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United States v. Boulyaphonh

United States District Court, N.D. Texas, Dallas Division

January 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TAMMY BOULYAPHONH and KHAMLOR BOULYAPHONH, Defendants.

          MEMORANDUM OPINION ORDER

          JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Motion for Reconsideration of Magistrate Judge's Order Regarding Conflict. Doc. 33. In it, Defendants Tammy and Khamlor Boulyaphonh move this Court to vacate Magistrate Judge Paul Stickney's Order disqualifying their attorney, John Teakell (Teakell), from representing them in this case due to a conflict of interest. After a hearing held on December 11, 2017, the Court DENIES the Defendants' motion.

         I.

         By way of background, [1] in August 2017, Defendants Tammy Boulyaphonh (Tammy) and Khamlor Boulyaphonh (Khamlor), husband and wife, were charged by indictment with conspiracy to defraud the United States (18 U.S.C. § 371) and making false statements on income tax returns (26 U.S.C. § 7206(1)). At the time of their indictment, attorney Teakell had been jointly representing the Boulyaphonhs for approximately two years in connection with a federal healthcare fraud investigation.[2] During this roughly two-year period leading up to the tax fraud indictment, Teakell communicated with the Boulyaphonhs as well as with federal prosecutors and investigators regarding the healthcare fraud investigation. Doc. 25, Govt's Mot. for Inquiry Into Joint Rep., 2.

         After their August 2017 tax fraud indictment, the Boulyaphonhs hired Teakell to represent Tammy. Doc. 35, Garcia Hr'g Tr., at 12.[3] Shortly thereafter, the Boulyaphonhs asked Teakell to represent both of them. Id. Teakell agreed and, as the Boulyaphonhs' shared counsel, discussed the facts of the case with them as well as their defenses to the charges. Id. at 12-13. On September 6, 2017, at the couple's initial appearance on the tax fraud indictment, Teakell appeared on behalf of both Tammy and Khamlor. See Docs. 6, 7, 10. After a discussion between the presiding magistrate judge and Khamlor about Teakell's potential conflict of interest in jointly representing the couple, the magistrate judge appointed an attorney from the Federal Public Defender's office (FPD) to represent Khamlor.[4] Doc. 10. Teakell remained on the case as Tammy's retained counsel. Doc. 7.

         On September 28, 2017, Teakell moved to substitute as Khamlor's counsel. Doc. 22. This Court initially granted the motion to substitute, effectively clearing the way for Teakell to represent both Tammy and Khamlor. Doc. 24. But the Government, noting its concern about Teakell's potential conflict of interest, filed an unopposed motion for a Garcia hearing. Doc. 25, Govt's Mot. for Inquiry Into Joint Rep. The Court, in turn, vacated its order granting Teakell's motion to substitute as counsel for Khamlor and referred the motion to substitute counsel as well as the Government's motion for a Garcia hearing to Magistrate Judge Stickney for resolution pursuant to 28 U.S.C. § 636(b)(1)(A). Docs. 26, 29. After the referral, but before Judge Stickney's hearing, Teakell responded to the Government's motion for a Garcia hearing, arguing, inter alia, that both Boulyaphonhs had already waived all conflicts as to his representation. Doc. 28, Defs.' Resp. to Govt's. Mot., 2. In support, Teakell attached purported waivers by each Defendant in the form of “letter agreements.” Docs. 28-1, 28-2.

         On October 19, 2017, Magistrate Judge Stickney held the Garcia hearing. During the hearing, under questioning by the court, Tammy waived Teakell's conflict. Doc. 35, Garcia Hr'g Tr., 9. But Khamlor, who was being assisted by a Laotian interpreter and speaking in broken English, appeared confused and expressed uncertainty about whether to waive the conflict. Id. at 9-12. When asked by Magistrate Judge Stickney whether he “wish[ed] to waive any conflicts of interest, ” Khamlor responded: “I cannot make my decision and I don't know what to do.” Id. at 10. After some back and forth, Magistrate Judge Stickney observed “[w]hat I hear today is that Mr. Boulyaphonh is saying that he doesn't waive the conflicts. He's following my admonishment and he says now that if I think that he should have separate counsel, that that's what he wants to do.” Id. at 13. To which Teakell responded, “[w]ell, I'm hearing that too, in some of the responses.” Id. Teakell then reminded the court that he had submitted signed waivers by the Boulyaphonhs when he filed his response to the Government's motion for a Garcia hearing. Id. at 12-13. And Magistrate Judge Stickney responded: “I did see . . .[the waivers].” Id. at 12. Next, Magistrate Judge Stickney asked Teakell if he had talked to both of the Boulyaphonhs about the facts of the tax-fraud case to which Teakell responded “I have, Your Honor.” Id. at 13. Once Judge Stickney determined that Teakell had spoken to both of the Boulyaphonhs about the facts of the tax-fraud case, he told Teakell that he was “off both the cases” because Teakell had “talked to both of them and . . . [had] information on both cases.” Id.

         Following the Garcia hearing, on November 2, 2017, Magistrate Judge Stickney entered an order disqualifying Teakell from representing Tammy and Khamlor either individually or jointly, due to a conflict of interest. Doc. 32, Order 1-2. His order stated, in relevant part:

The Court questioned both Mr. and Mrs. Boulyaphonh about the potential of a conflict of interest by their attorney, Mr. Teakell, and advised each of the harms and dangers of being represented by an attorney who may have a potential conflict of interest. . . . After inquiry of the Defendants, and after considering the arguments of counsel, this Court finds there is a conflict of interest present that would cause Mr. Teakell to be unable to represent either Mr. Khamlor Boulyaphonh and Ms. Tammy Boulyaphonh. While [Tammy] waived any conflict of interest, Mr. Boulyaphonh did not make such a waiver. Without such a waiver, Mr. Teakell will not be able to properly provide conflict free representation . . . . As a result this Court finds a conflict of interest does exist for Mr. Teakell to represent either Mr. or Mrs. Boulyaphonh as he has now had conversations with them both. In an abundance of caution and to preserve each of the defendants' right to be represented by conflict free representation this Court finds that new counsel should be retained or appointed by both defendants in this matter.

Doc. 32, Order 1-2.

         Teakell now moves the Court to reconsider Magistrate Judge Stickney's order. Doc. 33; Defs.' Mot. for Recons. of Mag. J.'s Order. The Court held a hearing on Teakell's motion for reconsideration on December 11, 2017.

         II.

         A district court judge may reconsider a magistrate judge's pretrial order if it is “clearly erroneous or contrary to law.” 28 U.S.C.. § 636(b)(1)(A). Under this highly deferential standard, the district court judge must affirm the magistrate judge's decision unless “on the entire evidence [the district court] is left with a definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). In practice, this review standard has been explained as follows:

The clearly erroneous standard applies to the factual components of the magistrate judge's decision. The district court may not disturb a factual finding of the magistrate judge unless, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. If a magistrate judge's account of the evidence is plausible in light of the record viewed in its entirety, a district judge may not reverse it. The legal conclusions of the magistrate judge are reviewable de novo, and the district judge reverses if the magistrate judge erred in some respect in his legal conclusions. The abuse of discretion ...

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