United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge
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.
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.
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).
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.
the withdrawal of Mr. Kerns, trial was delayed approximately
a year, as defendant switched attorneys. During this time,
defendant never objected to his representation.
court finds that defendant is not entitled to a new trial on
the grounds sought.
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,
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
(Dkt. 410, at 10) (emphasis added).
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.
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 ...