SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on the Government's Notice of Conflict of Interest (d/e 28). Also before the Court is Defendants' Joint Motion for Severance (d/e 33). Defense counsel is DISQUALIFIED from representing Defendants because an actual conflict has arisen or a serious potential for conflict exists. Further, Defendants' Joint Motion for Severance is DENIED because the Government will eliminate use of the word "we" or reference to a co-defendant when introducing either of Defendants' statements at trial.
I. FACTUAL BACKGROUND
Mr. Sanchez and his nephew Mr. Gonzales have been indicted on charges of conspiring to manufacture and distribute marijuana, possession with intent to distribute marijuana, unlawful possession of a firearm by an illegal alien, and possession of a firearm in furtherance of a drug-trafficking crime. Mr. Sanchez has also been charged with illegal re-entry into the United States following deportation. As of the hearing on July 1, 2013, both Defendants were represented by Michael Thompson and Beau Brindley, attorneys with the Law Offices of Beau Brindley, Chicago, Illinois.
On September 22, 2011, agents from Kankakee County's Major Crimes Task Force recovered 2, 253 cannabis plants from an agricultural property located at 7752 South 17000 East Road, St. Anne, Illinois. Small yellow plastic flowers had been tied to many of the plants to prevent aerial discovery of the plants. The agents also recovered a shotgun from a shed on the property. The shed was located approximately 75 yards away from the cannabis plants. Agents arrested Mr. Sanchez and Mr. Gonzales, who had been standing near the shed when agents arrived at the property. Defendants were then transported to the Kankakee Sheriff's Department and separately interrogated. The Police video recorded both interrogations.
Initially, Mr. Sanchez denied involvement with the marijuana growing on the property. After further questioning, Mr. Sanchez stated that he and Mr. Gonzales had cultivated the marijuana plants for approximately 4 to 5 months. Mr. Sanchez also stated that the shotgun found on the property was used as protection for the marijuana crop and that he had carried the shotgun when he was in the cannabis field. Further, Mr. Sanchez stated that he and Mr. Gonzales were taking care of the crop for someone else and receiving payments for upkeep. Mr. Sanchez said that he and Mr. Gonzales planned to receive about $10, 000.00 once they had harvested and packaged the crop. He stated that he first noticed the yellow flowers tied to the cannabis plants about one month prior to his arrest.
Mr. Gonzales stated in his interrogation that he and Mr. Sanchez planted the marijuana plants together and had cultivated them for about 4-5 months. Mr. Gonzales also acknowledged that he and Mr. Sanchez had tied the yellow flowers to the plants about one month after planting the cannabis. Mr. Gonzales stated that he and Mr. Sanchez used the shotgun found on the premises when either worked near the marijuana. Mr. Gonzales provided further details about his and Mr. Sanchez's plans to cultivate, harvest, and distribute the marijuana crop. Mr. Gonzales said that he planned to make at least $150, 000 by selling the cannabis.
II. PROCEDURAL BACKGROUND
Originally, Magistrate Judge David G. Bernthal found that Defendants could not afford an attorney and appointed Assistant Federal Public Defender Mr. John Taylor to serve as counsel for Mr. Sanchez. Mr. Peter Henderson, an Assistant Federal Public Defender, also entered an appearance on behalf of Mr. Sanchez. Bruce Ratcliffe, a Criminal Justice Act attorney in Champaign, Illinois, was appointed by Magistrate Judge Bernthal to represent Mr. Gonzales.
On February 15, 2013, Michael J. Thompson filed a Motion to Substitute Attorney on behalf of Defendants and asked that he and Mr. Beau Brindley, both attorneys at the Law Offices of Beau Brindley, be substituted as counsel for Defendants. See d/e 23, 24. Shortly thereafter, Peter Henderson and Bruce Ratcliffe filed motions to withdraw as counsel. See d/e 25, 27. Since then, Mr. Thompson and Mr. Brindley have served as counsel of record for Defendants.
Following the substitution of attorneys, Elly Pierson, the Assistant United States Attorney prosecuting this case, filed a Notice of Conflict of Interest and Request for a Hearing (d/e 28). The notice identified the potential conflicts of representing both Defendants and argued that Mr. Brindely's Office should be precluded from representing both Defendants based upon those conflicts.
Mr. Thompson filed a Response to the Government's Notice arguing that he could represent Defendants without any conflict (d/e 29). He argued further that a conflict could arise, but only if one Defendant cooperated with the Government and decided to testify against the other Defendant at a joint trial. Mr. Thompson told the Court that neither Defendant planned to cooperate so that type of conflict would not arise in this case.
On May 5, 2013, Judge McCuskey entered an Opinion that found the Government had not provided any facts suggesting there would be an actual conflict if Beau Brindley's Office represented Defendants (d/e 30). The Opinion also stated that Rule 44(c) of the Federal Rules of Criminal Procedure requires a court to personally advise defendants of the right to effective assistance of counsel, including separate representation.
To fulfill Rule 44(c)'s mandate, Judge McCuskey scheduled and held a hearing on May 3, 2013. At that hearing, Judge McCuskey set an Evidentiary Hearing for May 7, 2013 and arranged ...