Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 Cr 407 -- Joel M. Flaum, Judge.
Before PELL and CUDAHY, Circuit Judges, and JAMESON, Senior District Judge.*fn*
PELL, Circuit Judge. Defendant was charged with interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. Prior to trial defendant moved to suppress oral statements he claimed were made to a Government agent in derogation of his right to counsel. Following a hearing, the trial court denied the motion to suppress and defense counsel's motion to withdraw from further participation in the case. Defendant was convicted during the subsequent jury trial and sentenced to four years of incarceration. Defendant now seeks a reversal with a remand for a new trial, or, in the alternative, a new hearing on the motion to suppress.
The statements the defendant sought to suppress were made during a telephone conversation with FBI agent Lueckenhoff. Defendant's counsel, Federal Defender Steven Knorr, moved to withdraw because he expected to testify during the hearing, but suggested that this motion be held in abeyance pending the outcome of the suppression hearing. During the hearing the court heard conflicting testimony from Knorr, defendant, and Lueckenhoff.
Knorr testified that during May of 1981 he learned that defendant, whom Knorr had previously represented, was the target of an investigation concerning the theft of a truck.Knorr telephoned Lueckenhoff to inform the agent that defendant had counsel. At the suppression hearing Lueckenhoff denied that Knorr said he would be representing defendant.
Lueckenhoff obtained a warrant for defendant's arrest on July 1. Knorr learned of the arrest warrant the next day and called Luekenhoff. Lueckenhoff was concerned that Knorr knew of the warrant as defendant was not in custody and might conceal or destroy the truck if he learned of the outstanding warrant. At the suppression hearing Knorr and Lueckenhoff differed over whether obstruction of justice charges were mentioned.
After speaking with Lueckenhoff, Knorr received a telephone call from defendant. Knorr had another attorney from his office eavesdrop on this conversation to avoid any later claims that he counseled defendant improperly. Knorr advised defendant to turn himself in immediately and not to talk to anyone. Knorr reported this conversation to Lueckenhoff, who, allegedly, threatened Knorr with criminal charges.At the hearing Lueckenhoff could not recall discussing criminal charges with Knorr. A similar scenario took place on July 5.
Lueckenhoff interviewed Knorr on July 6 or 17. Lueckenhoff was concerned that Knorr knew about the arrest warrant and wanted to know how Knorr obtained his information.Lueckenhoff mentioned that obstruction of justice charges might be brought against Knorr, but was satisfied with Knorr's explanation and nothing further came of the incident. During the suppression hearing Knorr testified that he had been intimidated by the interview and felt hampered in his representation of defendant.
Defendant ignored Knorr's advice and telephone Lueckenhoff in response to messages the agent left with defendant's family. Defendant spoke with Lueckenhoff a number of times during the summer before surrendering to Knorr. Defendant claimed that Lueckenhoff denigrated Knorr during these conversations and told defendant to surrender to the FBI rather than to Knorr. During one of these conversations defendant asked Lueckenhoff, "Does this involve a truck?" Defendant also asked if returning the truck would help. These were the statements defendant sought to suppress.
The court denied the motion to suppress after finding that defendant initiated the conversations with Lueckenhoff despite Knorr's advice to remain silent. The court also found that the incriminating statements were not the result of the interrogation, but rather were volunteered by defendant. Based on these circumstances the court concluded that the defendant waived any right to counsel during the conversations with Lueckenhoff. The court also concluded that Knorr had not been intimidated by the interview with the FBI to the point at which his representation of defendant was hampered. After the suppression hearing the court considered, and rejected, Knorr's motion to withdraw.
II. Violation of the Advocate-Witness Rule.
Defendant argued at the pre-trial hearing that suppression of his statements was required because Lueckenhoff had deprived him of counsel by interfering with the attorney-client relationship. Defendant does not now claim that the findings of the court are clearly erroneous, but only that a new hearing is required because the court allowed Knorr to act both as counsel and witness during the hearing.
The counsel should avoid appearing both as advocate and witness except under special circumstances is beyond question. United States v. Johnston, 690 F.2d 638 (7th Cir. 1982) (en banc); United States v. Birdman, 602 F.2d 547 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 62 L. Ed. 2d 668, 100 S. Ct. 703 (1980); Model Code of Professional responsibility DR 5-102(3). This rule, however, does not render an advocate incompetent as a witness, but merely vests the trial court with discretion to determine whether counsel may appear as a witness without withdrawing from the case. Johnston, 690 F.2d at 646; United States v. Nyman, 649 F.2d 208, 211 (4th Cir. 1980); Birdman, 602 F.2d at 556; United States v. Bates, 600 F.2d 505, 511 (5th Cir. 1979); United States v. Fiorillo, 376 F.2d 180, ...