A federal prosecutor in San Antonio named Eric Joseph Fuchs just convinced a federal magistrate named Henry J. Bemporad to fire former Bandidos National President Jeffrey Pike’s lawyers. Bemporad will not preside over Pike’s trial. Federal District Judge David A. Ezra will. Federal magistrate judges assist district judges on pretrial matters such as arraignments, bail and – it now appears – whether a presumably innocent defendant has a right to his choice of lawyers.
The decision is based on secret evidence. The entire public record of the firing, entered this morning, simply states: “Attorney Kent A. Schaffer; James Max Kennedy and Cynthia Hujar Orr terminated as to Jeffrey Fay Pike.”
Fuchs has been trying to fire Schaffer since October 18 and virtually all of the arguing has taken place in secret. Schaffer is very highly regarded as a formidable advocate.
In a motion filed December 20, Fuchs claimed to have evidence that “demonstrates that Mr. Schaffer entangled himself, be it knowingly or unknowingly, to an extraordinary degree in the activities of the Bandidos OMO. Numerous witnesses will testify that Mr. Schaffer reviewed legal paperwork for the Bandidos OMO and at least one recorded conversation supports that. Mr. Schaffer has denied that allegation. But as the Court has noted, the issue at this time is not the veracity of the allegations – even without going into the factual merits, this very dichotomy raises a number of issues which give rise to an unwaivable conflict of interest that respectfully must be addressed by the Court.
“Although the government is not averring that Mr. Schaffer is involved in criminal conduct, it could be inferred by the finder-of-fact that Mr. Schaffer was complicit in the narrative in some way, or that Bandidos OMO members utilized Mr. Schaffer when he represented them to review legal paperwork for ulterior enterprise motives, or that the enterprise used Mr. Schaffer’s name as part of their scheme to silence and intimidate members without Mr. Schaffer’s knowledge or consent. The latter could prove consistent with Mr. Schaffer’s proffers to the Court thus far. Either way, Mr. Schaffer becomes a fact witness.”
In a nutshell, Fuchs formal objection to Schaffer is that Pike’s lawyer once represented two former Bandidos who may testify against Pike at trial. But the formal argument appears to merely be a ruse to force Pike to hire less competent counsel.
Special Agent Says
In a reply filed on December 30, Orr – speaking on behalf of Schaffer, Kennedy and herself wrote: “The Government, citing no authority to do so, has filed a supplemental motion to disqualify Pike’s counsel of choice using ex parte hearsay and without any competent evidence in support of the motion. That is, the Government seeks to present a hearsay affidavit from Special Agent Chad Lloyd, ex parte, alleging that two witnesses were previously represented by Mr. Shaffer.” Agent Lloyd’s affidavit and the two anonymous witnesses are the basis for Bemporad’s disqualification of Pike’s lawyers.
In a response filed just Monday, Orr argued: “The Government claims that Mr. Schaffer wittingly and unwittingly assisted his former clients in providing legal advice to them in a manner that somehow met the alleged illegal goals of the Bandidos Motorcycle Club. Necessarily, this requires these two former clients to have disclosed the representation and their communications with Messrs. Schaffer and Kennedy to the Government. Such disclosure to third persons constitutes waiver of the attorney- client privilege.”
“…the affidavit is triple rank hearsay. In it an agent relays what other documents and other agents have told him. In addition, the agent relays what confidential sources or cooperating defendants have said regarding “unwritten rules,” which were presumably heard from yet others, and that these persons or sources have also relayed, that others who are arrested and plead guilty must provide their plea paperwork for review by higher ranking Bandidos. Again, this is triple hearsay. Since the rules of evidence apply to a motion to disqualify, such triple hearsay is not admissible in a disqualification proceeding.”
“For example, witness One at page 3 ‘was informed’ and ‘was told’ something by others. Witness One then told the Agent Affiant. The Affiant represents that this witness was represented by Mr. Schaffer and Mr. Kennedy in a criminal matter while the witness was a member of the Bandidos. Witness One states that he will testify at Mr. Pike’s trial and also states that he is not willing to waive client confidentiality. ‘Witness Two was previously represented by Mr. Schaffer… Witness Two will testify at Mr. Pike’s trial and… he is not willing to waive client confidentiality.’ However, these witnesses have already done so by providing the Government information about their representation by and communications with Mr. Schaffer and Mr. Kennedy.”
Orr went on quite reasonably for 10 pages. It didn’t matter. In the end, a magistrate has ruled that Jeff Pike can’t have the lawyer he wants.