U.S. v. Johnston

• Decision Date: 17 November 1981
• Docket Number: No. 81-1300,81-1300
• Citation: 664 F.2d 152
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ted JOHNSTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 152

664 F.2d 152

UNITED STATES of America, Plaintiff-Appellant, v. Ted JOHNSTON, Defendant-Appellee.

No. 81-1300.

United States Court of Appeals Seventh Circuit.

Argued Sept. 25, 1981.

Decided Nov. 17, 1981.

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

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

Before WOOD and CUDAHY, Circuit Judges, and DUMBAULD, Senior District Judge. ^*

CUDAHY, Circuit Judge.

In this appeal we are asked to decide whether the district court erred when it refused to permit an Assistant United States Attorney to testify in a suppression hearing preceding a jury trial in which he participated as a government prosecutor. We affirm.

I. FACTS

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 it. 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.

An evidentiary hearing to consider defendant's motion 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 the 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.

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 for talking with 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." ⁶

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." ⁷ 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 defendant. 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. The government attempted to cross-examine defendant regarding the telephone conversation with Hosteny. The district court interrupted the examination, however, telling 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," ⁸ the government ceased its cross-examination of defendant.

The government called three 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, ⁹ 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, ¹⁰ the district court concluded that the statements had been induced by a promise that defendant would not be prosecuted. The government perfected its appeal from this ruling pursuant to 18 U.S.C. § 3731 (1976).

II. DISCUSSION

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. ¹¹

The Code's Disciplinary Rules have codified this ethical consideration. They 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. ¹² These ethical rules apply to all lawyers, including government prosecutors. ¹³

The federal courts share the legal profession's disapproval of the dual role of advocate and witness, ¹⁴ and have universally condemned the practice of a government prosecutor's testifying at a trial in which he is participating. ¹⁵ Such testimony is permitted only in extraordinary circumstances and for compelling reasons. ¹⁶ Where the prosecutor's appearance is unavoidable, however, numerous courts have insisted that the prosecutor withdraw from further involvement in the case. ¹⁷

In United States v. Birdman, ¹⁸ the Third Circuit recently examined the case law and identified four policies said to be served by the advocate-witness rule. First, the rule eliminates the risk that a testifying prosecutor will not be a fully objective witness given his position as an advocate for the government. Second, there is a fear that the prestige or prominence of a government prosecutor's office will artificially enhance his credibility as a witness. ¹⁹ Third, the performance of dual roles by a prosecutor might create confusion on the part of the trier of fact as to whether the prosecutor is speaking in the capacity of an advocate or of a witness, thus raising the possibility of the trier according testimonial credit to the prosecutor's closing argument. Fourth, and most important, the rule reflects a broader concern for public confidence in the administration of justice, and implements the maxim that "justice must satisfy the appearance of justice." ²⁰ This...