                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 13a0920n.06

                                            No. 12-4353

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                        FILED
United States of America,                           )                              Oct 25, 2013
                                                    )                         DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                          )
                                                    )
v.                                                  )      ON APPEAL FROM THE UNITED
                                                    )      STATES DISTRICT COURT FOR THE
Aristotle R. Matsa,                                 )      SOUTHERN DISTRICT OF OHIO
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )



Before:        MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

       MERRITT, Circuit Judge. A jury found Aristotle “Rick” Matsa guilty of various charges

for concealing his assets from taxing authorities and obstructing an investigation of the concealment.

Matsa now challenges his conviction on three grounds: 1) the district court’s decision to remove his

counsel of choice violated his Sixth Amendment rights; 2) the prosecution engaged in systematic

misconduct that deprived him of due process; and 3) the authorities obtained an invalid search

warrant by failing to inform the magistrate about their confidential informant. For the following

reasons, the judgment of the district court is affirmed.

                                          I. Background

       Matsa was a licensed real-estate broker and lawyer in Ohio. He routinely reported losses or

minimal income from his businesses, such that from 1985 to 2006 he paid a total of $107 in federal

income tax. His legal troubles began when Chrissoula Matsa, his wife at the time with whom he was
No. 12-4353
United States v. Matsa

undergoing divorce proceedings, tipped off law enforcement to his shady dealings. A subsequent

investigation by the federal grand jury revealed a number of dubious practices, including the use of

phony trusts to mask personal assets, the failure to report rental income, and the transfer of property

(though not actual control) to friends and relatives. During the investigation, Matsa failed to comply

fully with the government’s subpoena of his records. Based on this conduct, the grand jury indicted

Matsa for one count of corrupt interference with administration of the internal revenue laws, 26

U.S.C. § 7212(a); fifteen counts of assisting preparation of false tax returns, 26 U.S.C. § 7206(2);

one count of failing to report a foreign bank account, 31 U.S.C. §§ 5314, 5322(b); one count of

conspiracy to obstruct justice, 18 U.S.C. § 371; two counts of witness tampering, 18 U.S.C. §

1512(b); one count of making a false statement, 18 U.S.C. § 1001; and one count of obstruction of

justice, 18 U.S.C. § 1503(a). The grand jury also indicted Matsa’s mother for conspiracy to obstruct

justice and tried them together. A jury found Matsa guilty on all counts after a five-week trial, and

the court sentenced him to a term of 85 months’ imprisonment. This appeal followed.

                                      II. Removal of Counsel

         The removal of Matsa’s counsel, Thomas Tyack, concerns the obstruction counts. As part

of the grand jury investigation, the government subpoenaed Matsa for records connected to his

various law offices, businesses, and trusts. Matsa responded through Tyack, who wrote a letter to

the prosecutor stating that Matsa did not control most of the requested documents. However, a later

search of Matsa’s home and office pursuant to a warrant revealed documents covered by the

subpoena. The obstruction charges were based in part on Matsa’s response to the subpoena through

Tyack.

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       The government moved for Tyack’s removal as counsel, arguing that his role in sending the

letter would make him a necessary witness at trial. The district court conducted two hearings on the

question and ordered two rounds of briefing. During the course of these proceedings, a compromise

was suggested whereby Matsa would stipulate to the contents of the letter without naming Tyack

and would also stipulate to waive any sort of defense claiming reliance on Tyack’s advice. By the

first stipulation, it was intended that the jury would not learn of Tyack’s role in sending the letter

and thereby draw conclusions about his trial performance. The second stipulation was intended to

remove the possibility that the government would call Tyack to rebut Matsa’s claim that he

responded to the subpoena solely based on Tyack’s advice. However, Matsa refused to accept the

stipulations on the ground that they were too broad, and no further compromise was reached that

might have narrowed the wording.

       The district court granted the government’s motion and removed Tyack as counsel (though

neither the court nor the prosecutor accused Tyack of wrongdoing). It held that Matsa was likely

to raise an advice-of-counsel defense and that Tyack was therefore likely to be called as a witness

at trial. The court found that disqualification would not cause Matsa substantial hardship because

Tyack could help substitute counsel and because trial had been continued. Citing Second Circuit

precedent, the court alternatively held that Tyack would be acting as an “unsworn witness” because

he might present his first-hand knowledge of the facts without allowing the government an

opportunity for cross-examination.

       The Sixth Amendment’s right to counsel of choice is not absolute. There is a presumption

that non-indigent criminal defendants will have counsel of choice, but that presumption may be

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United States v. Matsa

overcome by a showing of “serious potential” that counsel’s continued representation will create

a conflict of interest. United States v. Wheat, 486 U.S. 153, 164 (1988). A district court has broad

discretion to remove counsel for a potential conflict, even if the defendant wishes to waive the

conflict. The Sixth Circuit applies a deferential standard of review to a district court’s judgment that

removal is required. Such a judgment will be reversed only if “arbitrary” or “without adequate

reasons.” United States v. Swafford, 512 F.3d 833, 839 (6th Cir. 2008) (quoting United States v.

Mays, 69 F.3d 116, 121 (6th Cir. 1995)).

       Considering the facts of this case, the district court’s decision to remove Tyack was not

arbitrary. Tyack was closely involved in the alleged obstruction through his response to the

government’s subpoena. Had the issue been limited to the question of whether the contents of the

letter were true—that is, whether Matsa was in fact the custodian of the records requested in the

subpoena—then the government might have established its case without having to call Tyack to the

stand. But Matsa’s express refusal to waive an advice-of-counsel defense raised a realistic

possibility that Matsa would attempt to shift blame to Tyack rather than defend the truth of the

statements in the letter. Because Matsa and Tyack were the only two people privy to the

circumstances surrounding the response to the subpoena, the government was likely to require

Tyack’s testimony. As the district court correctly recognized, a “lawyer shall not act as advocate

at a trial in which the lawyer is likely to be a necessary witness unless . . . disqualification of the

lawyer would work substantial hardship on the client.” ABA Model Rules of Prof’l Conduct

3.7(a)(3). It was not arbitrary for the district court to conclude that substitution of counsel would

not work significant hardship, even though Tyack had represented Matsa for a number of years and

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United States v. Matsa

was very familiar with his affairs. Tyack would be available to Matsa’s new counsel, and plenty of

time remained before trial.

        Matsa’s arguments to the contrary are not persuasive. He cites a number of district court

opinions to argue that the court in this case might have adopted alternatives to disqualification.

However, it was within the district court’s discretion to choose disqualification given the facts.

Matsa also claims that the government pursued removal in bad faith and that the district court failed

to consider that possibility. This argument reflects the requirement that a court consider whether

the government has sought “to ‘manufacture’ a conflict in order to prevent a defendant from having

particularly able defense counsel at his side.” Wheat, 486 U.S. at 163. Though the court did not

find, in so many words, that the government pursued removal in good faith, this omission is not fatal

to its ruling. The record gives no reason to believe that the government “manufactured” the conflict

that led to Tyack’s removal or that, as Matsa puts it in his brief, the motion to remove was “purely

tactical.”

        Indeed, Matsa makes no colorable allegation that the government appended the obstruction

charges to the indictment simply to get Tyack off the case. His primary complaint, rather, is that the

government’s proposed stipulations were too broad to have been pursued in good faith—in

particular, that they would have forced Matsa to waive the advice-of-counsel defense as to all counts

in the indictment. But if an advice-of-counsel defense would have required Tyack’s testimony, there

would have been a conflict regardless of whether the defense was raised against the obstruction

charges or against some other count.




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         In sum, our review of the record and of the facts of this case shows that the district court did

not abuse its discretion by removing Tyack as counsel.1

                                         III. Prosecutorial Misconduct

         Matsa claims a potpourri of prosecutorial bad acts that he believes require reversal of his

conviction. The disputed conduct occurred both prior to and during trial. Additionally, Matsa

claims the cumulative effect of the prosecution’s conduct warrants reversal.

                                                A. Pretrial Conduct

         Matsa identifies four categories of pretrial prosecutorial misbehavior: 1) intimidation of

witnesses before the grand jury; 2) obstruction of Matsa’s pre-deposition access to a witness who

was the named beneficiary of one of Matsa’s trusts; 3) threats toward defense counsel; and 4)

violation of attorney-client privilege.2 Matsa raised these arguments in various motions to dismiss

the indictment, which the district court denied. A federal court’s authority to dismiss an indictment

stems from its supervisory powers. See United States v. Williams, 504 U.S. 36, 46 (1992). Refusal

to dismiss an indictment is reviewed for abuse of discretion. United States v. Lee, 359 F.3d 412, 417

(6th Cir. 2004).3

         1
            Because we hold that the particular facts of the case justified the district court’s conclusion that Tyack was
likely to testify, we decline to address the district court’s broader, alternative rationale that Tyack was an “unsworn
witness.” Cf. United States v. Locascio, 6 F.3d 924, 933–34 (2d Cir. 1993).
         2
            Matsa also argued before the district court that the prosecutor acted improperly by threatening to indict his
mother if he did not plead guilty—a threat that came to fruition. Though Matsa mentions this incident in the facts section
of his brief, he does not develop any sort of argument about why it requires reversal of his conviction. We therefore do
not consider whether the prosecutor acted improperly by threatening to indict Matsa’s mother. See Treesh v. Bagley,
612 F.3d 424, 434 (6th Cir. 2010).
         3
          Matsa argues that the district court should have assessed pretrial misconduct by using the test articulated in
United States v. Deitz, 577 F.3d 672 (6th Cir. 2009). However, Deitz applies to claims of misconduct at trial. When
alleged misconduct occurs prior to trial, the question of whether to dismiss the indictment is left to the district court’s

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         1. Witness intimidation. Matsa claims the prosecutor acted improperly by accusing several

witnesses of lying in their testimony to the grand jury. For example, in questioning one witness

before the grand jury, the prosecutor said, “Now you lied to us within ten minutes today.” Matsa

also alleges that, during the grand jury proceedings, the prosecutor told another witness in the

hallway that he planned to “throw swords” and that the witness might not wish to fall on a sword

for Matsa.

         Though Matsa claims these actions deprived him of due process by forcing witnesses to

conform their testimony to the prosecutor’s will, the facts alleged do not state a due process

violation. An individual has no constitutional right to present witnesses at a grand jury proceeding,

see Williams, 504 U.S. at 51–52, and Matsa did not renew his objection at trial. Rather, Matsa’s

claim must be analyzed under the standard established in Bank of Nova Scotia v. United States, 487

U.S. 250 (1988). Under this standard, an indictment should be dismissed for prosecutorial

misconduct before the grand jury only “‘if it is established that the violation substantially influenced

the grand jury’s decision to indict,’ or if there is ‘grave doubt’ that the decision to indict was free

from the substantial influence of such violations.” Id. at 256 (quoting United States v. Mechanik,

475 U.S. 66, 78 (1986)).

         Assuming that the prosecutor’s comments were indeed improper, the district court did not

abuse its discretion by finding a lack of prejudice. As the parties agree, the comments at issue were

made before a predecessor grand jury—not the grand jury that ultimately returned the indictment.




discretion.

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United States v. Matsa

Therefore, any violation did not “substantially influence[] the grand jury to indict.” Bank of Nova

Scotia, 487 U.S. at 256.4

         2. Obstruction of access to a witness. Matsa alleges that the government denied him a fair

trial by blocking access to a witness prior to the witness’s deposition. However, Matsa does not

adequately explain the circumstances of the alleged obstruction, and the government disputes it

altogether. Even if the government in fact blocked access to the witness, Matsa still was able to

question the witness at the deposition itself. Matsa does not explain how a defendant is denied a fair

trial when he actually had an opportunity to question a witness. The district court did not abuse its

discretion by refusing to dismiss the indictment on this ground.

         3. Threats toward defense counsel. Matsa complains of several aggressive statements the

prosecutor made to his attorneys prior to trial. For example, the prosecutor threatened to report

Tyack to the Ohio Bar Association and told another attorney that “your client better watch out and

you better watch out too.” The attorneys testified at a motion hearing that these statements were

“chilling” and caused them to proceed with “great caution” in discovery. The district court found

that the comments were improper but did not prejudice Matsa such as to require dismissal of the

indictment. This was not an abuse of discretion. Matsa points to case law condemning personal




         4
           Though it has no bearing on whether the district court’s pretrial ruling was correct, several of the witnesses
in question testified for the government at Matsa’s trial and admitted they lied to the grand jury. Matsa suggests that
the witnesses’ change of heart might have stemmed from coercion in the grand jury proceedings. However, Matsa did
not claim below that the government deprived him of trial witnesses, and the issue on appeal is limited to whether the
district court erred by refusing to dismiss the indictment in its pretrial ruling. Matsa did submit a motion for new trial
in which he incorporated his pretrial misconduct motion and claimed cumulative prejudicial effect. This argument is
addressed in Part III.C below.

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United States v. Matsa

attacks on defense counsel during trial, but the statements in question did not occur before the jury

at trial. Matsa received—and continues to receive—vigorous representation.

       4. Attorney-client privilege. A search of Matsa’s home and office yielded some 300,000

documents and recordings, many of which involved Matsa in his capacity as an attorney. Matsa

moved to suppress privileged material discovered in the search and to dismiss the indictment

because privileged material was used to obtain it. The district court held that, even if it was

otherwise privileged, the material in question fell within the crime-fraud exception to the privilege

because it contained conversations in which Matsa attempted to obstruct the investigation and

tamper with witnesses. See United States v. Zolin, 491 U.S. 554, 562–63 (1989) (discussing crime-

fraud exception). The court therefore refused to dismiss the indictment. On appeal, Matsa simply

repeats his claim that the government used privileged material and specifies no legal or factual error

in the district court’s holding. Accordingly, refusal to dismiss the indictment or bar use of the

records in question was not an abuse of discretion.

                                        B. Conduct at Trial

       Matsa claims two categories of misconduct at trial: 1) that the prosecutor improperly

expressed his personal beliefs through comments and facial expressions and 2) that the prosecutor’s

questioning of witness Ross Gillespie improperly solicited Gillespie’s commentary on Matsa’s

truthfulness. We review this claim de novo. United States v. Deitz, 577 F.3d 672, 694 (6th Cir.

2009). In determining whether reversal for prosecutorial misconduct is warranted, the key question

is whether the prosecutor acted both improperly and flagrantly so, which in turn requires assessing

the misleading nature, extent, and deliberateness of the conduct alongside the overall strength of the

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government’s case. Id. Flagrant misconduct requires reversal, but non-flagrant violations do not

unless the government’s case was weak and the court failed to cure the violation. Id.

        1. Commentary and facial expressions. Matsa points to two specific episodes of improper

commentary. In the first, the prosecutor grunted, snickered, and shook his head while questioning

a witness. In a sidebar conference, the trial judge admonished the prosecutor to be careful. Matsa

does not claim that this sort of conduct pervaded the proceedings, and isolated incidents during a

five-week trial do not require reversal. United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996).

        The second episode regards the prosecutor’s cross-examination of Matsa.                 During

questioning, the prosecutor suggested on multiple occasions that Matsa was “blaming” others for

his conduct. Viewed as a whole, the prosecutor’s questioning, while charged, was not flagrantly

improper. The suggestion that Matsa was blaming others was not geared to mislead but rather to

attack Matsa’s direct testimony, a proper function of cross-examination. Matsa had an opportunity

to respond—and did respond—to the notion that he was shifting responsibility. Moreover, the judge

provided a cure by striking one comment from the record. Argumentative questioning of this nature

is not the sort of commentary that has required reversal in the past. Cf. United States v. Carter, 236

F.3d 777 (6th Cir. 2001) (requiring new trial where prosecutor’s closing argument mischaracterized

evidence and accused defense counsel of lying). The prosecutor’s style of cross-examination may

not have been ideal, but it did not render the trial so unfair as to create reversible error.

        2. Questioning of Ross Gillespie. Gillespie was a former Matsa employee who testified

for the government. During direct examination, the prosecutor played portions of tapes in which

Matsa discussed his firm’s handling of a particular trust and Gillespie’s role as an employee at the

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United States v. Matsa

firm. The prosecutor then elicited Gillespie’s testimony that statements in the recordings were not

truthful. Matsa argues that this questioning was improper because “credibility determinations are

meant for the jury, not witnesses.” United States v. Dickens, 438 F. App’x 364, 370 (6th Cir. 2011).

There is indeed a body of case law establishing that one witness should not be asked directly

whether another witness is lying—particularly where a prosecutor seeks to pit a testifying defendant

against a law enforcement officer’s inculpatory testimony. See id. at 369–70. However, the

questioning at issue here did not approach the line drawn by that case law. The prosecutor did not

ask Gillespie to comment on the veracity of Matsa’s trial testimony. Rather, he questioned Gillespie

about practices of Matsa’s firm based on Gillespie’s personal knowledge. If Gillespie’s testimony

punctured Matsa’s credibility, that is because the charges put Matsa’s honesty at issue. There was

nothing improper about this line of questioning.

                                       C. Cumulative Effect

       Matsa claims the cumulative effect of the behavior discussed above requires reversal. He

raised this claim in a motion for a new trial, which the district court rejected. When a defendant

raises a claim of cumulative prosecutorial misconduct, a new trial will not be granted unless the

defendant can show “that the combined effect of individually harmless errors was so prejudicial as

to render his trial fundamentally unfair.” United States v. Trujillo, 376 F.3d 593, 614 (6th Cir.

2004). Matsa cannot satisfy this standard. Matsa has identified some possible isolated improprieties

in the prosecutor’s conduct at trial, but this conduct was not so pervasive as to require a new trial.

Moreover, Matsa’s argument that the prosecutor’s pretrial conduct rendered the entire five-week

trial unfair is unconvincing. The district court did not err by refusing to grant a new trial.

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                                   IV. Suppression of Evidence

       Acting pursuant to a search warrant, law enforcement agents removed about sixty boxes of

documents from Matsa’s home and office. Matsa moved to suppress this evidence for lack of

probable cause to support the warrant and moved also for a hearing under Franks v. Delaware, 438

U.S. 154 (1978). The request for a Franks hearing was based on the claim that the warrant

application contained false and misleading information from a confidential source whose identity

was not revealed to the magistrate. This source turned out to be Matsa’s wife at the time. The

district court took some testimony but ultimately declined to hold a complete Franks hearing and

rejected the motion to suppress.

       Though Matsa cites Franks in his brief, he does not claim the district court erred by refusing

to hold a Franks hearing. Rather, he argues that “this Court should find that the totality of the

circumstances do not support a finding of probable cause” because the agent who submitted the

warrant application knew Matsa’s wife was unreliable yet failed to corroborate her information.

Therefore, the only question before us is whether the warrant application established probable cause.

Cf. United States v. Thomas, 605 F.3d 300, 307 (6th Cir. 2010).

       When this court reviews a denial of a motion to suppress, it reviews the district court’s

conclusions of law de novo and its findings of fact for clear error. United States v. Brown, 715 F.3d

985, 989 (6th Cir. 2013). However, a magistrate’s probable cause determination will only be

reversed if the magistrate’s decision to issue the warrant was arbitrary. Id. There is probable cause

to issue a warrant when there is a fair probability, given the totality of the circumstances, that

evidence of a crime will be found in the place to be searched. Id.

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        When a warrant affiant depends on a confidential informant who is not known to be reliable,

the affiant should corroborate the informant’s story. See Thomas, 605 F.3d at 307. Matsa argues

that the affiant here failed in this duty, but the district court made a factual finding to the contrary.

There is no apparent error in this finding. Though Matsa mines discrepancies between the

informant’s story and the affiant’s corroboration, this smacks of the sort of “hypertechnical” analysis

of probable cause that this court has clearly rejected. See, e.g., United States v. Woosley, 361 F.3d

924, 926 (6th Cir. 2004).

        More importantly, review of the warrant application as a whole reveals that there was ample

cause to issue the warrant. The informant’s information amounted to two pages of a thirty-six page

application, which also relied on the affiant’s personal surveillance, documentary evidence, and

interviews with other named Matsa associates, including one who admitted lying to the grand jury

at Matsa’s behest. The magistrate’s decision to issue the warrant was not arbitrary and the district

court did not err by refusing to suppress the evidence.

                                            V. Conclusion

        The district court did not improperly remove Matsa’s attorney, because that attorney was

likely to become a witness at trial. Moreover, the prosecutor’s conduct does not warrant reversal

and Matsa’s suppression argument is meritless. Accordingly, the judgment of the district court is

affirmed.




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