U.S. v. Phillips

• Decision Date: 21 January 1983
• Docket Number: No. 82-1468,82-1468
• Citation: 699 F.2d 798
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armin George PHILLIPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 798

699 F.2d 798

UNITED STATES of America, Plaintiff-Appellee, v. Armin George PHILLIPS, Defendant-Appellant.

No. 82-1468.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 9, 1982.

Decided Jan. 21, 1983.

Gary R. Blumberg, Gittleman, Paskel, Tashman & Ross, Robert Gittleman (argued), Southfield, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Susan M. Daltuva, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee.

Before LIVELY and KRUPANSKY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

LIVELY, Circuit Judge.

This case concerns the appealability and the merits of an order granting the government's motion to disqualify defense counsel in a criminal case.

I.

A.

Armin George Phillips was indicted by a federal grand jury on October 15, 1981 for possession of cocaine and L.S.D. with the intent to distribute the drugs. After arraignment Phillips' retained counsel, Robert Gittleman, filed a number of discovery and other pretrial motions. The day following the filing of the motions an assistant United States attorney filed a motion to disqualify Phillips' counsel on the ground of conflict of interest. In its motion the government asserted that Phillips had advised government agents at the time of his arrest that his supplier of cocaine was George Moraites and that Moraites had retained his attorney, Robert Gittelman, to represent Phillips. In addition, the motion stated that Phillips had expressed a desire to cooperate with the government agents, but had said he did not want attorney Gittleman to be aware of his cooperation because this would compromise Phillips with Moraites.

Phillips filed a reply to the motion in which he denied making the statements attributed to him by the government and expressed confidence in Mr. Gittleman. The reply admitted that the Gittleman law firm had represented Deborah Moraites, former wife of George Moraites, in civil matters since 1974. The defendant asserted in his reply that the government made no claim that Deborah Moraites had any connection with criminal activity, and that George Moraites had never been indicted or charged with any crime.

B.

The district court held an extended evidentiary hearing on the motion to disqualify. One of the Drug Enforcement Agency (DEA) agents who executed a search warrant at Phillips' residence on March 24, 1981 and arrested Phillips testified in detail about statements which Phillips made to him at that time. According to this witness, while detained in his home Phillips said that Moraites was his source for drugs and would be obtaining attorney Gittleman as his lawyer, and would pay Gittleman's fees. The agent testified that Phillips also said he wanted to cooperate, but he didn't want Gittleman to know. Phillips expressed fear for his personal safety if Moraites should learn he was cooperating, according to the witness. On cross-examination the DEA agent testified that George Moraites had no criminal record to his knowledge and that Moraites was represented by an attorney other than Gittleman in an ongoing investigation by the Internal Revenue Service of which the witness was aware.

Another DEA agent who took part in the raid at Phillips' home testified that during the processing of Phillips on the day following his arrest Phillips said George Moraites had hired his attorney and that Moraites was his source of cocaine. The witness also recounted that Phillips told him he wanted to cooperate with the DEA but "did not want us to tell the attorney that for fear of his life." The second agent also testified that "about the 26th" [of March] he met Phillips in a bar near the Federal Building in Detroit and that Phillips again stated that he wanted to cooperate in developing the investigation further. A third agent who was present during the questioning of Phillips confirmed the testimony of the first agent.

In addition to testifying himself Phillips produced several witnesses. An employee of Phillips, Jack Burden, testified that Phillips was an electrician and that both he and Moraites worked for Phillips. Burden was at the Phillips home with his wife and small child when the raid took place. The child was frightened, and one of the DEA agents took all three family members to the living room, some distance from the kitchen where Phillips was being interrogated. Both Jack Burden and his wife testified that Phillips was handled roughly and that he was very hostile and upset with the agents. Jack Burden said there was "no friendliness" between Phillips and the DEA agents while he was there. Attorney William Stern testified that he represented Phillips in an unrelated court action and that he called Phillips' residence early in the evening of March 24 and was given evasive answers by the woman (the third DEA agent) who answered the telephone. He then called attorney Gittleman, who had referred Phillips to him, to report that something appeared to be wrong at the Phillips residence. The DEA agents acknowledged receiving several telephone calls by persons who said they were attorneys during the four hours they detained Phillips at home before taking him to jail. Stern also testified that Phillips was with him in court all day Thursday March 26 and Friday March 27 and about one-half of Monday March 30.

Phillips testified that he was in the shower cleaning up from the day's work in preparation for an evening meeting with William Stern when the DEA agents broke into his house. He had asked Jack Burden to stay after work to listen for the telephone while he was in the shower. Phillips said he was ordered out of the shower and taken, still wet and wearing only a bathrobe, to the kitchen where he was handcuffed and questioned. He said he was outraged by the actions of the agents and never willingly offered to cooperate with them though he might have said he would cooperate to speed up the proceedings and get to jail where he could contact his attorney. Phillips testified that he asked to talk with his lawyer on the telephone, but his request was denied. While the DEA agents were going through some papers found in his basement they asked Phillips about Moraites. Phillips said he told the agents that Moraites was a friend and an employee of his. He denied ever saying that Moraites was his supplier of cocaine. He also denied ever indicating that he did not want Gittleman as his lawyer, and stated positively that he always wanted Gittleman to represent him. On cross-examination Phillips stated he knew that Gittleman had represented Moraites in some civil matters. However, he again denied that he had ever identified Moraites as his supplier and he stated that he had paid Gittleman for representing him with his own money.

The district court held a separate hearing on waiver and concluded that Phillips had declined to "waive his rights."

C.

The district court found the testimony of the three DEA agents credible, and that it was undisputed Moraites was a client of Gittleman. The court stated its conclusion as follows:

In light of the finding that the unindicted drug supplier of defendant is a client of defendant's attorney and the finding that defendant has expressed concern over whether this attorney will represent his best interests, this Court concludes that a possible prejudicial conflict of interests exists if Mr. Gittleman continues to represent defendant.

The district court then noted that although Phillips insisted he wanted Gittleman to represent him, Phillips had declined to waive his rights. Since there had been no knowing and intelligent waiver of the right of counsel free of all conflict of interest, the court ordered Gittleman disqualified.

II.

A.

Phillips filed a notice of appeal and this court granted an expedited hearing. The government has raised the threshold issue of appealability, contending that an order disqualifying an attorney is not a final decision which may be appealed pursuant to 28 U.S.C. Sec. 1291. The government relies principally on the decision of the Supreme Court in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), and the Ninth Circuit decision in United States v. Greger, 657 F.2d 1109 (1981). Phillips argues that an order granting a motion to disqualify an attorney is a "collateral order" which is appealable under the "narrow exception" to finality set forth in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We conclude that when the government moves for a pretrial order disqualifying retained defense counsel in a criminal case, an order granting such a motion is immediately appealable under Sec. 1291.

In Firestone Tire & Rubber Co. v. Risjord, supra, the Supreme Court held that a party may not appeal pursuant to 28 U.S.C. Sec. 1291 from an order denying a motion to disqualify counsel for an opposing party in a civil case. The Court noted that it expressed no opinion on the appealability of an order granting disqualification in a civil case or denying disqualification in a criminal case. 449 U.S. at 372 n. 8, 101 S.Ct. at 672 n. 8. The Court found that orders denying disqualification in civil cases do not satisfy the three criteria for immediate appealability under Sec. 1291 set forth in Cohen, supra, and refined in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). The Court stated the Cohen test as follows in Coopers & Lybrand v. Livesay:

To come within the "small class" of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. ¹⁰

Id. at 468, 98 S.Ct. at 2458 (citations omitted).

B.

In the present case the government concedes that the disqualification order satisfies the first two tests of appealability. However, it insists that such an order is...