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State v. Mulatillo

Supreme Court of Iowa

February 16, 2018

STATE OF IOWA, Appellee,
v.
CARLOS RAMON MULATILLO, Appellant.

         Appeal from the Iowa District Court for Wapello County, Annette J. Scieszinski, Judge.

         A criminal defendant appeals the district court order disqualifying his privately retained counsel from further representation because counsel had previously represented a confidential informant listed to testify on behalf of the State at defendant's trial.

          Steven Gardner of Denefe, Gardner & Zingg, P.C., Ottumwa, for appellant.

          Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Lisa Moressi, County Attorney, and Amy Jo Hering, Assistant County Attorney, for appellee.

          ZAGER, Justice.

         Carlos Ramon Mulatillo privately retained attorney Steven Gardner to defend him on felony drug charges. Gardner had represented Mulatillo for fifteen months. Less than two weeks before the jury trial was to commence, the State filed additional minutes of testimony listing the name of a confidential informant who would testify against Mulatillo concerning five controlled drug buys he made from Mulatillo. This was the first time Mulatillo and Gardner were informed of the name of the confidential informant and the potential conflict of interest involving this individual. Gardner had previously represented the confidential informant for approximately one month in October 2014 on felony drug charges. Those drug charges led to the confidential informant agreeing to cooperate and assist the State. This cooperation agreement ultimately led to the confidential informant making controlled buys from Mulatillo.

         The State alleged that Gardner had a conflict of interest and filed a motion for a Watson hearing.[1] During the hearing, Gardner denied that there was a conflict of interest. Gardner denied that he obtained any confidential information from the confidential informant during his brief representation of him. Further, Gardner proclaimed any cooperation agreement with law enforcement was negotiated and consummated through another attorney after Gardner had withdrawn from the case. The State and the current attorney for the confidential informant presented hearsay statements suggesting Gardner had engaged in conversations with the former prosecutor about the possibility of the informant working for the task force in exchange for consideration on his own pending felony drug charges. At the conclusion of the hearing, the district court concluded that there was a serious potential for a conflict of interest that precluded Gardner from representing Mulatillo. It granted the State's motion to disqualify Gardner. Upon our review, we conclude there was insufficient evidence presented to demonstrate such a serious potential for a conflict of interest that would warrant disqualifying Gardner from continued representation of Mulatillo. Accordingly, we reverse the district court order of disqualification and remand for further proceedings.

         I. Background Facts and Proceedings.

         On June 15, 2015, the State of Iowa charged Mulatillo with thirteen felony drug offenses. These charges included one count of conspiracy to deliver more than five grams of methamphetamine, six counts of delivery of more than five grams of methamphetamine, and six counts of failure to affix a drug tax stamp. The complaints noted that a confidential informant was used to make controlled buys of methamphetamine from Mulatillo. On June 23, attorney Steven Gardner filed his appearance and plea of not guilty on Mulatillo's behalf. On July 28, the State filed its trial information and minutes of testimony. The minutes listed the names of multiple law enforcement officers who would testify as witnesses. It also referred to the expected testimony of an unnamed confidential informant. The State later filed additional minutes of testimony on August 3 and December 10, but neither of these filings referred to the confidential informant. On August 3, Mulatillo filed a written arraignment, plea of not guilty, and waiver of speedy trial. This document identified Steven Gardner as his privately retained attorney.

         On February 17, 2016, the prosecutor advised Gardner in an email, "I also wanted to make sure you were aware that you represented the confidential informant utilized for Carlos' buys prior to that individual becoming a confidential informant." The prosecutor did not disclose the name of the confidential informant to Gardner. While the case was pending, a pretrial conference was conducted on May 31. As part of the pretrial conference order, the district court noted discovery would be completed by agreement and there were no pending motions that needed to be set for hearing. Jury trial was set for October 18.

         On September 29, attorney Ryan Mitchell filed a notice to the court claiming Gardner had a conflict of interest in representing Mulatillo due to his prior representation of one of the State's witnesses. Gardner emailed Mitchell inquiring about the name of the witness he was referring to in the notice, and Mitchell responded, "I do not believe I can reveal this information. It is the State's responsibility to do this since they are choosing to go to trial." Gardner then emailed the prosecutor for information about the confidential informant to which the prosecutor responded, "[Y]ou represented the confidential informant in Carlos' case prior to them officially signing up as a confidential informant, but in the case that they signed up to receive consideration for prior to Mr. Mitchell representing them." The prosecutor did not provide Gardner with the name of the confidential informant.

         On October 3, after an expedited hearing on the notice filed by attorney Mitchell, the district court concluded Mitchell had no standing to file his notice with the court because he did not represent a party in Mulatillo's case. Accordingly, no action was taken by the district court regarding the potential conflict of interest. On October 5, thirteen days prior to the scheduled jury trial, the State emailed the name of the confidential informant to attorney Gardner and filed additional minutes of testimony that listed Michael Davidson-Mitchell's client-as a witness the State intended to call to testify at trial. This was the first time that the State identified Michael Davidson as the confidential informant who would testify about his role in making controlled buys of methamphetamine from Mulatillo. Both Davidson and another confidential informant were identified as "working proactively with law enforcement for consideration" concerning their own felony drug charges. Two days later, the State filed a motion for a Watson hearing alleging that Gardner had a conflict of interest in representing Mulatillo because Gardner had previously represented Davidson for approximately one month in September and October of 2014. According to the minutes of testimony, Mulatillo made five deliveries of methamphetamine to Davidson in January and March 2015, while Davidson was acting as a confidential informant. In its motion, the State alleged that the drug charges Davidson was facing when Gardner represented him were causally linked to his decision to become the confidential informant who made controlled buys from Mulatillo.[2]

         On November 9, the district court conducted the Watson hearing with all interested counsel participating. At the hearing, Davidson declined to waive his attorney-client privilege, and Mulatillo opposed the disqualification of Gardner as his attorney. The district court heard conflicting professional statements about the nature and extent of Gardner's representation of Davidson. Gardner detailed the extent of his representation as follows: after receiving a telephone call from Davidson, Gardner met with Davidson briefly for a consultation. The primary purpose of this meeting was to discuss his pending drug charges and the terms of Gardner's representation of Davidson. A formal retainer agreement was prepared and executed by Davidson. An appearance and plea of not guilty was filed on behalf of Davidson on September 19, 2014. Additionally, a standard motion to produce was prepared and filed on Davidson's behalf by someone in Gardner's office. Other than the initial conference, Gardner had no other meetings with Davidson to discuss the case, plot strategy, or discuss discovery. According to Gardner, the only additional contact he had with Davidson was a telephone message asking him to withdraw his representation of Davidson. Gardner filed his withdrawal on October 17.

         Gardner categorically denied that he had any communication with the prosecutor or Davidson at any time regarding the possibility of Davidson assisting law enforcement for consideration of his own pending felony drug charges. Gardner maintained that any discussions or agreements related to Davidson serving as a confidential informant occurred after Gardner withdrew from Davidson's case on October 17. At the hearing, the district court asked Gardner questions about problems that could arise while he was cross-examining Davidson during Mulatillo's trial. For example, the judge asked Gardner what he would do if "Mr. Davidson lies about something that you have knowledge he lied about because you had the skinny on his background or his involvement or whatever from your representation." Gardner responded that he did not know because he had never been in that situation, nor would that situation occur in this case since the only information he would have, or impeachment evidence, ...


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