No Error In Discharge of Counsel, Limitation on His Cross Examination by Codefendant

US v. Freitekh: Izzat Freitekh ran a restaurant and related businesses with the help of his family, including son Tarik. In 2020, Izzat obtained PPP loans that were used to (among other things) pay family members, with notes that such payments were for “payroll” or “paycheck,” even though none were listed in business records as being on the payroll. Later investigation showed that “all of the Loan Applications were fraudulent.” As part of the investigation, Izzat met with officials and blamed a third party, Kyber Capital, with filing the false applications, but “under scrutiny” the “story fell apart,” as Kyber Capital appeared to be a fictional creation of Tarik. As part of the investigation, Tarik’s attorney gave investigators evidence of chat logs between Tarik and an “alleged representative of Kyber.”

Izzat and Tarik were each charged with multiple counts of money laundering and conspiracy, with Tarik also charged with making false statements. Proceeding to trial, the Government sought stipulations from Izzat and Tarik with regard to documents turned over by their attorneys. They declined, leading the Government to effectively disqualify counsel as they were the only witness who could authenticate the documents. The district court agreed and delayed trial so Izzat and Tarik could obtain new counsel. At trial, both counsel testified, although questioning (both direct and cross examination) was limited by the court. Izzat and Tarik were both convicted on multiple counts and sentenced to 48 and 87 months in prison, respectively.

On appeal, the Fourth Circuit affirmed Izzat’s and Tarik’s convictions and sentences. Of the several issues raised on appeal, the primary one involved the discharge and questioning of Izzat’s and Tarik’s prior counsel. Tarik argued that he had been denied his Sixth Amendment right to counsel of choice when his original attorney was disqualified from the case, as his eventual testimony was “unwarranted and unnecessary.” The court disagreed, holding that the district court’s actions were “well within the district court’s broad discretion,” and that Tarik’s lawyer was “the only available witness who could lay the foundation of the documents” related to his false statements, thus creating a conflict of interest. Disqualification did not run afoul of the Sixth Amendment, the “essential aim” or which “is to guarantee an effective advocate . . . rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Izzat argued that his Sixth Amendment confrontation right was infringed by the district court’s limited cross examination of Tarik’s lawyer due to privilege concerns. Here the court also found no abuse of discretion, as the testimony of Tarik’s lawyer was not related to Izzat’s charges, only Tarik’s, and, even if there had been some abuse of discretion, any error was harmless. Finally, the court found no abuse of discretion in the district court allowing Izzat’s attorney to testify about how Izzat had provided him documents allegedly from Kyber Capital with instructions to turn them over to investigators, concluding that they were both relevant and not unduly prejudicial.