United States v. Wells

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GEORGIA WARD, AKA GEORGE WARD, 1

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Defendant.3

_____________________________________ 4

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For Defendant-Appellant: JEANANNE MURRAY, Murray Law LLC, New York, NY.

For Appellee: KATHERINE CHENG (Jeffrey Coyle and Michael D. Maimin, on the brief), Assistant United States Attorneys, for Edward Y. Kim, Acting United States Attorney for the Southern District of New York, New York,

NY.

Appeal from a judgment of the United States District Court for the Southern 6 District of New York (Jed S. Rakoff, Judge). 7

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 8

ADJUDGED, AND DECREED that the December 22, 2023 judgment of the 9 district court is AFFIRMED. 10

Laurell Wells appeals a judgment of conviction following his guilty plea to 11 one count of participating in a conspiracy to commit wire and bank fraud in 12 violation of 18 U.S.C. § 1349; one count of committing bank fraud, and aiding and 13 abetting the same, in violation of 18 U.S.C. §§ 1344 and 2; and one count of 14 committing aggravated identity theft in violation of 18 U.S.C. §§ 1028(a)(1), 15 1028A(b), and 2. The district court imposed an aggregate sentence of 132 months' 16

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imprisonment to be followed by a five-year term of supervised release. On appeal, 1 Wells argues that the district court erred in denying his attorney's motion to 2 withdraw as counsel; he also challenges the district court's order authorizing the 3 disclosure of his Presentence Report ("PSR") to his health care provider. We 4 assume the parties' familiarity with the underlying facts, procedural history, and 5 issues on appeal. 6

I. Defense Counsel's Motion to Withdraw. 7 On the eve of trial, Wells's court-appointed lawyer moved to withdraw 8 based on an asserted conflict of interest stemming from his firm's prior 9 representation of Chase Bank ("Chase"), one of the victims of the bank fraud 10 scheme. See Sealed App'x at 60. The district court denied the motion, finding that 11 Wells had effectively waived any conflict. Id. at 82-84. On appeal, Wells contends 12 that defense counsel's prior representation constituted an actual and unwaivable 13 conflict of interest that was uncured by the waiver provided by Chase. We 14 disagree. 15

The right to counsel under the Sixth Amendment entails "a correlative right 16 to representation that is free from conflicts of interest." United States v. Levy, 25 17 F.3d 146, 152 (2d Cir. 1994) (quoting Wood v. Georgia, 450 U.S. 261, 271 (1981)). 18

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"[T]he essential aim of the Sixth Amendment is to guarantee an effective advocate 1 for each criminal defendant rather than to ensure that a defendant will inexorably 2 be represented by the lawyer whom he prefers." United States v. Lussier, 71 F.3d 3 456, 461 (2d Cir. 1995) (alteration adopted and internal quotation marks omitted). 4 We review a district court's denial of defense counsel's motion to withdraw for 5 abuse of discretion, and show "considerable deference to the district court's 6 decision especially when the prosecution of the suit is likely to be disrupted by the 7 withdrawal of counsel." United States v. Oberoi, 331 F.3d 44, 47 (2d Cir. 2003) 8 (internal quotation marks omitted). 9

A. The District Court Fulfilled Its Inquiry Obligation. 10 When "the specter of conflicts of interest arises," Lussier, 71 F.3d at 461 11 (internal quotation marks omitted), the district court must first "inquire into the 12 existence of a conflict of interest" and "determine whether the attorney has an 13 actual conflict, a potential conflict, or no conflict," United States v. Kliti, 156 F.3d 14 150, 153 (2d Cir. 1998). "In fulfilling this initial obligation to inquire into the 15 existence of a conflict of interest, the trial court may rely on counsel's 16 representations." Id. The district court met that threshold obligation here. 17

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After Wells's trial counsel identified the conflict issue at a pretrial hearing 1 on September 5, 2023, the district court directed counsel to make a further written 2 submission so that the court could determine whether there was "a material 3 conflict"; the court noted that if there was "even a hint there, we could have a 4 Curcio hearing." Redacted App'x at 59 (referencing the requirements set forth in 5 United States v. Curcio, 680 F.2d 881, 889 (2d Cir. 1982)). Ten days later, defense 6 counsel filed a letter confirming that Chase was a firm client, but explaining that, 7 in counsel's view, the conflict was a waivable potential conflict due to the 8

"somewhat background nature of the bank[']s involvement" in Wells's scheme; 9 counsel also believed that it was not in Wells's interest to challenge the evidence 10 from Chase. Sealed App'x at 62. Counsel further noted that the firm had secured 11 a conflict waiver from Chase, but that Wells had "refuse[d] to discuss the issue 12 with" him. See id. at 62, 88. And on September 18, the district court held a pretrial 13 hearing to discuss the conflict and the possibility of a waiver. See Lussier, 71 F.3d 14 at 461. During this hearing, the district court informed Wells of the nature of the 15 conflict, which stemmed from the fact that defense counsel's firm had "previously 16 represented Chase Bank in some unrelated matters." Redacted App'x at 90. Given 17

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this record, we conclude that the district court clearly met its threshold obligation 1 to inquire about the conflict. 2

B. Trial Counsel's Conflict Was a Waivable Potential Conflict. 3

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Once a district court determines that a defendant's attorney "in fact[] labors 5 under an actual or potential conflict," the court has an obligation to "ensure that 6 the conflict is either eliminated or waived." Lussier, 71 F.3d at 461. If a conflict is 7

"so egregious that no rational defendant would knowingly and voluntarily desire 8 the attorney's representation," the court must disqualify the attorney. Id. But if 9 the court determines that the conflict is "not severe" or that "there is only the 10 possibility of a conflict, then the court must follow the procedures set out in United 11 States v. Curcio to secure a knowing, voluntary, and intelligent waiver from the 12 defendant of his right to a non-conflicted attorney." Id. (internal citation omitted). 13 The district court correctly concluded that defense counsel's representation 14 of Chase created a waivable potential conflict of interest, not an actual, unwaivable 15 one. See Kliti, 156 F.3d at 153 n.3. We have recognized only a "very narrow 16 category of cases" in which attorney conflicts have been deemed to be 17

"unwaivable." United States v. Perez, 325 F.3d 115, 126 (2d Cir. 2003). But no such 18 conflict existed here. See id. at 127 (observing that "lesser conflicts, such as an 19

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attorney's representation of two or more defendants or his prior representation of 1 a trial witness, are generally waivable"). Indeed, attorneys are rarely disqualified 2 from representing a client simply because their firms previously represented 3 witnesses or victims in a particular case. See, e.g., United States v. Leslie, 103 F.3d 4 1093, 1098-99 (2d Cir. 1997) (concluding that defense counsel's prior 5 representation of codefendant presented, at most, a potential conflict and not an 6 unwaivable one, where the codefendant waived any conflict and did not 7 ultimately testify). 8

Here, Chase - an institutional victim of the alleged bank fraud scheme - was 9 a client of trial counsel's firm; in addition, one of the lawyers on Wells's defense 10 team had worked on Chase matters while at the firm. See Sealed App'x at 62. 11 Nevertheless, defense counsel represented that the firm had secured a conflicts 12 waiver from Chase, freeing them to cross-examine Chase witnesses without 13 limitation and to represent Wells with complete loyalty. An attorney's "prior 14 representation of a trial witness" is "generally waivable," even where the conflict 15 might require a defendant to abandon a particular defense or line of questioning. 16 Perez, 325 F.3d at 127; see also United States v. Basciano, 384 F. App'x 28, 34 (2d Cir. 17 2010) (holding that defense counsel's prior representation of a cooperating witness 18

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for the government did not constitute an unwaivable conflict). Accordingly, we 1 conclude that the conflict raised by Wells was not an "unwaivable" conflict, but 2 rather one that could be "knowingly and intelligently waived." Perez, 325 F.3d at 3 127-28. 4

C. Wells Knowingly and Intelligently Waived the Conflict. 5 Nor did the district court abuse its discretion in finding that Wells 6

"knowingly and intelligently waive[d] his right to conflict-free representation." 7 Kliti, 156 F.3d at 153. Wells was informed of the potential conflict both in court 8 and by letter prior to the hearing. During the September 18 hearing, the district 9 court advised Wells of the dangers arising from the conflict, explaining that 10 defense counsel "previously represented Chase Bank in some unrelated matters," 11 and that "they might be less assiduous in [cross-examining Chase employees] 12 because of the firm's representation of Chase in other matters." Wells Br. at 10, 13; 13 Redacted App'x at 90. The district court then noted that "the question is whether 14 you care," and stated that "even if you intend to plead guilty, you can't go forward 15 with these lawyers unless you assure me that you have no problem going forward 16 with these lawyers." Redacted App'x at 90. In response, Wells confirmed that he 17 wished to "go ahead and have [defense counsel] represent [him] going forward," 18

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and declined the court's offer to appoint him independent counsel to further 1 advise him on the conflict. Id. at 96. On September 19, Wells reaffirmed that he 2 was "prepared to have [his] current counsel represent [him] at this trial" and gave 3

"up any claims of conflict." Id. at 174. 4 On appeal, Wells nonetheless contends that his waiver was inadequate 5 because the district court "downplayed the conflict" between Chase and Wells, 6 Wells Br. at 53, failed to provide Wells with independent Curcio counsel, and 7 improperly induced Wells to waive the conflict by advising him that "if [Wells] 8 did not waive the conflict, he would have to proceed to trial pro se," id. at 55. But 9 these arguments are belied by the record. At the Curcio hearing held on September 10 18, 2023, the district court discussed appointing Wells new, unconflicted counsel 11 three separate times, and asked Wells if he wished to consult with an independent 12 lawyer about the conflict question. Sealed App'x at 77, 81-82; Redacted App'x at 13 96, 150-51. Wells declined the offer and opted to proceed with his appointed 14 defense counsel. Sealed App'x at 77, 81-82; Redacted App'x at 96, 150-51. 15 The following day, which was the first day of trial, Wells reversed course 16 and asked the district court to relieve his counsel. But this request was not based 17 on any asserted concern regarding the conflict. To the contrary, Wells 18

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acknowledged through counsel that he understood the conflict waiver from the 1 day before and understood that defense counsel would be able to "cross and 2 attack" the Chase witness. See Redacted App'x at 135-36. Instead, Wells 3 communicated through counsel that he desired to part ways with his counsel due 4 to a disagreement about the best way "to cross-examine Chase to ask them 5 questions." Redacted App'x at 135-36. Only then did the district court inform 6 Wells that he had to choose - "continue with counsel" or "represent yourself pro 7 se." Id. at 136. A disagreement over trial tactics is not a conflict of interest. See 8 United States v. Rosemond, 958 F.3d 111, 119-20 (2d Cir. 2020) (explaining that the 9

"adversary process could not function effectively if every tactical decision 10 required client approval" (internal quotation marks omitted)). "And it is well 11 settled that a defendant may not disrupt proceedings by demanding new counsel 12 whenever he differs from his lawyer's strategic, legal, or ethical judgments about 13 how to conduct a case." United States v. Rivernider, 828 F.3d 91, 108 (2d Cir. 2016). 14 To the extent there was any confusion as to the scope of Wells's waiver from 15 the day before, the district court reviewed the transcript of the Curcio hearing, and 16 although the district court thought Wells's waiver was sufficient to apply to his 17 counsel's representation across the board, the district court proceeded to discuss 18

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the conflict in detail again, including by asking the government about the 1 testimony they would elicit from the Chase witness. Redacted App'x at 152-53, 2 165-73. After the government previewed the kinds of questions it would ask the 3 Chase witness, Wells again agreed to waive the conflict. Redacted App'x at 173-4

74. 5

Because the district court properly held a Curcio hearing, and because the 6 record reflects that Wells understood the risks associated with his counsel's 7 potential conflict of interest, was given the "time to digest and contemplate the 8 risks," and was offered the chance "to seek advice from independent counsel," 9 United States v. Arrington, 941 F.3d 24, 40 (2d Cir. 2019) (internal quotation marks 10 omitted), we find no abuse of discretion in the district court's conclusion that Wells 11 knowingly and intelligently exercised his right to waive the potential conflict, see 12 Curcio, 680 F.2d at 885. 13

II. Challenge to Supervised Release Condition. 14 As part of Wells's sentence, the district court imposed a condition of 15 supervised release that requires Wells to participate in cognitive behavioral 16 therapy; it also authorized the Probation Office to provide Wells's mental health 17 treatment provider with copies of Wells's PSR and psychological and psychiatric 18

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evaluations. Redacted App'x at 290. On appeal, Wells challenges only that portion 1 of the judgment authorizing the release of his PSR and mental health records to 2 the provider. 3

We review a district court's imposition of a special condition of supervised 4 release for abuse of discretion. United States v. Dupes, 513 F.3d 338, 342-43 (2d Cir. 5 2008). District courts have "broad discretion" to impose conditions of supervised 6 release. United States v. Oliveras, 96 F.4th 298, 313 (2d Cir. 2024). However, that 7 discretion is not unfettered, and special conditions of supervised release must be 8

"reasonably related to certain statutory factors governing sentencing, involve no 9 greater deprivation of liberty than is reasonably necessary to implement the 10 statutory purposes of sentencing, and [be] consistent with pertinent Sentencing 11 Commission policy statements." United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 12 2019) (alteration adopted and internal quotation marks omitted). 13 Wells argues that the release of his PSR and mental health records was not 14 sufficiently related to the factors set forth in 18 U.S.C. § 3553(a) and was greater 15 than necessary to meet the objectives of sentencing. But disclosure of these records 16 to treatment providers is routine, and it is well within the district court's authority 17 to impose such a condition. See, e.g., United States v. Washington, 904 F.3d 204 (2d 18

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Cir. 2018) (remanding on other grounds without questioning the special condition 1 that authorized the release of available psychological and psychiatric evaluations 2 and reports, including the presentence investigation report, to treatment 3 provider); see also, e.g., United States v. Harris, No. 24-1099-CR, 2025 WL 1040034, 4 at *3 (2d Cir. Apr. 8, 2025) (holding that the district court did not err in authorizing 5 the disclosure of the PSR and psychological/psychiatric reports to treatment 6 providers). Since Wells himself concedes that the requirement of mental health 7 treatment was appropriate, it can hardly be argued that the disclosure of his PSR 8 and mental health records to his therapist was unrelated to "the need . . . to 9 provide the defendant with . . . medical care, or other corrective treatment in the 10 most effective manner." 18 U.S.C. § 3553(a). Nor can it be suggested that such 11 limited disclosures to his treatment provider would result in a "greater 12 deprivation of liberty than is reasonably necessary." Eaglin, 913 F.3d at 94 (internal 13 quotation marks omitted). For all these reasons, the district court did not err in 14 imposing the special condition at issue here. 15

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* * * 1 We have considered Wells's remaining arguments and find them to be 2 without merit. Accordingly, we AFFIRM the judgment of the district court. 3

FOR THE COURT: 4

Catherine O'Hagan Wolfe, Clerk of Court 5

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