Opinion
CIVIL ACTION NO. 03-067, SECTION "N"
May 14, 2003
ORDER AND REASONS
Before the Court are: (1) the government's Motion to Disqualify, seeking to disqualify Thomas McClung from acting as counsel for defendant; and (2) a Motion to Strike/Quash Plaintiff Motion to Disqualify Counsel for Defendant, filed by defendant in opposition to the government's motion. The Court heard testimony and oral argument on both motions on May 14, 2003. For the reasons that follow, the government's motion is GRANTED. Defendant's motion is DENTED.
The Sixth Amendment to the Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." As the Supreme Court has recognized, "the purpose of providing assistance of counsel `is simply to ensure that criminal defendants receive a fair trial.'" Wheat v. United States, 486 U.S. 153, 159 (1988) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Thus, "in evaluating Sixth Amendment claims, `the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such.'" Id. (quoting United States v. Cronic, 466 U.S 648, 657, n. 21 (1984)). Although "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 effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Id.; see also United States v. Hughey, 147 F.3d 423, 428 (5th Cir.) ("the Sixth Amendment simply does not provide an inexorable right to representation by a criminal defendant's preferred lawyer"), cert. denied, 525 U.S. 1030 (1998); Neal v. Texas, 870 F.2d 312, 315 (5th Cir. 1989) ("there is no constitutional right to representation by a particular attorney").
"The Sixth Amendment right to choose one's own counsel is circumscribed in several important respects." Wheat, 486 U.S. at 159. "Federal courts have an 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. Conflicts of interest can jeopardize these interests. Thus, while the Court "must recognize a presumption" in favor of a criminal defendant's counsel of choice, "that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Id. at 164.
Where, as here, defense counsel has been involved in events underlying the charges against his client, he may be viewed by the jury as an "unsworn witness," even if he is not called to testify. United States v. Cannistraro, 794 F. Supp. 1313, 1321 (D.N.J. 1992). In such cases, the mere presence of defense counsel at trial can distort the fact-finding process and cause prejudice to the defendant. In this case, the defendant is charged in Counts 1 and 2 of the Indictment with making or using a false document in a government matter, knowing it to contain a false, fictitious, or fraudulent statement. See 18 U.S.C. § 1001. Mr. McClung has stated at oral argument and in his motion papers that he was involved in preparing the very documents that form the bases of these two counts. See Govt's Memo, Exhs. 1 and 2. His connection to the document underlying Count 1 is reflected on the face of the document itself. Thus, the jury will almost certainly hear and/or see evidence that will imply Mr. McClung's involvement in preparing and filing the documents that underlie Counts 1 and 2. If Mr. McClung were to conduct any examination or argument with respect to these documents, he would in so doing become or appear to be an unsworn witness in the case. See Cannistraro, 794 F. Supp. at 1322. Consequently, even if no party were to call Mr. McClung as a witness at trial, his mere presence could create an appearance of impropriety to the jury, thereby creating a strong possibility of prejudice to the defendant.
Mr. McClung's involvement in the August 22, 2002 investigatory meeting with special agent Tom Godeaux further undermines Mr. McClung's ability to act as an effective advocate for the defendant. Agent Godeaux will testify at trial that at the meeting (which was attended by Godeaux, the defendant, Mr. McClung, and Mr. Hull, a paralegal working for Mr. McClung), the defendant confessed to receiving and negotiating three of the checks that underlie the Indictment — a confession which, according to the government, she has since withdrawn. Mr. McClung argues that he will not be a necessary witness at trial because he can call Mr. Hull to testify about the events of the meeting. However, the testimony of both Godeaux and Hull highlight the fact that Mr. McClung was a witness to the events at the meeting. Thus, as with the documents and events underlying Counts One and Two, Mr. McClung will become or appear to be an unsworn witness even if he is not called.
While recognizing that the disqualification of a defendant's counsel of choice is a step not to be taken lightly, the Court is convinced that this serious measure is warranted by Mr. McClung's intimate connection to the events and documents underlying the Indictment. His status as an important witness to the events of the August 22, 2002 meeting bolster this Court's conclusion that the representation presents a serious potential for a conflict of interest. When the jurors see and/or hear evidence referring to Mr. McClung, as they inevitably will, they may draw inferences that would prejudice the defense and distort the fact-finding process. Moreover, it appears from the evidence produced at the hearing (not to mention Mr. McClung's many unsworn statements to the Court regarding the events underlying the Indictment) that Mr. McClung's representation of the defendant could deprive defendant of the most important witness who could testify on her behalf. The Court finds that these threats to the defendant's interests and to the process are serious and, in this case, outweigh the presumption that exists in favor of defendant's counsel of choice.
Accordingly, for the foregoing reasons, IT IS ORDERED that: (1) the government's Motion to Disqualify is GRANTED; (2) defendant's Motion to Strike/Quash Plaintiff Motion to Disqualify Counsel for Defendant is DENIED; and (3) Thomas McClung is hereby disqualified from acting as trial counsel for defendant in this matter.