Case Information

F.L. KAHLE, Plaintiff-Appellee, v. OPPENHEIMER & CO., INC., a Delaware Corporation, et al. Defendants-Appellants.

No. 83-1403

United States Court of Appeals, Sixth Circuit.

Nov. 20, 1984

Rehearing and Rehearing En Banc Denied Jan. 8, 1985.

748 F.2d 337

Argued May 10, 1984.

It was a total—it was a chance, it was a chance to not make it an absolutely total disaster, where we probably should have dismissed the case. And again, Your Honor, we saw no prejudice to Mr. Ham. On the basis of this hearing, Ham's indictment was dismissed.

Immediately upon obtaining a copy of the above transcript, the appellants filed a motion for new trial based on newly discovered evidence. The basis for that motion was that the transcript revealed that the United States Attorney caused Ham to be indicted during appellants' trial for the purpose of having an effect upon the jury in hopes of obtaining a conviction. They contend that this is evidence of prosecutorial misconduct entitling them to a new trial.

The district court found that the government had acted properly and that defense counsel, after learning of the government's intent to indict Ham, did not attempt to delay the indictment or to keep the information from the jury. They, in fact, insisted that the jury be told that Ham had been indicted for lying about the skimming. The district court, on this basis, denied appellants' motion for a new trial.

A motion for new trial on the basis of newly discovered evidence in a criminal trial will not be granted ordinarily unless the newly discovered evidence is of such a nature that it will probably result in an acquittal on a retrial. A trial judge's finding that the newly discovered evidence is not of such a nature to demand a new trial will not be disturbed on appeal unless a clear abuse of discretion is shown. United States v. Garner, 529 F.2d 962, 969 (6th Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 124 (1976); United States v. Luxenberg, 374 F.2d 241, 251 (6th Cir. 1967); accord Music Research, Inc. v. Vanguard Recording Soc. Inc., 547 F.2d 192, 196 (2d Cir.1976); Dugan v. United States, 521 F.2d 231, 233 (5th Cir.1975).

In the instant case, the trial judge based his denial of the motion upon numerous findings of fact which lay the foundation for his conclusion that there was no abuse of prosecutorial discretion. Those findings are not clearly erroneous and, therefore, must be accepted by this Court. Fed.R.Civ.P. 52(a). Because there was no abuse of prosecutorial discretion, the newly discovered evidence was not of such a nature that it would probably result in acquittal on a retrial. The evidence would be valuable only to impeach the chief prosecution witness. Under United States v. Garner, 529 F.2d 962 (6th Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 124 (1976), evidence that would impeach the chief prosecution witness is an insufficient basis for a new trial based on newly discovered evidence. We find, therefore, that the district court did not abuse its discretion in denying the motion for new trial.

The judgment of the district court denying the motion for new trial is AFFIRMED.

James E. Beckley (argued) & Assoc., Chicago, Ill., for defendants-appellants.

Donald S. Young, S. Thomas Wienner (argued) and Terrence Haggerty, Dykema, Gossett, Spencer, Goodnow and Trigg, Detroit, Mich., for plaintiff-appellee.

Before EDWARDS, CONTIE and WELLFORD, Circuit Judges.

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

This is an interlocutory appeal from an order granted by District Judge Philip Pratt in the United States District Court for the Eastern District of Michigan holding on a motion filed by plaintiff that a lawyer, James E. Beckley, representing defendants in the above-styled appeal, should be called as a witness at the trial of this matter and that it is therefore improper for him to represent defendants. See Model Code of Professional Responsibility, DR 5-101(B) and DR 5-102(A). Neither party discussed this court's jurisdiction to consider an interlocutory appeal in light of Flanagan v. United States, — U.S. —, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Additional briefs were requested and submitted after oral argument.

In Flanagan the Supreme Court held that disqualification of counsel in a criminal trial could not be immediately appealed. Two circuits have subsequently decided that Flanagan does not prevent immediate appeal from disqualification orders in civil cases In Koller, et al. v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C.Cir.1984), the trial court disqualified plaintiff's counsel for misconduct and for circumventing a pre-trial order. In Interco Systems, Inc. v. Omni Corporate Services, 733 F.2d 253 (2d Cir.1984), the trial court disqualified defense counsel who had previously represented plaintiffs.

In Gibbs v. Paluk, 742 F.2d 181 (5th Cir. 1984), the majority of a Fifth Circuit panel rejected the holdings in the Interco Systems and Koller cases just cited and held that the order denying a motion to disqualify counsel in the civil case concerned was not an appealable order basing its decision on Flanagan.

The facts in our instant case point strongly toward denial of immediate appeal. The trial judge in our instant case disqualified Beckley for a very different reason than those involved in any one of the three cases just cited. It was because the attorney was needed as a witness at trial. Before making that determination, the trial court reviewed a deposition given by the plaintiff, who explained his dealings with Beckley. The District Judge's rationale for this decision is set forth in a lengthy opinion extending some nine pages prior to the following conclusion:

The Court is aware that Beckley's disqualification, especially at this late date, will cause some hardship to defendants. Nevertheless it is now apparent that Beckley became involved in this dispute long before it ripened into litigation. Moreover, he alone can testify from personal knowledge as to matters which will be highly relevant at the trial of this matter. The Court therefore must disqualify Beckley from further representing defendants in this action. (footnotes omitted).

The trial judge thus decided that counsel Beckley's testimony is "enmeshed in the factual and legal issues comprising the cause of action." Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (quoting Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523 (1963)). The disqualification order is thus not a collateral order which can be immediately reviewed by this court. The decision to disqualify attorney Beckley is not sufficiently "independent" or separate to allow for appellate review until completion of trial. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Disqualified counsel may not bring an immediate appeal when the trial court has determined that the attorney should testify and submit to cross-examination. This court need not, however, decide whether the Flanagan rationale applies to other civil cases where disqualification is based on misconduct, conflict of interest or other reasons.

We therefore hold that we lack jurisdiction to hear this appeal and we remand this case to the District Court for trial.

WELLFORD, Circuit Judge, concurring.

I concur in the result reached by Judge Edwards, although I write separately to express my views. Another panel of this court, under similar factual circumstances, albeit without adequate discussion of the jurisdictional problems involved, considered the merits of an appeal from a district court order disqualifying counsel in a civil context. General Mill Supply Co. v. SCA Service, Inc., 697 F.2d 704 (6th Cir.1982). This case, however, did not mention Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), and it was decided prior to Flanagan v. United States, — U.S. —, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Because I believe that the rationale of these latter cases indicates a view of the Supreme Court that immediate appeals from orders dealing with disqualification of counsel come only under very "narrow exceptions" to the finality rule, see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and that departures from that rule will be permitted only when observance of it would practically defeat the right to any review at all, see Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), I agree that the appeal should be dismissed. I am therefore not prepared to consider the issue here presented on disqualification of defendant-appellant's counsel on its merits. I believe it is "enmeshed in the factual and legal issues comprising the cause of action." Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

On the other hand, one must recognize that another circuit court, post Flanagan, has held that an order granting disqualification in a civil case is immediately appealable, and indicated persuasive reason for this holding. See Judge Wald's opinion in Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C.Cir.), cert. granted, — U.S. —, 105 S.Ct. 290, 83 L.Ed.2d 226 (1984). The Second Circuit, while reaching the same result as in Koller, did so without full discussion of the impact of Flanagan. Interco Systems, Inc. v. Omni Corporate Services, Inc., 733 F.2d 253 (2d Cir. 1984).1 Post Firestone decisions have also permitted immediate appeals of disqualification orders in civil cases. See Gough v. Perkowski, 694 F.2d 1140 (9th Cir.1982); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981); LaSalle National Bank v. County of Lake, 703 F.2d 252, 255 (7th Cir.1983);2 In re Coordinated Pretrial Proceedings, 658 F.2d 1355, 1357-58 (9th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982).

A very recent Fifth Circuit opinion, Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984), reaches the same conclusion as do we. That court held that the trial court's granting of a motion to disqualify was not a final appealable order in a civil case, thereby rejecting its prior holdings before the Supreme Court's Flanagan decision. This Gibbs decision also rejected the rationale of Interco Systems, Inc. and of Koller.

Plaintiff-appellee concedes in his supplemental brief that circuit court decisions have held with unusual unanimity that orders granting motions to disqualify are immediately appealable. However, in light of this recent Fifth Circuit decision, this is no longer the case. Under these circumstances, I concur with the disposition here, recognizing a divergence of viewpoints on this issue.

WELLFORD

CIRCUIT JUDGE

Footnotes

1 The Interco Systems panel included only one active judge of the Second Circuit, and based its decision on the rationale of Armstrong v. McAlpin, 625 F.2d 433 (2d Cir.1980) (en banc), vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). It did observe, however: Flanagan might well be a call to reexamine this circuit's established rule permitting interlocutory appeal of disqualification orders in civil cases.

2 This case relies upon prior Seventh Circuit precedent to this effect. Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 720 (7th Cir.1982).