FRE 403 Balancing On Whether To Admit Evidence Creating Possible Conflict Between Defendant And His Attorney

Seventh Circuit notes propriety of using the FRE 403 “balancing test when the government seeks to introduce evidence that would create a conflict of interest for the defendant's attorney”; under FRE 403, the evidence was not cumulative since the proffered evidence provided “something more” than the evidence that it allegedly duplicates, in United States v. Gearhart, 576 F.3d 459 (7th Cir. Aug. 6, 2009) (No. 08-1558)

FRE 403 allows for the exclusion of evidence that “[a]lthough relevant,” has a probative value “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The rule sets out “a zone of discretion within which judges may exclude evidence” which is otherwise relevant and admissible. United States v. Messino, 181 F.3d 826, 829-30 (7th Cir. 1999). FRE 403 applies to all evidence but also has some special application in limited circumstances. One unique situation involves evidence that may create a conflict of interest between the defendant and defense counsel. In a recent case, the Seventh Circuit explored the propriety of using FRE 403 in those “rare occasions” when a trial court might resolve a possible conflict of interest between a defendant and his attorney at trial by excluding the evidence which would give rise to the conflict.

In the case, defendant Gearhart was charged with five other defendants with conspiring to manufacture and distribute methamphetamine. Each of his co-defendants ultimately pled guilty, leaving Gearhart as the only defendant to proceed to trial. The start of trial was delayed after the prosecution sought to disqualify defense counsel once the government learned that “a former cellmate of Gearhart's named Terry Rogers had relevant information to its case and that it wanted Rogers to testify.” The complication was that witness was represented by the son and law partner of Gearhart’s defense attorney. In addition, defense counsel’s son had represented the defendant at his detention hearing. Upon receiving this notice, defense counsel suggested the need to call the witness had more to do with the government’s trial tactics than with the need for the evidence, but also moved to withdraw, noting that he felt he “had no alternative.” Gearhart, 576 F.3d at 462.

The trial judge determined that defense counsel should withdraw and appointed a new attorney to handle the defendant’s six week trial with “multiple witnesses who testified that Gearhart used, dealt and manufactured methamphetamine.” Among the witnesses, “Terry Rogers testified that when he shared a cell with Gearhart,” the defendant “admitted that he and a co-defendant ‘had dealt [drugs] with each other several times.’” The jury convicted the defendant and the defendant appealed based in part on the claim that the substitution of defense attorney deprived him of his Sixth Amendment Right to Counsel. Gearhart, 576 F.3d at 462.

The circuit rejected the defendant’s claim that his Sixth Amendment Right to Counsel had been violated. The circuit had rejected a per se rule of excluding evidence where a disqualification issue was raised. Gearhart, 576 F.3d at 464 n.4. The circuit noted a consensus in addressing this disqualification scenario: “Like the majority of our sister circuits, we have adopted a balancing test when the government seeks to introduce evidence that would create a conflict of interest for the defendant's attorney.” Gearhart, 576 F.3d at 464 (citing United States v. Messino, 181 F.3d 826, 830 (7th Cir. 1999) (balancing the interests of the criminal defendant in the continuity of counsel against those of the government in proving its case beyond a reasonable doubt; “[w]ithout precisely delineating the scope of a district court's discretion, we note that a balancing of the kind contemplated by Rule 403 is in order. That is, the probative value of the evidence must be weighed against the negative consequences of admitting the evidence.”)).

The circuit cited only two other circuits to support this “majority” position applying a balancing test:

  • United States v. James, 708 F.2d 40, 44-45 (2d Cir. 1983) (“Our analysis … begins with the recognition that the right of a defendant in a criminal case to counsel of his choice is … not absolute. In the present case … these defendants … prefer to continue with these [current defense] attorneys, we are inclined to agree with the district court's assessment that the interests of the government, the witness, and the public weigh more heavily here.”)
  • United States v. Garcia, 517 F.2d 272, 277-78 (5th Cir. 1975) (noting that a defendant may waive right to an attorney without a conflict of interest, but that the “court should nonetheless make an inquiry on the record so as to preclude the action “from collateral attack, either on Sixth Amendment grounds or on a Fifth or Fourteenth Amendment ‘fundamental fairness’ basis”)

The circuit noted that in conducting this balancing, the trial court should be guided by considerations required by the weighing process under FRE 403. Gearhart, 576 F.3d at 464 (“we have held that the introduction of evidence that would generate a conflict of interest is subject to analysis under Rule 403 of the Federal Rules of Evidence”) (citing United States v. Messino, 181 F.3d 826, 830) (7th Cir. 1999) (noting that court may “exclude testimony to resolve a conflict of interest” at trial under FRE 403)).

In applying the FRE 403 balancing test to the trial court’s decision that defense counsel was disqualified, the circuit focused on the defendant’s “central argument” that the proffered government evidence that created the conflict between counsel and the defendant was “cumulative” under FRE 403. The advantage was that the appeals court could assess whether the evidence was cumulative from the record, rather than resolve this issue as a matter of supposition. The circuit noted that the record disclosed that at trial, the witness “testified that Gearhart admitted he and a co-defendant ‘had dealt with each other several times.’ Gearhart argues that this same information was provided by multiple other witnesses who testified that Gearhart dealt, manufactured and used methamphetamine.” Gearhart, 576 F.3d at 464. The circuit was not persuaded by the argument that the testimony had been cumulative:

“[A]lthough close in content to other evidence that was admitted at trial, [it] was not strictly speaking cumulative. Other witnesses testified that they distributed, cooked or used methamphetamine with Gearhart, but only Rogers testified that Gearhart admitted to committing these acts with his co-conspirators. This admission was arguably probative of the existence of something more than a mere buyer-seller relationship between Gearhart and his co-defendants.”
Gearhart, 576 F.3d at 465 (emphasis added) (citing United States v. Colon, 549 F.3d 565, 567-68 (7th Cir. 2008) (holding that something more than a mere buyer-seller relationship is required to support a conspiracy conviction)). Because the evidence showed that “something more” was necessary for the government to prove its case beyond a reasonable doubt, to the extent it was cumulative, it still “outweighed Gearhart's interest in continuity of counsel in this case.” Gearhart, 576 F.3d at 465.

Similarly, the witness’s testimony was not cumulative with other evidence that after his arrest the defendant “admitted to obtaining methamphetamine from co-defendants.” The circuit noted that in his statement the defendant “did not mention the conspiracy to sell” and was “not cumulative because Rogers testified that Gearhart admitted to the conspiracy.” Gearhart, 576 F.3d at 465 n.5. The circuit rejected the claim that the trial judge improperly granted the government’s motion to disqualify and defense counsel’s motion to withdraw. First, the circuit noted that the defendant had failed to preserve his objection to the admission of the testimony of the witness who created the conflict of interest in the case. This happened when defense counsel filed his motion to withdraw and counsel failed to request the exclusion of the testimony. There were other alternatives to counsel leaving the case, such as either a stipulation to the witness’s testimony or agreeing to limits on the witness’s cross-examination. Because a contemporaneous objection was not made, the circuit applied a plain error rather than an abuse of discretion standard on review. No plain error was found in granting the defendant’s and government’s motions that the defense attorney leave the case. Gearhart, 576 F.3d at 465.

Gearhart provides intriguing insight into the Seventh Circuit doctrine regarding the admission or exclusion of evidence that might possibly raise a conflict between defense counsel and a defendant, as well as use of FRE 403 in assessing the conflict. However, the result in the case was based on a plain error review of the trial judge’s grant the motion to withdraw / disqualify. This leaves for future determination whether a trial judge abuses his or her discretion by granting such a motion which will turn on the balancing of the evidence and issues in the case at bar.

Federal Rules of Evidence