PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4295
GAGIK URUTYAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(3:07-cr-00041-JRS-1)
Argued: March 24, 2009
Decided: May 7, 2009
Before DUNCAN and AGEE, Circuit Judges, and David A.
FABER, Senior United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Agee and Senior Judge Faber joined.
COUNSEL
ARGUED: James Fred Sumpter, Midlothian, Virginia, for
Appellant. Laura Colombell Marshall, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
2 UNITED STATES v. URUTYAN
Appellee. ON BRIEF: Chuck Rosenberg, United States
Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
Gagik Urutyan ("Urutyan") challenges his conviction for
bank fraud, conspiracy to commit bank fraud, and aggravated
identity theft.1 Urutyan’s sole claim on appeal is that the dis-
trict court deprived him of his Sixth Amendment right to
counsel by disqualifying one of his attorneys. Because the dis-
trict court did not abuse its discretion in concluding that con-
tinued representation by the attorney in question posed a
serious potential for conflict of interest, we affirm.
I.
Urutyan was convicted of participation in a bank fraud
scheme that involved the theft of personal identity informa-
tion. The evidence adduced at trial reflects the following
sequence of events. In August 2006, Urutyan took a job at a
gas station in Mechanicsville, Virginia, in order to gain access
to the gas station’s Verifone Pin Pad 2000, the device on
which customers swipe their debit cards and enter their pin
numbers. Urutyan was able to compromise the device and use
it to steal the debit card and pin numbers of hundreds of cus-
tomers. On December 12, 2006, Urutyan quit his job at the
gas station and, along with at least five coconspirators, uti-
1
Although Urutyan’s notice of appeal was not timely filed under Federal
Rule of Appellate Procedure 4(b), the government has waived any objec-
tions on this ground. As discussed below, we conclude that Urutyan’s fail-
ure to comply with Rule 4(b) does not deprive this court of subject-matter
jurisdiction.
UNITED STATES v. URUTYAN 3
lized the stolen data to conduct fraudulent withdrawals from
ATMs in Virginia, Maryland, Delaware, Pennsylvania, and
New Jersey. Over a sixteen-day period, Urutyan and his
coconspirators stole more than $600,000 from the accounts of
more than 500 victims, all of whom had used their debit cards
at the Mechanicsville gas station. The stolen money was
wired to recipients in Russia and Armenia.
Urutyan was arrested on January 12, 2007, and a federal
public defender was appointed to represent him. On February
6, 2007, Urutyan replaced his appointed counsel with attorney
Elliot Bender. On March 7, 2007, William Graysen, a Califor-
nia attorney, was admitted pro hac vice to represent Urutyan.
On June 5, 2007, a federal grand jury returned a second
superseding indictment naming Urutyan and five coconspira-
tors. Urutyan was charged with one count of conspiracy to
commit bank fraud in violation of 18 U.S.C. §§ 1344 and
1349, two counts of bank fraud in violation of 18 U.S.C.
§ 1344, and two counts of aggravated identity theft in viola-
tion of 18 U.S.C. § 1028A.
On August 2, 2007, the government sent a letter to Graysen
asking for information about his fee arrangement with Uru-
tyan and the source of funds for Urutyan’s representation.
Graysen responded that he was retained on or about February
1, 2007, with a fee of $25,000. JA at 1022. Graysen said the
fee was paid in cash by a man named David who declined to
give his last name, phone number, or address. Id. Graysen
said that there was no written fee agreement and that, rather
than deposit the cash in any bank account, he kept it for "per-
sonal use." Id. Graysen said that he intended to include the
income on his tax return and to report receipt of the cash with
the Internal Revenue Service on or before January 31, 2008
(approximately one year after receipt). Id.2
2
IRS Form 8300, which is used to report cash payments over $10,000
received in a trade or business, generally must be filed within fifteen days
of the date the cash was received. See 26 U.S.C. § 6050I; IRS Form 8300.
4 UNITED STATES v. URUTYAN
On August 24, 2007, the government filed a Motion for
Conflict of Interest Inquiry to determine whether Graysen was
being paid by a third party to represent Urutyan. In support of
its motion, the government provided transcripts of several
telephone conversations between Urutyan and a female
coconspirator who had not yet been arrested at the time of the
call, but who later became a codefendant. The calls had been
recorded January 22, 2007, and were translated from Russian.
During one call, the codefendant told Urutyan, "Well, they
said to write you and let you know that you have a lawyer. . . .
Someone from California." JA at 965. In another call, Uru-
tyan asked, "So what, is it an expensive lawyer? . . . More
than forty?" JA at 980. The codefendant replied, "Yes. It will
be even more than that." Id. And, in yet another call, the code-
fendant said she "gave it all to them . . . [a]nd that they will
sort of pay for the lawyer . . . they will give it back to you and
the remains will be paid to the lawyer." JA at 978.
The district court held a hearing on September 17, 2007, to
determine whether Graysen could continue as counsel for
Urutyan. In addition to the foregoing facts, the district court
heard evidence that, although Graysen had previously stated
his intention to file a Form 8300 with the IRS, he failed
timely to do so. It also emerged that David paid Graysen an
additional $60,000 in cash to secure representation for three
of Urutyan’s codefendants. Graysen said he used the money
to hire separate counsel for the codefendants at a cost of
$18,000 each and kept a $6,000 referral fee for himself.
Graysen offered several explanations for the somewhat
unusual nature of the arrangements. Graysen said that David,
like Urutyan, was Armenian and had raised the money from
family and friends. Graysen suggested that it was not uncom-
mon for members of the Armenian community to use only
their first names when "dealing with the law, civil or crimi-
nal." JA at 997. Regarding his failure to deposit the initial
$25,000 in a bank account,3 Graysen argued that he was not
3
As the district court observed, Rule 4-100(A) of the California Rules
of Professional Conduct requires that "[a]ll funds received or held for the
UNITED STATES v. URUTYAN 5
required to deposit the cash in a bank account because, under
California’s so-called "true retainer" rule,4 the cash consti-
tuted a fee earned upon receipt. JA at 1044. Regarding his
failure timely to file a Form 8300 with the IRS, Graysen said
he was mistaken about the applicable deadline. And when
asked by the district court why there had been no written
retainer agreement with David, Graysen replied, "I have an
explanation for that, too. Where two Armenians trust each
other, or two people, one being Armenian and one being
American, trust each other, there is no need for a retainer. It
is something of an insult. They believe a man’s word is his
bond." JA at 1043.
During the hearing, the government informed the district
court that Graysen was a "subject" of its ongoing criminal
investigation. Although Graysen had not been indicted, the
government argued that Graysen’s status as a "subject" of
investigation created a potential conflict of interest separate
from any conflict arising from Graysen’s being paid by a third
party.
Based on this evidence, the district court disqualified
Graysen as counsel on the ground that his continued represen-
tation of Urutyan would pose "a serious potential conflict
based on two grounds[:] (1) the great likelihood that Mr.
Graysen was paid by a third party who is a member of the
benefit of clients by a member of a law firm, including advances for costs
and expenses, shall be deposited in one or more identifiable bank
accounts."
4
See generally Baranowski v. State Bar, 593 P.2d 613, 618 n.4 (Cal.
1979) ("A retainer is a sum of money paid by a client to secure an attor-
ney’s availability over a given period of time. Thus, such a fee is earned
by the attorney when paid since the attorney is entitled to the money
regardless of whether he actually performs any services for the client.");
but see In re Brockway, No. 01-O-03470, 2006 WL 1360438, at *4-5 (Cal.
Bar Ct. May 15, 2006) (holding that advance payment for future legal ser-
vices, as opposed to mere future availability, is not a true retainer).
6 UNITED STATES v. URUTYAN
alleged criminal enterprise and (2) the Government’s charac-
terization of Mr. Graysen as a subject in their investigation."
JA at 1070.
With respect to the third-party payment arrangement, the
district court explained that the recorded telephone conversa-
tions "strongly indicate that Mr. Graysen was paid with pro-
ceeds illegally gained by a member of the alleged fraud
conspiracy." JA at 1071. Further, the district court found that
the "facts that Mr. Graysen did not deposit the $25,000 . . .
nor file the appropriate IRS forms and that ‘David’ refuses to
give his last name all support the inference that David is a
member of the alleged fraud scheme and that the cash
received by Mr. Graysen is the fruit of the alleged illegal
activity." JA at 1071. The district court reasoned that "not
only is it possible that Mr. Graysen is acting as an agent of
a third party who has interests which are potentially in con-
flict with those of his client, but this fee arrangement may also
discourage Urutyan from considering a plea because more
than likely a co-conspirator has paid his legal fees." JA at
1072. Further, the district court noted the possibility that "the
Government may choose to establish the fraud conspiracy by
showing the payment of $85,000 in cash to Mr. Graysen,
which would result in Mr. Graysen becoming a potential wit-
ness against his client." Id.
With respect to Graysen’s having been characterized as a
"subject" of the government’s ongoing investigation, the dis-
trict court noted the potential conflict of interest posed by an
attorney who is distracted from providing effective represen-
tation by "his concern to avoid his own incrimination." JA at
1072-73 (citation omitted). The district court then evaluated
the evidence, reasoning that "Mr. Graysen’s extensive interac-
tion with David, the strong likelihood that the $25,000 Mr.
Graysen received was proceeds from the alleged fraudulent
scheme, and Mr. Graysen’s complete failure to deposit the
funds and file the appropriate IRS forms are sufficient to sup-
UNITED STATES v. URUTYAN 7
port the Government’s identification of Mr. Graysen as a sub-
ject in their investigation." JA at 1075.
Graysen was thus disqualified, and Urutyan went to trial,
still represented by Elliot Bender.5 Urutyan was convicted by
a jury on all counts. Judgment was entered against him on
January 22, 2008. Urutyan filed a notice of appeal with the
district court March 4, 2008. The notice was not timely.
Appellate Rule 4(b)(1)(A) imposes a ten-day deadline on the
filing of a notice of appeal in criminal cases, and Urutyan
never requested an extension of that deadline. Prior to oral
argument, the government expressly waived any objection
based on the timeliness of Urutyan’s notice of appeal.
Urutyan’s sole argument on appeal is that his Sixth Amend-
ment right to counsel was violated when the district court dis-
qualified attorney William Graysen from representing him.
II.
We first consider whether we have subject-matter jurisdic-
tion with respect to this appeal. Urutyan’s notice of appeal
was untimely under Federal Rule of Appellate Procedure
4(b)(1)(A), which requires that "[i]n a criminal case, a defen-
dant’s notice of appeal must be filed in the district court
within ten days after . . . the entry of either the judgment or
the order being appealed." Fed. R. App. P. 4(b)(1)(A).
Urutyan’s judgment of conviction was entered on January
22, 2008, and his notice of appeal was not received by the dis-
trict court until March 4, 2008, more than ten days later.6 The
5
Although Graysen paid Bender’s fees, the district court did not disqual-
ify Bender as counsel for Urutyan.
6
Although Appellate Rule 4(b)(4) authorizes a district court to extend
the deadline up to thirty additional days "[u]pon a finding of excusable
neglect or good cause," Fed. R. App. P. 4(b)(4), Urutyan never sought
such an extension and the district court never granted one.
8 UNITED STATES v. URUTYAN
government has expressly waived any objection on timeliness
grounds. Nevertheless, we are obliged to satisfy ourselves of
subject-matter jurisdiction, even where the parties concede it.
Bender v. Williamsport Area Sch. Dist., 475 U.S. 524, 541
(1986); Randall v. United States, 95 F.3d 339, 345 (4th Cir.
1996). Therefore, we must determine whether Urutyan’s fail-
ure to comply with Rule 4(b) deprives this court of jurisdic-
tion. We conclude that it does not.
The Supreme Court in three recent decisions has clarified
when a party’s failure to comply with a filing deadline
deprives a lower federal court of subject-matter jurisdiction.
In Kontrick v. Ryan, the Court held that a party’s failure to
comply with a filing deadline in the Bankruptcy Rules did not
deprive the bankruptcy court of subject-matter jurisdiction.
540 U.S. 443, 459-60 (2004). Reasoning that "[o]nly Con-
gress may determine a lower federal court’s subject-matter
jurisdiction," the Court drew a distinction between statutory
time constraints, which do limit subject-matter jurisdiction,
and court-prescribed procedural rules, which do not. Id. at
452-53. The distinction matters because, while a "court’s
subject-matter jurisdiction cannot be expanded to account for
the parties’ litigation conduct; a [non-jurisdictional] claim-
processing rule . . . even if unalterable on a parties’ applica-
tion, can nonetheless be forfeited if the party asserting the rule
waits too long to raise the point." Id. at 456.
The Kontrick Court was careful to address an apparent
inconsistency with prior cases such as United States v. Robin-
son, 361 U.S. 220 (1960), wherein court-prescribed deadlines
had been described as "mandatory and jurisdictional." Kontr-
ick, 540 U.S. at 454 (quoting Robinson, 361 U.S. at 228-29).
The Court observed that federal courts "have been less than
meticulous in this regard; they have more than occasionally
used the term ‘jurisdictional’ to describe emphatic time pre-
scriptions in rules of court." Id. The Court stated that
"[c]larity would be facilitated if courts and litigants used the
label ‘jurisdictional’ not for claim-processing rules, but only
UNITED STATES v. URUTYAN 9
for prescriptions delineating the classes of cases (subject mat-
ter jurisdiction) and the persons (personal jurisdiction) falling
within a court’s adjudicatory authority." Id.
In Eberhart v. United States, the Court applied Kontrick to
reverse a Seventh Circuit decision that held that a criminal
defendant’s failure to meet a filing deadline under the Federal
Rules of Criminal Procedure deprived the district court of
subject-matter jurisdiction. 546 U.S. 12 (2005). The Seventh
Circuit, relying on both its own precedent and the Supreme
Court’s prior decision in Robinson, explained that "we have
previously emphasized that [Rule 33’s] 7-day period is juris-
dictional, and that the court is without jurisdiction to consider
even an amendment to a timely new trial motion if it is filed"
out of time. United States v. Eberhart, 338 F.3d 1043, 1049
(7th Cir. 2004), rev’d 546 U.S. 12 (2005). In reversing, the
Supreme Court analogized the time deadlines in the court-
prescribed Federal Rules of Criminal Procedure to the Bank-
ruptcy Rules, which the Kontrick Court held "are not jurisdic-
tional, but are instead claim-processing rules, that may be
unalterable on a party’s application, but can nonetheless be
forfeited if the party asserting the rule waits too long to raise
the point." Eberhart, 546 U.S. at 15 (quotations and citations
omitted).
Acknowledging, as the Kontrick Court had, that prior cases
like Robinson had characterized court-prescribed time dead-
lines as "mandatory and jurisdictional," the Eberhart Court
again lamented the "imprecision" of the earlier use of the term
"jurisdictional" to describe time prescriptions that, however
inflexible and unalterable, nevertheless do not affect the
subject-matter jurisdiction of lower federal courts. Id. at 18.
Thus, the Court explained, "[t]he net effect of Robinson,
viewed through the clarifying lens of Kontrick, is to admonish
the Government that failure to object to untimely submissions
entails forfeiture of the objection." Id.
Most recently, the jurisdictional nature of statutory time
constraints was reaffirmed in Bowles v. Russell, 127 S. Ct.
10 UNITED STATES v. URUTYAN
2360, 2366 (2007). Bowles concerned a civil litigant’s failure
to file an appeal within the 14 days allowed under Federal
Rule of Appellate Procedure 4(a)(6) when the time for appeal
has been reopened. The district court judge had issued an
order reopening the time for appeal for 17 days. Bowles’s
appeal was timely filed under the order, but not under Rule
4(a)(6). Dismissing the appeal, the Supreme Court observed
that the deadline in Rule 4(a)(6) was underpinned by an iden-
tical deadline set forth in 28 U.S.C. § 2107(c). Id. The Court
reasoned that, "[a]lthough several of our recent decisions have
undertaken to clarify the distinction between claims-
processing rules and jurisdictional rules, none of them calls
into question our longstanding treatment of statutory time lim-
its for taking an appeal as jurisdictional." Id. at 2364. Thus,
Bowles’s failure to comply with the deadline in Rule 4(a)(6)
deprived the court of subject-matter jurisdiction because the
deadline was also mandated by statute. Id. at 2366.
Here, Urutyan failed to comply with Appellate Rule 4(b),
which sets filing deadlines for appeals in criminal cases. Like
the Bankruptcy Rules at issue in Kontrick and the Federal
Rules of Criminal Procedure at issue in Eberhart, Appellate
Rule 4(b) is a court-prescribed, procedural rule. But, unlike
Rule 4(a), which was at issue in Bowles, the rule is not back-
stopped by any federal statutory deadline. Therefore, in light
of the Supreme Court’s holding that "[i]t is axiomatic that
court-prescribed rules of practice and procedure, as opposed
to statutory time limits, do not create or withdraw federal
jurisdiction," Kontrick, 540 U.S. at 370, we conclude that the
non-statutory time limits in Appellate Rule 4(b) do not affect
subject-matter jurisdiction.7
7
Every other circuit to address the question post-Kontrick has come to
the same conclusion. See United States v. Mitchell, 518 F.3d 740, 744
(10th Cir. 2008); United States v. Frias, 521 F.3d 229, 234 (2d Cir. 2008);
United States v. Byfield, 522 F.3d 400, 403 n.2 (D.C. Cir. 2008); United
States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007); United States v.
Sadler, 480 F.3d 932, 940 (9th Cir. 2007).
UNITED STATES v. URUTYAN 11
We are cognizant that, like many federal courts in the years
preceding the Supreme Court’s clarifying decisions in Kontr-
ick, Eberhart, and Bowles, this court has been "less than
meticulous" in our use of the term "jurisdictional" to describe
timeliness requirements. Kontrick, 540 U.S. at 454; see, e.g.,
United States v. Little, 392 F.3d 671, 680-81 (4th Cir. 2004)
(characterizing Rule 4(b) as "jurisdictional"); United States v.
Schuchardt, 685 F.2d 901, 902 (4th Cir. 1982) (same). How-
ever, "viewed through the clarifying lens of Kontrick," the
term "jurisdictional" as used in these prior cases—and, prior
to clarification of this issue, as it was used by the Supreme
Court in Robinson—is best understood as referring to the
emphatic nature of the time limits at issue, and not to any
capacity of a non-statutory rule to restrict subject-matter juris-
diction. See Eberhart, 546 U.S. at 18.
Therefore, in light of Kontrick, Eberhart, and Bowles, we
are satisfied that Urutyan’s failure to comply with the non-
statutory time limitations of Rule 4(b) does not divest this
court of subject-matter jurisdiction over his appeal.8
III.
Having satisfied ourselves that we have subject-matter
jurisdiction over this appeal, we now turn to Urutyan’s sole
contention: that his Sixth Amendment right to counsel was
8
This court’s decision in Brickwood Contractors, Inc. v. Datanet Engi-
neering, Inc., 369 F.3d 385 (4th Cir. 2004) (en banc), is not to the con-
trary. In Brickwood we applied Kontrick to conclude that the safe harbor
provisions of Federal Rule of Civil Procedure 11 do not implicate a district
court’s subject matter jurisdiction. Id. at 392. In dicta, and without the
benefit of Eberhart and Bowles, we suggested that, even assuming Appel-
late Rule 4 could properly be characterized as "jurisdictional" in the sense
that it demarcated district-court from circuit-court authority over a case,
Rule 11 played no such role and could not, therefore, be so characterized.
Id. at 393. We do not read Brickwood as reaching the question of whether
the non-statutory time deadlines of Appellate Rule 4(b) implicate the sub-
ject matter jurisdiction of lower federal courts, which is the question we
answer here.
12 UNITED STATES v. URUTYAN
denied when the district court disqualified one of his retained
attorneys on conflict-of-interest grounds.9 We review for
abuse of discretion the district court’s decision to disqualify
a defendant’s counsel of choice. United States v. Williams, 81
F.3d 1321, 1325 (4th Cir. 1996).
In United States v. Wheat, the Supreme Court explained
that "[w]hile the right to select and be represented by one’s
preferred attorney is comprehended by the Sixth Amendment,
the essential aim of the Amendment is to guarantee an effec-
tive advocate for each criminal defendant rather than to
ensure that a defendant will inexorably be represented by the
lawyer whom he prefers." 486 U.S. 153, 159 (1988). The par-
amount concern is the judiciary’s "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." Id. at 160. Thus, a district court
may disqualify a defendant’s counsel of choice in spite of an
express waiver by that defendant of any conflict of interest.
Id. at 162.
In evaluating a district court’s exercise of discretion, we are
mindful that "[t]he likelihood and dimensions of nascent con-
flicts of interest are notoriously hard to predict." Id. at 162. As
a result, district courts "must be allowed substantial latitude
in refusing waivers of conflict of interest not only in those
rare cases where an actual conflict may be demonstrated
before trial, but in the more common cases where a potential
for conflict exists which may or may not burgeon into an
actual conflict as the trial progresses." Id. at 163. Accord-
ingly, "while recognizing ‘a presumption in favor of petition-
er’s counsel of choice,’ the Wheat Court found that such a
‘presumption may be overcome not only by a demonstration
of actual conflict but by a showing of a serious potential for
9
Although no written waiver of conflict of interest appears in the record,
Urutyan asserts that he "had indicated his willingness to waive any poten-
tial future conflict of interest." Appellant’s Br. at 13.
UNITED STATES v. URUTYAN 13
conflict.’" United States v. Basham, No. 05-5, 2009 WL
806845, at *15 (4th Cir. Mar. 30, 2009) (citing Wheat, 486
U.S. at 164) (emphasis in Basham).
Here, the district court disqualified Graysen based on "a
serious potential conflict" arising from "the great likelihood
that Mr. Graysen was paid by a third party who is a member
of the alleged criminal enterprise."10 JA at 1070. Certainly,
such an arrangement, if it existed, would create a serious
potential for conflicts of interest. In Wood v. Georgia, the
Supreme Court remarked on the "inherent dangers that arise
when a criminal defendant is represented by a lawyer hired
and paid by a third party, particularly when the third party is
the operator of the alleged criminal enterprise." 450 U.S. 261,
268-69 (1981).11 Here, the district court anticipated multiple
potential conflicts, reasoning that "not only is it possible that
Mr. Graysen is acting as an agent of a third party who has
interests which are potentially in conflict with those of his cli-
ent, but this fee arrangement may also discourage Urutyan
10
The district court also identified a separate potential conflict based on
Graysen’s status as a "subject" of the government’s ongoing investigation.
Because we conclude that there was sufficient evidence for the district
court to infer that Graysen was being paid by a coconspirator, and because
such an arrangement would create a serious potential conflict of interest,
we need not address this separate potential conflict.
11
In Wood, the defendants, who faced charges of distributing obscenity
materials, were represented by a lawyer who was hired and paid by the
defendants’ employer, the operator of an adult bookstore and theater. 450
U.S. at 263-64. Citing the potentially divergent interests of the defendants
and their employer, the Court remanded for an inquiry into potential con-
flicts of interest. Id. at 273. Unlike here, remand was necessary in Wood
because the issue was a post-conviction question of whether the defen-
dants were deprived of effective assistance of counsel, a question that
turned on whether there had been "an actual conflict . . . that affected
counsel’s performance—as opposed to a merely theoretical division of
loyalties." Mickens v. Taylor, 535 U.S. 162, 171 (2001) (interpreting
Wood). Here, however, the issue is whether, in the context of a pre-trial
inquiry, a third-party fee arrangement poses a serious potential for con-
flict. See Wheat, 486 U.S. at 154, 164.
14 UNITED STATES v. URUTYAN
from considering a plea because more than likely a co-
conspirator has paid his legal fees." JA at 1072. Further, the
district court considered that "the Government may choose to
establish the fraud conspiracy by showing the payment of
$85,000 in cash to Mr. Graysen, which would result in Mr.
Graysen becoming a potential witness against his client." Id.
Any of these scenarios would pose an unwaivable conflict of
interest, and it was therefore well within the district court’s
substantial latitude to conclude that Graysen’s representation
posed a serious potential for conflict of interest. See Wheat,
486 U.S. at 164.
The only remaining question is whether there was a suffi-
cient evidentiary basis from which to conclude that Graysen
was hired and paid by a member of the alleged criminal con-
spiracy. We conclude that there was. The record shows that
a codefendant informed Urutyan by telephone that "they said
to write you and let you know that you have a lawyer . . .
someone from California" and that she "gave it all to them . . .
[and] they will sort of pay for the lawyer . . . they will give
it back to you and the remains will be paid to the lawyer." JA
at 978. Graysen, a California lawyer, informed the district
court that he was hired less than two weeks after the tele-
phone conversations took place by a man who identified him-
self only as "David" and refused to provide a last name,
address, or phone number. Graysen stated that David paid him
$25,000 in cash to represent Urutyan and gave him an addi-
tional $60,000 in cash to hire representation for Urutyan’s
three codefendants. The district court also considered evi-
dence of Graysen’s questionable behavior, including his fail-
ure to deposit the $25,000 in a bank account, his failure
timely to report receipt of the cash to the IRS, and his failure
to enter a written retainer agreement. We agree with the dis-
trict court that the telephone conversations "strongly indicate
that Mr. Graysen was paid with proceeds illegally gained by
a member of the alleged fraud conspiracy," and that the dubi-
ous circumstances of the payment arrangement "all support
UNITED STATES v. URUTYAN 15
the inference that David is a member of the alleged fraud
scheme." JA at 1071.
Having concluded that the district court had a sufficient
evidentiary basis from which to conclude that Urutyan’s law-
yer was hired and paid by a member of the alleged criminal
conspiracy, and having further determined that such an
arrangement posed a serious potential for conflict of interest,
we hold that the district court did not abuse its discretion in
disqualifying Graysen as counsel.
IV.
For the foregoing reasons, the decision below is
AFFIRMED.