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In re Material Witness Lukas Zak

United States District Court, D. Maine

November 19, 2017

In re Material Witness Lukas Zak In re Material Witness Jaroslav Hornof In re Material Witness Damir Kordic In re Material Witness Peter Demcak In re Motion for Conflict Counsel In re Motion for Return of Property


          John H. Rich III United States Magistrate Judge

         Four material witnesses, Slovak citizens Lukas Zak and Peter Demcak, Czech citizen Jaroslav Hornof, and Croatian citizen Damir Kordic, petitioned for release from material witness arrest warrants issued by this court.[1] Each filed a motion or motions seeking to dissolve his arrest warrant, modify the conditions of his release, or be deposed pursuant to Federal Rule of Criminal Procedure 15.[2] The material witnesses also collectively filed a motion for the return of property that they alleged had been confiscated by the United States Coast Guard, namely, their passports and visas. See Motion To Return Property Pursuant to F.R. Crim. P. 41(g) (“Motion To Return Property”) (ECF No. 1), In re Motion for Return of Property.

         In connection with those matters, the government filed a motion for the appointment of conflict counsel, see United States' Motion for Conflict Counsel (“Conflict Motion”) (ECF No. 1), In re Motion for Conflict Counsel, and a motion to quash subpoenas served by material witness Zak on four United States Department of Homeland Security officials, see Government's Motion To Quash Subpoenas Served on Four Department of Homeland Security Officials (“Motion To Quash”) (ECF No. 28), In re Material Witness Lukas Zak.

         An evidentiary hearing was held before me on August 24, 2017, at which all four material witnesses were present, had the assistance of an interpreter, and were represented by counsel, and counsel for both sides argued orally.[3] I questioned all four material witnesses on the conflict of counsel issue and admitted several exhibits without objection. During the hearing, I orally granted the Conflict Motion to the extent that I questioned each of the material witnesses under oath, and otherwise denied it, determining that no actual or apparent conflict existed, granted the Warrant Motions to the extent that I ordered the government to depose the four material witnesses within 30 days, following which they were to be released from the material witness warrant conditions and allowed to depart the United States, and deemed the Motion To Return Property moot.[4]

         I write to set forth my grounds for my August 24, 2017, rulings and to clarify that those rulings mooted the Warrant Motions, to the extent that they sought additional or alternative relief, as well as the government's motion to quash in the Zak case.

         I. Background

         Together, the material witnesses served as crew members aboard the Motor Vessel (“M/V”) Marguerita, whose owner, known as “Reederei, ” and operator, known as “MST, ” have been indicted on criminal charges related to, inter alia, the alleged discharge of oil waste in violation of various federal laws. See Indictment (ECF No. 1), United States v. MST Mineralien Schiffarht Spedition und Transport GMBH, et al., No. 2:17-cr-00117-NT (D. Me.).

         The vessel was inspected by United States Coast Guard officials from July 7-9, 2017, in the port of Portland, Maine. The material witnesses and other crew members were detained onboard for approximately a week, following which MST and Reederei entered into a security agreement with the government pursuant to which the material witnesses were housed at a motel in the Portland, Maine, area and provided their salaries and a per diem allowance to cover meals and expenses. The United States Coast Guard seized their passports.

         In substance, the material witnesses asserted in the Warrant Motions that they had testified before the grand jury to everything that they knew about any topic of possible interest and that, to the extent that the government desired their testimony at trial, a deposition pursuant to Rule 15 would suffice. Accordingly, they argued, they should be released and allowed to return to their home countries.

         In its Conflict Motion, the government requested that the court inquire of the four material witnesses as to whether a conflict of interest existed because they were represented by a single attorney, or, in the alternative, that the court appoint conflict counsel to engage in the same inquiry.

         See Conflict Motion at 1. The government also asserted that the material witnesses' attorney might have a conflict of interest as between the material witnesses and the corporate defendants. See id. at 3.

         II. Discussion

         A. Government's Motion for Conflict Counsel

         Conflict of interest inquiries in this district are governed by the Maine Rules of Professional Conduct. See Concordia Partners, LLC v. Ward, No. 2:12-cv-138-GZS, 2012 WL 3229300, at *1 (D. Me. Aug 6, 2012); Loc. R. 83.3(d). Maine's Law Court “has held that disqualification of an attorney is appropriate only where the moving party produces evidence supporting two findings: (1) ‘continued representation of the nonmoving party by that party's chosen attorney results in an affirmative violation of a particular ethical rule' and (2) continued representation by the attorney would result in ‘actual prejudice' to the party seeking that attorney's disqualification.” Concordia, 2012 WL 3229300, at *1 (quoting Morin v. Me. Educ. Ass'n, 993 A.2d 1097, 1100 (Me. 2010)). Rules 1.7 of the Maine Rules of Professional Conduct provides, in relevant part:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict-of-interest. A concurrent conflict-of-interest exists if:
(1) the representation of one client would be directly adverse to another client, even if representation would not occur in the same matter or in substantially related matters; or
(2) there is a significant risk that the representation of one or more clients would be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict-of-interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer would be able to provide competent and diligent representation to each affected client; and
(2) each affected client gives informed consent, confirmed in writing.

Me. R. Prof. Conduct 1.7.

         In its motion, and at oral argument, the government advanced four arguments in support of its position that the witnesses' shared counsel, Edward MacColl, Esq., had several possible ...

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