IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : Crim. No. 4:15-CR-0083

:

v. : (Judge Brann)

:

ALAN J. FASSETT, :

:

Defendant. :

MEMORANDUM OPINON

November 17, 2015 

This case presents a challenging question: under what circumstances should

the Court strip a criminal defendant of representation by counsel of his choice. 

Here, the balance of equities would tip too far astray from a fair trial if the 

Defendant were able to proceed with his current, potentially conflicted, lead

counsel. Accordingly, for the Court to ensure a fair trial for all parties, I must

disqualify Defendant’s lead counsel, Arthur D. Agnellino, Esquire. 

I. BACKGROUND 

On May 5, 2015, Alan J. Fassett1

 was indicted, on grand jury

recommendation, on multiple charges of various financial crimes he allegedly

perpetrated against a ninety-two year old victim (now deceased) known as “LG”. 

1

Hereinafter “Fassett”

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On September 22, 2015, a superseding indictment was filed.2

 Fassett plead not

guilty to all charges against him. 

On October 6, 2015, the government filed a sealed Motion to Disqualify

Fassett’s retained, lead counsel, Arthur D. Agnellino, Esquire.3

 In addition to

Agnellino, Fassett has retained a second attorney, Joseph Joch, Esquire.4

 

The matter has been fully briefed and a hearing on the motion was held on

November 3, 2015. At the hearing, Joch presented as counsel, and Agnellino

testified on his own behalf. 

II. DISCUSSION

In August 2013, Fassett was asked to attend a meeting with a representative

from the Bradford County Area Agency on Aging.5

 Fassett’s legal counsel, Arthur

D. Agnellino, Esquire6

 accompanied Fassett to the meeting with the BCAAA

representative, Stacey Ostrander7

. 

At the November 3, 2015 hearing, the government represented to the Court

2

ECF No. 39. 

3

ECF No. 49. 

4

Hereinafter “Joch” 

5

Hereinafter “BCAAA”

6

Hereinafter “Agnellino”

7

Neither party provided the spelling of her name to the Court, accordingly, this spelling

represents the Court’s educated guess. 

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that Fassett had made several incriminating statements at this meeting. 

Specifically, Fassett allegedly admitted to spending the victim’s money for his own

expenses and further allegedly admitted transferring her money into his own

accounts for his own benefit. 

The reason for the motion, according to the government, is that Agnellino

disputes that Fassett made any incriminating statements because Agnellino has

firsthand knowledge of the discussion based on his presence at the BCAAA

meeting. The government asserts that Agnellino, after his review of Ostrander’s

notes provided in discovery, spoke to government counsel and stated, something to

the effect of, “That’s not true, I was there.” 

Agnellino testified at the November 3, 2015 disqualification hearing that,

contrary to the assertions of the government, the only topic of discussion at the

August 2013 meeting with Ostrander was the fact that LG did not have the

financial resources to sustain her monthly expenses at Ashton House (the Athens,

Pennsylvania nursing home where she resided). Agnellino further testified that

after the meeting, Fassett immediately transferred a large sum of money to LG’s

account to provide for her expenses at Ashton. 

 The first basis for the government’s motion that Agnellino should be

disqualified is because Fassett would be better served if Agnellino could present

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as a witness at trial to offer testimony to dispute Ostrander’s recitation of the

allegedly incriminating statements.8

 The second basis for the motion is that

without disqualification, Agnellino would serve as an “unsworn witness” for

Fassett at trial. An unsworn witness is “an attorney [who] may influence the

litigation indirectly through questioning or in the course of making arguments as a

lawyer, rather than directly through sworn testimony and being cross-examined as

a witness.”9

 The Court will address these questions in turn. 

1. The Qualified Right to Counsel 

The Sixth Amendment to the United States Constitution provides, in relevant

part, “in all criminal prosecutions, the accused shall ...have the assistance of

counsel for his defense.” Although counsel of ones choosing is important, it is not

of such paramount importance than conflicts may be waived away. “[No] such

flat rule can be deduced from the Sixth Amendment presumption in favor of

counsel of choice.”10 “The Sixth Amendment right to choose one's own counsel is

8

Although seemingly less likely, an additional argument is that the government may call

Agnellino as its witness to testify as to the allegedly incriminating statements by Fassett during

the meeting at issue. 

9

Roxanne Malaspina, RESOLVING THE CONFLICT OF THE UNSWORN WITNESS: A

FRAMEWORK FOR DISQUALIFYING HOUSE COUNSEL UNDER THE ADVOCATE-WITNESS RULE, 67

N.Y.U. L. Rev. 1073, 1075 (1992). 

10Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 1697-98, 100 L. Ed. 2d 140

(1988). The Court comprehends that Wheat is a case dealing with joint representation (not an

issue here), it is nonetheless the seminal high court case on conflict generally. 

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circumscribed in several important respects.”11 “Thus, while the right to select and

be represented by one's preferred attorney is comprehended by the Sixth

Amendment, the essential aim of the Amendment is to guarantee an effective

advocate for each criminal defendant rather than to ensure that a defendant will

inexorably be represented by the lawyer whom he prefers.”12 “Federal courts have

an independent interest in ensuring that criminal trials are conducted within the

ethical standards of the profession and that legal proceedings appear fair to all who

observe them.”13

“To be sure, this need to investigate potential conflicts arises in part from the

legitimate wish of district courts that their judgments remain intact on appeal.”14

“Unfortunately for all concerned, a district court must pass on the issue whether or

not to allow a waiver of a conflict of interest by a criminal defendant not with the

wisdom of hindsight after the trial has taken place, but in the murkier pre-trial

context when relationships between parties are seen through a glass, darkly.”15

11Id. 

12Id, see also Morris v. Slappy, 461 U.S. 1, 13–14, 103 S.Ct. 1610, 1617–1618, 75

L.Ed.2d 610 (1983); Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

13Id. 

14Wheat, supra. 

15Id. 

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“The difficulty here is that the Court is confronted with “the prospect of being

“whip-sawed” by assertions of error no matter which way [I] rule.”16 “[T]he

district court must be allowed substantial latitude in refusing waivers of conflicts

of interest not only in those rare cases where an actual conflict may be

demonstrated before trial, but in the more common cases where a potential for

conflict exists which may or may not burgeon into an actual conflict as the trial

progresses.”17 

2. Advocate as witness 

The primary, and most compelling, argument for disqualification is that

Agnellino could be a witness at trial. The government asserts that Ostrander will

testify that Fassett made incriminating statements to her. The defense intends to

dispute Ostrander’s anticipated trial testimony. The defense asserts that Agnellino

need not be disqualified, because Fassett intends to testify on his own behalf. 

There are two types of conflicts, actual and potential. The government sets

forth arguments that Agnellino is both actually and potentially conflicted. The

government first asserts that Agnellino has an actual conflict because his legal

advice is for Fassett to waive his Fifth Amendment privilege at trial and testify. 

16Id. 

17Id. 

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Naturally, there is a concern that this may be made in Agnellino’s best interest, so

as to avoid the need to have him testify at trial, rather than in his client, Fassett’s

best interests. 

The government additionally asserts that Agnellino is potentially conflicted

for two reasons. First, the government may call Agnellino as a witness at trial.

Second, that Fassett would be better served if Agnellino is disqualified as

Agnellino could provide corroborating testimony as to Fassett’s recitation of the

August 2013 BCAAA meeting. 

Although not couched in the following terms, the defense contends that

disqualification of Agnellino would visit a “substantial hardship” on Fassett, as

Agnellino has been his counsel for an extended period of time. Further, Agnellino

is currently working for Fassett without payment as Fassett’s assets have been

frozen by the government. 

Not unexpectedly, Pennsylvania’s Rules of Professional Conduct govern the

issue of advocate as witness. The Rules state that 

(a)A lawyer shall not act as advocate at a trial in which the lawyer is

likely to be a necessary witness unless: 

(1)the testimony relates to an uncontested issue;

(2)the testimony relates to the nature and value of legal services

rendered in the case; or

(3)disqualification of the lawyer would work substantial

hardship on the client.

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Case 4:15-cr-00083-MWB Document 75 Filed 11/17/15 Page 7 of 20
Pa. R. Prof. Conduct 3.7. 

Additionally, the comments to Rule 3.7 state that “[1]Combining the roles of

advocate and witness can prejudice the tribunal and the opposing party and can

also involve a conflict of interest between the lawyer and client.”18 And “[2]The

tribunal has proper objection when the trier of fact may be confused or misled by a

lawyer serving as both advocate and witness. The opposing party has proper

objection where the combination of roles may prejudice that party's rights in the

litigation. A witness is required to testify on the basis of personal knowledge, while

an advocate is expected to explain and comment on evidence given by others. It

may not be clear whether a statement by an advocate-witness should be taken as

proof or as an analysis of the proof.”19 

The comments go on to state “[3]To protect the tribunal, paragraph (a)

prohibits a lawyer from simultaneously serving as advocate and necessary witness

except in those circumstances specified in paragraphs (a)(1) through (a)(3).

Paragraph (a)(1) recognizes that if the testimony will be uncontested, the

ambiguities in the dual role are purely theoretical....”20 “[4]Apart from these two

18Pa. R. Prof. Conduct 3.7. Cmt. 1. 

19 Pa. R. Prof. Conduct 3.7. Cmt. 2. 

20 Pa. R. Prof. Conduct 3.7. Cmt. 3. 

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exceptions, paragraph (a)(3) recognizes that a balancing is required between the

interests of the client and those of the tribunal and the opposing party. Whether the

tribunal is likely to be misled or the opposing party is likely to suffer prejudice

depends on the nature of the case, the importance and probable tenor of the

lawyer's testimony, and the probability that the lawyer's testimony will conflict

with that of other witnesses. Even if there is risk of such prejudice, in determining

whether the lawyer should be disqualified, due regard must be given to the effect

of disqualification on the lawyer's client. It is relevant that one or both parties

could reasonably foresee that the lawyer would probably be a witness.

Interestingly, the conflict of interest principles stated in Rules 1.7, 1.9 and 1.10

have no application to this aspect of the problem.”21

Finally, comment 6 states, in relevant part, “The problem can arise whether

the lawyer is called as a witness on behalf of the client or is called by the opposing

party. Determining whether or not such a conflict exists is primarily the

responsibility of the lawyer involved. If there is a conflict of interest, the lawyer

must secure the client's informed consent. In some cases, the lawyer will be

precluded from seeking the client's consent.”22

21Pa. R. Prof. Conduct 3.7 Cmt. 4. 

22Pa. R. Prof. Conduct 3.7 Cmt. 6. 

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In a case from the Southern District of Ohio, a state with a rule of

professional conduct that is identical in all substantive respects to the Pennsylvania

rule noted here, the court was presented with a motion to disqualify based on the

same two possible scenarios, namely, that counsel is a potential witness at trial or

counsel may act as an unsworn witness. In United States v. Matsa,

23 the court

disqualified counsel of Matsa’s choice by explaining that “[a]lthough courts are to

apply a presumption in favor of a defendant's preferred counsel, such a

presumption may be overcome because such a choice must be balanced with the

court's integrity of the proceedings and the public's interest in the proper

administration of justice.”24 

In finding that there was no substantial hardship to the defendant by

disqualifying counsel, the Matsa court stated “[r]egarding his contention that

substitute counsel would lack the insights and information that [current counsel]

has about potential Government witnesses, nothing precludes [counsel] from

conveying his knowledge to Mr. Matsa's new counsel or otherwise assisting new

counsel in the handling of this case.”25 “[T]he Court acknowledges that a change in

232010 WL 4117548, (S.D. Ohio Oct. 19, 2010) aff'd, 540 F. App'x 520 (6th Cir. 2013)

24Matsa, 2010 WL 4117548 at *2, citing United States v. Mays, 69 F.3d 116, 121 (6th

Cir.1995) and United States v. Swafford, 512 F.3d 833, 839 (2008) (quoting Wheat, 486 U.S. at

163)) (internal quotations omitted). 

25Matsa, 2010 WL 4117548, at *4.

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counsel may be inconvenient, but such a change does not work a substantial

hardship... substitute counsel would not be assuming Mr. Matsa's representation

on the eve of trial.”26 The Court also found that Matsa would benefit from conflictfree counsel’s advice as to the best defenses to raise.27

I am cognizant, however, that a motion to disqualify may be a tactical move

by the government. “Because of [the] risk of abuse [by prosectuors] the

text...prohibits continued representation only when it is likely that the lawyer will

be called as a “necessary” witness.28 In the “murky pre-trial context, the

responsible course is to tread carefully.”29 While it is far from certain that

Agnellino is a necessary witness, the risk is too great to assume that he is not. Joch

asserted that Fassett intends to testify in his own defense at trial. If that is the case,

then it seems that Fassett is best served by the availability of Agnellino as a

corroborating witness.

I have attempted to follow the directive of the United States Court of

Appeals for the Third Circuit and therefore “conduct[ed] an evidentiary hearing or

26Id. 

27See id. 

28Roxanne Malaspina, RESOLVING THE CONFLICT OF THE UNSWORN WITNESS: A

FRAMEWORK FOR DISQUALIFYING HOUSE COUNSEL UNDER THE ADVOCATE-WITNESS RULE, 67

N.Y.U. L. Rev. 1073, 1091 (1992) (examining the similar ABA advocate witness rule). 

29United States v. Perry, 30 F. Supp. 3d 514, 539 (E.D. Va. 2014) (Davis, J.). 

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factual inquiry to determine whether disqualification is appropriate and inquire[d]

into the nature of the conflict and the client's awareness of the conflict.”30 I also

“determine[d] whether there has been a waiver of the conflict, whether the waiver

was effective or whether a waiver was possible.”31 Finally, I engaged in a colloquy

of Fassett at the November 3, 2015 hearing. Fassett appeared to be making a

knowing and voluntary waiver of the opportunity to have Agnellino as a witness in

favor of keeping Agnellino on as defense counsel. Be that as it may, the most

prudent course of action would be to decline to accept the waiver. As noted above,

“[t]he district court must be allowed substantial latitude in refusing waivers of

conflicts of interest not only in those rare cases where an actual conflict may be

demonstrated before trial, but in the more common cases where a potential for

conflict exists which may or may not burgeon into an actual conflict as the trial

progresses.”32 

Moreover, Fassett should be availed of the advice of non-conflicted counsel

to advise him whether waiving his Fifth Amendment right is in his best interest. 

“Counsel's function is to assist the defendant, and hence counsel owes the client a

30Gov't of Virgin Islands v. Zepp, 748 F.2d 125, 139 (3d Cir. 1984) 

31Id. 

32Wheat, 486 U.S. at 163.

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duty of loyalty [and] a duty to avoid conflicts of interest.”33 “[C]onflicting

interests nonetheless arise out of personal interests of counsel that were

inconsistent, diverse or otherwise discordant with those of his client and which

affected the exercise of his professional judgment on behalf of his client.”34

The government has asserted that it would not object to court appointed

counsel to assist Joch, who made arguments at hearing that the case required the

ministrations of two attorneys. This appears to be a suitable solution to Joch’s

concerns. It also ameliorates the substantive hardship issue. Perhaps most

importantly, it would provide Fassett with an entirely non-conflicted attorney to

advise him on waiving his Fifth Amendment right. 

This motion has been disposed of well in advance of a yet-to-be-scheduled

trial, so that a second chair would have adequate time to prepare. I conclude that

there will not be a substantial hardship to Fassett by disqualifying Agnellino. 

3. The unsworn witness issue

A second, albeit less compelling, reason for the disqualification motion is

the unsworn witness problem. This question is addressed in the seminal case of

33Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674

(1984)

34Zepp, 748 F.2d at 135. (internal citations and quotations omitted). 

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United State v. Locascio35 decided by the United States Court of Appeals for the

Second Circuit. Although the principal named defendant may be unfamiliar to a

reader of this opinion, the second defendant, the one at the heart of the unsworn

witness issue is recognizable, namely John Gotti.36

 Critics of Losascio assert that the government’s disqualification motion was

merely a trial tactic, as Gotti’s counsel, Bruce Cutler,37 had obtained three prior

acquittals for Gotti. Nothwithstanding this criticism, the court was the first to

devise a disqualification test that balances the two, at times opposing, Sixth

Amendment interests: that of the defendant to counsel of his choosing and that of

the Court and the judicial system to conduct a fair and impartial trial. 

As Locascio details, Gotti was indicted on RICO38 charges after the

government installed a wire in an apartment two stories above a social club that the

Gambino crime family members frequented. The government moved to disqualify

Cutler prior to trial, and the district court granted the motion. The Second Circuit

affirmed. There were several reasons for the disqualification, but Second Circuit

found that the strongest basis for disqualification was the possibility that Cutler

356 F.3d 924 (2nd Cir. 1993). 

36Hereinafter “Gotti”

37Hereinafter “Cutler” 

38The Racketeer Influenced Corrupt Organizations Act.

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would act as an unsworn witness for Gotti, as he was present for many of the

Gambino family’s conversations about criminal activity, as evidenced by the

surveillance tapes. 

The Losascio court stated that even if an attorney is not called as a witness,

“he can still be disqualified, since his performance as an advocate can be impaired

by his relationship to the events in question.”39 “For example, the attorney may be

constrained from making certain arguments on behalf of his client because of his

own involvement, or may be tempted to minimize his own conduct at the expense

of his client.”40 “Moreover, his role as advocate may give his client an unfair

advantage, because the attorney can subtly impart to the jury his first-hand

knowledge of the events without having to swear an oath or be subject to cross

examination.”41 “This is different from the situation in Wheat, since the conflict in

Wheat—multiple representation—was a conflict inuring to the detriment of the

accused.”42 “In such a case, waiver by the accused of the conflict can conceivably

alleviate the constitutional defect, so long as the representation by counsel does not

39Locascio, 6 F.3d at 933.

40Id. 

41Id. 

42Id. 

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seriously compromise the integrity of the judicial process.”43 “When an attorney is

an unsworn witness, however, the detriment is to the government, since the

defendant gains an unfair advantage, and to the court, since the factfinding process

is impaired.”44 “Waiver by the defendant is ineffective in curing the impropriety in

such situations, since he is not the party prejudiced.”45

“The government was legitimately concerned that, when Cutler argued

before the jury for a particular interpretation of the tapes, his interpretation would

be given added credibility due to his presence in the room when the statements

were made.”46 “This would have given Gotti an unfair advantage, since Cutler

would not have had to take an oath in presenting his interpretation, but could

merely frame it in the form of legal argument.”47 Gotti had argued that “that the

district court erred in disqualifying Cutler where the government had no intention

of calling Cutler.”48 The Second Circuit found that the “contention [wa]s meritless,

since the district court explicitly and correctly noted that “whether the government

43Id. 

44Id.

45Id. 

46Id. at 934. 

47Id. 

48Id. 

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will or will not call ... Cutler ... has no significance for this motion.””49 “[T]he

government's case should not be unfairly impaired so that an accused can continue

with conflicted counsel.”50

In the matter at hand, the defense contends that the unsworn witness problem

is moot, because Joch, not Agnellino, plans to cross-examine Ostrander. 

Additionally, the defense plans to file a motion in limine to exclude any reference

to Agnellino as the attorney who accompanied Fassett to the BCAAA meeting with

Ostrander. 

That said, it seems that the unsworn witness problem could arise in areas

other than cross-examination. Clearly any statements Agnellino may make in

opening and closing arguments may be infused with his personal knowledge of

Fassett’s allegedly incriminating statements to Ostrander. Moreover, although

Agnellino asserted at the hearing that he barely remembered the August 2013

meeting, his assertions carry doubt. On direct examination he was able to recollect

that he had to wait for thirty minutes to meet with Ostrander, that the meeting

lasted only ten minutes, who was present in the room, Ms. Ostrander’s full name,

the purpose of the meeting, what was discussed at the meeting, and what Fassett

49Id. 

50Id. 

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may or may not have said. On cross-examination, the government was able to

refresh Agnellino’s recollection that there were also discussions between Fassett

and Ostrander as to a life insurance bill and an electric bill owed by LG. 

It is the Court’s respectful observation that Agnellino’s demeanor on crossexamination was far from neutral; he seemed, in fact, resistant to the questioning. 

Agnellino’s demeanor at the disqualification hearing belies his contention that the

meeting was of such minor importance that he barely remembered it. Furthermore,

the BCAA meeting may prove at trial to be critical to the prosecution and defense

of this case and what was admitted and denied by Fassett. 

It is my conclusion that if Agnellino’s representation of Fassett were to

continue, even if Joch undertook the cross-examination of Ms. Ostrander,

Agnellino’s personal knowledge of the meeting and Fassett’s allegedly

incriminating statements would certainly be imparted to the jury during other parts

of the trial. This may then create the difficulty of the unsworn witness at trial with

all of its attendant problems and impact on the Court’s impartial fact-finding

process. 

Finally, Joch argued that the attorney-client privilege would protect the

conversation. This argument is unpersuasive. “For a communication between a

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client and his attorney to be privileged it must be confidential.”51 As Ostrander

was present in the room with Agnellino and Fassett, no attorney-client privilege

attaches. 

III. Conclusion. 

“Although disqualification is a drastic measure, the district court is in the

best position to evaluate what is needed to ensure a fair trial.”52 I conclude that

considerations of judicial administration in this matter are sufficient to overcome

the presumption in favor of retained counsel of Fassett’s choice. The Court finds

that should Agnellino continue as counsel for Fassett, it is likely that the balance of

equities would fall too far astray from a fair trial. Accordingly, the

51United States v. Smith, 33 M.J. 527, 531 (A.F.C.M.R. 1991) aff'd, 35 M.J. 138 (C.M.A.

1992). 

52Locascio, 6 F.3d at 935.

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Government’s Motion to Disqualify Arthur D. Agnellino, Esquire will be granted. 

BY THE COURT:

s/Matthew W. Brann 

Matthew W. Brann

United States District Judge

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