                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 08-4906
                                _____________

                       UNITED STATES OF AMERICA

                                        v.

                             JENNIFER MCDADE,
                                   Appellant
                                _____________

                  Appeal from the United States District Court
                   for the Western District of Pennsylvania
                    (D.C. Criminal No. 3-06-cr-00029-007)
                   District Judge: Honorable Kim R. Gibson
                                _____________

                    Submitted Under Third Circuit LAR 34.1(a)
                               December 13, 2010

        Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges

                      (Opinion Filed: December 22, 2010)
                                _____________

                          OPINION OF THE COURT
                              _____________

RENDELL, Circuit Judge.

      Appellant Jennifer McDade appeals the District Court’s orders granting the

government’s motion to disqualify her counsel and refusing to give the

Appellant’s proposed jury instruction. We will affirm.
       Because we write solely for the benefit of the parties who are familiar with

the factual context and procedural history of this case, we will recite only the facts

relevant to our analysis. Consesor Cheatham, a/k/a “Skinny,” developed a drug

distribution network in Johnstown, PA. Jennifer McDade traveled between

Johnstown and Allentown to retrieve the drugs for Consesor. Consesor would stay

at McDade’s house while McDade was away getting the drugs and Consesor kept

some of his drugs buried in McDade’s backyard. McDade observed Consesor

cook up cocaine in her kitchen, obtained heroin for Consesor, and helped Consesor

bag marijuana that McDade then sold.

       Consesor sold crack and cocaine to some of his customers – including to

the government witness, Jeremy Johnson – at McDade’s house. Johnson

purchased drugs from Consesor at McDade’s house at least seven or eight times.

Normally, Johnson purchased the drugs on McDade’s porch; however, on one

occasion, Johnson entered McDade’s house in order to exchange a gun for drugs.

During the exchange, the gun went off accidentally.

       On October 17, 2006, an indictment charged McDade and co-conspirators

with conspiracy to distribute and possess fifty grams or more of crack and five

hundred grams or more of cocaine. On October 27, 2006, the court appointed

Attorney Arthur T. McQuillan to represent McDade. On January 30, 2008, the

government moved to disqualify McDade’s counsel after learning that

McQuillan’s law partner, Robert Gleason, had previously represented Johnson.

On February 1, 2008, the District Court granted the government’s motion to

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disqualify. Subsequently, the Court denied McDade’s motion to reconsider after

holding a hearing regarding the disqualification. During the hearing, when asked

whether Johnson waived the conflict, Attorney Gleason stated that “he got the

impression that it wasn’t much of a concern to [the government witness] unless it

hurt him.” Gleason also testified that he did not believe that his continuing duty of

loyalty to a former client lasted forever. The District Court then appointed

attorney David Chontos as McDade’s new counsel.

       At trial, McDade presented evidence that her home had been foreclosed

upon and that her car had been repossessed. Based on that, she requested a jury

instruction providing that her lack of wealth could be circumstantial evidence that

she was not involved in criminal activity. The District Court denied the request.

       Following trial, the jury convicted McDade on June 13, 2008, and the Court

subsequently denied McDade’s Motion for a New Trial. On December 9, 2008,

the District Court sentenced McDade, and she filed a timely Notice of Appeal on

December 18, 2008. 1

Discussion

I. Disqualification

       McDade asserts that the disqualification of her appointed attorney violated

her Sixth Amendment right to counsel. She maintains that the District Court’s

decision was arbitrary because Johnson – the government’s witness – whose


       1
        The District Court had jurisdiction over this criminal case by virtue of 18
U.S.C. § 3231. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                                         3
testimony gave rise to the potential conflict of interest, never testified at the

disqualification hearing. McDade argues the District Court did not thoroughly

investigate (1) whether Johnson’s testimony would indeed lead to a conflict of

interest or (2) whether Johnson would waive the conflict. 2 We disagree.

       Pennsylvania Model Rule of Professional Conduct (“MRPC”) 1.7 states

that “a lawyer shall not represent a client if the representation involves a

concurrent conflict of interest. A concurrent conflict of interest exists if: . . . (2)

there is significant risk that the representation of one or more clients will be

materially limited by the lawyer’s responsibilities to another client [or] a former

client . . . .” 3 Id. Notwithstanding the conflict of interest, a lawyer may continue


       2
        We review the District Court’s ruling on a motion to disqualify defense
counsel in two parts. “First, [this Court will] exercise plenary review to determine
whether the district court’s disqualification was arbitrary – ‘the product of a failure
to balance proper considerations of judicial administration against the right to
counsel.’ If we find that the district court’s decision was not arbitrary, we then
determine whether the court abused its discretion in disqualifying the attorneys.”
United States v. Stewart, 185 F.3d 112, 120 (3d Cir. 1996) (citation omitted).
       3
         The Sixth Amendment guarantee of effective assistance of counsel
encompasses “the right of adequate representation by an attorney of reasonable
competence and the right to the attorney’s undivided loyalty free of conflict of
interest.” United States v. Gambino, 864 F.2d 1064, 1069 (3d Cir. 1988) (internal
citations omitted). However, this guarantee is not absolute given that the purpose
of the Sixth Amendment right to assistance of counsel “‘is simply to ensure that
criminal defendants receive a fair trial,’ and that in evaluating Sixth Amendment
claims, ‘the appropriate inquiry focuses on the adversarial process, not on the
accused’s relationship with his lawyer as such.’” Wheat v. United States, 486 U.S.
153, 159 (1988) (internal quotation marks and citation omitted). The Supreme
Court noted that one way in which this right is limited is that “a defendant
[cannot] insist on the counsel of an attorney who has a previous or ongoing
relationship with an opposing party, even when the opposing party is the
Government.” Id.
                                            4
the representation if “each affected client gives informed consent.” Id.

Concurrently, Rule 1.10 imputes one attorney’s conflicts to all other attorneys in

his firm.

       Despite the ability of affected clients to waive a concurrent conflict of

interest, the Supreme Court has stated that a trial court “[has] an independent

interest in ensuring that criminal trials are conducted within the ethical standards

of the profession and that legal proceedings appear fair to all who observe them.”

Wheat v. United States, 486 U.S. 153, 160 (1988). Because of this independent

interest, district courts “must be allowed substantial latitude in refusing waivers of

conflicts of interest” in both instances where actual or potential conflicts exist. Id.

at 163. Expounding on this topic, we stated,

       Usually, the various rights and duties of the attorney clash when a
       defendant seeks to waive his right to conflict-free representation in
       circumstances in which the counsel of his choice may have divided
       loyalties due to concurrent or prior representation of . . . a
       government witness. Such a waiver, however, does not necessarily
       resolve the matter, for the trial court has an institutional interest in
       protecting the truth-seeking function of the proceedings over which
       it is presiding by considering whether the defendant has effective
       assistance of counsel, regardless of any proffered waiver. Moreover,
       to protect the critically important candor that must exist between
       client and attorney, and to engender respect for the court in general,
       the trial court may enforce the ethical rules governing the legal
       profession with respect both to client-attorney communications and
       to conflict-free representation, again regardless of any purported
       waiver. Finally, the court has an independent interest in protecting a
       fairly-rendered verdict from trial tactics that may be designed to
       generate issues on appeal.

United States v. Moscony, 927 F.2d 742, 749 (3d Cir. 1991). Pursuant to this

reasoning, “[a]s long as the court makes a ‘reasoned determination on the basis of

                                           5
a fully prepared record,’” the decision to disqualify counsel is not arbitrary. United

States v. Voight, 89 F.3d 1050, 1075 (3d Cir. 1996) (citation omitted).

       Regardless of McDade’s assertion that the District Court had no way of

knowing the content of the government witness’s testimony, we find that the

disqualification was not arbitrary. There was an exchange of pleadings, an

affidavit produced by the law partner, a disqualification hearing, and ultimately

two opinions written, one addressing the initial Motion to Disqualify and the other

following the defendant’s Motion to Reconsider. Defendant cites no case in which

a court required a government witness to testify in order to determine whether a

potential conflict of interest existed. Indeed, the Supreme Court stated in Wheat,

       [A] district court must pass on the issue whether or not to allow a
       waiver of a conflict of interest by a criminal defendant not with the
       wisdom of hindsight after the trial has taken place, but in the murkier
       pretrial context when relationships between parties are seen through
       a glass, darkly. The likelihood and dimensions of nascent conflicts
       of interest are notoriously hard to predict, even for those thoroughly
       familiar with criminal trials. It is a rare attorney who will be
       fortunate enough to learn the entire truth from his own client, much
       less be fully apprised before trial of what each of the Government’s
       witnesses will say on the stand.

486 U.S. at 162-63. Moreover, Attorney Gleason’s testimony reveals that Johnson

did not readily waive a potential conflict when he indicated his concern that a

waiver could hurt him. (A-93.) Finally, Gleason’s lack of appreciation for his

ongoing and permanent duty of loyalty to former clients further supports the

District Court’s rational resolution. (A-95.)




                                          6
       Even if both affected parties waived the conflict, the district court still has

discretion to disregard those waivers given its independent interest in ensuring that

the proceedings are fair. Moscony, 927 F.2d at 749. After extensive development

of the record, it was far from clear that there had been an effective waiver of the

conflict affecting McDade’s counsel. Accordingly, the District Court properly

balanced “considerations of judicial administration against the right to counsel,”

Stewart, 185 F.3d at 120, and did not abuse its discretion in disqualifying

McDade’s appointed counsel. 4

II. Jury Instruction

       McDade argues that the District Court abused its discretion by not giving

McDade’s proposed jury instruction that “the defendant’s lack of wealth can be

circumstantial evidence that there is no involvement in illegal activity.” She

asserts that the instruction was an adequate statement of the law, the instruction

was not substantially covered by other parts of the court’s instruction, and the lack

of instruction was prejudicial. 5 We disagree.


       4
         McDade also asserts that the District Court should not have considered the
Motion to Disqualify because the government, and not one of the affected parties,
raised the issue. However, McDade concedes that this court has previously
considered Motions to Disqualify not raised by one of the affected parties. See
United States v. Stewart, 185 F.3d 112, 120 (3d Cir. 1996) (citation omitted). In
this case, the District Court reserved its ruling on the Motion to Reconsider until
after hearing testimony that both 1) Johnson was concerned that a waiver might
hurt him and 2) Attorney Gleason apparently did not understand his duty of
loyalty to former clients lasted forever. (A-93-95.)
       5
         “[This Court] exercise[s] plenary review to determine whether jury
instructions misstated the applicable law, but in the absence of a misstatement we
                                           7
       “The district court has wide discretion in charging the jury. We will find

that the court erred in refusing to give an instruction only if the instruction was

correct, not substantially covered by other instructions, and was so important that

the omission of the instruction prejudiced the defendant.” United States v. Smith,

789 F.2d 196, 204 (3d Cir. 1986); United States v. Davis, 183 F.3d 231, 250 (3d

Cir. 1999) (same). The District Court determined that the instruction was not

necessarily correct given that “[a]lthough an unexplained acquisition of wealth

establishes the receipt of income through some unknown source, the lack of

wealth can be explained not only by a lack of income, but also by an unwise use of

that income.” 6 (A-22 n.1.) Additionally, the Court determined that the lack of this

instruction did not prejudice McDade because it had given the general

circumstantial evidence instruction. (Id.) The Court’s circumstantial evidence

instruction adequately informed the jury concerning their ability to determine that

McDade was not guilty because she had arguably not received any monetary fruits

from the drug conspiracy. Moreover, neither party cites any case law in this

Circuit that addresses the propriety of giving this instruction. Accordingly, we



review for an abuse of discretion.” United States v. Hoffecker, 530 F.3d 137, 173-
74 (3d Cir. 2008) (citation omitted).
       6
         Indeed, McDade requested that the district court give the inverse of the
common jury charge that “the sudden unexplained acquisition of wealth by an
impecunious person at or about the time of a theft which he had an opportunity to
commit, is competent evidence of guilt and will support conviction.” United
States v. Chaney, 446 F.2d 571, 575 (3d Cir. 1971).

                                           8
will find that the District Court did not abuse its discretion in refusing to give

McDade’s proposed instruction.

Conclusion

       For the foregoing reasons, we will affirm the District Court’s decisions on

all grounds.




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