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United States v. Henson

United States District Court, D. Kansas

March 4, 2019

United States of America, Plaintiff,
v.
Steven R. Henson, Defendant.

          MEMORANDUM AND ORDER

          J. Thomas Marten, Judge

         The government charged defendant Dr. Steven R. Henson, and numerous co-defendants, with various crimes connected with an alleged opioid distribution business. Henson's co-defendants reached plea agreements with the government, and only Henson proceeded to trial. At the conclusion of the trial, defendant Henson was convicted of two counts of conspiracy to distribute, dispense and possess with intent to distribute prescription drugs in violation of 21 U.S.C. § 841 and 846 (Counts 1 and 2); thirteen counts of illegal drug distribution or dispensing in violation of 21 U.S.C. § 841, and one count of such conduct which resulted in death; one count of making a false writing in violation of 18 U.S.C. § 1001; one count of obstruction in violation of 18 U.S.C. § 1509; and six counts of money laundering in violation of 18 U.S.C. § 1956. The defendant was acquitted of one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924; and five counts of money laundering in violation of 18 U.S.C. § 1957. The matter is now before the court on the defendant's Motion for Acquittal or New Trial.

         The first argument defendant advances is that the court violated his constitutional rights by disqualifying his counsel of choice. Originally, Henson was represented by Kurt Kerns of Wichita, Kansas. In preparing for trial, the government learned that Mr. Kerns had previously represented a government witness on an aggravated battery charge, and a co-defendant, Joel Torres, Jr., on charges for drug distribution and carrying a concealed weapon. The government moved for a determination of conflict. (Doc. 200 at 2). The court held a hearing on the conflict motion on July 18, 2017. (Doc. 410). At the conclusion of the hearing, the court found—absent some additional arrangement—that a conflict of interest likely existed, and gave the parties a week to suggest solutions.

         However, the matter was taken out of the court's hands. Rather than obtaining waivers from his prior clients or providing for other possible resolutions, Mr. Kerns filed a motion to withdraw from the action. Mr. Kerns stated in the motion that he was unable to obtain any waivers. (Dkt. 210).

         Following Mr. Kerns's withdrawal, defendant represented by attorneys Erin Thompson and Melanie Morgan. On April 16, 2018, Ms. Morgan and Ms. Thompson notified the court (Dkt. 279) that they were required to withdraw because “they have been discharged and Dr. Henson has retained new counsel.” The new counsel chosen by defendant Henson, Beau Brindley, is an attorney with a nationwide practice who specializes in defending against similar criminal charges. Mr. Brindley ably defended Henson during the trial.

         Following the withdrawal of Mr. Kerns, trial was delayed approximately a year, as defendant switched attorneys. During this time, defendant never objected to his representation.

         The court finds that defendant is not entitled to a new trial on the grounds sought.

         First, the court did not reach any final conclusion as to Mr. Kerns's representation. At the hearing on the government's motion to resolve the potential conflict, the court concluded there appeared to be conflict which would require remedial action:

I really believe that in order to continue representation, you're going to have to obtain a written waiver of the conflict both from Dr. Henson and from your former client, and it sounds as if he is not going to be willing to waive that conflict.
There is -- and I found this interesting, it was a case out of Ohio [United States v. Turner, 117 F.Supp.3d 988, 989 (N.D. Ohio 2015)], that was cited in the Government's brief about a taint team approach, where somebody else from your firm might be in a position to do the cross examination of the witness but I am not even sure here that that would fully address what needs to be done and so while -- and I'm happy to hear any evidence anybody would like to present here on this today, my inclination is to find that there is a conflict if you can't obtain waivers from everyone that's involved, Mr. Kerns.
And if you are able to do that, I would like to know by the end of this week and would like to have those written waivers submitted so that we have them. And if I haven't heard from you by Friday at 9 o'clock that you have obtained the waivers, absent some further authority, I intend to find that there is an irreconcilable conflict interest and Dr. Henson is going to have to obtain different counsel. Unless the parties can agree upon some other approach.

(Dkt. 410, at 10) (emphasis added).

         The court's decision was explicitly not final and suggested alternatives. The court indicated that it was “inclin[ed]” to find a conflict, and acknowledged that this could potentially be resolved in three ways — by “written waiver, ” by a Turner “taint team approach, ” or by “some other approach” if agreed to by the government and the defendant. The court also asked for “any evidence” any party would like to submit, and also explicitly invited “further authority” on the issue. All of these potential avenues were short-circuited by Mr. Kerns's voluntary withdrawal.

         The defendant correctly notes that the ability to chose one's own counsel is an important constitutional right. See United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006). However, “the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159. See Hagos v. Werholtz, 548 Fed.Appx. 540, 543 (10th Cir. 2013) (denying certificate of appealability in a collateral attack on conviction based, in part, on the disqualification of defendant's preferred counsel, noting that the district had found the state court's disqualification decision was “neither arbitrary nor unreasonable”). Courts have the duty to “balance a defendant's constitutional right to retain counsel of his choice against the need to maintain the ...


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