United States v. Montaner

JAMES LAWRENCE KING

ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE

THIS CAUSE comes before the Court upon the January 23, 2012 Report and Recommendation ("R&R") of Magistrate Judge Chris McAliley (DE #85), recommending that Defendant Ernesto Angel Montaner's Motion to Dismiss (DE #51) be denied. No objections have been filed, and the deadline to object has since expired.

Defendant was indicted for health care fraud on July 29, 2010. (DE #7). Defendant, along with his son, was a target of this investigation for a period of years before the government filed formal charges. Defendant and his son were jointly represented by the same counsel, Silvia Pinera-Vazquez, for a brief time during the government's pre-indictment investigation before Defendant fled the country.

In his Motion, the Defendant argues that a conflict of interest arose from his former counsel's representation of both him and his son, that violated the Defendant's Sixth Amendment right to counsel. The Defendant also contends that the government took advantage of this conflict of interest and invaded his attorney-client relationship with Ms. Pinera-Vazquez, in violation of his Fifth Amendment right to due process of law, and that both of these alleged Constitutional violations require dismissal of the Indictment. Alternatively, the Defendant argued that the alleged conflict of interest and government misconduct should cause this Court to exercise its supervisory authority to dismiss the Indictment.

Magistrate Judge McAliley held oral argument on December 6, 2011 and an evidentiary hearing on December 14, 2011. In the Report and Recommendation ("R&R"), Magistrate Judge McAliley found Defendant's arguments to be without merit. Specifically, Magistrate Judge McAliley found that Defendant did not have a Sixth Amendment Constitutional right to counsel until approximately eighteen months after Ms. Pinera-Vazquez discontinued serving as Defendant's attorney. See Kirby v. Illinois, 406 U.S. 682, 689 (1972). Magistrate Judge McAliley further found that Defendant's allegations of government misconduct here are not supported by evidence., Upon careful consideration of the record and Defendant's motion, the Court concludes that the R&R contains well-reasoned recommendations and that Defendant's Motion to Dismiss should be denied.

Accordingly, the Court being otherwise fully advised, it is ORDERED, ADJUDGED and DECREED as follows:

1. Magistrate Judge Chris McAliley Is Report and Recommendation (DE #85) be, and the same is, hereby AFFIRMED and ADOPTED.
2. Defendant Montaner's Motion to Dismiss (DE #51) is hereby DENIED.
3. The above-styled action will proceed to Trial on February 21. 2012.

DONE AND ORDERED in chambers at the James Lawrence King Federal Justice Building and United States Courthouse, Miami, Florida, this 10th day of February, 2012.

______________________

JAMES LAWRENCE KING

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF FLORIDA

cc: Magistrate Judge Chris McAliley

Plaintiff

H. Ron Davidson

United States Attorney's Office

99 NE 4 Street

Miami, FL 33132

305-961-9405

Fax: 305-536-4699

Email: h.ron.davidson@usdoj.gov

Evelyn Baltodano-Sheehan

United States Attorney's Office

99 NE 4 Street

Miami, FL 33132

305-961-9125

Email: evelyn.sheehan@usdoj.gov

Ryan K. Stumphauzer

United States Attorney's Office

99 NE 4 Street

Miami, FL 33132

305-961-9322

Fax: 530-7976

Email: ryan.stumphauzer@usdoj.gov

Counsel for Defendants

Marc David Seitles

The Law Offices of Marc David Seitles, P.A.

Courthouse Center

40 N.W. 3rd Street

Penthouse One

Miami, FL 33128

305-403-8070 Fax: 403-8210

Email: mseitles@seitleslaw.com