United States v. Melton, 948 F. Supp. 2d 998

Melton challenges a magistrate judge's order disqualifying defense counsel in a revocation-incident case linked to a March 2013 federal indictment for resisting a federal officer.
The revocation hearing occurred November 19, 2012; Melton submitted a urine sample tested presumptively positive for synthetic marijuana, denied substance use, and was detained after the hearing was continued.
Attorney Raphael Scheetz had represented Melton at the revocation hearing; the prosecution moved to disqualify him on unsworn-witness concerns and potential as a defense or prosecution rebuttal witness.
Judge Scoles granted the motion on May 10, 2013, concluding Scheetz could become an unsworn witness and might be a necessary rebuttal witness for either side.
Melton argues the order violates the Sixth Amendment right to counsel and misapplies the unsworn-witness doctrine; the prosecution contends the grounds were properly established under applicable professional-conduct rules.
The district court’s review of the magistrate judge’s order is under Rule 59(a) with a “clearly erroneous or contrary to law” standard, and the court ultimately reverses and reinstates Scheetz as Melton’s counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Scheetz’s presence would render him an unsworn witness.	Melton contends no unsworn-witness basis exists.	State argues Scheetz’s presence could require him to testify first-hand about events.	Order reversed; not an unsworn witness.
Whether Scheetz is likely to be a necessary defense rebuttal witness.	Melton argues there is no unique testimony from Scheetz to be rebutted.	Prosecution asserts Scheetz could rebut biased witness testimony.	Order reversed; not a necessary defense rebuttal witness.
Whether Scheetz is likely to be a necessary prosecution witness.	Melton argues no basis to impinge counsel’s role as potential prosecution witness.	Prosecution contends Scheetz’s observations could be probative if bias challenges arise.	Order reversed; not a necessary prosecution witness.

State v. Vanover, 559 N.W.2d 618 (Iowa 1997) (adopts unsworn witness rule when attorney witnesses events at trial)
United States v. Locascio, 6 F.3d 924 (2d Cir.1993) (unsworn witness concerns; attorney’s first-hand knowledge may prejudice)
Macheca Transp. Co. v. Philadelphia Idem. Co., 463 F.3d 827 (8th Cir.2006) (attorney not a necessary witness unless only available witness)
Starnes, 157 Fed.Appx. 687 (5th Cir.2005) (lawyer not a necessary witness if others testify)
Van Dyck, 149 N.H. 604, 827 A.2d 192 (N.H. 2003) (lawyer as necessary witness when unobtainable elsewhere)