911 F. 2d 740 - United States v. Zubick

MEMORANDUM*

Zubick appeals pursuant to a conditional guilty plea, contending the district court erred in denying his motion to dismiss the indictment because of the government's alleged violation of his sixth amendment rights.

Zubick argues his right to counsel of choice was violated when Secret Service agent Edwards conducted an interview of Zubick at the detention center without counsel Brockway present. The interview disclosed a conflict of interest between Zubick and Brockway that led the court to dismiss Brockway as Zubick's counsel.

Zubick argues that Edwards' investigation was a deliberate attempt to destroy Zubick's relationship with Brockway and that the district court erroneously credited Edwards' testimony to the contrary. Although Zubick points out minor inconsistencies in Edwards' testimony, upon a careful review of the record, including a transcript of the Rule 44 hearing, we are not persuaded the district court clearly erred in crediting Edwards rather than Brockway and Zubick. Credibility determinations among competing witnesses are an especial province of the fact-finder that we will not lightly disturb.

Government action that interferes with the attorney-client relationship does not violate a criminal defendant's sixth amendment rights unless there is a showing of substantial prejudice. Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir.1985). Even when the government's misconduct rises to the level of a sixth amendment violation, "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." United States v. Morrison, 449 U.S. 361, 365 (1981).

Zubick shows no prejudice arising from Edwards' interview. The district court did not clearly err in finding "the circumstances creating a conflict of interest between Zubick and Brockway ... were not caused by the misconduct of the government." The potential conflict of interest caused by the investigation of Brockway, aside from the interview itself, provided proper grounds for Brockway's dismissal. See United States v. Rewald, 889 F.2d 836, 858 (9th Cir.1989). Because Edwards' intrusion did not cause Brockway's dismissal, Zubick can not claim the dismissal, the manner of the court's appointment of substitute counsel, or the adequacy of that counsel were tied to the government misconduct.

We agree with the district court that conduct such as Edwards' interview "creates a serious potential for government abuse" and is reviewed with especial care to determine whether dismissal of the indictment is warranted as a prophylatic remedy. While Edwards' actions were highly improper, we are satisfied Zubick was not substantially prejudiced and dismissal of the indictment was not warranted.

AFFIRMED.