Counsel of choice
It was not plain error to disqualify a defendant’s attorney where the government intended to call the attorney as a witness.
“The fact that Rueckert did not testify at trial does not mean that his testimony did not appear necessary during pretrial proceedings. The issue was presented to the district court for decision long before trial. A district court faced with a potential conflict of interest must act ‘not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly.’ Wheat, 486 U.S. at 162. Given the facts available during the murky pretrial phase, we find no plain error such that the district court could have been deemed ‘derelict in countenancing’ Rueckert’s disqualification. See Frady, 456 U.S. at 163.”
“At the time the issue arose, the government was reasonably concerned that Turner’s girlfriend would refuse to testify, meaning that the same testimony would not in fact be available from an alternative source. While the government’s case against Turner at trial turned out to be very strong, it was based in large part on cooperative testimony from Turner’s co-defendants who pled guilty. As of the August 13, 2008 hearing when Rueckert was disqualified, they had not yet pled guilty. At that time, all evidence of unexplained wealth may well have seemed necessary to the government’s case. These facts undermine Turner’s argument that the government should not have expected to call Rueckert as a witness against Turner, so that he should not have been disqualified.”
09-2592 U.S. v. Turner
Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Hamilton, J.