U.S. v. Dyess
| Decision Date | 12 December 2002 |
| Docket Number | No. CR. 299-00012-02.,No. CR. 29900012-01.,No. CR. 299-00012-10.,CR. 29900012-01.,CR. 299-00012-02.,CR. 299-00012-10. |
| Citation | 231 F.Supp.2d 493 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | UNITED STATES of America, Plaintiff, v. Calvin DYESS, Eric Dewayne Spencer, and Michael Jason Bartram, Defendants. |
Monica K. Schwartz, Assistant U.S. Attorney, Philip H. Wright, Assistant U.S. Attorney, Charleston, WV, for the United States.
John G. Hackney, Jr., Esq., Charleston, WV, for Defendant Calvin Dyess.
Thomas J. Gillooly, Esq., Charleston, WV, for Defendant Eric Dewayne Spencer.
Robert A. Ratliff, Esq., Roberts, Shields, Green, Landry & Ratliff, Mobile, AL, for Defendant Michael Jason Bartram.
Pending is Defendants' motion to recuse or disqualify the Office of the United States Attorney (U.S. Attorney) for the Southern District of West Virginia or such of its members as the Court may deem appropriate. A hearing was held on the motion December 9, 2002. Present were the Defendants, in person, and by counsel, John G. Hackney, Jr., counsel for Dyess, Thomas J. Gillooley, counsel for Spencer, and Robert A. Ratliff, counsel for Bartram. The Government was represented by Assistant United States Attorney (AUSA) Philip H. Wright and AUSA Monica K. Schwartz. The Court took the matter under advisement and, having reviewed Defendants' arguments presented at the hearing and in written briefs, now GRANTS Defendants' motion to disqualify the Office of the United States Attorney for the Southern District of West Virginia.
In 1999, these Defendants pled guilty to various drug charges before this Court. Calvin Dyess pled guilty on April 17, 1999 to conspiracy to distribute cocaine base, cocaine, and marijuana, 21 U.S.C. § 846, and conspiracy to launder drug proceeds, 18 U.S.C. § 1956. Eric Spencer pled guilty on April 15, 1999 to conspiracy to distribute cocaine base, cocaine, and marijuana, 21 U.S.C. § 846. Michael Bartram pled guilty on April 22, 1999 to distribution of cocaine base, 21 U.S.C. § 841(a)(1).
Michael Bartram was sentenced on July 26, 1999. No testimony was presented at his sentencing hearing. The remaining Defendants were sentenced on August 27, 1999 following a two-day evidentiary hearing. The witnesses at that hearing included Rachel Ursala Dyess (Ursala), Ben Green (indicted separately), and Charleston police detectives who were DEA task force agents on this case, William (Billy) Hart and George Henderson. All defendants noticed direct appeals. These cases were consolidated for appeal.
The Government contends that it first became aware of alleged investigative misconduct in December 2001 when Ursala Dyess, with counsel, approached the U.S. Attorney's Office. Ursala is the ex-wife of Defendant Calvin Dyess. She was a co-defendant in this criminal action and pled guilty to money laundering conspiracy, cooperated with the Government, and turned over at least $298,005 in drug proceeds to the United States. Receiving lenient treatment, she was sentenced to probation. In July of 2001, Ursala married the Charleston Police Department detective/DEA Task Force agent Hart, who was the lead local investigator in the prosecution of Defendants, including Ursala. By October 2001, Ursala and Hart were involved in a bitter marriage breakup.
On April 29, 2002 the United States made the first of a series of disclosures pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), relating to all thirteen defendants in the original conspiracy.1 Supplemental disclosures followed on May 28 and 30, July 17 and 30, and November 5, 2002. Among myriad other facts, the disclosures revealed that Ursala and Hart began a personal/sexual relationship in approximately February of 1999. She alleged Hart encouraged her to lie to the Court. Further, Ursala alleged she failed a polygraph examination in early February 1999 concerning whether she had retained any drug proceeds and Hart concealed the polygraph result from the U.S. Attorney's Office. Ursala alleged she provided $80,000 to Hart and his partner, George Henderson. According to Ursala, Hart, in Henderson's presence, allowed her to keep $20,000. On February 4, 1999 Hart tendered $41,630 to the United States.
Investigation later confirmed Ursala had been given a polygraph on February 2, 1999; the examiner concluded her answers indicated deception. No report was requested by Hart and none was generated until December 11, 2001. Hart later admitted allowing Ursala and witness Ben Green to keep money. Detective George Henderson also admitted he and his partner Agent Hart allowed Ursala to keep drug proceeds.
On August 28, 2002 the Court of Appeals remanded the consolidated appeal of Calvin Dyess, Eric Spencer, Orange Dyess2 and Michael Bartram. "In view of the Government's disclosure," our Court of Appeals directed remand to this Court "to conduct such further proceedings as it may deem appropriate." United States v. Dyess, Nos. 99-4566, 99-4665, 99-4666, 99-4667 (4th Cir. Aug. 28, 2002)(Remand Order). Defendants' motion to disqualify the U.S. Attorney's Office followed, based on Rule 3.7 of the West Virginia Rules of Professional Conduct and the potential appearance of impropriety.
This case presents questions of ethical conduct and the appearance of impropriety in a disturbing factual scenario, which is unprecedented in this Court's experience. The lead AUSA who prosecuted this case also managed case agents and witnesses who allegedly (and by their own admissions) stole drug proceeds, suborned perjury, lied under oath, and tampered with witnesses. The questions whether disqualification is appropriate and, if so, who should be disqualified, raise novel ethical, legal and practical concerns.
Ethical conduct in this Court is governed by the local rules:
The Code of Professional Conduct of the American Bar Association, the Model Federal Rules of Disciplinary Enforcement as adopted by this court, and the Code of Professional Conduct as adopted by the Supreme Court of Appeals of West Virginia provide the basic ethical considerations and disciplinary rules for the conduct of attorneys practicing in this court.
Rule 3.7 of the Code of Professional Conduct of the American Bar Association (ABA) provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
Rule 3.7, ABA Model Rules of Professional Conduct; Rule 3.7, W. Va. Rules of Professional Conduct (same). The Fourth Circuit holds that "[t]he roles of witness and advocate are fundamentally inconsistent and when ... a lawyer ought to testify as a witness for his client, he must as a rule withdraw from advocacy." International Woodworkers of Am. v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1272 (4th Cir.1981)(citing Ethical Consideration (EC) 5-9). "Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate." Id. (quoting EC 5-10). An actual conflict of interest exists when the attorney has independent information about facts in controversy relating to his client and would, therefore, be faced with the possibility of testifying. See United States v. Urbana, 770 F.Supp. 1552, 1559 (S.D.Fla.1991)(Inasmuch as the attorney "can offer testimony about material issues in the case, he is precluded from appearing as trial counsel.")
The rule forbidding a lawyer to act as both advocate and witness in the same proceeding acknowledges several important considerations. The most important is that the attorney-witness may not be a fully objective witness or may be perceived by the trier of fact as distorting the truth for the sake of his client. United States v. Morris, 714 F.2d 669 (7th Cir.1983). While the danger is greater when matters are tried to a jury, it does not disappear when the lawyer testifies in matters tried to the bench.
In its briefs and at the hearing on this matter, the Government disputed whether AUSA Schwartz would be required to testify at any stage of these proceedings. Additionally, the Government argued that, even if Schwartz's testimony were required, these post-plea proceedings are not a trial so the rule is inapposite. The United States contended that analysis of the rule by the Supreme Court of Appeals of West Virginia demonstrates its inapplicability to these circumstances.
The state court held that:
When an attorney is sought to be disqualified from representing his client because an opposing party desires to call the attorney as a witness, the motion for disqualification should not be granted unless the following factors can be met: First, it must be shown that the attorney will give evidence material to the determination of the issues being litigated; second, the evidence cannot be obtained elsewhere; and, third, the testimony is prejudicial or may be potentially prejudicial to the testifying attorney's client.
Smithson v. United States Fidelity & Guaranty Co., 186 W.Va. 195, 197, 411 S.E.2d 850, 852 (1991). Although the Court is not bound by the state court interpretation of this rule, the analysis provides a thoughtful and reasonable framework in which to consider the issue.
While the Government is correct this proceeding is not, and may never involve, a trial, nevertheless, under the Guidelines sentencing regime, the sentencing hearing following a guilty plea is the functional equivalent of a mini-trial on the sentencing issues alone. The outcome of those questions determines the duration of time for...
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...Model Rules, courts in this district have continued to affirm the appearance of impropriety standard. See United States v. Dyess, 231 F.Supp.2d 493, 498 (S.D.W.Va.2002) (Haden, J.) (disqualifying entire U.S. Attorney's office based, in part, on an appearance of impropriety); Roberts & Schae......
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