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United States v. Basham

United States District Court, C.D. Illinois, Urbana Division

January 11, 2013

UNITED STATES of America, Plaintiff,
v.
Melissa S. BASHAM, Defendant.

Page 788

Elham M. Peirson, Patricia A. McInerney, U.S. Atty., Urbana, IL, for Plaintiff.

Page 789

John C. Taylor, Lawrence S. Beaumont, Federal Public Defender, Urbana, IL, for Defendant.

OPINION

MICHAEL P. McCUSKEY, District Judge.

An attorney may not drop one client like a " hot potato" in order to avoid a conflict with another, more remunerative client.[1]

Suppose a criminal defense attorney represents an individual accused of a heinous crime. The attorney negotiates the plea bargain in an exemplary fashion, and so the defendant receives 19 1/2 years in prison rather than life. Several months later, the defendant (now prisoner) hears over the prison public address system that he has a legal phone call. Thinking that it is his attorney keeping tabs on him, perhaps with a plan to get him out sooner, he tolerates the catcalls and threats while running the gantlet and picks up the phone. Imagine his surprise when he discovers that not only is the call from an FBI agent, but an FBI agent asking how he feels about the fact that his attorney of one-and-a-half years is no longer his attorney, and instead is representing his co-defendant.

Surely a mistake has been made. Surely, the person with whom he had shared his confidences and confessions (especially regarding his transgression)— that wouldn't be the person now working zealously to get his co-defendant off the hook, now, would it? If so, when the government calls him to testify against his co-defendant (since they were both involved in the same crime), wouldn't his now-former attorney stand ready to cross-examine him? And even if the attorney delegated the cross to someone else, or if the co-defendant were to take a plea and avoid trial, is it really conceivable that the attorney could incontrovertibly, indelibly, and unerringly eradicate from his memory any and all secret and indispensable details that his now-former client had communicated to him in confidence?

The successive representation of two co-defendants suggests the very essence of a conflict of interest. If an attorney is loyal to his former client, he cannot single-mindedly pursue the goals of his new client. And if he zealously defends his new client, would he not, even assuming that he had his former client's best interests at heart, unconsciously rely on at least something that he learned from the former representation?

This case is before the court on the Government's Motion to Disqualify Defendant's counsel of choice, Lawrence S. Beaumont, due to an alleged conflict of interest with a former client. The court has reviewed the transcript of the evidentiary hearing and the briefs of both parties. Following that careful review, the court now GRANTS the Government's motion to disqualify Mr. Beaumont (# 58).

Background[2]

On May 5, 2010, law enforcement officers executed a search warrant on Defendant Mark Begley's residence. A DVD-R was seized that contained a pornographic video involving a minor female victim N.L. (born February 1988), engaging in a sex act with Defendant Melissa Basham. During the video, Begley is heard operating the camera and instructing the minor female and Basham to perform certain sex acts. In an interview, N.L. stated to law enforcement officers that the video was shot sometime in 2003, which would have

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made her around 15 years old. In a different interview, Basham admits that she is the adult female in the video and that she thought the video was shot in 2004, which would have made N.L. around 16 years old. Basham admits to having performed the sex acts with N.L.

In addition to the DVD-R, law enforcement officers seized a computer from Begley's residence containing pornographic photographs of a second minor female, J.R., born January 1990. In an interview, J.R. states that Begley had taken those photographs, and that she had been between 16 and 17 years old at that time.

On October 18, 2010, the Government filed a complaint against Mark Begley, charging two counts of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e) (Counts 1 and 2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 3). The same day, Mr. Beaumont entered his appearance for Begley. The next day Begley and Basham were indicted for the sexual exploitation of a child. Basham was charged with one count of producing child pornography (Count 1). A month later, Federal Public Defender Mr. John Taylor entered his appearance for Basham.

On February 25, 2011, Melissa Ann Matuzak entered her appearance for Begley. On December 15, 2011, Begley entered into an agreement with the Government in which he would plead guilty to the two § 2251 production counts (Counts 1 and 2) and the Government would drop the § 2252 possession count (Count 3). On April 2, 2012, this court entered judgment against Begley and sentenced him to a term of 235 months on each of Counts 1 and 2, to run concurrently.

On June 19, 2012, Mr. Beaumont entered his appearance for Basham and Mr. Taylor withdrew. On June 22, 2012, the Government filed the present Motion to Disqualify Counsel (# 58). On June 26, 2012, Basham filed her response. On August 2, 2012, Begley filed, through Ms. Matuzak, an Emergency Motion to Stop Transfer from Federal Custody for Live Testimony. In it, Matuzak argues that neither a written order nor a signed writ was issued by this court directing the Bureau of Prisons to transfer Begley from his location of incarceration in Pennsylvania back to the court in order to testify in person. Instead, Matuzak asserts that the Government filed an internal memo to procure Begley's transfer. Notably, this is the first filing on record by Matuzak on Begley's behalf. On the same day, this court granted that motion and instead allowed Begley to appear by telephone.

On August 30, 2012, this court held an evidentiary hearing. Present at that hearing were: the Government, represented by Ms. Peirson; Basham, who appeared in person and with counsel Mr. Beaumont; Begley, by telephone, who was represented by Ms. Matuzak; Mr. Taylor; and Cheri Proctor, Mr. Taylor's office assistant and legal secretary. Testimony was heard from Begley, Basham, Proctor, Taylor, Peirson, and Matuzak.

On November 1, 2012, the Government filed its memorandum with proposed findings of fact and conclusions of law. A response was filed by Basham on December 17, 2012.

Findings of Fact

1. Begley had initially retained Mr. Beaumont in early May 2010 regarding unrelated state court charges (# 66, Transcript, 16 (hereinafter " Tr." )). Mr. Beaumont's ongoing representation continued in the present case when he appeared as the attorney of record at Begley's initial appearance on October 18, 2010(# 4). Mr. Beaumont signed Begley's plea agreement on December 14, 2011;

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there was no signature for Ms. Matuzak although her name was typed on the form (# 34). Mr. Beaumont was the only attorney present during Begley's sentencing hearing on March 30, 2012 (Minute entry of March 30, 2012; Tr. 6-7).
2. Sometime between June 19, 2012 and June 22, 2012, FBI Special Agent Ted Weber, who had participated in the original investigation, contacted Begley in prison with several questions regarding Begley's understanding of the extent of the relationship between Mr. Beaumont and himself. (# 58 ¶¶ 12-13).
3. Begley testified that he was not aware that Mr. Beaumont had treated the relationship as terminated until his conversation with Agent Weber. (Tr. 18).
4. Begley testified that Mr. Beaumont not only had not contacted him since the sentencing hearing, (Tr. 19), but also had not explicitly informed him that he was no longer acting as his attorney (Tr. 9).
5. Begley testified that when he received the phone call from Agent Weber, he was still under the impression that Mr. Beaumont was handling his representation. Begley testified as follows:
THE COURT: Who did you think your attorney was at that time [when you received the call from Agent Weber]?
DEFENDANT BEGLEY: It wasn't, it wasn't a thought. I know it was Larry Beaumont. Larry Beaumont was my attorney, always been, for over the last year and a half—
THE COURT: Okay.
DEFENDANT BEGLEY:— and has been from the ...

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