MARK W. BENNETT, District Judge.
TABLE OF CONTENTS I. INTRODUCTION AND BACKGROUND .............................................1000II. ANALYSIS .................................................................1001A. Standard Of Review ..................................................1001B. Review Of Disqualification Order .....................................10021. Unsworn witness .................................................10032. Prosecution rebuttal witness .....................................10063. Defense witness .................................................1008III. CONCLUSION ..............................................................1008
This case is before me on defendant Nathan Melton's appeal of Chief United States Magistrate Judge Jon S. Scoles's order disqualifying defense counsel. Melton's appeal raises the following issues: whether defense counsel must be disqualified because his representation of Melton at trial would make defense counsel an unsworn witness, or because of the possibility that defense counsel might be called as either a prosecution or defense rebuttal witness.
On March 20, 2013, an Indictment was returned against Melton charging him with resisting a federal officer, a Deputy United States Marshal, with actions that involved physical contact with, and inflicted bodily injury to the Deputy Marshal, in violation of 18 U.S.C. §§ 111(a) & (b). The charge stems from events at a hearing held on November 19, 2012, before Chief Judge Linda R. Reade. The hearing was to determine whether Melton's supervised release should be revoked.
On April 12, 2013, the prosecution filed a Motion to Disqualify in which it requests Scheetz be disqualified from representing Melton. The prosecution contends that Scheetz must be disqualified for three reasons: first, because his participation at trial would cause him to be an unsworn witness; second, that he is likely to be a necessary witness for the defense; and, third, that there is a "strong possibility" that he could be a necessary witness for the prosecution. On April 24, 2013, Melton filed a resistance to the prosecution's motion. On May 7, 2013, Judge Scoles held a hearing on the prosecution's motion. On May 10, 2013, 2013 WL 1953309 Judge Scoles issued an order granting the prosecution's motion. Judge Scoles found that if Scheetz was permitted to appear as defense counsel he may become an unsworn witness. Order at 6. Judge Scoles further found that Scheetz might be a necessary
Melton has appealed Judge Scoles's order disqualifying Scheetz from representing him. In his appeal, Melton argues that Judge Scoles's order is contrary to the law or clearly erroneous because the possibilities that Scheetz might be called as a prosecution witness or a defense rebuttal witness are insufficient to meet the test for disqualification. Melton also argues that Judge Scoles did not give sufficient weight to Melton's Sixth Amendment right to counsel and the substantial hardship he would suffer by not being represented by his counsel of choice. In particular, Melton points out that Judge Scoles gave no weight to Scheetz's six years representing Melton on a number of matters. Finally, Melton contends that Judge Scoles's reliance on the unsworn witness theory is clearly erroneous and contrary to law. The prosecution filed a timely resistance to Melton's appeal. The prosecution argues that Judge Scoles correctly ruled that Scheetz should be disqualified from representing Melton because Scheetz's participation in the trial would cause him to be an unsworn witness due to him being present and observing the incident. The prosecution further argues that Judge Scoles correctly found that Scheetz's representation of Melton will prevent him from offering testimony that may be needed to rebut a prosecution witness's testimony. The prosecution also argues that because Scheetz witnessed the incident and occupies a position that is clearly not biased toward the prosecution. Judge Scoles's finding that Scheetz may become a necessary prosecution rebuttal witness is not clearly erroneous or contrary to the law. Finally, the prosecution contends that Judge Scoles's decision does not violate Melton's Sixth Amendment rights.
A district judge's review of a magistrate judge's order on a nondispositive matter is governed by Federal Rule of Criminal Procedure 59(a), which states:
FED. R.CRIM. P. 59(a); see also 28 U.S.C. § 636(b)(1)(A). A motion to dismiss or disqualify counsel is a nondispositive matter. See McCans v. City of Truth or Consequences, 360 Fed.Appx. 964, 966 n. 3 (10th Cir.2010); Hutchinson v. Pfeil, 105 F.3d 562, 565 (10th Cir.1997); Medgyesy v. Medgyesy, 2013 WL 3030686, at *1 n. 1 (N.D.Ill. 2013); DeBiasi v. Charter County of Wayne, 284 F.Supp.2d 760, 768 (E.D.Mich.2003); Hammond v. City of Junction City, 167 F.Supp.2d 1271, 1288-89 (D.Kan.2001). Thus, I will reverse Judge Scoles's order only if that ruling is
Although the Eighth Circuit Court of Appeals has not addressed the standard of review under Rule 59(a), it has observed, in another context, that "clear error" is a "deferential standard of review" that allows the reviewing court to reverse "only ... when the entire record definitely and firmly illustrates that the lower court made a mistake." United States v. Marshall, 411 F.3d 891, 894 (8th Cir.2005) (citing United States v. Quintana, 340 F.3d 700, 702 (8th Cir.2003), and United States v. Causor-Serrato, 234 F.3d 384, 389 (8th Cir.2000)). Other Circuit Courts of Appeals have provided comparable formulations of the "clearly erroneous" standard in the Rule 72(a) context. See, e.g., Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir.2006) ("In reexamining this question [upon objections to a magistrate judge's ruling on a nondispositive matter], the district court was required to `defer to the magistrate judge's ruling unless it [was] clearly erroneous or contrary to law.'" Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.1997) (citing 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Grimes v. City & County of San Francisco, 951 F.2d 236, 240 (9th Cir.1991)). Under the clearly erroneous standard, `"the reviewing court [must] affirm unless it "on the entire evidence is left with the definite and firm conviction that a mistake has been committed."' Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948))."); Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir.1999) ("Like the district court, we review these factual findings under the `clearly erroneous' rubric. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). This means that we must accept both the trier's findings of fact and the conclusions drawn therefrom unless, after scrutinizing the entire record, we `form a strong, unyielding belief that a mistake has been made.' Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.1990)."); Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir.1997) ("The clear error standard [under Rule 72(a)] means that the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made.").
The Eighth Circuit Court of Appeals also has not opined on the meaning of the "contrary to law" prong of review under Rule 59(a). One federal district court has explained, however, that "[a]n order may be deemed contrary to law [within the meaning of Rule 72(a)] `when it fails to apply or misapplies relevant statutes, case law or rules of procedure.'" Catskill Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002) (quoting Tompkins v. R.J. Reynolds Tobacco Co., 92 F.Supp.2d 70, 74 (N.D.N.Y. 2000)). I will review Judge Scoles's order with these standards in mind.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI.; see United States v. Baisden, 713 F.3d 450, 454 (8th Cir. 2013) ("The Sixth Amendment guarantees a criminal defendant the right to counsel."). The United States Supreme Court has observed that "this right was designed to assure fairness in the adversary criminal process." Wheat v. United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). "The Sixth Amendment protects a criminal defendant's right to a fair opportunity to secure the counsel of his choice." United States v. Gearhart, 576 F.3d 459,
Wheat, 486 U.S. at 159, 108 S.Ct. 1692. Accordingly, the Court went on to add that,
Id.
Because the question of disqualification directly implicates a defendant's Sixth Amendment rights "disqualification of defense counsel should be a measure of last resort, and `the government bears a heavy burden of establishing that disqualification is justified.'" United States v. Gearhart, 576 F.3d 459, 464 (7th Cir.2009) (quoting United States v. Diozzi, 807 F.2d 10, 12 (1st Cir.1986)); United States v. Washington, 797 F.2d 1461, 1465 (9th Cir. 1986) ("In seeking to disqualify a defendant's chosen counsel, the government bears a heavy burden of establishing that concerns about the integrity of the judicial process justify the disqualification."); see also Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir.1993) ("Attorney disqualification is `a drastic measure which courts should hesitate to impose except when absolutely necessary.'") (quoting Schiessle v. Stephens, 717 F.2d 417, 419-20 (7th Cir. 1983)); Evans v. Artek Systems Corp., 715 F.2d 788, 794 (2d Cir.1983) (holding that the moving party bears a "heavy burden of proving [the] facts required for disqualification."). In evaluating a request for defense counsel's disqualification, courts
Wheat, 486 U.S. at 164, 108 S.Ct. 1692.
The overriding question presented by Judge Scoles's disqualification order is whether Scheetz's presence at the revocation hearing gives rise to grounds sufficient to override Melton's Sixth Amendment right to counsel of his choice. Because Judge Scoles relied on three grounds to disqualify Scheetz, I will consider each of these grounds in turn, commencing with the question of whether Scheetz should have been disqualified because Scheetz's representation of Melton at trial would make Scheetz an unsworn witness.
The circumstances necessitating counsel's disqualification as an unsworn witness are murky, and the parties provide
In Vanover, defense counsel personally obtained statements from co-defendants, and testified at his client's parole revocation hearing in a separate case.
Id. at 633.
Thus, the Iowa Supreme Court adopted the unsworn witness rule that applies in the Second Circuit Court of Appeals. There, the unsworn witness rule becomes an issue when an attorney participants in or witnesses the events to be explored at trial. See United States v. Locascio, 6 F.3d 924, 933 (2d Cir.1993). It applies in those circumstances where "the attorney can subtly impart to the jury his first-hand knowledge of the events without having to swear an oath or be subject to cross examination" regardless of whether he is a necessary witness. Id. at 933. Counsel providing unsworn testimony is not at odds with his client because there is no conflict
The Eighth Circuit Court of Appeals has never adopted an unsworn witness rule. Assuming, arguendo, that the Eighth Circuit Court of Appeals would adopt such a rule, the prosecution's motion fails. Under that rule, attorney disqualification is a "drastic remedy," reserved for cases where an attorney has "entangled himself to an extraordinary degree" in the events at issue at trial. See United States v. Evanson, 584 F.3d 904, 909 (10th Cir.2009); Locascio, 6 F.3d at 934. A comparison of Scheetz's "involvement" here with that of defense counsel in either Vanover or Locascio, clearly demonstrates that Scheetz has not "entangled himself to an extraordinary degree" requiring his disqualification. Scheetz was merely present at the November 19th revocation hearing and appears to have witnessed some of the events that occurred on that date. However, he was hardly the only witness to those events. In addition to Scheetz, the following individuals were present at the revocation hearing or responded to the incident: Chief Judge Linda Reade; Chief Judge Reade's court reporter, Kay Carr; United States Probation Officers Amber Lupkes, Peter Koenig, and Rhonda Moyle; Deputy Clerk Erin Snider; at least two Court Security Officers; Deputy United States Marshal Dorsey Covenah; Special Assistant United States Attorney Lisa Williams; Melton's sister, Brianna Melton; her boyfriend, Melton's father, Richard Melton; and Melton's girlfriend, Kaylee Davis. Moreover, video of much of the incident, and audio of the entire incident, was recorded. In contrast, defense counsel in Vanover personally obtained exculpatory statements from co-defendants, and testified at his client's parole revocation hearing regarding those statements. Vanover, 559 N.W.2d at 623. In Locascio, the district court found that defense counsel had acted as "house counsel" to the Gambino Crime Family by receiving "benefactor payments" from the defendant to represent others in the criminal enterprise. Locascio, 6 F.3d at 932. The district court also found that defense counsel participated in taped conversations during which illegal activity was discussed. Id.
Because Scheetz has not "entangled himself to an extraordinary degree," the potential unsworn witness problems caused by Scheetz's presence at the revocation hearing can be resolved by clear instructions to the jury that statements or arguments of counsel are not evidence. "`A jury is presumed to follow its instructions.'" Blueford v. Arkansas, ___ U.S. ___, 132 S.Ct. 2044, 2051, 182 L.Ed.2d 937 (2012) (quoting Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000)); see Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); United States v. Mann, 701 F.3d 274, 292 (8th Cir.2012); United States v. Rubashkin, 655 F.3d 849, 862 (8th Cir. 2011). The danger that a jury would ignore such an instruction and be swayed by Scheetz's mere presence at the revocation hearing is greatly reduced by two circumstances. First, video of much of the incident, and audio of the entire incident, was recorded. As a result, jurors will be able to view and hear much of what occurred at the revocation hearing for themselves. Second, Scheetz was not the only witness to the incident. Jurors may hear from several witnesses who were also present for all or part of the incident, including some who were in a better position to view the events than Scheetz. Because Scheetz is but one of many individuals present at the revocation hearing, the likelihood that he could sway the jury by subtly imparting to them his firsthand knowledge of events is largely eliminated. Whatever remote
Thus, I conclude that Judge Scoles's decision was contrary to law because the prosecution has not met its heavy burden of demonstrating that Scheetz's continued representation will cause him to be an unsworn witness that will impair the fact finding process or prejudice the prosecution.
Melton also challenges Judge Scoles's conclusion that Scheetz must be disqualified from representing Melton because he may be called as a prosecution rebuttal witness. The applicable Iowa Rule of Professional Conduct provides:
IOWA RULES OF PROF'L CONDUCT 32:3.7.
There are no reported decisions from the Iowa appellate courts interpreting Rule 32:3.7. The Eighth Circuit Court of Appeals and other federal courts have examined other states' identical versions of Rule 32:3.7. The Eighth Circuit Court of Appeals has recognized that Missouri's rule "has been interpreted to mean an attorney is a `necessary witness' only if `there are things to which he will be the only one available to testify.'" Macheca Transp. Co. v. Philadelphia Idem. Co., 463 F.3d 827, 833 (8th Cir.2006) (quoting State ex rel. Wallace v. Munton, 989 S.W.2d 641, 646 (Mo.Ct.App.1999)). In Macheca Transp. Co., the court of appeals held the district court abused its discretion when it disqualified an attorney without first determining whether he would be the only witness who could testify to events surrounding a vexatious refusal to pay claim. Id. at 833-34.
The Fifth Circuit Court of Appeals has similarly held that: "[a] lawyer is not `likely to be a necessary witness' when evidence pertaining to each matter to which he could testify is available from another source." United States v. Starnes, 157 Fed.Appx. 687, 693-94 (5th Cir.2005) (quoting Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 267 (5th Cir.2001)); see Tennessee Bank & Trust v. Lowery, No. 3:11-0984, 2012 WL 4849968, at *1 (M.D.Tenn. Oct. 11, 2012) (holding that an attorney is a "necessary witness" for purposes of Tennessee Rule of Professional Conduct 3.7(a) "only if `there are things to which he will be the only one available to testify.'") (internal quotation marks omitted);
The parties failed to bring the Macheca-Starnes line of authorities to Judge Scoles's attention. Under this line of authorities, the prosecution has not established that Scheetz is likely to be a necessary witness for it at trial. Indeed, the prosecution does not intend to call Scheetz in its case-in-chief. Hearing Tr. at 19. Instead, as the prosecution explained at the hearing on its motion to disqualify:
Hearing Tr. at 20. This showing is insufficient as a matter of law. "Testimony may be relevant and even highly useful, but still not strictly necessary." Macheca Transp. Co., 463 F.3d at 833. As I explained above, Scheetz was not the only individual at the revocation hearing. Moreover, the prosecution has failed to identify "`things to which he will be the only one available to testify.'" Id. (quoting State ex rel. Wallace, 989 S.W.2d at 646). Indeed, Scheetz's value as a witness is almost entirely unknown. He did not testify before the grand jury and he has not provided the prosecution with a statement regarding his observations of the revocation hearing incident. In contrast, Chief Judge Reade
Revocation Hearing Tr. at 50-51. The prosecution has not alleged that Scheetz observed something that was not observed by Chief Judge Reade or anyone else in the courtroom.
By considering only whether Scheetz's testimony was possibly relevant as a prosecution rebuttal witness, and failing to consider whether Scheetz was the only witness available to testify about something concerning the incident at the revocation hearing, Judge Scoles's decision to disqualify Scheetz was contrary to law.
Finally, Melton argues that Judge Scoles erred in concluding that Scheetz must be disqualified from representing Melton because he might be called as a defense rebuttal witness. This reason for disqualifying Scheetz fails for the same reasons discussed above concerning Scheetz as a possible prosecution rebuttal witness. Judge Scoles noted that "[t]he defense does not `plan' on calling Mr. Scheetz as a witness at trial ..." Order at 8. With respect to Scheetz being a defense rebuttal witness, as I already explained, Scheetz was not the only individual at the revocation hearing. Moreover, the prosecution makes no claim that there are things to which Scheetz will be the only one available to testify to at trial. See Macheca Transp. Co., 463 F.3d at 833. To the contrary, Scheetz states: "The undersigned had no direct observation or knowledge regarding the handcuff being accidently closed on the deputy's finger, other than what the undersigned read in the discovery file." Defendant's Br. at 7. Thus, Judge Scoles's decision to disqualify Scheetz because he might be called as a defense rebuttal witness was also contrary to law.
Having found Judge Scoles's reasons for disqualifying Scheetz to be contrary to law, the order granting the prosecution's Motion To Disqualify is reversed and set aside in its entirety and Scheetz is reinstated as counsel for Melton.
