U.S. v. Goot

• Decision Date: 24 January 1990
• Docket Number: No. 88-2179,88-2179
• Citation: 894 F.2d 231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen GOOT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 231

894 F.2d 231

UNITED STATES of America, Plaintiff-Appellee, v. Stephen GOOT, Defendant-Appellant.

No. 88-2179.

United States Court of Appeals Seventh Circuit.

Argued March 28, 1989.

Decided Jan. 24, 1990.

John F. Hoehner, Asst. U.S. Atty., Kevin E. Milner, Asst. U.S.Atty. (argued), Hammond, Ind., for plaintiff-appellee.

Joseph S. VanBokkelen, Goodman, Ball & VanBokkelen, Highland, Ind., Nick J. Thiros, Cohen & Thiros, Merrillville, Ind., Ellen S. Podgor (argued), Miami Beach, Fla., for defendant-appellant.

Before CUDAHY and MANION, Circuit Judges, and HENLEY, Senior Circuit Judge. ^*

HENLEY, Senior Circuit Judge.

This case involves the criminal conviction of an attorney, Stephen Goot, on a two-count indictment, for "fixing" driving-under-the-influence (DUI) cases. One count, under what is commonly called the RICO statute, was for racketeering and the other was a corresponding conspiracy count. See 18 U.S.C. Sec. 1962(c) & (d). For reversal, Goot argues the district court ¹ erred in (1) refusing to disqualify the United States Attorney's office; (2) refusing to grant a hearing on the disqualification issue; (3) imposing an improper sentence; (4) excluding impeachment testimony; (5) admitting testimony of others' convictions; (6) denying a motion for acquittal based upon various aspects of the evidentiary proof of a RICO violation; (7) instructing the jury that the Lake County prosecutor's office can be an "enterprise"; and (8) refusing to instruct the jury on the definition of reasonable doubt.

In early 1984 Goot discovered that he was a suspect in Operation Bar-Tab, a federal investigation of the fixing of drunk driving cases in Lake County, Indiana. ² On April 16, 1984 Goot hired attorney James Richmond to represent him in his defense. Richmond remained Goot's attorney until August, 1985 when Richmond was appointed as the new United States Attorney for the Northern District of Indiana, where Goot was prosecuted.

On October 20, 1987 a grand jury returned an indictment against Goot on both counts. ³ The principal official with whom Goot interacted and conspired was deputy prosecutor Nick Morfas. Goot pleaded not guilty and went to trial; Morfas pleaded guilty and testified against Goot.

The evidence at trial revealed the typical method of operation between Goot and Morfas. A prospective client would come to Goot after having been arrested and jailed for DUI, and freed by the posting of a cash bond. The defendant would agree to a price for Goot's legal services, with part of the fee to be paid by the bond money. To this end, Goot's new client would give him the bond receipt. Goot then would enter an appearance for his client and file a motion to dismiss pursuant to Watt v. State, 249 Ind. 674, 234 N.E.2d 471 (1968). ⁴

After filing a Watt motion, Goot would inform Morfas about the case and Morfas would steal and destroy the prosecutor's file. Sometimes Morfas would steal and destroy the court's file as well. Once the time for refiling had passed without any further action taken by the prosecutor, Goot would file a second motion to dismiss, which would be granted. ⁵ A check then would be issued by the prosecutor's office to Goot, the holder of the bond receipt, but payable to the person who initially posted the bond. Goot would give this check to Morfas who would forge the payee's signature and retain the funds as his share in the scheme.

In some cases, Morfas would represent himself to DUI defendants as an attorney, sign Goot's name to the paper work or have Goot sign his name, and then steal the files and collect the fees. Morfas needed to use Goot's name because he could not use his own, being a deputy prosecutor. As a quid pro quo, Morfas either would help Goot with one of Goot's cases or would pay Goot a share of the fees.

The jury found Goot guilty on both counts and he was sentenced to two concurrent twenty-year prison terms (the statutory maximum on each count) and a $25,000.00 fine. Morfas, who was sentenced later, got four years and a $6000.00 fine.

I. Motion to Disqualify

In December, 1987, shortly after the indictment was returned, Goot filed a timely pretrial motion to disqualify the United States Attorney's Office on the grounds that his fifth amendment right to due process and his sixth amendment right to counsel were violated by the prior representation by Richmond. In resisting Goot's motion, the government pointed out that on August 19, 1985, seven days before taking office, Richmond wrote a letter to Assistant United States Attorney Andrew Baker stating that Richmond would recuse himself on all cases in which Richmond had a prior representation, including Goot's. The next day, August 20, Baker advised the Department of Justice of Richmond's recusal. All Assistant United States Attorneys in the Northern District office also were advised of Richmond's recusal. Upon the taking of office, Richmond appointed Assistant United States Attorney John Hoehner to be "Acting United States Attorney" on the Goot investigation. The government also provided to the district court affidavits from Richmond and the Assistant United States Attorneys involved in Goot's prosecution stating that no communications with Richmond had taken place with respect to this prosecution.

In refusing to disqualify the United States Attorney's office, the district court heavily relied on Rule 1.11(c) of the Indiana Rules of Professional Conduct (IRPC), the set of ethical rules in effect at the time. ⁶ Rule 1.11(c) reads in pertinent part: "[A] lawyer serving as a public officer or employee shall not ... participate in a matter in which the lawyer participated personally and substantially while in private practice...." The comment to this paragraph states that the rule "does not disqualify other lawyers in the agency with which the lawyer in question has become associated." The district court concluded that since other lawyers in the agency could participate, recusal of the entire Northern District office was not necessary. Juxtaposing this conclusion with the screening measures employed by the office, the district court denied Goot's motion. It also denied a request for a hearing on the motion on the ground that a hearing would only be for the purpose of "going fishing."

Goot argues that the district court erred in relying on the IRPC and that it should have relied on the Indiana Code of Professional Responsibility (ICPR), because the IRPC only superseded the ICPR on January 1, 1987--prior to Goot's motion to disqualify, but long after the important facts of this case arose. Specifically, Goot argues that Canons 4 ("A lawyer should preserve the confidences and secrets of a client") and 9 ("A lawyer should avoid even the appearance of professional impropriety") of the ICPR required disqualification of the Northern District office.

For purposes of this case, we discern no real difference between the IRPC and the ICPR. Both either state or imply the ethical principle prohibiting conflicts of interest or even the appearance of one, and neither answers the question whether that principle was violated here. While in general the Indiana Supreme Court has relied upon its ethical rules in requiring complete office recusal in criminal cases, we observe that this court at times has distinguished between what may be inappropriate ethical conduct for a prosecutor and what may be a constitutional violation. Compare State v. Tippecanoe County Court, 432 N.E.2d 1377, 1379 (Ind.1982) (holding that when the elected prosecutor and not just one of his deputies is disqualified, the entire office must be disqualified) with Havens v. Indiana, 793 F.2d 143, 145 (7th Cir.) (finding no sixth amendment violation by prosecutor, who had previously represented the defendant, when charges were four years apart and were unrelated, but nevertheless, chastising the government's ethical decision not to recuse the prosecutor anyway), cert. denied, 479 U.S. 935, 107 S.Ct. 411, 93 L.Ed.2d 363 (1986). Even so, with the added weight of the constitutional right to counsel of choice in a criminal case, the ethical considerations are basically the same and both the district court and this court have a duty to supervise ethical conduct of attorneys. While ethical codes per se may not be dispositive of the outcome of a criminal case, when an actual conflict of interest exists we must examine and weigh the circumstances of the particular case. See United States v. O'Malley, 786 F.2d 786, 789-90 (7th Cir.1986).

The government points out that the Attorney General, as statutorily mandated, see 28 U.S.C. Sec. 528, ⁷ had promulgated rules on recusal and that the procedure followed in this case strictly complied with those rules. See United States Attorney's Manual Sec. 1-3.515 ("U.S. Attorney who recuses should promptly notify the appropriate division and ... the Executive Office for the U.S. Attorneys. In exceptional cases, the recusation of the U.S. Attorney may require the recusation of all members of that office."); see also 28 C.F.R. Sec. 0.131 (1988) ("Each U.S. Attorney is authorized to designate any Assistant U.S. Attorney in his office to perform the functions and duties of the U.S. Attorney ... with respect to any matter from which he has recused himself...."). Finally, an affidavit by Manual Rodriguez, Legal Counsel, Executive Office for the United States Attorneys, asserts that based upon a thorough review of the case, recusal of the entire Northern District staff was deemed unnecessary.

The government's adherence to its standardized procedure and its conductance of an internal review on this issue is commendable and helpful, but it, of course, is not dispositive. The question whether Goot's rights were violated is not left for his adversary to determine, but is for a court of law. We now turn to that determination.

This circuit employs a three-part sequential inquiry in deciding the question whether disqualification of an office is...