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Friday, May 19, 2023


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Ninth Circuit:

Order Disqualifying All Prosecutors in District Unjustified

Bumatay Says Magistrate Judge Applied ‘Extreme Remedy’ Where Only One AUSA’s Conduct Was Questioned


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed an order disqualifying a district’s entire U.S. Attorney’s Office based on the alleged misconduct of a single lawyer in the office, holding that procedures utilized in conducting private-sector investigations do not apply to government law offices.

Ninth Circuit Judge Patrick J. Bumatay authored the opinion. He noted that while his circuit has not encountered the situation before, “every circuit court that has reviewed an officewide disqualification has reversed.”

A separation-of-powers problem emerges, Bumatay declared, where the judiciary takes so sweeping an action against an office of the Executive Branch.

“[W]e believe disqualification of an entire U.S. Attorney’s Office is an extreme remedy—only appropriate in the most extraordinary circumstances,” he wrote.

Allegation of Conflict

The one assistant U.S. attorney whose conduct was questioned was Adam David Rossi of the District of Arizona. He had met in July and August of 2021 with a member of the Western Hills Bloods and his attorney, D. Jesse Smith, to discuss cooperation by the client in the government’s efforts against the gang in exchange for leniency in connection with an offense with which the cooperator was charged.

Smith was also the attorney for one of 19 alleged gang members,(which did not include the cooperator). They are charged with numerous offenses including murder, attempted murder, and racketeering.

Rossi did not disclose Smith’s conflict to the defense and the court until March 2022.

Sixteen of the defendants joined in a motion filed under seal seeking judicial intervention. Magistrate Judge Eric J Markovich held a hearing, with no notice to the prosecution as to the subject matter.

Magistrate Judge’s Ruling

Issuing an oral order, Markovich said:

“And then, as I started looking at this issue, I kind of looked at it like an internal investigation when a corporation is accused of wrongdoing. When you have an internal investigation, you don’t have in-house counsel doing that. You may have in-house counsel helping, but you retain outside counsel, and they report back to the government, for instance, in that context, were there errors? What were they? And what are we doing about it? And I think that is the proper analysis to do in this case.

“So I am going to order the government to get counsel from another district or Main Justice [the District of Columbia] to represent the government in connection with the pending motion.”

He explained:

“I just think firewall counsel from another district or Main Justice is cleanest. First of all, I think it best protects the defendants’ rights. It eliminates an appellate issue, which I don’t think anybody wants, nobody wants a do-over in this case, I don’t think.”

Spurning a request from the Office of U.S. Attorney, District Court Judge James A Soto declined to countermand the magistrate judge.

Bumatay’s Opinion

Bumatay said in yesterday’s opinion:

“Rather than screening out the accused Assistant U.S. Attorney, the district court disqualified all 180 federal prosecutors from the Arizona U.S. Attorney’s Office from defending against the misconduct allegations. The district court then ordered the Department of Justice to supply an attorney from outside Arizona to litigate the defendants’ motions. The district court reached this sweeping sanction without making any findings of misconduct involving other members of the U.S. Attorney’s Office or the U.S. Attorney himself. Nor did the district court conclude that any member of the U.S. Attorney’s Office violated a law or ethical rule. Instead, the district court speculated about possible conflicts and ordered officewide disqualification based on a misguided analogy to the corporate world. But in-house counsels and federal prosecutors are not the same.”

He went on to comment:

“[T]hat analogy misses the mark. Disqualifying in-house counsel doesn’t put courts in the constitutionally precarious position of overriding the will of the Executive branch without a basis in law or fact. This distinction makes all the difference.”

Sets Forth Rule

The circuit judge set forth a two-part requirement for disqualifying an entire U.S. Attorney’s Office:

“First, a district court must find a strong factual predicate for blanket disqualification. Second, a district court must determine that the U.S. Attorney’s Office’s continued representation of the government will result in a legal or ethical violation. These requirements mean a court must not only make specific findings against the accused prosecutors, but it must also determine that any misconduct or conflict so pervades the office that less intrusive remedies would be inadequate to safeguard against a legal violation. Only after the district court makes these exact ins findings and legal conclusions will we uphold the disqualification of an entire office of a coequal branch.”

 Addressing the appealability of the order, Bumatay said:

“We…align ourselves with every other circuit to consider the question and hold that disqualification of an entire U.S. Attorney’s Office warrants immediate appellate review under the collateral order doctrine.”

 The case is United States v. Williams, 22-10174.


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