The opinion of the court was delivered by: WEBER
The United States has moved to disqualify counsel for the defendant. This motion was made on the complaint of two of the government's witnesses that they had prior attorney-client relationships with present defense counsel and that questions posed on cross-examination by Attorney Ambrose, defense counsel, may lead to the disclosure of privileged information, to which they would raise the privilege and refuse to answer.
The government claims that the testimony of these two witnesses is critical to a question raised by defendant's motion to suppress evidence obtained by a recording device worn by one of the government's witnesses, Esper, and attached in the presence of Detective Grassi. The defendant's motion to suppress is based on the alleged involuntary nature of Esper's cooperation. Esper and Grassi have raised the claim of privilege. The credibility of these witnesses will be a prime issue for the defense.
This matter has a long history which, unfortunately, we must recite briefly to put the present matter in proper perspective. In 1983, Montevecchio, the present defendant, was charged by several indictments involving a series of burglaries, and on one possession of narcotics charge. The indictments were brought in the Court of Common Pleas of Erie County, Pennsylvania. Many preliminary matters were raised at pre-trial, which generated a large amount of media publicity. Some of this involved the security precautions surrounding the appearances of the witness Esper, who was held in protective custody. Because of adverse prejudicial publicity, the state court ordered a change of venue for trial. The witnesses Esper and Grassi testified in pre-trial hearings or depositions during this period. Early in this case the Erie County District Attorney filed a motion to disqualify the defense counsel, Attorney Ambrose, who is the present defense counsel. This was denied. Finally, the state charges were all dismissed for violation of the Pennsylvania speedy trial provisions on February 13, 1986. This discharge was hotly contested, and produced another wave of media publicity, particularly critical of the court system and the prosecutor's office.
The instant federal indictment was filed July 9, 1986 and contains a single count, possession of cocaine with intent to distribute on July 28, 1983.
There is a motion for change of venue which the court will grant by a transfer of the case to the Pittsburgh seat of this court. Several other pre-trial motions are pending which must await the resolution of the present motion.
We have received briefs on this motion and have held oral argument. The facts are largely undisputed and we base our findings upon the statements of defense counsel.
The government witness Esper was involved with the defendant Montevecchio in the matters concerning the series of burglaries. He became a government informant and was used to collect further evidence including that which was recorded.
Attorney Ambrose represented Esper from February to April, 1978 in a criminal complaint instituted by a private complainant approved by the district attorney on a charge of theft by deception involving a check. A hearing was held before a district magistrate and the complaint was dropped by the prosecutrix upon Esper's agreement to make restitution.
A second instance of representation of Esper by Attorney Ambrose involved charges against Esper of obtaining drugs from a pharmacy without a proper prescription. Attorney Ambrose states that he had two consultations with Esper about the charges in sufficient depth so that he could estimate the extent of work involved to determine the fee. A preliminary hearing before a district magistrate was waived by Esper, who gave the name of Attorney Ambrose as his counsel, which was entered on the magistrate's return to the district attorney. After Attorney Ambrose quoted his fee, Esper secured other counsel and was ultimately acquitted of the charges.
A third event which Esper related to the United States Attorney, which Attorney Ambrose denies, was a claim that in 1979 Esper consulted with Ambrose relating to possible charges being brought against him for breaking into and stealing the contents of an automobile. No charges were brought.