F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 24 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 02-6249
GARY LIONELL BOLDEN,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. CR-99-59-A)
Arlene Joplin, Assistant United States Attorney (Robert G. McCampbell, United
States Attorney, and Sue Tuck Richmond, Assistant United States Attorney, with
her on the briefs), Office of the United States Attorney, Oklahoma City,
Oklahoma, appearing for Appellant.
Paul Antonio Lacy, Assistant Federal Public Defender, Office of the Public
Defender, Oklahoma City, Oklahoma, appearing for Appellee.
Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.
TACHA, Chief Circuit Judge.
On July 10, 2002, the United States District Court for the Western District
of Oklahoma disqualified the entire office of the United States Attorney for the
Western District of Oklahoma (“USA”) from representing the government on
Defendant Gary Lionel Bolden’s motion to compel. The USA’s office
immediately appealed the disqualification. Pursuant to the collateral order
doctrine under 28 U.S.C. § 1291, we take jurisdiction and REVERSE.
I. Background
On May 5, 1999, a grand jury indicted Mr. Bolden on seven drug-related
counts. On July 19, 1999, he entered into a plea agreement in which he pleaded
guilty to one count in exchange for the government dismissing the remaining
charges. The agreement stated that the government, “in its sole discretion and by
whatever means it deems appropriate, [would] evaluate Bolden’s cooperation in
determining whether a motion for downward departure under § 5K1.1 of the
Sentencing Guidelines or a reduction of sentence under Rule 35(b), Federal Rules
of Criminal Procedure is appropriate.” It further stated that “the decision to make
such a motion is likewise solely within the discretion of the United States, and
that a negative decision will not allow a guilty plea to be withdrawn.” The
district court sentenced Mr. Bolden on November 9, 2000.
In December 2001, Mr. Bolden sent a letter to the USA’s office, requesting
that the government seek a reduction of his sentence. Assistant United States
Attorney Jay Farber notified Mr. Bolden’s counsel that the downward departure
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committee had elected not to seek a reduction of Mr. Bolden’s sentence. An
exchange of letters between Mr. Bolden’s counsel and the USA’s office followed.
On June 14, 2002, Mr. Bolden moved to compel the government to file a
motion for reduction of sentence, alleging multiple instances of bad faith on the
part of the government. The government filed a motion for extension of time to
respond. The district court denied the request and entered an order sua sponte
directing the government to respond to the question, “In view of Mr. Bolden’s
allegation, should the government’s representation with regard to defendant’s
motion be provided by a United States Attorney from another judicial district?”
Mr. Bolden then filed a motion to recuse the USA’s office.
On July 10, 2002, the district court entered an order disqualifying the entire
USA’s office, directing it to arrange for an Assistant United States Attorney
(“AUSA”) from another district to respond to the original motion to compel, and
ordering that the response could not simply reiterate AUSA Farber’s earlier
response. This appeal followed.
II. Discussion
A. Jurisdiction
“Section 1291 of Title 28 of the United States Code grants the courts of
appeals . . . jurisdiction of appeals from all final decisions of the district courts.”
Forney v. Apfel , 524 U.S. 266, 269 (1998) (quoting 28 U.S.C. § 1291) (internal
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citations omitted). A decision is “not final, ordinarily, unless it ends the litigation
on the merits and leaves nothing for the court to do but execute judgment.” See
Cunningham v. Hamilton County, Ohio , 527 U.S. 198, 204 (1999) (internal
quotations omitted). Thus, “[t]he law normally requires a defendant to wait until
the end of the trial to obtain appellate review of a pretrial order.” Sell v. United
States , ___ U.S. ___, 123 S. Ct. 2174, 2182 (2003).
The Supreme Court has, however, “interpreted the term ‘final decision’ in
§ 1291 to permit jurisdiction over appeals from a small category of orders that do
not terminate” a case. Cunningham , 527 U.S. at 204. For a district court order to
fall within the narrow confines of the collateral order doctrine, it must “(1)
conclusively determine[] the disputed question, (2) resolve[] an important issue
completely separate from the merits of the action, and (3) [be] effectively
unreviewable on appeal from a final judgment.” Sell , 123 S. Ct. at 2182.
The Supreme Court “ha[s] strictly applied this test when parties pursued
immediate appeal of trial court rulings on motions to disqualify counsel.”
Richardson-Merrell, Inc. v. Koller , 472 U.S. 424, 431 (1985). The Court has held
that neither a plaintiff nor a defendant in a civil case may immediately appeal a
disqualification order. Koller , 472 U.S. at 431 (plaintiff); Firestone Tire &
Rubber Co. v. Risjord , 449 U.S. 368, 370 (1981) (defendant). Similarly, the
Court has held that a criminal defendant may not immediately appeal a pretrial
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order disqualifying his counsel. Flanagan v. United States , 465 U.S. 259, 260
(1984). The Court has yet to consider the immediate appealability of an order
disqualifying an individual prosecutor or an entire United States Attorney’s
office.
In conducting our analysis, we are mindful that “[i]n fashioning a rule of
appealability under § 1291 . . . we [must] look to categories of cases, not to
particular injustices.” Van Cauwenberghe v. Baird, 486 U.S. 517, 529 (1988); see
also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)
(“[T]he issue of appealability under § 1291 is to be determined for the entire
category to which a claim belongs, without regard to the chance that the litigation
at hand might be speeded, or a ‘particular injustic[e]’ averted by a prompt
appellate court decision.”) (citation omitted); United States v. McVeigh, 106 F.3d
325, 332 n.6 (10th Cir. 1997) (noting that courts must decide the appealability of
orders as a class, not based on the distinctive circumstances of each case). Thus,
we address whether the government may immediately appeal an order
disqualifying an entire United States Attorney’s office from post-conviction
proceedings. 1 This issue is a matter of first impression for our court.
1
We acknowledge that disqualifying an entire United States Attorney’s
office differs materially from disqualifying an individual prosecutor for purposes
of the collateral order doctrine. Accordingly, this opinion does not address
whether the government may immediately appeal an order disqualifying one or
(continued...)
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1. Conclusively Determines The Disputed Issue
We must first determine whether the disqualification order conclusively
determines the disputed issue. United States v. Deters, 143 F.3d 577, 581 (10th
Cir. 1998). We look to the challenged order itself and the entire record to
determine if the district court’s order conclusively settles the disputed issue. Id.
(looking to the record to determine whether the order conclusively settled a
matter); see also Pindus v. Fleming Co., Inc., 146 F.3d 1224, 1226 (10th Cir.
1998) (looking to the plain language of an order to determine its finality).
A review of the record in this case makes clear that the district court does
not intend to revisit its disqualification decision and that its order prohibits the
USA’s office from representing the government in all matters related to Mr.
Bolden’s motion. We thus find that the disqualification order conclusively
determines that the USA’s office may not represent the government in Mr.
Bolden’s effort to force the government to file a request for a reduction of
sentence.
We find Mr. Bolden’s objections on this point unpersuasive. Mr. Bolden
argues that the order is not conclusive because it does not prohibit the USA’s
office from participating in “the future,” although he does not identify what future
(...continued)
1
more prosecuting attorneys.
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events he envisions. The disqualification order states that it disqualifies the
USA’s office from representing the government on the motion to compel. We
read this to include all matters relating to the motion to compel. We therefore
reject Mr. Bolden’s argument that the order is not conclusive because the USA’s
office may participate in some undefined future event unconnected to the current
dispute.
2. An Important Issue Separate From The Merits Of The
Underlying Action
We next consider whether the order (1) resolves an important issue (2) that
is completely separate from the merits. Deters, 143 F.3d at 581. Disqualifying
the entire USA’s office from representing the government raises important
separation of powers issues. United States v. Silva-Rosa, 275 F.3d 18, 22 (1st
Cir. 2001) (finding that disqualification of government attorneys can “trigger
weighty separation of powers concerns”). These concerns are undoubtedly
jurisprudentially important. United States v. Whittaker , 268 F.3d 185, 192 (3d
Cir. 2001) (finding that an order disqualifying a United States Attorney’s office
from a criminal prosecution is “a jurisprudentially important issue”). Mr. Bolden
admits as much in his brief.
In judging separability, we consider whether such disqualification orders
are so “enmeshed in the factual and legal issues comprising” the underlying
action, see Coopers & Lybrand v. Livesay , 437 U.S. 463, 469 (1978) (internal
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quotation marks omitted), that interlocutory review will force an appellate court
to consider the same or similar issues more than once, Johnson v. Jones , 515 U.S.
304, 311 (1995). We conclude that, on the whole, orders disqualifying an entire
United States Attorney’s office are separate from the underlying issues.
In reaching this conclusion, we are strongly influenced by the fact that we
can only rarely––if ever––imagine a scenario in which a district court could
properly disqualify an entire United States Attorney’s office. Indeed, “[t]he
disqualification of Government counsel is a drastic measure[,]” Bullock v. Carver ,
910 F. Supp. 551, 559 (D. Utah 1995) (citing cases), and even “where it is shown
that an Assistant United States Attorney is subject to a conflict of interest, the
proper remedy [generally] is to remove that individual, not all of the attorneys in
the district, from the case[,]” Crocker v. Durkin , 159 F. Supp. 2d 1258, 1284-85
(D. Kan. 2001). Thus, because disqualifying an entire United States Attorney’s
office is almost always reversible error regardless of the underlying merits of the
case, a reviewing court will rarely have to delve into the underlying claim to
conclude that the disqualification was unwarranted.
The Supreme Court’s rulings in Flanagan and Koller, which held
respectively that a civil plaintiff and a criminal defendant may not challenge
disqualification orders on interlocutory appeal, are inapposite. Here, the district
court disqualified the prosecutor—indeed the entire USA’s office. Such an order
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implicates separation of powers concerns that were not at issue in Flanagan and
Koller . See Whittaker , 268 F.3d at 196 n.6 (noting separation of powers concerns
in disqualifying an entire United States Attorney’s office, but reversing the
disqualification on other grounds).
Further, the unique nature of the separation of powers concerns that are
relevant to this appeal renders the prejudice-related separability concerns of
Flanagan and Koller inapplicable. The Flanagan and Koller Courts held that the
parties could not immediately appeal their disqualification orders, in part, because
a court could not determine the propriety of the order without considering
whether the parties suffered prejudice, which requires consideration of the
underlying merits of the case. See Flanagan, 465 U.S. at 268-69 (finding that the
disqualification appeal and the underlying dispute were intertwined); Koller, 472
U.S. at 439 (finding that an order disqualifying individual attorneys in a civil case
was not directly appealable, in part, because such a review would likely require an
examination of the merits of the underlying litigation). In contrast, the current
appeal—and most appeals from the disqualification of an entire United States
Attorney’s office—will raise separation of powers injuries that will allow a court
to evaluate the order without reaching the issue of prejudice.
Despite these considerations, Mr. Bolden urges us to find that, in this case,
“the issue of the government’s representation is inextricably intertwined and
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entangled in the merits of Mr. Bolden’s claims.” This argument, however,
overlooks that the Court has “consistently eschewed a case-by-case approach to
deciding whether an order is sufficiently collateral.” Cunningham, 527 U.S. at
206. Every appeal that has considered the disqualification of an entire United
States Attorney’s office has found the disqualification issue to be entirely
separate from the merits of the underlying case. See Whittaker, 268 F.3d at 192
(“the [disqualification] order unquestionably resolves a jurisprudentially
important issue completely separate from the merits of the dispute concerning
whether Whittaker committed mail fraud”); United States v. Vlahos, 33 F.3d 758,
761 (7th Cir. 1994) (holding that the disqualification order is “an issue completely
independent of the merits of the action”); United States v. Caggiano, 660 F.2d
184 (6th Cir. 1981) (finding that the disqualification order “was separable from,
and collateral to the merits of the main proceeding”) (internal quotations omitted).
Thus, even if the issues in the underlying dispute in this case were to overlap with
the disqualification order, an issue we do not reach today, we find that on the
whole such orders would satisfy the separability requirement.
3. Effectively Unreviewable On Appeal From A Final Order
Finally, we must consider whether such disqualification orders are
“effectively unreviewable on appeal from final judgment.” Coopers & Lybrand,
437 U.S. at 468. An order is effectively unreviewable on appeal “where the order
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at issue involves ‘an asserted right the legal and practical value of which would
be destroyed if it were not vindicated before trial.’” Midland Asphalt Corp. v.
United States, 489 U.S. 794, 799 (1989) (quoting United States v. MacDonald,
435 U.S. 850, 860 (1978)).
Applying this standard in most criminal litigation leads to the conclusion
that the government cannot effectively vindicate its rights on appeal after a final
judgment. If it loses at trial, the Double Jeopardy Clause will likely prohibit
review. See, e.g., Montoya v. New Mexico, 55 F.3d 1496, 1498 (10th Cir. 1995).
If the government prevails at trial, it will generally lack standing as a prevailing
party to appeal the decision. See, e.g., Jarvis v. Noble/Sysco Food Serv. Co., 985
F.2d 1419, 1424 (10th Cir. 1993) (stating that “it is the general rule that a party
cannot appeal from a judgment in his favor”). The government asks us to find
that the same holds true in this case.
The government’s argument, however, overlooks the fact that the current
dispute does not implicate the Double Jeopardy Clause. That clause “provides
three separate protections for criminal defendants: against prosecution for the
same offense after an acquittal, against prosecution for the same offense after a
conviction, and against multiple punishments for the same offense.” Montoya, 55
F.3d at 1498. Because the current action is not a true criminal proceeding, but
merely a dispute over whether the government has honored its obligations under
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the plea agreement, this matter does not implicate any of the protections provided
by the Double Jeopardy Clause. Therefore, the government’s argument on this
matter is unpersuasive.
Nevertheless, we find that an appeal following an adverse ruling on the
merits would not effectively vindicate the alleged harm. On this point, the
government argues that the true harm from disqualification is grounded in
separation of powers. It points out that Congress has mandated that the United
States Attorney for each district represent the government in all cases occurring
within that district. See 28 U.S.C. § 547. Further, although not noted by the
government, the Constitution grants the Executive the power to “take care that the
laws are faithfully executed.” U.S. Const. art. II, § 3. Although caselaw is
admittedly vague on the exact scope of this power, it is clear that this
constitutional provision vests the Executive with substantial discretion in
choosing when and how to prosecute cases. See, e.g., United States v. Andersen,
940 F.2d 593, 596 (10th Cir. 1991) (holding that the Constitution vests
prosecutors with significant discretion in choosing when and how to prosecute);
United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc) (“It follows, as
an incident of the constitutional separation of powers, that the courts are not to
interfere with the free exercise of the discretionary powers of the attorneys of the
United States in their control over criminal prosecutions.”); Matter of Grand Jury
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Subpoena of Rochon, 873 F.2d 170, 174 (7th Cir. 1989) (“As a threshold matter, a
court may not exercise any supervisory power [over the Executive] absent a clear
basis in fact and law for doing so . . . . A federal court that imposes sanctions on
executive conduct that is otherwise permitted by the Constitution, a federal statute
or a rule will most likely be invading the executive sphere . . . .”) (internal
quotations omitted).
Because the alleged injury is grounded in separation of powers, we find that
appellate vindication would not effectively remedy the alleged harm. In doing so,
we have fully considered the teachings of Flanagan , but find them inapposite. In
Flanagan , the Supreme Court rejected interlocutory appellate review, in part,
because it found that the defendant could obtain effective post-trial relief from
the improper disqualification of his counsel because post-trial reinstatement of his
counsel would remedy any injury he suffered. Flanagan , 465 U.S. at 267-68.
In this case, however, no post-trial relief exists that could remedy the
alleged separation of powers injury that would be incurred through wrongful
disqualification of the entire USA’s office. The separation of powers doctrine,
which acts as a “safeguard against the encroachment or aggrandizement of one
branch at the expense of the other,” Buckley v. Valeo , 424 U.S. 1, 122 (1976),
confers on each branch “the ability . . . to be vigorous in asserting its proper
authority[,]” Clinton v. City of New York , 524 U.S. 417, 452 (1998) (Kennedy, J.
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concurring). The interests protected by the doctrine simply will not abate during
the possibly lengthy resolution of this matter, and appellate vindication cannot
undo such an invasion of Executive authority. Therefore, mindful of the fact that
“[l]iberty is always at stake when one or more branches seek to transgress the
separation of powers[,]” id. , we conclude the USA’s office may immediately
appeal the disqualification order. 2
B. Merits
Having established jurisdiction to hear this appeal, we now consider
whether the district court erred by disqualifying the entire USA’s office. Like the
jurisdictional issue, this is a matter of first impression for our court.
We review attorney disqualification orders under a bifurcated standard of
review. First, we review the district court’s factual conclusions under a clear
error standard. United States v. Collins, 920 F.2d 619, 628 (10th Cir. 1990).
Second, we review the district court’s legal interpretation of particular ethical
norms under a de novo standard when that interpretation implicates important
constitutional rights. Id. (applying de novo review when disqualification
2
Because we find that we have jurisdiction to hear this appeal under the
collateral order doctrine, we do not reach the government’s mandamus argument,.
See In re Kozensky , 236 F.3d 615, 618 (10th Cir. 2000) (If a “court has before it
both an appeal and a petition for mandamus, as in this case, and the order is
properly reviewable by way of appeal, the court must review the [order] through
appeal rather than mandamus.”).
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implicates the Sixth Amendment right to counsel). De novo review is especially
appropriate “in disqualification cases . . . where the facts are not in dispute,
[because] district courts enjoy no particular functional advantage over appellate
courts in their formulation and application of ethical norms.” Id. (internal
citations omitted). Thus, because the current disqualification order implicates
important constitutional principles and the district court did not base its order on
highly disputed facts, we review the order under the de novo standard of review.
See id.
“The disqualification of Government counsel is a drastic measure and a
court should hesitate to impose it except where necessary.” Bullock, 910 F. Supp.
at 559. Courts have allowed disqualification of government counsel in limited
circumstances. See, e.g., Young v. United States, 481 U.S. 787, 807 (1987)
(actual conflict of interest because appointed prosecutor also represented another
party); United States v. Heldt, 668 F.2d 1238, 1275 (D.C. Cir. 1981) (bona fide
allegations of bad faith performance of official duties by government counsel in a
civil case); United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985)
(prosecutor who will act as a witness at trial). Further, because disqualifying
government attorneys implicates separation of powers issues, the generally
accepted remedy is to disqualify “a specific Assistant United States Attorney . . . ,
not all the attorneys in” the office. Crocker, 159 F. Supp. 2d at 1284. In light of
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these principles, every circuit court that has considered the disqualification of an
entire United States Attorney’s office has reversed the disqualification. See
Whittaker, 268 F.3d 185 (3d Cir. 2001); Vlahos, 33 F.3d 758 (7th Cir. 1994);
Caggiano, 660 F.2d 184 (6th Cir. 1981).
Noting these important principles, we reverse the disqualification order for
several reasons. First, the district court wrote an extremely short disqualification
order, containing a paucity of facts to indicate either misconduct in the
representation or any alleged conflicts of interest on the part of the entire USA’s
office. Cf. Collins, 920 F.2d at 628 (requiring the district court to make
substantial findings on the record to justify disqualification of defense counsel).
Indeed, the order itself discounts several probable bases for disqualifying even
individual attorneys in the office. It reads, “[R]egardless of whether [AUSA]
Farber may become a witness or may have an actual conflict of interest, the Court
finds that the government’s response to Mr. Bolden’s motion to compel should be
prepared by counsel from another United States Attorney’s office” to preserve
objectivity. Thus, rather than extensively analyzing any alleged misconduct in the
representation or conflicts of interest on the part of the entire USA’s office, the
district court merely concluded that the USA’s office was “too close to the case to
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advocate effectively the government’s position.” 3 Finally, the district court did
not indicate that it even considered the separation of powers concerns implicated
by the disqualification order.
Further, to support the disqualification, the district court cited United
States v. Berger, 251 F.3d 894, 907 (10th Cir. 2001), out of context. When read
in full, it does not support the disqualification:
During oral arguments in this case, the panel asked counsel whether
it was appropriate for attorneys who had testified as witnesses in the
district court to argue the case on appeal. This concern was raised in
light of standards such as Rule 3.7 of the Rules of Professional
Conduct, adopted by the Oklahoma Supreme Court. See 5 O.S. 2000,
Ch. 1, App. 3-A . . . . Although the rule thus does not appear to bar
counsel’s representation in the instant appeal, we note the dual roles
of the attorneys in this case have made the determination of the
appeal more difficult . . . . In such circumstances, we think attorneys
should consider whether it would be wiser to have different counsel
handle the appeal, so as to keep separate the roles of attorney and
witness, to preserve the ability of counsel to remain objective, and to
avoid any potential conflict of interest between the attorney and the
client. Id. at 906-07 (emphasis added).
Reading Berger in context makes clear that its suggestion––that attorneys should
3
From reading this statement, it appears that the district court disqualified
the USA’s office, at least in part, because it believed that the office would not
provide effective counsel for the government. This concern seems misplaced.
First, we can presume that, in most cases, the Executive is in a better position
than a judge to decide who can best represent its position. Second, even if the
USA’s office did not effectively represent the government, we cannot see how
that would harm Mr. Bolden. Presumably, if the USA’s office is an ineffective
advocate, Mr. Bolden will obtain his desired relief. Thus, at least in this case,
such concern for the government by the district court is misplaced.
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consider potential conflicts caused by possible violations of specific ethical
rules––does not support dismissing the entire USA’s office without basing this
action on clearly stated ethical violations for each attorney.
Indeed, in light of the serious ethical allegations and constitutional issues
involved in such cases, we stress that the district court must make attorney-
specific factual findings and legal conclusions before disqualifying attorneys from
the USA’s office. See Fullmer v. Harper, 517 F.2d 20, 22 (10th Cir. 1975)
(“[T]he trial court should . . . make specific findings and conclusions [before
disqualification], to the end that this court will then have a record before it which
will permit a meaningful review, should review be sought.”). The record before
us does not indicate that the district court made such findings in this case.
III. Conclusion
For the foregoing reasons, we REVERSE the district court’s
disqualification order. Appellee’s motion to dismiss is denied.
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