Does it deny a defendant due process of law to disqualify trial counsel based on a purported conflict of interest following the ex parte consideration of the prosecution's evidence and without disclosing the names of the prosecution witnesses whom counsel allegedly previously had represented?

QUESTIONS PRESENTED The prosecution moved to disqualify petitioner’s two retained counsel of choice based on a purported conflict of interest arising out of their alleged prior representation of two unnamed potential prosecution witnesses. The magistrate judge disqualified both counsel after considering the prosecution’s evidence ew parte and rejecting petitioner’s offer to have an independent, “walled-off” defense counsel cross-examine any witness whom counsel previously had represented. The district court upheld the disqualification. The prosecution called only one of those witnesses to testify at trial. Petitioner was convicted and sentenced to life imprisonment. After petitioner’s conviction was affirmed on appeal, he sought post-conviction relief on the basis that he was denied his Sixth Amendment right to lead counsel of choice following an ex parte proceeding that violated his Fifth Amendment right to due process of law. Petitioner established that (1) the witness who testified at trial previously had been represented by the “second chair” counsel who was not a member of lead counsel’s firm and (2) the other potential witness—whom lead counsel previously had represented—did not testify at trial. The district court denied relief, and the Fifth Circuit affirmed. The Questions Presented are: I. Does it deny a defendant due process of law to disqualify trial counsel based on a purported conflict of interest following the ex parte consideration of the prosecution’s evidence and without disclosing the names u of the prosecution witnesses whom counsel allegedly previously had represented? II. Does it deny a defendant the right to counsel of choice to disqualify trial counsel instead of allowing an independent, “walledoff” defense counsel to cross-examine any prosecution witness whom counsel previously had represented? III. Does it deny a defendant the right to counsel of choice to disqualify trial counsel based on a purported conflict of interest due to counsel’s prior representation of a potential witness whom the prosecution did not thereafter call to testify at trial? RELATED CASES ¢ United States v. Pike, No. SA-15-CR-820DAE, United States District Court for the Western District of Texas, San Antonio Division. Judgment entered October 17, 2018. ¢ United States v. Pike, No. 18-50793, United States Court of Appeals for the Fifth Circuit. Judgment entered August 5, 2020. Rehearing denied September 1, 2020. ¢ Pike v. United States, No. 20-6554, United States Supreme Court. Certiorari denied January 25, 2021. ¢ Pike v. United States, No. SA-21-CV-1226DAE, United States District Court for the Western District of Texas, San Antonio Division. Judgment entered September 29, 2022. Reconsideration denied November 10, 2022. ¢ United States v. Pike, No. 22-51003, United States Court of Appeals for the Fifth Circuit. Judgment entered March 20, 2024.