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1eUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDACASE N O. 13-20346-Cr-Ungaro/Torres

FILED by D.C.FEB 3 2g1jSTEVFN M IJAIRIMOFRE'LERK U S OIST C T.s r,f /1..4. -. NrlAi,.l:.

UNITED STATES OF AM ERICA

JULIO ROBAW A andM IZA VILLACIS ROBAINA /UNDER SEAL

GOVERNM ENT'S NOTICE OF DEFENSE COUNSEL'S CONFLICT OFINTEREST IN JOINT REPRESENTATION OF DEFENDANTSJULIO ROBAINA AND RM ZA VILLACIS ROBAINAThe United States subm its this notice to the Court of a conflict of interest of defense

counsel, Mr. Garvin, in his joint representation of defendants Julio Robaina and Raiza VillacisRobaina. The contlict of interest stems from the existence of potential evidence that could befavorable to defendant Raiza Robaina, but would be inculpatory as to defendant Julio Robaina.

As noted in the government's motion to seal, while the govenzment is not aware of abasis for sealing this notice, the governm ent is filing it under seal in an abundance of caution.The information that prompted this notice relates to unreported cash income received bydefendant Julio Robaina and evidence that defendant Julio Robaina concealed his receipt of thecash from defendant Raiza Robaina and used it in part to fund expenses relating to a girlfriend.M r. Garvin has expressed concel'ns that information relating to marital infidelity might taint thejury pool. Filing under seal preserves the defendants' opportunity to specify grounds for sealing,as well as the Court's ability to take action if it independently were to determine sealing to beappropriate.

Case 1:13-cr-20346-UU Document 74 Entered on FLSD Docket 02/04/2014 Page 1 of 9


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2. Although M agistrate Judge Goodmalz previously entered an order permitting thei t representation, United States v. Solomon, 856 F.2d 1572, 1580 (1 lth Cir. 1988) requires theo n ,

Court to remain alert to possible future conflicts and act upon them, if necessary. Thegovenunent is submitting this notice in view of both Solomon and the undersigned's recollectionof the Court's instruction to keep it apprised upon leam ing of any actual conflicts.

On January 23, 20 14, the govenunent advised M r. Garvin of certain facts set forthin this notice that had come to the light at the time. ln response to the government's January 23communicaticm, M r. Garvin expressed his view that the govenament's information was speculative

and that it might taint the jury pool. On January 31, 2014, after the government had followed upon its earlier facts and after additional facts had come to light, the govenunent apprised M r. Galwinof those additional facts and advised that it intended to file this notice. M r. Garvin is presently intrial and has not been able to resporid with his clients' respective positions.

4. The government does not seek M r. Garvin's disqualification or otherwise ask theCourt to take any action at this tim e, As outlined below, the defendants' very comprehensivewaivers before M agistrate Judge Goodman of future potential conflicts of interest in M r. Garvin'sjoint representation of them extinguishes any right that they might have to object to the contlict.

By way of background and as pertinent to the matter before the Courq Count 1charges both defendants with conspiring to defraud the United States from January 1, 2005,through September 16, 2010, in violation of 18 U.S.C. 5371. Counts 2 and 3 charge bothdefendants with m aking and subscribing to false tax returns by fraudulently understating their totalincome for tax years 2006 and 2007, in violation of 26 U.S.C. 1720641).

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At pages 4-6 of docket entry 51, the govenunent briefly proffered the differentcategories of unreported incom e in this case. One of the categories consists of interest earnedfrom the operations of the defendants' loan businesses. The loans were negotiated by defendantJulio Robaina. Page 5 of DE 51 identifies $63,000 in unreported interest income from checks, butadds: liDuring the time relevant to the conspiracy in this case, the defendants also received cashinterest payments that they did not report.''

The govermnent expects its evidence to show that the cash interest paym ents weredelivered to defendant Julio Robaina, rather than defendant Raiza Robaina. The govermnent isnot prepared at this point to provide a firm estim ate of the dollar value of the cash interestpayments, but believes the evidence will show that the urlreported cash interest income during thecourse of the charged conspiracy was at least $300,000.

The contlict at issue here stem s from information indicating that defendant JulioRobaina attempted to conceal his receipt of cash interest payments from defendant Raiza Robaina.

The government expects its evidence will show that defendant Julio Robainaloaned approximately $850,000 to government witness Luis Felipe Perez. Through informationfrom interview s, confirm ed as recently as January 30, 2014, Perez is expected to testify as follows:

a) Through Perez's discussions with defendant Julio Robaina, the interest rateon these loans was 36% . At the instruction of defendant Julio Robaina, Perez was to payhalf of the interest - that is, 18% - through checks and the other half - that is, the remaining1 8% - in cash. Perez caused the cash interest payments to be delivered to defendant JulioRobaina or associates of defendant Julio Robaina. Defendant Julio Robaina told Perezthat he did not want his wife, defendant Raiza Robaina, to know of the cash payments he

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received from Perez. Defendant Julio Robaina told Perez that the cash Perez delivered tohim was used for purposes that included costs or expenses associated with a girlfriend.

The tsrst loan to Perez was $200,000 from defendant Julio Robaina.lnitially, Perez sent defendant Raiza Robaina a few monthly interest payments of checks of$6,000 each. Defendant Raiza Robaina returned the checks, telling Perez that $6,000 wastoo much, leading Perez to surmise that defendant Raiza Robaina did not know about the36% interest rate. Defendant Julio Robaina told Perez that defendant Raiza Robaina didnot know about the 36% interest rate and, rather, thought it was 18%, because that is what

he (that is, defendant Julio Robaina) told her.10. The late Rolando Blanco, who was a long-time political supporter of defendant

Julio Robaina, was a partner of defendant Julio Robaina in the loan business. Blanco's son,Roberto Blanco, testified before the grand jury as follows (in pertinent part):

a) His father, Rolando Blanco, loaned approximately $100,000 to Luis FelipePerez. (The government believes this $100,000may have been a component of the$850,000 set forth above.) Defendant Julio Robaina contributed added funds to the loan.Perez paid an interest rate of 36%. Half of the interest was paid in check. The other halfwas paid in cash. Rolando Blanco's rate of return on the loan was 27%. W ith respect tothe cash interest payments, Rolando Blanco kept 50% of the cash interest paym entsattributable to his portion of the loan, and defendant Julio Robaina received the other 50%of the cash interest paym ents attributable to the Rolando Blanco portion of the loan.

b) The cash interest payments were delivered to the house of Rolando Blanco.Rolando Blanco told Roberto Blanco that defendant Julio Robaina did not want the cash to

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go to his house (i.e., defendant Julio Robaina's house) because defendant Julio Robaina didnot want his wife (.e., defendant Raiza Robaina) to find out about the cash.

c) Regarding the purposets) for which defendant Julio Robaina used the cash,Roberto Blanco was asked the following questions and gave the following answers:

Q: Okay. Did your father ever say anything to you about it, he uses itfor his own purposes or maybe M r. Robaina has a woman on the side or women onthe side that he may use that money for?W e spoke about it.Your father said that?Yes.

1 1. The infonnation in the previous two paragraphs creates a contlict of interest for M r.Garvin, because it is potentially favorable to one client, defendant Raiza Robaina whileinculpatory to the other client, defendant Julio Robaina. Defendant Raiza Robaina could useevidence that defendant Julio Robaina concealed cash interest payments from her both to minimizeher involvem ent and/or knowledge of that portion of the scheme and to argue more broadly that hekept her in the dark about the criminal activity generally. Evidence that defendant Julio Robainaused the cash to fund a girlfriend could further assist defendant Raiza Robaina by providing amotive for him to conceal the cash, and thereby supporting the bases from which a jury could

Iconclude that he in fact did conceal the cash. However, by pursuing this evidence, M r. Garvin

l'T'he govenunent notes that defendant Raiza Robaina's ability to use the statements madeby Rolando Blanco that are summarized in paragraph 10(c) of the text would be subject to herability to overcome any hearsay objections. The government does not concede that the statementswould be admissible if offered by defendant Raiza Robaina. lt would be her burden to identify abasis for overcoming a hearsay objection to the testimony.



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would violate his duty of loyalty to defendant Julio Robaina, since the evidence both implicatesdefendant Julio Robaina in the charged offenses and m ay present him in an unfavorable light.

12. Once again, while the govenunent is notifying the Court of the information and thecontlict, it is not asking the Court to take any action. The record associated with M agistrate JudgeGoodman's order accepting the defendants' waivers of the right to contlict-free counsel (DE 34)illustrates that the defendants' very comprehensive waivers of their right to contlict-free counselcover the matters presented in this notice.

a) Prior to issuing his order, Magistrate Judge Goodman conducted a hearingin which he thoroughly questioned both defendants. The colloquy established that bothdefendants had am ple opportunity to consult with multiple attorneys in advance of makingtheir decision, that they were aware of the dangers of going forward with a single attorneyrepresenting both them , and that they desired to go forward with Mr. Garvin as their solecounsel notwithstanding these dangers. The transcript of the hearing is entry 25 on thedocket. ln the course of inventorying the different problems that might emerge fromjointrepresentation, M agistrate Judge Goodman specifically identified the possibility of maritaldiscord, including one spouse leaming of the other's infdelity (DE 25:34-35), as well asidentifying the possibility that they might become aware of evidence that exculpates onewhile inculpating the other (1d , at 46-47).

2ummarized in m ore depth in the footnote below .M agistrate Judge Goodman's colloquy is

2The colloquy incorporated the standard procedures and questions employed in a Rule 1 1colloquy. The record retlects that the Court addressed the personally throughout the hearing.The record further illustrates that the Court asked the array of questions to establish that thedefendants were capable of understanding the nature of the proceedings and were acting on their

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own free will.The defendants confinned that they both were college educated. The Court elicited thatthe defendants were lucid on the day of the proceedings; that did not suffer from any mental illnessor disability, including any substance abuse disorder; and that they were not pressured or coercedinto waiving their rights to contlict-free counsel (DE 25:3-8 & 71). The defendants alsoconfinned that they wanted M r. Ganin to represent them and explained their reasons for doing so(1d. at 25:8-1 1, 16-18 & 64-65). The defendants indicated that they had time to reflect on thematter and confer with other counsel, that they were satisfied with the advice that they hadreceived from the different attorneys with whom they had consulted, and that they did not believethey needed additional time to confer with other counsel (1d. at 1 1-15 & 71-72).The Court endeavored to ensure that the defendants understood the pitfalls of jointrepresentation and that they were waiving any resulting shortcomings. The Court advised thedefendants that notwithstanding their belief that their interests did not contlict, unanticipatedconflicts or problems could arise from a variety of sources. For instance, one of the defendantscould decide to plead guilty in order to m inimize the potential impact on their children. lf one ofthe defendants were to decide to obtain separate counsel at a later point, confidentiality and/orprivilege issues could result in M r. Garvin's disqualification. W hile one or both might want acontinuance to give new counsel time to prepare, the Court m ight refuse to grant one. Anothersource of contlict could arise from marital discord. As to these areas, the defendants stated thatthey understood these possibilities but either waived any contlict and/or denied that the possibilitywould come to fruition (1d. at 19-27 & 34-35).The Court also explained that joint representation might place limits upon Mr. Garvin'stlexibility to pursue certain courses. These included plea negotiations and M r. Garvin's ability topursue defenses that contrasted one defendant's role with the others. The Court added that if onedefendant were to testify and one were not, this may put M r. Garvin in an awkward situation inclosing argument. Here, too, the defendants claimed to understand and waive any contlicts (1d. at27-34). In response to warning from the Court, the defendants likewise claimed to understandand agree that by waiving their right to contlict-free counsel, they were abandoning their right toclaim on collateral attack that any such contlicts fatally undermined M r. Garvin's ability to provideeffective assistmwe of counsel (1d at 60-63).The Court also endeavored to explain to M r. Robaina that contlicts might arise if witnessescast the defendants in different lights - exculpating one while inculpating the other. ln response,

Mr. Robaina said that he appreciated the issue but denied that it was a problem (1d. at 46-47).Although the Court did not pose the same exact scenario to M s. Robaina, it instnlcted bothdefendants more generally that any number of possible conflicts could arise over the course of thecase, as to which both defendants stated all issues would be resolved by consensus (1d. at 47-50).



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After the hearing, both defendants submitted affidavits in which theyconfirmed their understanding of the risks of proceeding with a single attorney and theirdesire to do so. In her 7-page aftidavit, defendant Raiza Robaina outlined herunderstanding of the different problems that joint representation could present - includingthe possibility that the defendants' individual litigation interests might not align on allmatters, such as if spouse 1 wanted spouse 2 to testify but spouse 2 did not want to (DE31-1 :6). ln response to the concern that facts could emerge at a later time that couldsharpen a potential conflid into an actual conflid , defendant Raiza Robaina added, tdlunderstand that most Garcia hearings occur at an early stage of the proceedingsaddition, while l am not certain what is going to happen in my trial,l am certain who 1 wantto represent me and my husband. The same person that has been representing our interestsfor the last two years'' (f .). ln his affidavit (DE 31-2), defendant Julio Robaina stated thathe had read his wife's affidavit and agreed with it (1d. at 1-2).

Following review of the record, M agistrate Judge Goodm an entered a24-page order accepting both defendants' waivers of their respective rights to eonflid-freecounsel (DE 34). ln outlining the different warnings of which the defendants had beenmade aware, the order included the following: (i) arguments might exist that help onedefendant while hurting the other (DE 34:6)) (ii) Sfgflrom a marital relationshipperspedive, one spouse leams that the other is having an affair (or had an affair) and adoptsa vindictive attitude toward the other which would make ajoint defense problematic'' lid ,at 7); (iii) the defendants' perspectives of the case might change over time (id.); and (iv)lga) government trial witness testifies favorablt about one spouse but says something

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harmful about the other, thereby forcing Garvin to confront the thorny issue about whether(and, if so, how) to cross-examine the witness'' (id.4.

For these reasons, the government respectfully submits that the record associatedwith the earlier proceedings regarding the defendants' waivers of their rights to conflict-freeeounsel have thoroughly addressed any issue potentially created by tht fads set forth in this notice.

Respectfully submitted,W IFREDO A. FERRERUNITED STATES ATTORNEYwA

M ICHAEL S. DAVISASSISTANT UN ITED STATES ATTORNEYFL BAR 97227499 N .E. 4th StreetM inmi, Florida 33132(305) 961-9027 (phone); (305) 536-4675 (fax)E-mail: [email protected] OF SERVICE

Because this notice is not being filed through CM/ECF, it will be served upon M r. Garvinvia e-m ail.=MICHAEL S. DAVISASSISTANT UN ITED STATES ATTORNEY


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