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PICCARRETA DAVIS KEENAN FIDEL PC

2 East Congress Street, Suite 1000

Tucson, AZ 85701

(520) 622-6900

Michael L. Piccarreta

State Bar No. 003962

Email: mlp@pd-law.com

Attorney for Defendant Andrew Padilla

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

6. Andrew Padilla,

 (Counts 1-51)

 

 Defendants.

NO. CR-18-00422-06-PHX-SPL (BSB)

DEFENDANT PADILLA’S

OPPOSITION TO GOVERNMENT’S

MOTION TO DISQUALIFY 

COUNSEL (Doc. 118)

(Oral Argument Requested)

Defendant Andrew Padilla, by and through his undersigned attorney, hereby 

responds in opposition to the government’s motion to disqualify counsel. (Doc. 118).

BACKGROUND

Defendant Andrew Padilla worked at the website Backpage.com (“Backpage”)

until the government shut it down. One of Mr. Padilla’s primary responsibilities was 

ensuring that third-party ads posted on Backpage conformed to the website’s terms of use. 

Mr. Padilla is aware that Backpage, its owner Carl Ferrer, its prior owners Michael Lacey 

and Jim Larkin, and, in some cases, other employees of Backpage, have been involved in 

litigation across the country concerning Backpage. Mr. Padilla is also aware that Backpage 

and some of these individuals have been represented by the law firm Davis Wright 

Tremaine LLP (“DWT”). Specifically, DWT attorneys James C. Grant and Robert CornCase 2:18-cr-00422-DJH Document 177 Filed 06/06/18 Page 1 of 17
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Revere have been very successful in litigating issues related to the First Amendment, Title 

47 U.S.C. § 230 (the Communications Decency Act), and other relevant and related legal 

and constitutional issues as they relate to challenges by government authorities and others 

concerning Backpage.

1

Mr. Padilla retained undersigned counsel in 2017 in connection with a federal grand 

jury investigation of Backpage in the District of Arizona. At that time, Mr. Padilla entered 

into a joint defense agreement with Mr. Ferrer, Mr. Lacey, Mr. Larkin, and others 

employed by or associated with Backpage.2 While the contents of that agreement are and 

remain confidential (and without waiving any claims of confidentiality or privilege), it was 

the intent of the agreement that Mr. Padilla, and other signatories to the agreement, would 

continue to receive the benefit of the excellent representation DWT’s lawyers had been 

providing in all of these matters.3 Quite simply, DWT is Mr. Padilla’s counsel of choice for 

these issues. As a signatory to the agreement (and under the Fifth and Sixth Amendments 

 1 Robert Corn-Revere has extensive experience in First Amendment law and 

communications, media, and information technology law. He formerly served as Chief 

Counsel to the Chairman of the Federal Communications Commission and is a past 

national chairman of the First Amendment Lawyers Association. His numerous honors 

include being selected by Best Lawyers in America as Washington D.C.’s “Lawyer of the 

Year” in both First Amendment litigation and First Amendment law for 2017. He has long 

been recognized as one of the leading attorneys in the country on First Amendment issues. 

James C. Grant has over 30 years of experience and his practice focuses on internet 

businesses and websites in cases across the country, including numerous high-profile 

actions concerning free speech, state regulatory efforts, privacy, and consumer, marketing, 

and business practices. He was formerly vice president and chief litigation counsel for 

AT&T Wireless. He has also been recognized by Best Lawyers in America and is 

considered a preeminent attorney in 47 U.S.C. § 230 litigation.

2 Mr. Padilla has joined in Mr. Lacey and Mr. Larkin’s opposition to the government’s 

motion to disqualify counsel.

3 The joint defense agreement will be provided to the Court for In Camera review.

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to the United States Constitution), Mr. Padilla has the right to the continued service of the 

DWT lawyers.

It must be noted that Mr. Grant and Mr. Corn-Revere do not devote their practices 

to defending the criminally accused. Mr. Ferrer, Mr. Lacey, Mr. Larkin, Mr. Padilla, and 

the others listed in the indictment, have all retained separate experienced criminal defense 

counsel to represent them individually in these criminal proceedings. It is the intent of the 

joint defense agreement that the DWT lawyers would continue their role in addressing 

issues concerning the First Amendment, internet free speech and privacy, and other related 

and relevant legal and constitutional issues for all signatories to the agreement. These 

issues apply equally to all defendants in the case and it was the purpose of the agreement 

that the DWT lawyers would continue to address these issues for all defendants (even if 

members of the joint defense agreement withdrew and cooperated), including filing legal 

motions to dismiss, other motions, and related appeals.

The government is well aware of the successful results the DWT lawyers have

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obtained in proceedings involving Backpage across the country.4 These cases include 

attempts to hold Backpage, and others associated with the website, vicariously liable for the 

acts of third persons predicated on the same underlying theories of criminal liability that are 

at issue in the present case. The DWT lawyers were successful in obtaining dismissal of 

criminal charges in California premised on the theory that Backpage was criminally liable 

for receiving payments for ads posted on the website and that doing so allegedly 

constituted pimping or promotion of prostitution.

5 More recently, the DWT lawyers filed a 

motion in the California case to dismiss the remaining charges or suppress evidence for 

prosecutorial misconduct and violations of constitutional rights and statutory protection 

proscribing government access to electronic communications, proceedings which very well 

may affect these current proceedings.6 In short, the DWT lawyers have been very effective 

in combatting efforts such as the present criminal prosecution in which the First 

 4 A partial list includes successfully enjoining state criminal laws directed at Backpage’s 

operations on the grounds that these activities are protected by the First Amendment. See 

Backpage.com LLC v. Cooper, 939 F.Supp.2d 805 (M. D. Tenn. 2013); Backpage.com 

LLC v. Hoffman, 2013 WL 4502097 (D. N. J. 2013); Backpage.com LLC v. McKenna, 881 

F.Supp.2d 1262 (W. D. Wash. 2012). Other successes include Jane Doe No. 1 v. 

Backpage.com LLC, 817 F.3d 12, 21 (1st Cir. 2016) (“Features such as [Backpage’s 

decisions about how to treat postings], which reflect choices about what content can appear 

on the website and in what form, are editorial choices that fall within the purview of 

traditional publisher functions”); and Backpage.com LLC v. Dart, 807 F.3d 229 (7th Cir. 

2015) (recognizing First Amendment protections for Backpage’s activities and finding that 

county sheriff’s demand that credit card companies prohibit use of their cards to purchase 

any ads on Backpage violated the First Amendment).

5 People v. Ferrer, No. 16FE019224 (Cal. Super. Ct. Dec. 16, 2016, *10) and No. 

16FE024013 (Cal. Super. Ct. Aug. 23, 2017, p. 13).

6 See Notice of Motion and Motion to Dismiss for Government Misconduct and to Void 

Warrants and Subpoenas and Suppress Evidence for Violations of the California Electronic 

Communications Privacy Act and the U.S. and California Constitutions, People v. Ferrer, 

No. 16FE024013 (Cal. Super. Ct. March 5, 2018), attached hereto as Exhibit A.

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Amendment rights of websites that publish ads are the core protection against the 

government’s novel attempt to vicariously impose criminal liability on the publishers for 

the acts of others. Although the government professes concern for the integrity of the trial 

process, the stark reality is that the government will gain huge tactical advantages if DWT 

is removed from their role in these matters, whereas the defendants will be tactically 

disadvantaged in ways that simply cannot be remedied.

The basis for the government’s motion to disqualify counsel is the government’s 

erroneous claim that the fact that Mr. Ferrer is now a cooperating witness for the 

government creates a conflict with DWT continuing their representation of the seven noncooperating defendants listed in the indictment. The purported basis for the conflict is the 

claim that the DWT attorneys will not be able to effectively cross-examine Mr. Ferrer 

while also respecting their duty to Mr. Ferrer as a former client to preserve confidential and 

privileged information that may provide fodder for effective cross-examination. These 

purported concerns are baseless.

First, as part and parcel of his agreement to cooperate with the government, Mr. 

Ferrer waived, in writing, any claims of attorney-client privilege, whether in his personal or 

official capacity, as to communications with any attorney or law firm that represented 

Backpage, or any related entities, except as to his current criminal defense counsel Nanci 

Clarence and Jonathan Baum. (Correspondence from AUSA Kevin Rapp to Mike 

Piccarreta, May 14, 2018, attached hereto as Exhibit B). Second, it is Mr. Padilla’s 

understanding that Mr. Ferrer, Mr. Lacey, and Mr. Larkin entered into agreements for 

DWT’s joint representation in which Mr. Ferrer also agreed to share confidential 

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information and waive potential conflicts of interest as to any pending or potential civil or 

criminal proceedings and these agreements specifically anticipated that the parties’ interests 

could diverge in the future, and therefore allowed that a party could withdraw from the 

joint representation arrangement but could not move to disqualify counsel from continuing 

to represent the remaining parties. Third, Mr. Ferrer and his criminal counsel, Nanci 

Clarence, as signatories to the joint defense agreement, specifically waived any claims of 

conflict, specifically agreed that any confidential information acquired by any of the other 

signatories or their attorneys could be used in cross-examination of Mr. Ferrer if he became 

a cooperating government witness, and further specifically agreed not to assert any future 

claim that any attorneys would be disqualified from continued representation due to the 

receipt of any such information.

Mr. Padilla now objects to the government’s improper attempt to deprive him of his 

Fifth and Sixth Amendment rights to counsel of choice on these matters.

ARGUMENT

The Sixth Amendment guarantees the right of non-indigent defendants to choose 

who will represent them. Erroneous denial of the right to counsel of choice is structural 

error and requires automatic reversal even in the absence of any showing of prejudice. The 

“Sixth Amendment right to counsel of choice...commands, not that a trial be fair, but that a 

particular guarantee of fairness be provided -- to wit, that the accused be defended by the 

counsel he believes to be best.” United States v. Gonzalez-Lopez, 548 U.S. 140, 146 

(2006). “The right to select counsel of one’s choice...has been regarded as the root 

meaning of the constitutional guarantee.” Id. at 147-48. “Where the right to be assisted by 

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counsel of one’s choice is wrongly denied, therefore, it is unnecessary to conduct an 

ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.” Id. at 148. 

“Deprivation of the right is ‘complete’ when the defendant is erroneously prevented from 

being represented by the lawyer he wants, regardless of the quality of the representation he 

received.” Id.

7

Because erroneous denial of the right to counsel of choice requires automatic 

reversal courts have repeatedly “warned that disqualification of defense counsel should be 

a measure of last resort.” United States v. Diozzi, 807 F.2d 10, 12 (1st Cir. 1986). “In 

moving to disqualify appellants’ chosen counsel, the government bears a heavy burden of 

establishing that disqualification is justified. United States v. Washington, 797 F.2d 1461, 

1465 (9th Cir. 1986).” Id.

Moreover, because of the clear potential for abuse when the government attempts to 

separate a defendant from his counsel of choice:

the court should be extremely careful not to let the government’s attempted 

disqualification of defense counsel “transform the sixth amendment right to 

conflict-free counsel into a two-edge sword with which the government 

would be able to sever defendants from those most able to protect their 

legitimate legal interests.” In re Paradyne Corp., 803 F.2d 604, 611 (11th 

Cir. 1986). In an extremely complicated case it may cause a fundamental 

injustice to remove the one attorney whose intimate knowledge of the 

defense and whose close relationship with the defendants make him 

practically the only available attorney capable of presenting effective 

 7 The Supreme Court recently reaffirmed the “nature and importance of the constitutional 

right” to counsel of choice under the Sixth Amendment. Luis v. United States, 578 U.S. __, 

__, 136 S.Ct. 1083, 1088 (2016). It has also long been settled that, under the Fifth 

Amendment’s guarantee of due process of law, “a defendant should be afforded a fair 

opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53 

(1932).

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assistance of counsel.

United States v. Renda, 669 F.Supp. 1544, 1549 (D. Kan. 1987) (emphasis in original).

The Arizona Supreme Court “also view[s] with suspicion motions by opposing 

counsel to disqualify a party’s attorney based upon conflict of interest” and places 

particular emphasis on the “public suspicion regarding an attempt by the state to disqualify 

a defendant’s attorney.” Gomez v. Superior Court, 149 Ariz. 223, 226 (1986).

8 In addition, 

the Arizona Supreme Court has made it clear that the prosecution “has no standing to 

object as to who will or will not represent the defendant or be associated as counsel.” 

Knapp v. Hardy, 111 Ariz. 107, 112 (1974). “Not only does this strike at the very heart of 

the adversary system, but as we have previously stated:...‘for the prosecution to participate 

in the selection or rejection of its opposing counsel is unseemly if for no other reason than 

the distasteful impression which could be conveyed.’ State v. Madrid, 105 Ariz. 534, 535 [] 

(1970).” Id. See also Rodriguez v. State, 129 Ariz. 67, 70 (1981) (prosecution lacked 

standing to seek to disqualify defense counsel).

Having brought the matter to this Court’s attention, the government should not be 

permitted to participate any further in any proceedings relating to the disqualification issue, 

especially because the government has indicated that Mr. Ferrer does not wish to be a party 

to the government’s motion. (Ex. B, p. 4). As noted above, resolution of these matters will 

require the In Camera submission of privileged and confidential materials that opposing 

 8 “Because we apply state law in determining matters of disqualification, we must follow 

the reasoned view of the state supreme court when it has spoken on the issue.” In re County 

of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000).

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counsel has no right to see.

The Arizona Supreme Court has also emphasized that “[o]nly in extreme 

circumstances should a party to a lawsuit be allowed to interfere with the attorney-client 

relationship of his opponent.” Alexander v. Superior Court, 141 Ariz. 157, 161 (1984)

(citations omitted).

9 “The burden should be upon the moving party to show sufficient 

reason why an attorney should be disqualified from representing his client. Whenever 

possible the courts should endeavor to reach a solution that is least burdensome upon the 

client or clients.” Id.

In the present case, this Court must consider the burdens placed upon the seven 

non-cooperating signatories to the joint defense agreement who are entitled to the 

continued representation of DWT on these vital First Amendment, internet, and privacy 

issues. As signatories to the joint defense agreement, Mr. Padilla and the remaining noncooperating defendants have standing to oppose the government’s motion to disqualify 

counsel. See United States v. Jones, 44 F.3d 860, 873 (10th Cir. 1995) (“Mr. Scott also 

contends that his personal Sixth Amendment rights were implicated because the 

disqualification denied him the ability to plan and pursue a joint defense....Mr. Scott has 

standing to bring this claim....”) (emphasis in original).

If a co-defendant’s attorney is threatened with disqualification or is actually 

disqualified -- whether on the government’s motion or on the court’s own 

initiative -- then a defendant may have standing to complain of the 

 9 Alexander is discussed in the Arizona State Bar Ethics Opinion (91-05) the government 

cited to this Court. (Doc. 118, pp. 9-10).

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disqualification if he planned to pursue a joint defense. In this situation, the 

defendant’s personal Sixth Amendment rights are implicated, and he has 

standing to join the dispute as a result.

D. Richmond, The Rude Question of Standing in Attorney Disqualification Disputes, 25 

Am. J. Trial Advoc. 17, 65 (Summer 2001) (citing Jones).

Under the law governing joint defense agreements, one signatory cannot blow up 

the entire agreement for the rest of the signatories through his unilateral decision to 

cooperate with the government, and thereby deprive all the remaining signatories of their 

constitutional right to counsel of choice and the continued benefits of representation under 

the agreement. It is highly foreseeable that a defendant may choose to cooperate with the 

government and the joint defense agreement specifically provides for this contingency. As 

signatories to the agreement, Mr. Ferrer and his criminal counsel, Ms. Clarence, 

specifically waived any claims of conflict, specifically agreed that confidential information 

acquired by any of the other signatories or their attorneys could be used in crossexamination of Mr. Ferrer if he became a cooperating government witness, and further 

specifically agreed not to assert any future claim that any attorneys would be disqualified 

from continued representation due to the receipt of any such representation.10

The case law governing joint defense agreements also makes it clear that a 

defendant’s decision to cooperate with the government does not create any conflict of 

 10 Such conflict waivers in joint defense agreements are valid and enforceable. In fact, the 

American Law Institute and American Bar Association jointly drafted a form waiver in 

their model joint defense agreement. Joint Defense Agreement, Am. Law Institute - Am. 

Bar Ass’n, Trial Evidence in the Federal Courts, Problems and Solutions, at 35 (1999); see 

also 5B West’s Federal Forms, District Courts -- Criminal § 94.42, Joint Defense 

Agreement, sec. VIII, Conflict of Interest and Disqualification (5th ed. June 2017 Update).

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interest requiring disqualification of remaining counsel. In United States v. Almeida, 341 

F.3d 1318 (11th Cir. 2003), the court held “that [cooperating defendant] waived his 

attorney-client privilege when he turned state’s evidence, thereby entirely removing the 

possibility of a conflict of interest from the case.” Id. at 1324.

We hold that when each party to a joint defense agreement is represented by 

his own attorney, and when communications by one co-defendant are made 

to the attorneys of other co-defendants, such communications do not get the 

benefit of the attorney-client privilege in the event that the co-defendant 

decides to testify on behalf of the government in exchange for a reduced 

sentence.

Id. at 1326.

11 In the present case, Mr. Ferrer, Mr. Lacey, Mr. Larkin, Mr. Padilla, and all of 

the other signatories to the joint defense agreement were separately represented by their 

own criminal counsel. Mr. Ferrer is therefore barred from claiming that his decision to 

cooperate with the government now creates a conflict of interest requiring disqualification.

This is especially true in light of the fact that, in his cooperation agreement with the 

government, Mr. Ferrer and his criminal counsel, Ms. Clarence, also waived, in writing, 

any claims of attorney-client privilege, whether in his personal or official capacity, as to 

communications with any attorney or law firm that represented Backpage, or any related 

entities, except as to his current criminal defense counsel. (Exhibit B hereto). Accordingly, 

there is no legally cognizable prejudice to either Mr. Ferrer or the government if the 

government’s motion to disqualify is denied.

Even if there were some technical violation of some ethical rule, which there is not, 

 11 This passage was cited with approval by the Ninth Circuit Court of Appeals in Murdoch 

v. Castro, 365 F.3d 699, 703 n. 2 (9th Cir. 2004).

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“the rules of professional responsibility are for ethical enforcement and are not designed to 

be used as a means to disqualify counsel.” Amparano v. ASARCO, Inc., 208 Ariz. 370, 376 

¶ 22 (App. 2004). Again, this Court is required to consider the personal Sixth Amendment 

right to counsel of choice of Mr. Padilla and the other six non-cooperating signatories to the 

joint defense agreement. See Alexander, 141 Ariz. at 161 (“[w]henever possible the court 

should endeavor to reach a solution that is least burdensome upon the client or clients”). 

In light of the significance and magnitude of the Sixth Amendment right to counsel 

of choice, the balance is heavily weighted against depriving Mr. Padilla and the remaining 

non-cooperating defendants of their counsel of choice on these issues and requiring them to 

find and fund new counsel to be brought up to speed. The government clearly has not met 

its “heavy burden” of showing the “extreme circumstances” justifying the “measure of last 

resort” that would permit the government “to sever defendants from those most able to 

protect their legitimate legal interests.” Washington, 797 F.2d at 1465; Alexander, 141

Ariz. at 161; Diozzi, 807 F.2d at 12; In re Paradyne Corp., 803 F.2d at 611. While there is 

no damage to Mr. Ferrer or the government if the government’s motion to disqualify is not 

granted, the damage to Mr. Padilla and the other defendants if the motion is granted is 

immeasurable.

While the government professes concern for the integrity of the trial process, the 

inescapable reality is that the government’s motion to disqualify gains them huge tactical 

advantages in many ways. First, the government will be removing the most knowledgeable 

and experienced attorneys in the country on these First Amendment, internet, and privacy 

issues. Second, the government will be removing attorneys with over six years of 

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institutional knowledge about the issues surrounding Backpage that are involved in the 

present litigation. Third, the government will be removing the very lawyers that, after 

exhaustive research and analysis, uncovered misconduct in gathering evidence by the 

California Attorney General’s Office that may significantly impact the present proceedings. 

In contrast, the defendants will be irreparably disadvantaged because no amount of time 

and effort on the part of new counsel (even if defendants can find and fund them) could 

come anywhere near to replicating DWT’s efforts thus far.

Specifically, the DWT lawyers are absolutely critical to Mr. Padilla’s defense. The 

First Amendment and § 230 issues are pivotal to his role at Backpage in ensuring the ads 

posted by third parties conformed with Backpage’s terms of use. As courts have 

consistently found, in cases litigated by DWT and others, Mr. Padilla’s acts, and those of 

others at Backpage, are prototypical editorial functions that are clearly protected by the 

First Amendment.12 Moreover, the government is sadly mistaken that § 230 provides only 

“state law defenses not applicable in this case.” (Doc. 118, p. 3). The Travel Act (18 U.S.C. 

§ 1952) counts in the indictment allege facilitation of prostitution offenses in violation of 

state law.13 However, if the State of Arizona attempted to prosecute state law offenses 

relating to prosecution based on the government’s theory of third-party liability for the 

 12 See, e.g., Jane Doe, 817 F.3d at 21 (“Features such as [Backpage’s decisions about how 

to treat postings], which reflect choices about what content can appear on the website and 

in what form, are editorial choices that fall within the purview of traditional publisher 

functions”).

13 It should be noted that facilitation of prostitution under Arizona law is a class 3 

misdemeanor, the lowest level of criminal offense, with a maximum penalty of 30 days in 

jail and a $500 fine. Arizona Revised Statutes § 13-3214; § 13-1004(C); § 13-707(A)(3); § 

13-802(C).

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conduct of others, § 230 would provide a complete defense.14 The government cannot 

premise a Travel Act prosecution on violations of state laws that the states, themselves, 

cannot prosecute. Moreover, § 230, and the cases interpreting it including those 

successfully litigated by DWT, shows that Mr. Padilla and the other defendants lack the 

specific intent required to commit the offenses in the indictment. The point is: the First 

Amendment and § 230 issues are critical to Mr. Padilla’s defense and he cannot be 

deprived of the assistance of the most able attorneys to represent him. In addition, there are 

other relevant legal and constitutional matters that will need to be litigated with the 

assistance and institutional knowledge of DWT.

Finally, the government’s motion to disqualify counsel must not be viewed in a 

vacuum and must be considered in light of the government’s simultaneous efforts in this 

matter to seize legitimate assets necessary to retain counsel of choice.15 In the present case, 

the government’s improper attempt to gain a tactical advantage by seeking to disqualify 

learned, highly qualified, and highly knowledgeable counsel who have had six years’ 

experience dealing with the legal issues in the case, is coupled with an improper attempt at 

“drying up” funds needed to pay those attorneys or the even greater sums needed to retain 

 14 See, e.g., Gourlay v. Barrett, 2017 WL 1329434, *4 (E. D. Mich. 2017) (“Congress 

intended that no liability may be imposed under a state criminal law that is inconsistent 

with § 230”).

15 See Luis, 578 U.S. at __, 136 S.Ct. at 1089 (“the Government would undermine the 

value of that right by taking from Luis the ability to use the funds she needs to pay for her 

chosen attorney”).

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and bring new attorneys up to speed. Alexander, 141 Ariz. at 165.

16 Courts have dismissed 

indictments outright for such government interference into defendants’ Sixth Amendment 

rights to counsel of choice.

For example, in United States v. Stein, 541 F.3d 130 (2d Cir. 2008), the Second 

Circuit Court of Appeals upheld the district court’s dismissal of the indictment due to the 

government’s interference with corporate employees’ right to counsel of choice. The 

government influenced the corporation to adopt a policy under which it conditioned, 

capped, and ultimately ceased advancing legal fees to defendant employees. Id. at 135. The 

court recognized the Sixth Amendment right to counsel of choice for “an employee who 

reasonably expects to receive attorneys’ fees as a benefit or perquisite of employment, 

whether or not the expectation arises from a legal entitlement.” Id. at 155. “In a nutshell, 

the Sixth Amendment protects against unjustified governmental interference with the right 

to defend oneself using whatever assets one has or might reasonably and lawfully obtain.” 

Id. at 156. Accordingly, the court accepted the defendants’ claim “that the government 

unjustifiably interfered with their relationship with counsel and their ability to mount the 

best defense they could muster.” Id. at 155.

Indeed, the court found that the defendant employees “easily demonstrate[d] 

interference in their relationships with counsel and impairment of their ability to mount a 

 16 Whether this is a pattern of government overreaching to deny these defendants their 

Sixth Amendment right to counsel and Fifth Amendment right to due process of law, or 

simply random isolated occurrences may have to be decided by this Court at a later date. 

See, e.g., United States v. Stein, 435 F.Supp.2d 330 (S.D.N.Y. 2006), aff’d 541 F.3d 130 

(2d Cir. 2008).

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defense” based on factors that are very similar to the circumstances of the present case: 

“Defendants were indicted based on a fairly novel theory of criminal liability; they face 

substantial penalties; [and] the relevant facts are scattered throughout over [several] million 

documents.” Id. at 157. Under these circumstances, dismissal of the indictment was the 

only remedy for the Sixth Amendment violation. Id.; see also United States v. Leung, 351 

F.Supp.2d 992 (C. D. Cal. 2005) (dismissing indictment due to government’s interference 

with defendant’s Sixth Amendment rights).

The government’s similar efforts to deny Mr. Padilla and the other defendants their 

right to counsel of choice cannot be condoned.

CONCLUSION

Because the highly valued right to counsel of one’s choosing is regarded as the root 

meaning of the Sixth Amendment’s guarantee of assistance of counsel and the Fifth 

Amendment right to due process of law, the erroneous denial of counsel of choice 

constitutes fundamental structural error and mandates reversal. “Where the right to be 

assisted by counsel of one’s choice is wrongly denied, therefore, it is unnecessary to 

conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.” 

Gonzalez-Lopez, 548 U.S. at 148. The government has not shouldered its heavy burden of 

showing that this drastic measure of last resort is necessary or justified. This Court should 

not deny these defendants their Sixth Amendment right to counsel of choice with the 

attendant risk that any error cannot be deemed harmless. Id. The government’s motion to 

disqualify counsel must be denied.

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RESPECTFULLY SUBMITTED this 6th day of June, 2018.

PICCARRETA DAVIS KEENAN FIDEL PC

By: /s/ Michael L. Piccarreta

Michael L. Piccarreta

Attorney for Andrew Padilla

On June 6, 2018, a PDF version

of this document was filed with the

Clerk of Court using the CM/ECF

System for filing and for Transmittal

of a Notice of Electronic Filing to the

following CM/ECF registrants:

Kevin Rapp, kevin.rapp@usdoj.gov

Peter Kozinets, Peter.Kozinets@usdoj.Gov

Andrew Stone, Andrew.Stone@usdoj.Gov

Case 2:18-cr-00422-DJH Document 177 Filed 06/06/18 Page 17 of 17