United States Court of Appeals For the First Circuit

Nos. 19-1491, 19-2060

IN RE: JEDRICK BURGOS AMADOR,

Respondent, Appellant,

v.

UNITED STATES OF AMERICA,

Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Barron, Chief Judge, Howard, Circuit Judge.

Linda Backiel for appellant. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzà-Almonte, Assistant United States Attorney, were on brief, for appellee.

April 2, 2024

 This opinion is filed by a quorum of the panel pursuant to

(d). HOWARD, Circuit Judge. Attorney Jedrick Burgos-Amador

("Burgos") appeals from an order disqualifying him from

representing José Mulero Vargas ("Mulero"), a defendant in a

criminal proceeding. The order was based on a finding of a

potential conflict of interest and required Burgos to disgorge his

legal fees.1 For the reasons discussed below, we conclude that

the district court exceeded its discretion when a magistrate judge

subjected Burgos to examination under oath by prosecution counsel

in an inquiry about who paid his legal fees in his representation

of Mulero. Accordingly, we reverse the district court's order of

disgorgement.

I. BACKGROUND

In May 2017, officers from the Puerto Rico Police

Department executed a search warrant at Mulero's apartment and

seized seven firearms, over 1000 rounds of ammunition, 266 baggies

of cocaine, six digital scales, and a drug ledger. Mulero was

subsequently arrested and indicted for possession with intent to

distribute a detectable amount of cocaine, in violation of

(a)(1); possession of a machinegun in furtherance of

a drug-trafficking crime, in violation of

(c)(1)(B)(ii); and possession of a firearm in furtherance of

1 Mulero eventually entered a guilty plea in the underlying criminal prosecution. On appeal, Burgos challenges the rationale for the disqualification, but he seeks reversal only of "the order of disgorgement as the result of conflicted representation."

- 2 - a drug-trafficking crime, in violation of

(c)(1)(A)(i).

In response to a financial affidavit submitted by

Mulero,2 the district court determined that Mulero was indigent

and appointed counsel for his defense. The following day, however,

privately retained attorney Mariela Maestre-Cordero ("Maestre")

filed a notice of appearance on Muerlo's behalf. Maestre served

as Mulero's counsel for almost two months, appearing on his behalf

at the initial detention and bail hearings, before attorney Javier

Cuyar-Olivo ("Cuyar") filed a notice of appearance and Maestre

subsequently withdrew.

In July 2017, Mulero filed a joint motion to suppress

with his codefendant, and three private attorneys including Cuyar,

Burgos, and Ricardo Lozada-Franco ("Lozada") attended the

suppression hearing. Roughly a year later, in July 2018, attorneys

Burgos and Lozada filed notices of appearance on Mulero's behalf,

and Cuyar (who had accepted a position at the office of the Federal

Public Defender for the District of Puerto Rico) withdrew.

Subsequent to Mulero's claim of indigency at the time of

the arrest, the United States moved the district court to inquire

into "[t]he source of the attorney fees which have caused attorneys

2 Mulero's financial affidavit was submitted pursuant to 18 U.S.C. § 3006A(b), which provides that "counsel will be appointed to represent [a defendant] if he is financially unable to obtain counsel."

- 3 - Jedrick Burgos Amador and Ricardo Lozada Franco to appear on behalf

of [Mulero]" and "[w]hether defense counsel have been retained or

paid by someone other than the defendant . . . [i]f so, whether

defense counsel have a potential conflict of interest . . .

[w]hether defendant waives any such conflict of interest; and . . .

[w]hether the Court should accept the waiver." [Dkt. 142 at 1]

Mulero moved to strike the government's request as an

unsubstantiated "fishing expedition" and argued that the court

could convene a hearing on the source of the funds paying for

Mulero's attorneys only if the government could show an "actual

conflict or a serious potential for conflict." The district court

denied Mulero's motion to strike and scheduled an evidentiary

hearing on the source of the funds before a magistrate judge,

ordering that attorneys Burgos, Lozada, Maestre and Cuyar all

attend the hearing.

At the outset of the hearing before the a magistrate

judge, the court spoke at length to lay a "foundation" for the

proceedings, announcing that, "taking into consideration" Mulero's

stated indigency, the fact that multiple private attorneys had

appeared on his behalf, and the nature of the charges against him,

"it [was] reasonable to grant the present hearing to determine if

a third party is paying the fees of [Mulero's] retained counsel

and whether a conflict of interest exists in such third party fee

arrangement." Burgos voiced his objections to the premise of the

- 4 - hearing, arguing that the government's position that a potential

conflict existed was overly speculative, that the government's

purported motive in legitimately ensuring that no conflict existed

was belied by the timing of its motion (which was filed well over

a year after Mulero had initially retained private counsel), and

that the government sought to use the hearing as a means to

investigate the government's "belie[f] that the person paying [the

attorneys' fees] perhaps . . . is a person upper in the ladder."

He also argued that live testimony was unnecessary because he could

provide via proffer the identity of the third party who was paying

the fees, and he assured the court that there was no conflict.

Notwithstanding these objections and proffer, the court allowed

the hearing to proceed, finding that, although "there is no per se

prohibition of a criminal defendant to have his fees paid by a

third party," the government had made "sort of a prima facie

showing based on the record, that . . . there is the possibility

of a conflict of interest," that it was unpersuaded of any

nefarious intent on the part of the government, and that it did

not need to accept Burgos's good faith representation.

The court then asked the government to call its first

witness, and the government called Burgos. Burgos responded that

"[t]hat's not going to happen, Your Honor, I'm sorry," and, when

further pressed to take the witness stand, asserted his Fifth

Amendment right not to testify, explaining that "this puts [him]

- 5 - in a very uncomfortable position. . . . [and] makes [him a] witness

in this case where [he is] the defendant's attorney[]," which he

believed to be "unethical." Notwithstanding this objection,

Burgos proffered that Cuyar was the person who paid his fees.

After explaining to Burgos that the relevant ethics rules

precluding attorney testimony did not apply under these

circumstances, see Model Rules of Pro. Conduct r. 3.7(a)(2) (Am.

Bar Ass'n 2020), the court confirmed Burgos's intention to assert

the Fifth Amendment privilege and took the matter under advisement.

The court then heard testimony from Cuyar and Maestre.

Cuyar testified that he had been retained by Mulero's mother for

$15,000 cash; that she told him, at the time, that she obtained

most of the funds by liquidating a pension trust that she had as

a Home Depot employee; and that a portion of the fees were obtained

from an aunt. Cuyar further explained that he had asked Mulero's

mother for evidence documenting the withdrawal from the Home Depot

pension trust. Mulero's mother provided Cuyar with a one-page

document showing a withdrawal from a Home Depot trust account,

made approximately three weeks before his retention, in the amount

of $17,500. The document, which was admitted into evidence, bore

an account number but did not reflect an individual holder's name.

Cuyar testified that, when he arranged for Burgos to replace him

as lead counsel, they negotiated a $5,000 payment from Cuyar to

Burgos, and that Cuyar made that payment from a personal account

- 6 - because the money he received from Mulero's mother had already

been spent by that time. Cuyar testified that he had no knowledge

as to whether Burgos had received additional funds from anyone

else in connection with the representation of Mulero.

Maestre testified that she was also hired by Mulero's

mother, and that she received an initial cash retainer of $10,000

that Mulero's mother told her had been gathered from various family

members. Due to Mulero's termination of Maestre's representation,

and the fact that her representation was short-lived, Maestre asked

Mulero what a reasonable refund of the retainer would be, but

Mulero informed Maestre that he did not want a refund, and none of

Mulero's family members ever asked Maestre for a refund.

Before the hearing's conclusion, the court reiterated

Burgos's invocation of the Fifth Amendment as to the "source of

the fees," which Burgos then confirmed he was doing "[o]ut of an

abundance of caution." The court stated that it had heard "nothing

that would even give . . . an incidental clue as to why [Burgos]

fe[lt]" it necessary to do so. Nevertheless, the court explained

that, by invoking the Fifth Amendment, Burgos and Lozada "indicated

to this Court . . . that to answer the questions, you would be

implicating yourselves in criminal activity. That is the

understanding of the Court and that is what the record will so

reflect."

- 7 - In its report and recommendation following the hearing,

the magistrate judge recommended that Burgos and Lozada be

disqualified from Mulero's case and ordered to return the fees

that they were paid for their representation of Mulero. The

district court adopted the magistrate judge's report and

recommendation in a written opinion and ordered the

disqualification and disgorgement.

After denying Burgos's motion for reconsideration, at

Burgos's request the district court stayed the fee disgorgement

order "until the latest of the date to file an appeal or until any

appeal is resolved." Mulero pled guilty in May 2019, and the

judgment against him was entered on September 4, 2019. On May 1,

2019, Burgos filed a notice of appeal "from the interlocutory order

imposing sanctions and fee disgorgement" entered by the district

court. On October 2, 2019, Burgos filed a second notice of appeal,

although he maintained that his May 1, 2019 notice of appeal had

ripened upon entry of final judgment in September 2019.

II. TIMELINESS

We begin by addressing whether we may entertain either

of Burgos's appeals. The government contends that both of Burgos's

notices of appeal are untimely and therefore that this court must

dismiss his appeal. See Amadi v. Dep't of Child. & Fams., No. 19-

1029,

, at *1 (1st Cir. Apr. 29, 2019) (dismissing

an appeal where the appellant failed to file a timely notice of

- 8 - appeal); see also Local Rule 27.0(c) (stating that this court may

dismiss appeal at any time for lack of jurisdiction).

The parties focused their original briefing on whether

the two notices of appeal were timely under Fed. R. App. P.

4(b)(2), which governs notices of appeals in criminal cases.

However, on August 11, 2022, we subsequently asked the parties to

brief additionally whether Burgos's "appeal challenge[s] an

'ancillary order[] in a criminal case' that is 'civil in

substance,' see United States v. Segal,

, 902-03 & n.1

(7th Cir. 2019), such that it is governed by Federal Rule of

Appellate Procedure 4(a) rather than Rule 4(b)," and, if so,

whether Burgos's second notice of appeal was timely filed under

Rule 4(a).3 Having considered the supplemental briefs, we conclude

that Rule 4(a) governs the time limit applicable to Burgos's appeal

and that Burgos's second notice of appeal was therefore timely

filed.4

3 This request was made to the parties pursuant to our obligation to "mount an independent inquiry into the existence vel non of appellate jurisdiction." Calvary Chapel of Bangor v. Mills,

(1st Cir. 2020). 4 Because we conclude that Rule 4(a) applies and therefore Burgos's second notice of appeal is appropriately before us, we do not consider the various arguments made by the parties concerning the timeliness of Burgos's first notice of appeal or the timeliness of either notice under Rule 4(b).

- 9 - A.

The Federal Rules of Appellate Procedure specify that

different time limits apply to the filing of a notice of appeal

depending on whether the appeal is filed in a civil or a criminal

case. Compare Fed. R. App. P. 4(b)(1)(A) ("In a criminal case, a

defendant's notice of appeal must be filed in the district court

within 14 days after the later of: (i) the entry of either the

judgment or the order being appealed . . . ."), with Fed. R. App.

P. 4(a)(1)(B) ("The notice of appeal [in a civil case] may be filed

by any party within 60 days after the entry of the judgment or the

order appealed from if one of the parties is: (i) the United States

. . . .").5

However, whether the underlying case from which an

appeal is taken - criminal or civil - is not wholly determinative

5 There is also an important doctrinal difference between these time limits. Strictly speaking, the criminal appeal filing deadline is not jurisdictional, because it is imposed only by a Federal Rule and not a statute. See United States v. Carpenter,

(1st Cir. 2019) ("[O]nly Congress may determine a lower federal court's subject-matter jurisdiction.” (quoting Hamer v. Neighborhood Hous. Servs. of Chi.,

, 19 (2017))). Instead, the deadline is a "mandatory claim-processing rule" which can be waived or forfeited by the government. Hamer, 538 U.S. at 20. The civil filing deadline, by contrast, is jurisdictional because it is codified in

(b). See Segal, 938 F.3d at 902 ("The 60-day civil deadline where the United States is a party is statutory, however, established by

(b), so it is jurisdictional."). That deadline, then, "is not subject to waiver or forfeiture and may be raised at any time in the court of first instance and on direct appeal." Hamer, 583 U.S. at 20. Nevertheless, the government properly raised the timeliness issue here, so the difference is immaterial.

- 10 - of which time limit should apply. Instead, courts may "appl[y] a

pragmatic approach that looks to the 'substance and context, and

not the label, of the proceeding appealed from to determine its

civil or criminal character.'" Segal, 938 F.3d at 902 (internal

alterations omitted) (quoting Betts v. United States,

(7th Cir. 1993)). This is "because 'many appealable orders

technically "in" criminal cases look more civil than criminal,'

especially when they pertain to 'postjudgment remedies . . .

collateral to criminal punishment.'" Id. at 902-03 (alterations in

original) (quoting United States v. Taylor,

(7th

Cir. 1992)). Accordingly, although the underlying case from which

Burgos appeals is a criminal prosecution, we look

"pragmatic[ally]" at the "substance and context" of the specific

proceedings from which Burgos appeals in order to determine whether

Rule 4(a)'s or Rule 4(b)'s time limit should apply. Id. at 902.

In doing so, we are guided by the distinction drawn by

other circuits between the criminal sentence -- "[t]he core of a

criminal case to which Rule 4(b) applies," id. (second alteration

in original) (quoting United States v. Apampa,

(7th Cir. 1999)) -- and orders "collateral to criminal punishment"

which are "especially" likely to "look more civil than criminal,"

at 902-03 (quoting Taylor,

). Indeed, "[t]he

term 'criminal case' in Rule 4(b) generally is construed narrowly

to encompass only 'a prosecution brought by the government to

- 11 - secure a sentence of conviction for criminal conduct.'" United

States v. Lavin,

(3rd Cir. 1991) (quoting 9 J.

Moore, B. Ward, & J. Lucas, Moore's Federal Practice ¶ 204.15, at

4-132 (2d ed. 1991)). "Conversely, the term 'civil case' in Rule

4(a)(1) generally is construed broadly to include 'any action that

is not a criminal prosecution.' As a result, proceedings that

essentially are civil in nature are deemed to be 'civil cases,'

even though they derive from a prior criminal prosecution."

(alteration in original) (internal citation omitted)

(quoting Moore et

).

Applying these standards, courts have uniformly treated

appeals from orders in criminal cases that are collateral to

criminal punishment as civil matters for purposes of Rule 4. For

example, courts have applied Rule 4(a) to appeals from the denial

of the return of property under Fed. R. Crim. P. 41(e), see Taylor,

; sureties' appeals of bail-bond forfeiture orders,

see C.A. Wright & A.R. Miller, Federal Practice and Procedure

§ 3950.8 n.83 (5th ed., Apr. 2021 update) (collecting cases from

the Third, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh

Circuits); appeals from proceedings under

(n) in

which third parties claim an interest in criminally forfeited

property, see United States v. Bradley,

(2d

Cir. 2018); appeals from the enforcement of restitution orders,

see United States v. Phu Tan Luong,

(9th

- 12 - Cir. 2008) (unpublished) (concluding that "motions relating to a

[movant's] financial interests do not implicate analogous liberty

interests" to those at stake in a criminal prosecution); and

appeals from orders denying a criminal defendant the right to

obtain attorney's fees under the Hyde Amendment (18 U.S.C.

§ 3006A), see United States v. Braunstein,

(9th Cir. 2002) (collecting cases from the Fourth, Fifth, and D.C.

circuits).

By contrast, courts have found that Rule 4(b) governs

appeals from the denial of a motion for the correction or reduction

of sentence; from the denial of a motion to modify a term of

imprisonment; from the denial of a motion for a new trial; and

from a forfeiture imposed as a part of a criminal defendant's

punishment. See 20 James Wm. Moore, et al., Moore's Federal

Practice - Civil § 304.20 (3d ed. 2021) (collecting cases); see

also C.A. Wright & A.R. Miller, supra, at § 3950.8 nn.88-113

(explaining the same and providing additional examples of appeals

that have been deemed criminal). Notably, each of these examples

involved appeals from orders that directly pertained to criminal

punishment -- "the core of a 'criminal case.'" Segal, 938 F.3d at

902.

Here, Burgos's appeal does not challenge the prosecution

of or sentence imposed on Mulero, nor is it brought by, or on

behalf of, him. Instead, this appeal is brought by Burgos, a

- 13 - third-party in the underlying criminal case, and it challenges

proceedings and a ruling below that were entirely separate from

the ultimate imposition of the criminal sentence. This appeal is

thus decidedly not from, but instead collateral to, the

government's criminal prosecution of Mulero.

Nevertheless, the government contends that "the

disqualification order here cannot be viewed as civil in nature"

because the "'purpose' of both the order and the

conflict-of-interest inquiry it arose from was 'to ensure

preservation of the defendant's Sixth Amendment right to

counsel.'" Although the government is correct that this inquiry

was conducted in order to ensure that there was no violation of

Mulero's Sixth Amendment right to counsel -- a right guaranteed to

criminal defendants -- this does not mean that the disqualification

order or the proceeding that it resulted from were themselves

criminal in nature.

The proceeding was explicitly aimed at determining

whether a conflict of interest existed vis-a-vis Burgos's

representation of Mulero. The relevant conflict rules underlying

this inquiry, the Model Rules of Professional Conduct, are civil

rules that are generally applicable to all attorney-client

relationships, regardless of whether the representation is in a

civil or criminal matter. See D.P.R. Local Civ. R. 83E(a) ("[E]ach

attorney admitted or permitted to practice before this court shall

- 14 - comply with the standards of professional conduct required by the

Model Rules of Professional Conduct . . . adopted by the American

Bar Association. . . ."). Further, there is no provision imposing

criminal penalties against a conflicted counsel, and the

disqualification and disgorgement that Burgos appeals cannot be

fairly characterized as a criminal punishment as to either him or

Mulero. Cf. Bradley,

(holding that proceedings

considering third-interest in criminal forfeiture assets, under

(n), are civil in nature because, inter alia, such

"proceeding[s] [have] no punitive aim," but rather "merely seek[]

to settle legal interests in property," and the "underlying legal

issue (the allocation of property interests) are civil in nature").

Indeed, both disqualification and disgorgement are remedies which

are commonly imposed in civil cases. See, e.g., Mass. Eye & Ear

Infirmary v. QLT Phototherapeutics, Inc.,

(1st

Cir. 2009) (noting that courts have permitted disgorgement of

malefactors' profits as remedy for unjust enrichment in civil

suits, such as patent suits and suits for breaches of fiduciary

duty).

Accordingly, we find that the proceedings and order from

which Burgos appeals are properly considered civil, not criminal,

in nature such that it is appropriate to apply Rule 4(a)'s 60-day

time limit to his appeal.

- 15 - B.

Having determined that the time limit under Rule 4(a)

applies, we conclude that Burgos's second notice of appeal was

timely. That notice was filed on October 2, 2019, 28 days after

the operative district court order was entered on September 4,

2019, and thus well within the 60-day time limit applicable here

under Fed. R. App. P. 4(a).

In fact, the government does not dispute that "Burgos's

second notice of appeal would be timely if Rule 4(a) applied."

However, the government contends that Burgos has "deliberately

waived his ability to rely on [the second notice of appeal]" and

thus that we may only look to Burgos's first notice of appeal when

determining timeliness under Rule 4(a). We are not persuaded that

such waiver has occurred here.

Waiver may occur where a party "strategically

[withholds] or [chooses] to relinquish" an argument. Wood v.

Milyard,

(2012) (quoting Day v. McDonough,

(2006)). The government asserts that, although

Burgos filed a second notice of appeal, his characterization of

that second notice as "superfluous" and "redundant" constituted a

waiver of that appeal and any possible reliance on it. In support,

the government analogizes the situation here to Wood v. Milyard,

which held that a party had waived a statute-of-limitations defense

where the party repeatedly "express[ed] its clear and accurate

- 16 - understanding of the timeliness issue" but nonetheless chose to

neither challenge nor concede the issue, opting instead to

"deliberately steer[] the District Court away from the question

and towards the merits" of its petition.

. However,

Wood dealt with a situation in which a party acknowledged an issue

but nonetheless declined to take any action in response. Wood is

thus a far cry from the situation here, in which Burgos

acknowledged the timeliness issue and took affirmative action in

response to that issue by filing the second notice of appeal.

Furthermore, we do not read Burgos's references to that

appeal as "superfluous" and "redundant" as disclaiming any

reliance on the appeal or as sufficiently "steering" this court

away from that notice to constitute "relinquish[ment]," bringing

it within the ambit of the situation at issue in Wood. Instead,

read in context, that language appears to merely indicate Burgos's

position that the second notice of appeal raises the same issues

and arguments as, and is thus substantively identical to, the first

notice of appeal and does not introduce anything new to the court.

Because Burgos's second notice of appeal was timely, we

turn to the merits of his appeal.

III. MERITS

Burgos asserts that the district court erred in three

distinct ways with respect to the proceedings and order at issue,

and that any one of those alleged errors provides sufficient

- 17 - grounds for reversing the disgorgement order. First, Burgos

asserts that the district court lacked a sufficient basis on which

to hold a hearing regarding the source of the attorneys' fees.

Next, Burgos contends that the district court erred when it

required Burgos to testify at the hearing subject to examination

under oath by the government's counsel. Finally, Burgos argues

that the district court erred when it issued the disqualification

and disgorgement order based on Burgos's invocation of his Fifth

Amendment right at the hearing.

Our abuse-of-discretion standard governs decisions "on

whether or not to convene an evidentiary hearing," see In re Grand

Jury Subpoena,

(1st Cir. 2001), issues of

"courtroom management," see Elgabri v. Lekas,

(1st Cir. 1992), and orders "disqualify[ing] an attorney for

conflict of interest," see United States v. Laureano-Pérez,

(1st Cir. 2015). Within this multi-faceted standard,

"abstract questions of law are reviewed de novo, findings of raw

fact are reviewed for clear error, and judgment calls receive a

classically deferential reception." Riva v. Ficco,

(1st Cir. 2010).

After careful review, we conclude that the district

court exceeded its discretion in subjecting Burgos to sworn direct

examination by prosecution counsel when the district court did not

know, and lacked reason to know, that there was a particular

- 18 - conflict of interest arising out of a third-party payment.

Accordingly, we reverse the district court's disgorgement order.

A.

Trial courts are under a duty to inquire when confronted

with a potential conflict of interest that could impact a

defendant's Sixth Amendment right to representation free from

conflict. The Sixth Amendment, which guarantees the right of an

individual accused in a criminal prosecution to "have the

Assistance of Counsel for his defen[s]e," U.S. Const. amend. VI,

has been construed to confer "the right to have an attorney of

one's own choosing," see Laureano-Pérez,

(internal citations omitted), as well as a "correlative right to

representation that is free from conflicts of interest." Mountjoy

v. Warden,

(1st Cir. 2001) (quoting Wood v.

Georgia,

(1981)). Thus, although the district

court "must recognize a presumption in favor of [a defendant's]

counsel of choice," see Wheat v. United States,

(1988), this right "is not absolute," Laureano-Pérez,

. See also United States v. Lanoue,

(1st

Cir. 1998); Maynard v. Meachum,

(1st Cir. 1976).

Given that the "essential aim" of the Sixth Amendment

"is to guarantee an effective advocate for each criminal

defendant," Wheat,

, this right to counsel of choice

is necessarily limited by the "trial court's interest in ensuring

- 19 - that criminal trials are conducted within ethical and professional

standards." Laureano-Pérez,

-56 (quoting In re Grand

Jury Proceedings,

(1st Cir. 1988)).

Accordingly, where a trial court is, or reasonably should be, aware

of a possible conflict of interest, there is a duty for the court

to investigate that possibility. See Mountjoy,

("[T]rial judges have a duty to inquire [into a potential conflict

of interest] not only when defendants object to a possible

conflict, but also when trial judges are or should be independently

aware of a possible conflict."); Wood,

(finding

that the "possibility of a conflict of interest was sufficiently

apparent at the time of the revocation hearing to impose upon the

court a duty to inquire further" (emphasis in original)); cf.

Cuyler v. Sullivan,

(1980) ("Unless the trial

court knows or reasonably should know that a particular conflict

exists, the court need not initiate an inquiry.").

One such scenario in which courts have found the

possibility of a conflict of interest sufficient to warrant further

investigation is where an attorney's fees are known to have been

paid by a third party. In Wood, the Supreme Court noted that there

are "inherent dangers that arise when a criminal defendant is

represented by a lawyer hired and paid by a third party,

particularly when the third party is the operator of the

[defendant's] alleged criminal enterprise."

.

- 20 - Thus, where facts give rise to the possibility of a conflict due

to such a third-party payer situation, a "duty to inquire further"

is "impose[d] upon the court."

; see also Quintero v.

United States,

(9th Cir. 1994) (directing "trial

judges, particularly in drug cases, to determine whether or not

third parties are paying the fees of retained counsel when the

defendant is indigent and, if so, whether the defendant understands

the potential conflict of interest that may exist in such an

arrangement and voluntarily waives that conflict").

Informed by Wood, district courts within this circuit

have conducted inquiries into the source of a defendant's

attorney's fees where the concern of a possible conflict due to

third-party payment is raised, and we have affirmed the subsequent

disqualification of the attorney where a hearing revealed facts

indicating the presence of such a conflict. See Laureano-Pérez,

. Burgos nonetheless contends that the court

abused its discretion by "authorizing [the] interrogation of

defense counsel by the prosecution."6 He asserts that there was

6 The government contends that Burgos "forfeited this argument below" by "not object[ing] at the evidentiary hearing that the court wanted the prosecutor to question him" and that, because he does not now assert that this argument should be reviewed for plain error, has "waiv[ed] review of this argument." We agree with Burgos, however, that his efforts to avoid testifying under oath and his insistence that doing so would be improper made it "abundantly clear" that he objected to testifying under oath as a witness for the prosecution. Although, as he acknowledges, Burgos did not explicitly state "I object" when called to testify, his

- 21 - an "absence of any specific facts pointing to the need to resort

to this method" and that the district court "gave no weight to the

impact of such a procedure on the role of defense counsel in an

adversary system of justice and his duties to his client." Burgos

further contends that "the duty imposed on the court is not to

carry out or preside over an investigation, but to hold a

colloquy." For the reasons we will next explain, we agree with

this aspect of Burgos's challenge.

B.

Even though Burgos received permission from his client

to disclose the name of the third-party payer, thereby waiving any

potential attorney-client privilege that may bar such disclosure,

there were other aspects of the attorney-client relationship that

were put at risk of being undermined when the district court

allowed the prosecution to examine him under oath. As one district

court in our circuit has recognized, "in a hearing regarding the

source of attorney fees, counsel would be forced to testify against

defendant -- and this remains so whether counsel responds to the

refusal to take the stand and his pronouncements that "[t]hat's not going to happen" and that "the rule of ethics bar[red]" him from doing so were sufficient to clearly indicate his objection to the process and the grounds for that objection. Cf. United States v. Pereira,

(1st Cir. 2017) (finding an objection "suffic[ient]" where the party demonstrated "that the ground for the objection was obvious from the context in which it was made" (quoting United States v. Boyd,

(D.C. Cir. 1995)).

- 22 - underlying questions with 'yes,' 'no,' 'I don't know' or 'I plead

the Fifth.'" United States v. Gonzalez-Mendez,

, 175 n.1 (D.P.R. 2005). Indeed, "[c]ounsel would be forced to

step outside his role as counsel for defendant in order to testify

about or even against defendant, thereby creating a conflict of

interest, irreparably damaging the relationship."

.

At Burgos's hearing, the government attempted to

distinguish the hearing from the one in Gonzalez-Mendez, arguing

that the latter involved "trying to trace the source of fees" and

"delving into much more than simply who was paying the fees" while

the government here was merely seeking the "identity of the person

paying the fees." But the record shows that, at the hearing

itself, even though Burgos told the court that his client had "no

objection" against Burgos revealing the name of the third-party

payer, the court immediately afterward stated, "just identifying

the name alone isn't necessarily what is going to . . . put the

Court in a position to determine when there's conflict and who is

this individual. What's the relationship to this defendant?"

Burgos then replied, "But that's easy, Your Honor," at which point

the court insisted on placing Burgos under oath and asked

prosecution counsel to call the first witness.

The government does argue on appeal that, on May 5, 2017,

Mulero initially filed a financial affidavit to request a public

defender for himself based on his indigency, and that same day a

- 23 - public defender was appointed to represent him.7 It then points

out that just days later, Mulero retained a private attorney who

appeared on his behalf. But while we do not disagree that this

reversal in such a short amount of time provides a basis for

inquiring into whether someone other than Mulero himself had paid

for that private attorney as well as for the subsequent private

attorneys that Mulero retained, these aspects of the record did

not themselves give the district court reason to believe that there

was a particular conflict that could support its choice to subject

Burgos to examination under oath by the prosecution. As the Second

Circuit has explained in the context of identifying limitations on

testimony, the district court's "'discretion to place reasonable

limits on the presentation of evidence.' . . . must remain tethered

in some way to the facts and circumstances of the case presented."

United States v. Quattrone,

(2d Cir. 2006)

(quoting United States v. Ford,

(4th Cir.

1996)). Nor does the fact that Burgos eventually speculated at

the hearing that the government might "believe that the person

paying . . . is a person upper in the ladder" negate the fact that

the district court had no reason to believe that there was a

7 In that affidavit, Mulero claimed that he earned only $150 dollars each month, that his monthly expenses for his rent and phone far exceeded that income, that he had no other source of income, and that he did not own property or have cash.

- 24 - particular conflict when it first decided to allow the prosecution

to examine Burgos under oath.

Of course, there may be circumstances in which requiring

an attorney to answer questions from the court under oath may be

warranted. But, given the circumstances of this case, we see no

basis for the court to have permitted examination by prosecution

counsel. After all, the government's sparse motion for the inquiry

did not even contain any speculation about what the potential

conflict could have been.

In contending otherwise, the government points in part

to our decision in Laureano-Pérez, one of the leading cases in our

circuit on this type of inquiry. But there we held merely that it

was not an abuse of discretion for a district court to disqualify

an attorney after an evidentiary hearing that was conducted to

determine the source of the attorney's payments conclusively

revealed the existence of third-party payments, the name of the

payer, and the payer's "control over a bunch of things that pertain

to the defense." Laureano-Pérez,

. Notably, in

Laureano-Pérez, the district court did not subject the defense

counsel to interrogation by the prosecution counsel nor did the

district court require the defense counsel to answer questions

under oath.

Neither does the Supreme Court's decision in Wood, on

which the government also relies, support the district court's

- 25 - decision here. In that case, it was known that the third-party

payer was an employer of the client, and that fact plus the fact

that the employer had "declined to provide money to pay the fines

in the cases presently under review" supported the inference of

there being a particular conflict: that the employer was seeking

to create a test case.

. Moreover, even still,

Wood was silent on whether a court must -- or even may -- conduct

its conflict-of-interest inquiry by subjecting an attorney to

examination under oath by prosecution counsel. Indeed, we are

aware of no precedent from any court permitting a court to subject

an attorney to examination under oath by the prosecution when the

predicate for believing there to be a particular conflict arising

from a third-party payment was as limited as was present here.

Accordingly, the record insufficiently supports the

district court's exercise of discretion in requiring Burgos to

submit to examination under oath by prosecution counsel when the

court had so little basis to believe that a particular conflict

would have arisen from a third-party payment. And we agree with

Burgos that the conduct for which he was sanctioned by the court

was the direct consequence of that court's decision to require him

to submit to that examination. See Elgabri,

("We

do not disturb decisions regarding courtroom management unless

these decision amount to an abuse of discretion that prejudices

appellant's case."). Moreover, while the government is right that

- 26 - Burgos later stated in an affidavit that his invocation of the

Fifth Amendment was unnecessary because he "could have answered

the questions posed by counsel for the government," he made this

acknowledgement merely to concede that he would not have been

"automatically disqualified" for being "seated as a witness." We

thus do not understand that statement by Burgos to be a concession

that there was no reason for him to object to being required to

submit to examination by the prosecution, such that the statement

amounts to a concession that precludes him from showing prejudice.

IV. CONCLUSION

Because the disqualification was insufficiently supported,

the disgorgement order is reversed.

- 27 -