United States v. Melton

• Decision Date: 06 June 2013
• Docket Number: No. CR13–0014–MWB.,CR13–0014–MWB.
• Citation: 948 F.Supp.2d 998
• Parties: UNITED STATES of America, Plaintiff, v. Nathan MELTON, Defendant.
• Court: U.S. District Court — Northern District of Iowa

948 F.Supp.2d 998

UNITED STATES of America, Plaintiff,
v.
Nathan MELTON, Defendant.

No. CR13–0014–MWB.

United States District Court,
N.D. Iowa,
Cedar Rapids Division.

June 6, 2013.

[948 F.Supp.2d 999]

Scott Arthur Verseman, U.S. Attorney's Office, Rockford, IL, for Plaintiff.

Raphael M. Scheetz, Scheetz Law Office, Cedar Rapids, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S APPEAL OF MAGISTRATE'S ORDER DISQUALIFYING DEFENSE COUNSEL
MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.	INTRODUCTION AND BACKGROUND	1000
II.	ANALYSIS	1001

A.	Standard Of Review	1001
B.	Review Of Disqualification Order	1002

1.	Unsworn witness	1003
2.	Prosecution rebuttal witness	1006
3.	Defense witness	1008

III.
CONCLUSION
1008

[948 F.Supp.2d 1000]

This case is before me on defendant Nathan Melton's appeal of Chief United States Magistrate Judge Jon S. Scoles's order disqualifying defense counsel. Melton's appeal raises the following issues: whether defense counsel must be disqualified because his representation of Melton at trial would make defense counsel an unsworn witness, or because of the possibility that defense counsel might be called as either a prosecution or defense rebuttal witness.

I. INTRODUCTION AND BACKGROUND

On March 20, 2013, an Indictment was returned against Melton charging him with resisting a federal officer, a Deputy United States Marshal, with actions that involved physical contact with, and inflicted bodily injury to the Deputy Marshal, in violation of 18 U.S.C. §§ 111(a) & (b). The charge stems from events at a hearing held on November 19, 2012, before Chief Judge Linda R. Reade. The hearing was to determine whether Melton's supervised release should be revoked.¹ Attorney Raphael M. Scheetz represented Melton at the hearing. At the beginning of the hearing, Chief Judge Reade was informed that a urine sample Melton submitted immediately prior to the hearing tested presumptively positive for synthetic marijuana.² Melton denied using any controlled substance. Chief Judge Reade ordered that the hearing be continued and Melton detained. Melton requested that he be permitted to remain free pending further testing of his urine sample by a certified laboratory. Chief Judge Reade denied Melton's request. When a Deputy Marshal attempted to take Melton into custody, an altercation occurred in which the Deputy Marshal was allegedly injured.

On April 12, 2013, the prosecution filed a Motion to Disqualify in which it requests Scheetz be disqualified from representing Melton. The prosecution contends that Scheetz must be disqualified for three reasons: first, because his participation at trial would cause him to be an unsworn witness; second, that he is likely to be a necessary witness for the defense; and, third, that there is a “strong possibility” that he could be a necessary witness for the prosecution. On April 24, 2013, Melton filed a resistance to the prosecution's motion. On May 7, 2013, Judge Scoles held a hearing on the prosecution's motion. On May 10, 2013, 2013 WL 1953309 Judge Scoles issued an order granting the prosecution's motion. Judge Scoles found that if Scheetz was permitted to appear as defense counsel he may become an unsworn witness. Order at 6. Judge Scoles further found that Scheetz might be a necessary

[948 F.Supp.2d 1001]

rebuttal witness for the defense. Order at 8. Finally, Judge Scoles found that Scheetz might be a necessary witness for the prosecution, particularly if the defense successfully challenges the prosecution's other witnesses for bias. Order at 9. Thus, Judge Scoles granted the prosecution's motion and ordered “Mr. Scheetz will not be permitted to represent the defendant at trial.” Order at 11.

Melton has appealed Judge Scoles's order disqualifying Scheetz from representing him. In his appeal, Melton argues that Judge Scoles's order is contrary to the law or clearly erroneous because the possibilities that Scheetz might be called as a prosecution witness or a defense rebuttal witness are insufficient to meet the test for disqualification. Melton also argues that Judge Scoles did not give sufficient weight to Melton's Sixth Amendment right to counsel and the substantial hardship he would suffer by not being represented by his counsel of choice. In particular, Melton points out that Judge Scoles gave no weight to Scheetz's six years representing Melton on a number of matters. Finally, Melton contends that Judge Scoles's reliance on the unsworn witness theory is clearly erroneous and contrary to law. The prosecution filed a timely resistance to Melton's appeal. The prosecution argues that Judge Scoles correctly ruled that Scheetz should be disqualified from representing Melton because Scheetz's participation in the trial would cause him to be an unsworn witness due to him being present and observing the incident. The prosecution further argues that Judge Scoles correctly found that Scheetz's representation of Melton will prevent him from offering testimony that may be needed to rebut a prosecution witness's testimony. The prosecution also argues that because Scheetz witnessed the incident and occupies a position that is clearly not biased toward the prosecution, Judge Scoles's finding that Scheetz may become a necessary prosecution rebuttal witness is not clearly erroneous or contrary to the law. Finally, the prosecution contends that Judge Scoles's decision does not violate Melton's Sixth Amendment rights.

II. ANALYSIS A. Standard Of Review

A district judge's review of a magistrate judge's order on a nondispositive matter is governed by Federal Rule of Criminal Procedure 59(a), which states:

A district judge may refer to a magistrate judge for determination any matter that does not dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings and, when appropriate, enter on the record an oral or written order stating the determination. A party may serve and file objections to the order within 14 days after being served with a copy of a written order or after the oral order is stated on the record, or at some other time the court sets. The district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous. Failure to object in accordance with this rule waives a party's right to review.

Fed. R.Crim. P. 59(a); see also28 U.S.C. § 636(b)(1)(A). A motion to dismiss or disqualify counsel is a nondispositive matter. See McCans v. City of Truth or Consequences, 360 Fed.Appx. 964, 966 n. 3 (10th Cir.2010); Hutchinson v. Pfeil, 105 F.3d 562, 565 (10th Cir.1997); Medgyesy v. Medgyesy, 2013 WL 3030686, at *1 n. 1 (N.D.Ill. 2013); DeBiasi v. Charter County of Wayne, 284 F.Supp.2d 760, 768 (E.D.Mich.2003); Hammond v. City of Junction City, 167 F.Supp.2d 1271, 1288–89 (D.Kan.2001). Thus, I will reverse Judge Scoles's order only if that ruling is

[948 F.Supp.2d 1002]

“clearly erroneous or contrary to law.” Fed.R.Crim.P. 59(a).

Although the Eighth Circuit Court of Appeals has not addressed the standard of review under Rule 59(a), it has observed, in another context, that “clear error” is a “deferential standard of review” that allows the reviewing court to reverse “only ... when the entire record definitely and firmly illustrates that the lower court made a mistake.” United States v. Marshall, 411 F.3d 891, 894 (8th Cir.2005) (citing United States v. Quintana, 340 F.3d 700, 702 (8th Cir.2003), and United States v. Causor–Serrato, 234 F.3d 384, 389 (8th Cir.2000)). Other Circuit Courts of Appeals have provided comparable formulations of the “clearly erroneous” standard in the Rule 72(a) context. See, e.g., Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir.2006) (“In reexamining this question [upon objections to a magistrate judge's ruling on a nondispositive matter], the district court was required to ‘defer to the magistrate judge's ruling unless it [was] clearly erroneous or contrary to law.’ ” Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.1997) (citing 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Grimes v. City & County of San Francisco, 951 F.2d 236, 240 (9th Cir.1991)). Under the clearly erroneous standard, “the reviewing court [must] affirm unless it “on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).”); Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir.1999) (“Like the district court, we review these factual findings under the ‘clearly erroneous' rubric. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). This means that we must accept both the trier's findings of fact and the conclusions drawn therefrom unless, after scrutinizing the entire record, we ‘form a strong, unyielding belief that a mistake has been made.’ Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.1990).”); Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir.1997) (“The clear error standard [under Rule 72(a) ] means that the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made.”).

The Eighth Circuit Court of Appeals also has not opined on the meaning of the “contrary to law” prong of review under Rule 59(a). One federal district court has explained, however, that “[a]n order may be deemed contrary to law [within the meaning of Rule 72(a) ] ‘when it fails to apply or misapplies relevant statutes, case law or rules of procedure.’ ” Catskill Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002) (quoting Tompkins v. R.J. Reynolds Tobacco Co., 92 F.Supp.2d 70, 74 (N.D.N.Y.2000)). I will review Judge Scoles's order with these standards in mind.

B. Review Of Disqualification Order

The Sixth Amendment provides that “[i]n all criminal...