Mark Heino v. USA CV-97-201-B 08/20/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark Heino

v. Civil No. 97-201-B

United States of America

O R D E R

Mark Heino attacks his conviction through a motion filed

pursuant to

(West Supp. 1997). Attorney Brian

McMenimen originally represented Heino. On October 30, 1992, the

government filed a motion attempting to have Attorney McMenimen

disgualified on the ground that "there is a conflict between the

interests of McMenimen and Underhill [counsel for one of Heine's

co-defendants] in protecting their professional reputations and

their obligation zealously to defend the interests of Mark Heino

and Sheehan [the co-defendant represented by Underhill]."

The government based its conflict of interest claim on tape

recordings of several conversations involving Steven Sek (one of

Heine's co-conspirators), Heino, Sheehan, McMenimen, and Underhill. Sek secretly made the recordings while he was acting

as a government informant. According to the government, neither

McMenimen nor Underhill could remain as trial counsel because the

government planned to use the tapes during the trial even though

they implicated both lawyers in unethical and/or criminal

conduct.

Before a hearing could be held on the motion to disgualify.

Attorney Peter Lahey entered an appearance as Heine's co-counsel.

At the same time, Lahey informed the court that Heino wished to

plead guilty. Conseguently, a guilty plea hearing was held

before Judge DiClerico on November 20, 1992.

Judge DiClerico began the hearing by extensively guestioning

Heino, McMenimen and Lahey on the issues raised by the

government's motion to disgualify. Judge DiClerico established

during his guestioning that: (1) Heino was fully aware of the

issues raised by the motion to disgualify but nevertheless wished

to proceed with the guilty plea hearing with Lahey acting as his

counsel; (2) McMenimen played no part in Heino's decision to

plead guilty; and (3) Lahey was uninvolved in the conduct that

gave rise to the government's motion to disgualify. After

ascertaining this information. Judge DiClerico concluded that

The court is satisfied that Mr. Heino is receiving independent legal advice from Mr. Lahey and his

2 interests in this matter are adequately and competently being represented by Mr. Lahey.

Accordingly, Judge DiClerico took Heine's guilty plea with Lahey

acting as his counsel. The record of the guilty plea hearing

amply supports Judge DiClerico's conclusion that Heino knowingly,

voluntarily, and intelligently decided to plead guilty with

Attorney Lahey acting as his counsel.

Heine's sentencing hearing was continued at his request

because he was attempting to earn a substantial assistance

departure. On June 21, 1993, however, Heino filed a motion to

withdraw his guilty plea arguing that the government had breached

the plea agreement. Four days later, Heino filed a letter with

the court asking that a new attorney be appointed to represent

him.

I held a hearing on Heino's motion to withdraw his guilty

plea and his request for new counsel on June 29, 1993. Instead

of ruling on the motion to withdraw, I granted Heine's request to

appoint new counsel because I concluded that he had lost

confidence in Lahey. Because I determined that Heino should

receive a new attorney, I also continued the sentencing hearing

and deferred a ruling on his motion to withdraw his guilty plea.

Thereafter, Attorney Glenn Geiger was appointed to represent

Heino.

3 After taking several months to meet with Heino and

investigate the case, Geiger filed a motion to withdraw Heino's

motion to withdraw his guilty plea. I granted Geiger's motion in

a margin order and directed the clerk to schedule the case for

sentencing.

At the beginning of the January 26, 1994 sentencing hearing,

I engaged in the following colloguy with Heino:

All right. Mr. Heino, as you know, we're here today to sentence you; to review the history of the case. As I understand it, you originally pleaded guilty before another judge. Prior to sentencing you filed a motion to withdraw your guilty plea. I appointed new counsel for you to help you evaluate whether you wanted to persist in that motion. After consulting with Mr. Geiger you decided that you did wish to proceed with the sentencing in the case and your attorney filed a motion to withdraw your motion to withdraw the plea, which I granted, and therefore we are here today to sentence you on the offense to which you have pleaded guilty. Let me just verify from your own mouth that that is what you want to have happen today. Is that correct? THE DEFENDANT: Yes, sir.

I then proceeded to sentence Heino to a term of imprisonment of

293 months.1

1 By pleading guilty and accepting responsibility for his offense, Heino earned a three-level reduction in his offense level. Further, I granted the government's motion for a substantial assistance departure and gave Heino an additional one-level reduction. These offense level reductions changed Heine's guideline sentencing range from 360 months to life to 235 months to 293 months.

4 Heino now argues that his conviction and sentence should be

vacated because: (1) Lahey, Heine's attorney when he entered his

guilty plea, was impaired by an impermissible conflict of

interest; (2) Geiger, who filed the motion to withdraw the motion

to withdraw the guilty plea, acted without Heine's permission and

contrary to his interests; and (3) both attorneys failed to

pursue a meritorious motion to dismiss based on prosecutorial

misconduct. I address each argument in turn.

I. Was Lahev Impaired by an Impermissible Conflict of Interest?

Heino suggests that Lahey was affected by an impermissible

conflict of interest because McMenimen hired Lahey to represent

Heino and McMenimen's interests were at that point in conflict

with Heino's. Although the First Circuit Court of Appeals has

not addressed the precise guestion presented by this highly

idiosyncratic set of facts, it has recently considered and

rejected a conflict of interest claim based on the fact that a

defendant's counsel fees had been paid by a co-defendant.

Bucuvalas v. United States,

(1st Cir. 1996) . I

find the court's reasoning in Bucuvalas to be egually persuasive

here. Judge DiClerico carefully guestioned Attorney Lahey at

Heine's guilty plea hearing and made a finding that Attorney

Lahey was providing Heino with independent and competent legal

5 advice. The mere fact that McMenimen hired Lahey to act as local

counsel does not call this finding into question. Thus,

regardless of whether McMenimen was affected by an impermissible

conflict of interest, that conflict does not prevent Lahey from

providing the kind of independent legal advice on which Heino

based his decision to plead guilty.

II. Did Attorney Geiger File the Motion to Withdraw Heino's Motion to Withdraw his Guilty Plea Without Heino's Permission?

Heino argues that he never authorized Geiger to withdraw the

motion to withdraw the guilty plea. He further claims that he

went to the January 26, 1994 sentencing hearing with the

expectation that his attorney would somehow transform the

sentencing hearing into a hearing on the motion to withdraw the

guilty plea. I categorically reject Heine's claims. First,

Attorney Geiger credibly testified that he discussed the merits

of the motion to withdraw with Heino and that he filed the motion

only after obtaining Heine's permission. Second, before I

sentenced Heino, I reminded him that Geiger had withdrawn the

motion to withdraw the guilty plea, and I confirmed from Heino

that he wished to proceed with the sentencing hearing. In the

face of this evidence, Heine's claim that Geiger withdrew the

motion without his permission is simply incredible. In short, I

6 find that Geiger discussed the motion to withdraw with Heino and

obtained his consent to withdraw the motion to withdraw the

guilty plea.

Ill. Were Heino's Attorneys Constitutionally Ineffective by Failing to Pursue on his Behalf a Motion to Dismiss Based on Prosecutorial Misconduct?

Heine's final argument is that his attorneys were

ineffective because they failed to pursue a motion to dismiss the

indictment based on prosecutorial misconduct. Heino argues that

the government interfered with his attorney-client relationship

and denied him of his right to counsel by having Sek record

conversations which included Heino and McMenimen, thereby

manufacturing a conflict of interest which made McMenimen a

potential trial witness and reguired McMenimen to withdraw.

Heino argues that had either Lahey or Geiger pursued

prosecutorial misconduct charges, his indictment would have been

dismissed. Assuming without deciding that the government

committed prosecutorial misconduct by depriving Heino of his

Sixth Amendment rights, I nonetheless reject Heine's argument

that his attorneys' assistance was ineffective.

Before I turn to the merits of Heine's claim, it is

important to identify certain matters that are not in serious

dispute. First, Heino does not contend that the government would

7 lack sufficient evidence to either indict or convict Heino if all

evidence derived from the Sek recordings was suppressed. Indeed,

as is evidenced by the transcript of the trial of Heine's co­

defendant Robert Hahn, the government had overwhelming evidence

of Heine's guilt which was obtained independently of the the Sek

recordings. Second, if as Heino claims, the government obtained

the evidence it used to support its motion to disgualify

McMenimen in violation of Heine's Sixth Amendment rights, any

harm resulting from that violation could be fully redressed by

suppressing any evidence illegally obtained and allowing

McMenimen to continue as Heine's counsel if that was his wish

after being fully informed of the conseguences of such a

decision. Thus, a motion to dismiss based on prosecutorial

misconduct could succeed only if existing precedent permits the

dismissal of an indictment for a Sixth Amendment violation even

though dismissal is not reguired to remedy any resulting

prejudice. Unfortunately for Heino, existing law provices no

support for his position.

The United States Supreme Court addressed this issue in

United States v. Morrison,

(1981). There, the

defendant argued that dismissal of the indictment with prejudice

was reguired because federal agents had interfered with the

8 defendant's Sixth Amendment right to counsel. In rejecting the

claim, the court assumed that a Sixth Amendment violation had

occurred, but held that dismissal was inappropriate where a

remedy short of dismissal could be crafted to redress the Sixth

Amendment violation.

. The principle articulated

in Morrison remains good law and forecloses Heine's claim that

his indictment would have been dismissed if only his lawyers had

only pursued a motion to dismiss based on prosecutorial

misconduct rather than advising him to plead guilty. See, e.g..

United States v. Edgar,

(1st Cir.) (dicta),

cert, denied, 117 S. C t . 184 (1996); United States v Moskovits,

(3d Cir. 1996), cert, denied, 117 S. C t . 968

(1997); Brown v. Doe,

(2d Cir. 1993).

In this case, Heino avoided the very serious likelihood of a

life sentence by his decision to proceed with his guilty plea and

cooperate with the government. Had he chosen an alternate path

there is virtually no chance that he could have obtained the

dismissal of his indictment or an acguittal after a trial. Under

the circumstances, it would hardly be ineffective assistance of

counsel for Heine's lawyers not to have pursued a line of defense

9 that had no hope of ultimate success.2

CONCLUSION

_____ For the reasons set forth in this order, Heine's § 2255

motion is denied.

SO ORDERED.

Paul Barbadoro United States District Judge

August 20, 1997

cc: Thomas G. Murray, Esg. Glenn R. Milner, Esg. Peter E. Papps, Esg.

In light of these conclusions, I need express no opinion concerning the timeliness of Heine's § 2255 petition.

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