.
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Filed 11/14/11 Page 51 of 69 51 Yes, Your Honor. When we actually
All right.
get to trial, there's a process of jury selection, and independent lawyers representing their respective defendants may differ about how they exercise challenges to who's going to sit as a juror and who's not. understand that? DEFENDANT RYIN REESE: DEFENDANT RICK REESE: Yes, Your Honor. Yes, Your Honor. Yes, Your Do you
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Yes, sir.
Conflicted counsel is -- you
know, you don't get to say, "I want that jury -- juror excused," and on the other hand, Mr. Reese, Sr., would say, "I want him to stay." Are we clear about that? Yes, Your Honor. Yes, Your Honor. (Moves head up
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DEFENDANT REMINGTON REESE: and down.) DEFENDANT T. REESE: THE COURT:
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Yes, sir.
Do you understand that joint
representation might prevent an attorney from challenging the admission of evidence which may be favorable to one of you, but not to the others?
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DEFENDANT REMINGTON REESE: Honor. DEFENDANT RYIN REESE: DEFENDANT RICK REESE: DEFENDANT T. REESE: THE COURT: concern. Okay.
Yes, Your Honor. Yes, Your Honor. Yes, sir.
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I'm going to express a
I want independent responses from all of you.
I've said that, and that's what you're giving me, except that I feel as though I'm getting a monolithic response. I feel like I'm just getting one response from each of you. Everybody nod your head, and that's the way it is,
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and I've got to know that Ryin Reese is not making his decisions this morning on the basis of what's best for Ryin Reese, but, rather, what the family's already agreed to. You understand? DEFENDANT RYIN REESE: do understand that. THE COURT: You understand my concern? I do understand your Yes, Your Honor, I
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DEFENDANT RYIN REESE: concern. THE COURT:
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Are the responses that I'm
getting from you this morning those that you consider individually in your best interest, or am I getting responses from you that reflect an agreement that the family's already made and we can get on through the
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questions more quickly? DEFENDANT RYIN REESE: No, Your Honor. I
answer every question like you -- under oath, to the best of my knowledge, for myself only, sir. THE COURT: from all of you? DEFENDANT RICK REESE: is from me, Your Honor. DEFENDANT REMINGTON REESE: DEFENDANT T. REESE: THE COURT: Yes, sir. Yes, Your Honor, it And is that what I'm getting
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Yes, sir, it is. Now, Remington -Yes, sir.
All right.
DEFENDANT REMINGTON REESE: THE COURT:
-- if at some point during
these questions your brother, Ryin, said yes, and your dad said yes, and the question comes to you, and you were thinking, you know, I'm not so sure about that. I'd really like to say no to that, would you feel family pressure to -DEFENDANT REMINGTON REESE: Your Honor. Not at all, I
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I've -- I've read over the indictment.
know the charges against me, and I know what I've done. I know working in the store, not even as a family member, just as a human being, around the people that are here, I know that they would not do anything to jeopardize themselves, and I would not do anything to
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jeopardize myself. my own, sir.
So that being said, my answers are
THE COURT:
All right.
And, Ms. Reese?
DEFENDANT T. REESE:
Yes, sir, I understand
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completely and I -- I've only met Mr. Bregman, you know, one time. I have heard of him from phone calls to my I don't know if you know, but we -- this
mother-in-law.
is the most we've talked and seen each other in two months, so we don't -- we haven't discussed this. I call my mother-in-law twice a week, you know, find out how she's doing. I have a visitor that
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comes -- a very good family friend that comes and sees me on Sundays, once a week, to make sure everything is okay. He brings me pictures of the guys, you know, from
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when they were babies on up, so that I can, you know, keep going. But we've discussed nothing. discussed nothing. there in Otero. THE COURT: addressing that concern. Do each of you understand the decision of whether any or none of you testify could be adversely affected by joint representation? DEFENDANT RYIN REESE: Yes, Your Honor, I All right. Thank you for I have
I'm, like, in a little cocoon out
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understand that. DEFENDANT RICK REESE: Honor. DEFENDANT REMINGTON REESE: DEFENDANT T. REESE: THE COURT: Yes, sir. Yes, sir, I do, Your
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Yes, sir, I do.
Do each of you understand that
the joint representation, the lawyer representing you jointly, his ability to fully cross-examine the Government's witnesses on the same tactical or strategic route might be inhibited? DEFENDANT RYIN REESE: Honor, I do. DEFENDANT RICK REESE: fact, Your Honor. DEFENDANT REMINGTON REESE: DEFENDANT T. REESE: please? THE COURT: Yes, ma'am. Yes, sir. I understand that Yes. Yes, Your
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Could you repeat that,
Do you understand that Mr. Bregman's ability, if he represents all of you jointly, to fully cross-examine the Government's witnesses on the same tactical or strategic route might be inhibited? DEFENDANT T. REESE: THE COURT: Yes, sir, I do.
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Do each of you understand that
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on either one of you, either one of -- pointing the finger at one of the other defendants during closing argument? DEFENDANT RYIN REESE: do understand that. DEFENDANT RICK REESE: THE COURT: weren't a family -And I cut you off. Mr. Remington Reese? Yes, sir. Yes, Your Honor. Yes, Your Honor, I
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Now, I can tell you, if this
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I needed -- I needed a response
to that question before I -DEFENDANT REMINGTON REESE: Oh, yes, Your
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THE COURT:
And -Yes, sir, I do.
If the four of you weren't a
family unit, you were simply four employees at a gun store in southern New Mexico somewhere, and you were represented by four different lawyers, I can tell you, we'd have four different versions of closing argument, because each one would say, "Not my defendant," and they'd be pointing the finger someplace else. That Do you
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won't happen if you have a joint representation. understand?
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There's no ability for the lawyer to say,
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"It's that one; it's not that one." DEFENDANT REMINGTON REESE: If I may, Your
Honor, speaking for myself, I see no blame to point at anyone, so I don't see any problem with that. THE COURT: A good response, a thoughtful What if a
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response, but my problem with it is this:
month from now, you do see something that you haven't seen up until now? What if a month from now, you are
advised of facts that you don't know now, but through discovery you learn, change that picture? DEFENDANT REMINGTON REESE: I believe
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everything charged against me and my family can be explained legitimately and effectively. DEFENDANT T. REESE: I agree with that. I don't believe
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there -- I don't believe that would be an issue at any point, but that's my opinion. THE COURT: Do you understand that if
convicted, the ability of the lawyer representing all of you to engage in posttrial negotiations with the Government concerning full disclosure by one defendant against the other would be prohibited? That's something
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that would -- it happens all the time, but it can't happen here if one lawyer represents the four of you. DEFENDANT RYIN REESE: Yes, Your Honor.
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DEFENDANT REMINGTON REESE: Honor. DEFENDANT RICK REESE: DEFENDANT T. REESE: THE COURT:
I understand, sir. Yes, sir.
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And do you understand that
during sentencing, joint representation would prohibit the attorney from arguing relative culpability? talked about this earlier. We
The more culpable, the
higher the sentence; less culpable, lower the sentence. If he's representing all of you together, how does he argue that one's more guilty than the other? understand? DEFENDANT RYIN REESE: yes. DEFENDANT RICK REESE: Honor. DEFENDANT REMINGTON REESE: DEFENDANT T. REESE: THE COURT: Yes, sir. I do, too, Your I understand that, Do you
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Yes, sir.
I am going to, before I
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conclude, strongly recommend that you not do this; that you not have the same lawyer, because I want you each to have the best possible independent, effective, zealous representation, and I don't think you can get it because of the potential for conflict. And this is no -- this is no sleight
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Filed 11/14/11 Page 59 of 69 59 That's not -- please don't
directed at Mr. Bregman. misunderstand.
That's just his situation representing I'm recommending against that. I
four family members.
hope you'll decide that you don't want to do that, but it's your call to make, unless I determine that the conflicts are so great, that they simply can't be waived, and I haven't made that determination yet. you understand? DEFENDANT RYIN REESE: understand. DEFENDANT RICK REESE: I understand, sir. Yes, Your Yes, sir, I Do
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Yes, sir.
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Because this waiver -- and
that's what it is that we're talking about, waiving your right to conflict-free counsel. to be knowing. I've indicated it has
Now, each of you is a native English
speaker, I presume, and all of you appear to be bright people. levels. But I'll direct the question to you first, Ryin. Have you understood what we've said today and I don't know anything about your education
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what this discussion is about? DEFENDANT RYIN REESE: Yes, sir, I have
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understood. THE COURT: Do you have any questions from We're
me, in terms -- we're not talking theory here. not talking constitutional, you know -DEFENDANT RYIN REESE: THE COURT:
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I understand, sir.
-- or what I had for breakfast.
What we're -- the questions from me are about waiver, about this process that we've gone through this morning. Do you have any concerns or questions that you haven't had an opportunity to express? DEFENDANT RYIN REESE: Your Honor,
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obviously, I am overwhelmed by what's -- I'm confronted with, whatnot. Speaking for myself, it's interesting to I
hear my words thrown around and used against me.
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appreciate that you've given me the opportunity to talk before you, because this is the most talking I've actually got to do to someone that actually matters, so I appreciate this. But, yes, I do understand what has
been -- what you have been going through for the past while, sir. THE COURT: All right. Thank you.
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And, Mr. Rick Reese? DEFENDANT RICK REESE: Yes, sir. Yes, sir,
I do, Your Honor, and I feel confident and comfortable with the -- with my attorney and his ability to defend
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me and -- and -- and speaking just on myself, I feel like he's a breath of fresh air. I had counsel that was appointed, and they did an okay job, but I can just simply state that when I was called one time for an attorney-client meeting, I had to wait 15 minutes, sir, while he helped two other nonEnglish speaking fellows. And I understand that there's a heavy workload for you, Your Honor, and the court, but I addressed his ability to defend me, because at my age, I'm -- I think you're familiar with the case, so I need -- I need -- I need somebody like Sam, somebody that's going to spend the time and -- and -- and really represent me in a forceful, professional manner, sir. And I appreciate everything that you've walked us through this morning, sir, and I understand that, Judge Brack. Thank you. THE COURT: Mr. Reese, I've told you more
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than once that you're certainly -- you have the right to aggressive, zealous representation -DEFENDANT RICK REESE: THE COURT: conflict free. DEFENDANT RICK REESE: THE COURT: Yes, sir. Yes, sir.
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-- by a good lawyer that's
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Filed 11/14/11 Page 62 of 69 62 Yes, you have.
DEFENDANT RICK REESE: THE COURT:
And, of course, you want that
for yourself, but you've got two sons that are flanking you as you speak to me this morning. DEFENDANT RICK REESE: THE COURT: Yes, sir.
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And as a father, do you want
the same for them that you've got for yourself, conflict, zealous representation? following your lead. DEFENDANT RICK REESE: THE COURT: I understand, sir. Because they're
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Are you comfortable -- having
heard everything you've heard, my having asked all the questions that I've asked, are you comfortable that Mr. Bregman can be the same thing for them that he can be for you? DEFENDANT RICK REESE: Honor. I believe so, Your
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I don't believe there's any perfect tool
available for our defense, but I do believe the way my sons and my wife and I have been through the justice system so far the last 60 days, he, for me, sir, and I believe my sons and my wife of 30-plus years, I believe he's -- he's -- he's what I have selected. And my sons have been reared to be able to take care of themselves and operate. They're their own
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men, sir, but they -- they're welcome to choose anybody
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Filed 11/14/11 Page 63 of 69 63 But Sam and his --
that they wish on that, Judge Brack.
and his firm have been a breath of fresh air for me, sir. Thank you. THE COURT: All right. Thank you.
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And, Remington? DEFENDANT REMINGTON REESE: not doubting anyone's ability. Your Honor, I'm
I'm sure that the public
defenders assigned to the case are very, very competent. However, it's my understanding that a paid attorney is dedicated to this one case, not bouncing around several cases. And that being said, on a case of this magnitude, I believe that it is important to have a person focused on only this case, not -- not bouncing back and forth with possibilities of other cases in the future or possibilities of cases right now, or anything like that. THE COURT: All right. Thank you. Yes, sir.
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Ms. Reese, are you prepared
now, having heard everything you've heard and answered the questions as you have -DEFENDANT T. REESE: THE COURT: Yes, sir.
-- to knowingly and
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intelligently and voluntarily waive any conflict that
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might exist here? DEFENDANT T. REESE: Yes, sir, I am. I
don't think that there will be a conflict, just -- like I said, I've read through the indictment, as have the boys, and I smile because this is the most I've heard their voices in two months, and it's wonderful. But -- and I know that the court-appointed attorneys are fantastic. have such a caseload. They're all great, but they
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As for my own, Mr. Schydlower has
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been great, but I've heard more from him and gotten more mail from him since I've gotten these new attorneys than I did before. And I realize I'm not his only case, and he has -- you know, he had other stuff that was very important to go on, but I've been sitting there in limbo now for 60 days, and I feel that we're finally getting somewhere. So, yes, sir, I do. THE COURT: your seats, please. In addition to the questioning that I've done of the defendants this morning, I'm going to ask that counsel for the defense -- for the defendants, Mr. Rubino, Mr. Schydlower, Mr. Hernandez, and Mr. Bregman, jointly prepare a written waiver of counsel, of conflict-free counsel, that I would like Thank you all. You can take
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presented to each of the defendants, and I don't think it needs to be presented with any further explanation. These are bright people, and they have been involved in the hearing this morning now for an hour and a half, so -- but before I will make my final determination about whether to allow the joint representation, I'd want a written waiver from each of them in the file as well that -- for the -- for the defendants themselves. What you'll see in the written waiver will look a lot like -- seem a lot like what you've heard from me this morning. The questions will likely be
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significantly the same, but that will give you an opportunity to reflect on your responses, even beyond what we've been able to do here this morning. And after
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I have those, I will make a determination about whether to allow the joint representation or not. Is there anything else this morning? MR. LICHVARCIK: Your Honor. MR. HERNANDEZ: MR. RUBINO: No, sir. Not from the Government,
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Nothing further, Your Honor. Nothing further, Your
MR. SCHYDLOWER: Honor. MR. BREGMAN:
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May I just bring a couple of
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12:06:27
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matters to the Court's attention? THE COURT: MR. BREGMAN: THE COURT: Yes, sir. Thank you, Your Honor. Hang on a moment.
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And the waivers that we've just talked about I'd like just mailed to the office, and I'll file them when I get them. MR. BREGMAN: Yes, Your Honor.
I just wanted to address some conditions right now, as far as the incarceration of a couple of the Reeses is concerned, because I think it deserves your attention. I understand that Ryin has been subject
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to bullying and actual physical violence while in prison at this time -- or in jail at this time, Your Honor, at the detention center. I'm concerned about that because
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it's happened multiple times, and so I would ask that -or just put on the record that, perhaps, the U.S. Marshals that are here can do something about that, as far as making sure that he's -- he fairs better. I also know that Remington, I believe, needs some new glasses, and he's continuing to lose weight while being incarcerated, and the jail doesn't seem to want to feed him more than just whatever amount they give out, and he does need some more nutrition. So
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those are the two issues that I wanted to bring to your
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12:07:36
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attention right now. And, finally, just from my observing the detention centers, it's a little bit different down south here, Your Honor. I have not been able to meet
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without a phone that also has the -- with anybody, including Mr. Rick Reese right now, without a phone that says, "This phone is monitored." And I would -- I just want to know -- I'm sure the Court's run into this before, but there's four separate detention centers at this point, and I know for sure three of them have indicated that I'm not allowed to meet in person. As you know, there's a tremendous
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amount of discovery here, and I'd like the ability to meet in person with my client or clients, depending on your decision here. And if so, Your Honor, can I submit an order for your consideration to allow me to meet in person? Because the detention centers and jails have
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just absolutely said that it's not happening without being on the phone or without a plate-glass window, and, obviously, with the type of discovery we're talking about, there's a lot of discussions that need to take place one on one with the clients, Your Honor. THE COURT: MR. BREGMAN: Thank you. Thank you, Your Honor.
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12:08:44
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THE COURT: order that you propose. counsel for the -MR. BREGMAN: THE COURT:
I will be glad to consider any Of course, you'll run it by
Of course. -- Government first. And
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insofar as any concerns about physical safety, the marshals have heard those expressed this morning, and I'll ask that they just be brought to the attention of the individual detention centers, because that, of course, is unacceptable. So anything else this morning? MR. LICHVARCIK: MR. RUBINO: THE COURT: No, Your Honor.
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No, sir. Thanks very much. Could I get
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those waivers, let's say, within ten days, please? MR. BREGMAN: Yes, Your Honor.
(Proceedings concluded at 12:09 p.m.)
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Case 2:11-cr-02294-RB Document 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Filed 11/14/11 Page 69 of 69 69
REPORTER'S CERTIFICATE THE STATE OF NEW MEXICO ) COUNTY OF DONA ANA ) I, Ginger G. Zachary, Registered Professional Reporter, Certified Realtime Reporter, and Certified Shorthand Reporter in and for the State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by Judge presiding to be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. WITNESS MY OFFICIAL HAND this 7th day of November, 2011.
/s/ Ginger G. Zachary Ginger G. Zachary, RPR, CRR, CSR Texas #5710 Expiration Date: 12/31/11 Firm Registration #420 221 North Kansas, Suite 1201 El Paso, Texas 79901 (915) 544-1515
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Case 2:11-cr-02294-RB Document 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR DEFENDANT RYIN REESE: FOR DEFENDANT TERRI REESE: FOR DEFENDANT RICK REESE:

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Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription.

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This is the United States of

They are represented by

Your Honor, Santiago

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Filed 11/14/11 Page 4 of 69 4 Your Honor, that's Brenda

MR. LICHVARCIK: Solis.

I've read the response thereto from

representation gives rise to conflict of interest.

ain't my first rodeo.

Case 2:11-cr-02294-RB Document 74 1 2 3 4

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Mr. Bregman, let me -- let me find You indicated that you

Here's your response.

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representing them. We were asked by the mother of Rick Reese

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Filed 11/14/11 Page 9 of 69 9 That's correct.

MR. BREGMAN: THE COURT:

And -- but the reason

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Judge Wormuth thought, though,

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If I'm representing them, I'm doing my job

I didn't -- that's not something I

have signed a retainer agreement. Honor. THE COURT:

So you have agreed to represent

Yes, Your Honor.

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But at least with regard to the

about their ability to waive any conflict?

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Filed 11/14/11 Page 13 of 69 13 I asked them if they -- if

absolutely, yes, Your Honor.

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Filed 11/14/11 Page 14 of 69 14 My concern here is that it

MR. LICHVARCIK: is very early on.

There are -- I think, pretty much

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Filed 11/14/11 Page 18 of 69 18 That's also cited in my

it's Sotelo, S-O-T-E-L-O.

were to do that with that witness, it would necessarily

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