U.S. v. Johnston

Decision Date01 October 1982
Docket NumberNo. 81-1300,81-1300
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Ted JOHNSTON, Defendant-Appellee. . Re
CourtU.S. Court of Appeals — Seventh Circuit

David C. Bohan, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellant.

Marvin Bloom, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, ESCHBACH, POSNER and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge. *

The issue is whether the district court, 664 F.2d 152 (7th Cir.), erred when it refused to permit the Assistant United States Attorney assigned to the case to testify in a pretrial suppression hearing. We reverse.

I.

On May 21, 1980, defendant Ted Johnston and eleven co-defendants were indicted on thirteen counts of violating various provisions of the Comprehensive Drug Abuse Prevention and Control Act. 1 Count Two of the indictment alleged that defendant conspired with co-defendant Andrew Theodorou and others to import marijuana illegally with intent to distribute it. Counts Four and Seven charged that on two occasions in 1976, defendant and several co-defendants had possessed a large quantity of marijuana with intent to distribute. 2

On August 8, 1980, defendant moved to dismiss the indictment or, alternatively, to suppress certain statements he had made to Drug Enforcement Administration ("DEA") agents in February, 1978. As grounds for his motion, defendant alleged that the statements had been made subject to a promise by DEA agents that he would not be prosecuted on any charge related to the subject matter of his statements.

A pretrial evidentiary hearing was held on February 19 and 20, 1981. At the outset of the hearing, Assistant United States Attorney Joseph Hosteny informed the district court that, because he anticipated some possibility of being called as a witness in that suppression hearing, he was withdrawing from further participation in the handling of defendant's suppression motion. He left the courtroom and was thereafter absent during the suppression hearing. Hosteny did participate, however, in the jury trial that followed of the other defendants severed from this case.

Five witnesses testified at the suppression hearing. From their testimony, certain facts appear to be undisputed. As early as 1977, defendant was the subject of an investigation by the New Mexico State Police into suspected smuggling of Mexican marijuana into the United States. At the same time, the DEA was investigating defendant's suspected involvement in a large-scale drug smuggling operation centered in Chicago. On February 13, 1976, defendant was arrested in San Francisco by local authorities and charged with possession of marijuana. Upon being informed of the arrest, Detective John Dunlap of the New Mexico State Police and Sergeant Richard Moore of the Metropolitan Narcotics Agency (New Mexico) traveled to San Francisco to interview defendant. The two met with defendant the next day, at which time defendant expressed a preference to talk to federal investigators. 3 Acting in response to this desire, Moore contacted the DEA in Chicago, and agents Timothy Sack and Lance Mrock were dispatched to San Francisco on February 15, 1978 to meet with the defendant.

Sack and Mrock questioned defendant on February 15 and 16, 1978. Also present during these interviews were Dunlap, Moore and Sergeant Gregory Corrales of the San Francisco Police Department. 4 After reaching some agreement with the DEA agents regarding the conditions under which he would talk, defendant proceeded to relate to the agents detailed information concerning his involvement in the smuggling ring headed by Theodorou. Defendant was subsequently released from custody and the San Francisco charges against him were eventually dropped. 5

In support of his motion to suppress, defendant called Dunlap as a witness. Dunlap testified that it was his impression that defendant had been promised immunity from prosecution in exchange for information about the Theodorou smuggling operations. He also stated that during the lengthy interrogation of defendant, the DEA agents made repeated assurances that the information given to them by defendant would not "come back" on him or "put (him) in jail."

Johnston also testified in support of his motion. He stated that he agreed to talk with the DEA agents if they would make three promises: (1) that the charges pending in San Francisco against defendant and his co-defendants would be dropped; (2) that he would not be arrested on charges relating to the information he was about to give them; and (3) that he would not be asked to testify or collaborate on related matters. According to defendant, the DEA agents told him that they would have to check on his requests, they left the room for between 15 and 20 minutes, and returned to tell him, "Okay. We got you a deal." 6 Defendant testified that only after Moore reassured him that he could trust the agents did he begin to describe his involvement in the Theodorou smuggling ring.

Johnston further stated on direct examination that shortly after his indictment in Chicago in 1980, he called Assistant United States Attorney Hosteny to complain that the government had broken its promise not to prosecute him. Defendant testified that Hosteny denied that any such promise had been made and that Hosteny was very angry with defendant for refusing to come to Chicago to testify saying to the defendant that "you are smuggling dope, and I don't like criminals" and "I am putting you in prison." The government, disputing the defendant's version of the telephone conversation, attempted to cross-examine defendant on that issue. The district judge interrupted the examination, cautioning the government not to call Hosteny as a witness against the defendant. After further discussion, during which the district court expressed its desire not to resolve "the word of a lawyer against a defendant in a criminal case," the government ceased its cross-examination of defendant.

The government did call three other witnesses to support its contention that defendant had never been promised immunity from prosecution. DEA agent Sack testified that he specifically told defendant he would remain "accountable" for his actions, and promised only to assist defendant with respect to the pending San Francisco charges and to communicate defendant's cooperation to the United States Attorney in Chicago. Mrock and Corrales each testified that the only promise made to defendant related to DEA assistance on the San Francisco charges, and neither Mrock nor Corrales recalled any promise to convey defendant's cooperation to the United States Attorney.

After hearing the evidence, the district court denied defendant's motion to dismiss the indictment but granted the motion to suppress his statements to the DEA agents. Finding it implausible that Johnston would be willing to inculpate himself in a massive drug smuggling operation in violation of federal law in return only for a promise of assistance on a relatively minor possession offense, 7 the district court concluded that the statements had been induced by a promise that defendant would not be prosecuted.

Contrary to defendant's version, accepted by the trial court, the government offered to add to its evidence, using Assistant Hosteny as a witness supported by his file memorandum of the telephone conversation, testimony that the defendant did not suggest that any alleged immunity agreement had been either made or breached. The defendant only mentioned, according to the government's proffer, an alleged DEA offer of the payment of a sum of money for defendant's cooperation against another defendant. It is the government's position that the defendant's failure to even mention the alleged immunity agreement to Hosteny strongly suggests it does not exist. Further, it is claimed Hosteny's testimony would show that the defendant testified falsely about the telephone conversation. By the trial court's ruling, the incriminating statements of the defendant were suppressed, the government was not permitted to offer the impeaching telephone conversation evidence which might have also served to discredit the defendant's other testimony. The ruling also served to restrict cross-examination of the defendant.

The government perfected its appeal from this ruling pursuant to 18 U.S.C. § 3731 (1976).

II.

The advocate-witness rule, which articulates the professional impropriety of assuming the dual role of advocate and witness in a single proceeding, has deep roots in American law. Today, the rule is reflected in the ABA Code of Professional Responsibility, which states as an "ethical consideration:"

The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively. 8

The Code's Disciplinary Rules have codified this ethical consideration. The rules prohibit an attorney from accepting employment in contemplated or pending litigation when it is obvious that he will be called as a witness. If the need for his testimony becomes apparent after the attorney has undertaken employment in the case, he must withdraw from the conduct of the trial. These requirements do not apply, however, in exceptional circumstances enumerated in the Disciplinary Rules: where the testimony will relate solely to an uncontested or formal matter and there is no reason to believe that substantial evidence will be offered in opposition to the testimony, and where refusal to testify would work a "substantial hardship" on the client. 9 These ethical rules apply to all lawyers, including government prosecutors, although application of the rule varies depending on the circumstances in individual cases. 10

In United States v. Birdman, 602 F.2d at 553-55, the Third Circuit recently examined the case law and...

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