United States v. Whitaker

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

10-18-2001

USA v. Whitaker
Precedential or Non-Precedential:

Docket 01-2874

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Filed October 11, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2874

UNITED STATES OF AMERICA,
Appellant

v.

WAYNE WHITTAKER

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Docket No. 01-00107)
District Judge: Honorable Stewart Dalzell

Argued September 25, 2001

Before: BECKER, Chief Judge, and SCIRICA and
GREENBERG, Circuit Judges

(Filed: October 11, 2001)

Patrick L. Meehan
United States Attorney
Robert A. Zauzmer (argued)
Assistant United States Attorney
Chief of Appeals
615 Chestnut Street
Philadelphia, PA 19106

Attorneys for Appellant
 Samuel C. Stretton (argued)
301 South High Street
P.O. Box 3231
West Chester, PA 19381-3231

Attorney for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on the appeal of
the United States from an order entered in the district court
on June 13, 2001, disqualifying the United States
Attorney's Office for the Eastern District of Pennsylvania
from representing the United States in this criminal
prosecution for mail fraud in violation of 18 U.S.C.S 1341.
The order also directed the Attorney General forthwith to
appoint an attorney to represent the Government in the
case and required the special attorney to advise the court
by August 15, 2001, whether he or she intends to continue
this prosecution. The district court effectively has stayed
the June 13, 2001 order pending this appeal, and thus the
Attorney General has not made the appointment.

The background of this case is as follows. For some
years, the United States Attorney for the Eastern District of
Pennsylvania has been investigating chop shops in the
Philadelphia area. A chop shop dismantles motor vehicles
that usually, though not always, are stolen so that the
parts can be sold. Assistant United States Attorney Robert
K. Reed has conducted the investigation, which obviously
has been a major undertaking as the losses arising from
the dismantling of thousands of motor vehicles have been
about $40,000,000.

In about 20% of the cases investigated, however, the
vehicles actually were not stolen. Rather, their owners
cooperated in their purported "theft" to avoid lease or loan
payments. Inasmuch as insurance companies pay for the

2
lost vehicles, these consensual "thefts" are called
"insurance give-ups."

In 2000 and 2001 the Government investigated Whittaker
for possibly engaging in an insurance give-up of his vehicle.
In November 2000, a grand jury subpoenaed Whittaker,
seeking samples of his handwriting and his fingerprints.
Subsequently, he retained Samuel Stretton, a Pennsylvania
attorney, to represent him. On November 30, 2000,
pursuant to a grand jury subpoena, Whittaker was
fingerprinted and photographed.

At the same time the investigation apparently was
culminating. On January 29, 2001, pursuant to 42 U.S.C.
SS 10606 and 10607, Reed signed a letter addressed to
approximately 300 people who owned cars that were
dismantled in the chop shops to advise them of the
progress of the investigation and to invite them to file victim
impact statements or to make inquiry with respect to the
case with certain specified Government personnel.

Reed prepared the letter, but he did not send it
personally. Rather, he provided a paralegal in his office with
a list of persons whose vehicles had been dismantled. This
list included persons the Government suspected had
participated in insurance give-ups. Reed, however,
instructed the paralegal not to send the letter to these
suspects. Unfortunately, the paralegal erroneously sent the
letter to everyone on the list, including Whittaker.

As might be expected, Whittaker contacted Stretton
about the letter. On February 11, 2001, Stretton wrote the
assistant United States Attorney particularly assigned to
Whittaker's case, Mark S. Miller, about the matter.
Stretton's letter referred to Reed's January 29 letter and
ended by saying "[w]ould you please call me." Miller, as
requested, promptly called Stretton and told him that the
January 29 letter was a mistake and that Stretton should
disregard it. Then, on February 22, 2001, a grand jury
indicted Whittaker for mail fraud, the victim being the
Colonial Penn Insurance Company, which insured his
vehicle and paid $25,664.50 to World Omni Financial Corp.
on its lease balance.

3
Thereafter, Whittaker, through Stretton, moved to
dismiss the indictment. After explaining the background of
the case, his motion recited that:

6. The aforementioned [January 29, 2001] letter
provides information for Mr. Whittaker as a victim.

7. The United States Attorney's Office has therefore
exculpatory evidence that would demonstrate Mr.
Whittaker is a victim and is not and should not be a
Defendant.

8. Despite Mr. Reed's investigation and conclusions,
Mr. Whittaker is being charged and has a case pending
out of the same matter where he is charged as a
defendant by a separate United States Attorney in the
same office.

9. It is unfair for the United States Attorney's Office to
take the position that the Defendant is a victim and
not someone who is criminally culpable, and yet have
the same office take an entirely different position on
the same investigation.

10. The Defendant contends that the government is
acting in bad faith as a result . . ., and is acting in
violation of his right to due process pursuant to the
Fifth and Fourteenth Amendments of the United States
Constitution and respectfully requests that the charges
be dismissed.

App. at 63-64. Significantly, the motion did not suggest
that the January 29 letter caused Whittaker to take any
action adverse to his defense such as discarding evidence
prior to Miller's notification to Stretton of the mistake. Nor
did the motion suggest that the Government used the letter
for any improper purpose, such as to gain an interview with
Whittaker to obtain incriminating evidence. Of course, as
Stretton knew or should have known, the premise of the
motion that the Government had evidence exculpating
Whittaker was at best doubtful as Miller had told him
before Whittaker's indictment that the letter should be
disregarded. Moreover, Stretton never has produced any
evidence to counter the Government's explanation that
Reed's paralegal sent the letter erroneously.

4
The motion came on before the district court on May 24,
2001. At that time Reed was the only witness who testified
on the motion. He described the large scope of the
investigation which already had led to about 60 convictions
with many cases still pending. He stated that about 20% of
the chopped cars were insurance give-ups. He explained
the procedure that led to sending the victim notification
letters, indicating that "I did not intend to notify -- I mean
certainly it would have undermined what we were trying to
do with respect to people that were potential targets or
targets of our investigation." App. at 117. He testified that
the fact that the letter went "to someone like Mr. Whittaker,
it went to other people as well, as I indicated, inadvertently
and totally by mistake is just what it was." App. at 118. He
also said that he delegated "the task [of sending the letters]
to a paralegal." Id.

On further examination by the court and by Stretton,
Reed acknowledged that the mistake in sending the letter
could have been avoided. He also acknowledged that he was
not aware of any letter the Government sent to Stretton
correcting the January 29 letter.

After Reed completed his testimony, Miller and Stretton
stipulated that Miller orally advised Stretton that the letter
was sent in error and that Miller never made a written
response to Stretton's February 11, 2001 letter. However,
the stipulation did not include any suggestion that Stretton
asked for such a letter to supplement Miller's oral
statement.

The court then ruled on the motion to dismiss, holding
that it would not dismiss the indictment "because I don't
think it's outrageous conduct." App. at 137-38. The court,
however, treated the motion to dismiss the indictment as a
motion to disqualify the United States Attorney because it
thought that there was "a very serious issue of professional
conduct under, at a minimum, Rules of Professional
Conduct 1.7, 1.8, 1.9," referring to Pennsylvania rules
governing the conduct of attorneys. App. at 138. Thus, the
court ordered that unless the Attorney General appointed a
special prosecutor, the parties should file memoranda on
the disqualification issue. Stretton then suggested that
perhaps Pennsylvania Rule 4.2 also was implicated but that

5
he wanted "to emphasize to the Court that, despite the tone
of my questions to Mr. Reed, I'm not alleging that he did act
in bad faith." App. at 138. The court then agreed, saying "I
certainly don't believe that he did act in bad faith." Id.
Stretton and the court then agreed that there was no basis
for disciplinary action to be taken against Reed and that he
is a "fine person." Id.

The district court disposed of the matter in its opinion
entered June 13, 2001. See United States v. Whittaker, 201
F.R.D. 363 (E.D. Pa. 2001). The opinion incorrectly started
by indicating that "[b]ecause the same United States
Attorney's Office regarded him a perpetrator and a victim of
the same alleged insurance fraud, defendant Wayne
Whittaker has filed a motion to disqualify that office for its
ethical breaches." Id. at 365. This sentence was wrong for
two reasons. First, of course, the United States did not
regard Whittaker as a crime victim, but merely
inadvertently sent him a letter identifying him as a victim
and then, when Whittaker's attorney, Stretton, inquired
about the letter, corrected the mistake. The district court
certainly was well aware of these facts. Second, Stretton did
not file a motion seeking Reed's or the United States
Attorney's disqualification. Rather, the court, after raising
the disqualification issue in colloquy with counsel at the
May 24 hearing, on its own initiative converted Whittaker's
motion to dismiss the indictment into a motion to disqualify
the United States Attorney's Office, and Whittaker
effectively joined in the court's motion. The court then
continued its opinion stating that it had found no other
case "presenting such extraordinary conduct." Id.

The court subsequently indicated that Whittaker in his
supplemental submission following the May 24 hearing,
identified "no less than eight Rules of Professional Conduct
which he believes the Government breached when its left
hand called him a criminal and its right hand called him a
victim of the same scheme," id. at 365, including violation
of:

Rule 1.7, which generally bars conflicts of interest
(Whittaker contends that as the January 29 letter
purported to be helping him at the same time the

6
 Government was seeking to prosecute him, this
constituted such a conflict);

Rule 1.9, which bars a lawyer from taking a position
adverse to a former client in the same or a related
matter;

Rule 3.8, which outlines the professional
responsibilities of a prosecutor, and in particular Rule
3.8(a), which bars a prosecutor from bringing a claim
that he knows is `not supported by probable cause';

Rule 4.1(a), which bars attorneys from making false
statements of fact to third persons (Whittaker
maintains that the January 29 letter's statement that
he was a `victim' constitutes a false statement
pursuant to this Rule);

Rule 4.2, which precludes contact with someone the
Office knew was `represented by another lawyer';

Rule 4.4, which bars the collection of evidence by
methods that could compromise the rights of a third
party (Whittaker asserts that the letter constituted an
effort to obtain a statement in violation of this Rule);

Rule 8.4(c), which bars conduct involving
`misrepresentation'; and

Rule 8.4(d), which bars conduct `prejudicial to the
administration of justice'.

Id. at 365-66. The court also pointed out that Whittaker
cited Rule 3.7(a), which provides that "a lawyer shall not
act as advocate at a trial in which the lawyer is likely to be
a necessary witness," id. at 366, explaining that, apparently
because of the January 29 letter, Reed might be a witness
at the trial. Id. The court then set forth that Reed testified
that the sending of the letter was inadvertent. Id.

In its analysis, the court indicated that the Pennsylvania
Rules of Professional Conduct were applicable by reason of
28 U.S.C. S 530B(a), which provides that a Government
attorney "shall be subject to State laws and rules . . .
governing attorneys in each State where such attorney
engages in that attorney's duties, to the same extent and in
the same manner as other attorneys in that State." Id. The

7
court found, however, that there had not been violations of
Rules 1.7 and 1.9. See id. at 368. But the court went on to
say that "the never-retracted January 29, 2001 letter" was
a "palpable falsehood" as the Government itself
demonstrated by a May 31, 2001 letter, filed after the May
24, 2001 hearing, explaining "its definitive position" that
Whittaker "is a criminal." Id. Indeed, the district court said
that it was not until it sent the May 31 letter that the
Government "stat[ed] this conclusion." Id. Of course, the
court's characterization of the January 29 letter as being
unretracted until that time was inaccurate as, in
conformity with Stretton's request, Miller had called
Stretton before Whittaker's indictment and explained that
the letter was erroneous and should be disregarded.

The court then found that the January 29 letter was a
"false statement of material fact" sent in violation of Rule
4.1. See id. at 369. The court, however, relying on United
States v. Balter, 91 F.3d 427 (3d Cir. 1996), held that Rule
4.2 had not been violated. See id. at 370.

The court also held that Rule 4.4 was not violated
because "there is no evidence, for example, of the
Government's using the January 29 victim letter to inveigle
information or admissions from Whittaker, or of other
malign purpose that might have approached
outrageousness." Id. at 371 n.13. The court, however,
found that there had been a violation of Rule 8.4(d),
apparently partly because the United States Attorney's
conduct in this matter had been "cavalier" and Reed had
been amused when he testified at the May 24, 2001
hearing. See id. at 370-72. In this regard, the court
indicated that Whittaker had been on a roller coaster. The
court said that :

We also know from AUSA Reed's concession, N.T. 46,
that Whittaker was not alone in riding this
Government-built roller coaster. While these other
target-victims are not before us, their existence
confirms the seriousness of the fiasco we consider here.
In its repeated unprofessional conduct, the Office has
here prejudiced the administration of justice and
undermined public confidence in a most sensitive part

8
 of our legal institutions. The United States Attorney's
Office thus transgressed RPC 8.4(d).

Id. at 371.1 As far as we can ascertain, the court's reference
to "repeated unprofessional conduct" simply meant that the
United States Attorney erroneously sent the letter to other
persons the Government thought were implicated in the
offenses.

The court next dealt with the remedy, indicating that it
"found breaches of three Rules of Professional Conduct,"
meaning Rules 4.1, 4.3(c) and 8.4(d). Id. The court then
cited In re Corn Derivatives Antitrust Litig. , 748 F.2d 157,
162 (3d Cir. 1984), for its need to apply a balancing test in
determining whether it should disqualify the United States
Attorney. After discussing the parties' interests, the court
said that "there can be no doubt that our interest in
protecting the integrity of the proceedings and maintaining
public confidence in the judicial system favors
disqualification." Whittaker, 201 F.R.D. at 372. The court
nevertheless went on to indicate that the Government acted
"without bad faith or malintent [sic]" and that its "conduct
is towards the lower end of the egregiousness spectrum for
prosecutorial errors." Id. It held that the Government's
"behavior . . . may bring our system into disrepute with the
citizenry if the judiciary condones it." Id . It thus directed
the Attorney General to appoint an attorney from outside
the Eastern District of Pennsylvania to assume
responsibility to prosecute this case pursuant to 28 U.S.C.
S 543. See id. at 373.

The Government then moved for reconsideration, but the
court denied the motion in a memorandum dated July 11,
2001. See United States v. Whittaker, 201 F.R.D. 373 (E.D.
Pa. 2001). We will not discuss the memorandum at length,
but we do point out that in it the court clarified its reasons
for finding that the Government's conduct violated Rule
4.3(c), concerning situations in which attorneys are dealing
with unrepresented persons. In particular, the court held
_________________________________________________________________

1. While other targets may have been on the roller coaster ride they
apparently were not too troubled by it as, according to the United States
Attorney's representation at oral argument, none has filed any motion
seeking relief by reason of the receipt of the letter.

9
that the Government did not make a reasonable effort to
correct the misunderstanding it created with the January
29 letter merely by correcting it with the "oral
representation to counsel." Whittaker, 201 F.R.D. at 377.
The Government then appealed.

II. JURISDICTION

As always, we first must consider jurisdiction. Plainly,
the district court had jurisdiction under 28 U.S.C.S 3231.
The matter of our jurisdiction is not so simple. The United
States takes the position that we have appellate jurisdiction
under 28 U.S.C. S 1291 pursuant to the collateral order
doctrine stemming from Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 69 S.Ct. 1221 (1949). On the other
hand, Whittaker contends that we do not have appellate
jurisdiction as this appeal is of a pretrial, rather than a
final order. See Gerardi v. Pelullo, 16 F.3d 1363, 1369 (3d
Cir. 1994).

Ordinarily, a court of appeals does not have jurisdiction
over an appeal from a pretrial order during the pendency of
the proceedings in a district court. See Comuso v. National
R.R. Passenger Corp., No. 00-1491, 2001 WL 1167268, at
*3 (3d Cir. Oct. 3, 2001). Under the collateral order
doctrine, however, a court of appeals has jurisdiction if:

(1) the order from which the appellant appeals
conclusively determines the disputed question; (2) the
order resolves an important issue that is completely
separate from the merits of the dispute; and (3) the
order is effectively unreviewable on appeal from a final
judgment.

Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 229 (3d
Cir. 1998), quoting In re Ford Motor Co., 110 F.3d 954, 958
(3d Cir. 1997). Plainly the order meets the foregoing
criteria. To start with, the order conclusively determines
that the United States Attorney for the Eastern District of
Pennsylvania is disqualified in this case and cannot
participate in its prosecution. Thus, the order was not
tentative or subject to later revision as the conduct of which
the district court complained already was ameliorated fully
by the time the court disqualified the United States

10
Attorney. Thus, there is no possibility under the order that,
depending upon future events, the district court might
reconsider its position.

Second, the order unquestionably resolves a
jurisprudentially important issue completely separate from
the merits of the dispute concerning whether Whittaker
committed mail fraud, a charge to which he has pleaded
not guilty. Moreover, the issue of whether the United States
Attorney in the district of the prosecution may represent
the United States surely is important, particularly in a case
such as this in which the prosecution is part of a much
larger criminal investigation.2

Finally, the order almost certainly will be unreviewable
later in this case. In the overwhelming majority of criminal
cases in which, as here, the defendant pleads not guilty,
the case ends either when the jury finds the defendant
guilty or not guilty and, if guilty, the defendant is
sentenced. The United States correctly concedes that it
cannot appeal from a judgment of not guilty for
constitutional reasons, and it ordinarily would not be able
to appeal from a judgment of conviction and sentence, as it
would be the prevailing party. See Forney v. Apfel, 524 U.S.
266, 271, 118 S.Ct. 1984, 1987 (1998); Fong Foo v. United
States, 369 U.S. 141, 82 S.Ct. 671 (1962). While we can
conceive circumstances in which the United States could
appeal, such as, perhaps, if the court enters a judgment of
acquittal after a jury verdict of guilty, we do not regard
such remote possibilities as undermining our conclusion
that the order of disqualification effectively will be
unreviewable on appeal from a final judgment.3

We recognize, of course, that the Supreme Court has held
that a criminal defendant may not appeal immediately from
_________________________________________________________________

2. We do not suggest that this case would not involve an important issue
if the prosecution here was unrelated to any other case.

3. We are well aware that there is a certain risk in making appealability
determinations on the basis of consideration of the future course of
litigation. See Hensley v. Northwest Permanente P.C. Ret. Plan & Trust,
258 F.3d 986, 994 n.3 (9th Cir. 2001). Here, however, inasmuch as this
rather straightforward criminal case is likely to go down a well-traveled
path, the risks are minuscule.

11
the pretrial disqualification of his attorney. But
unquestionably if the defendant is convicted, he may raise
the disqualification issue on appeal. See Flanagan v. United
States, 465 U.S. 259, 266, 104 S.Ct. 1051, 1055 (1984)
("[A] constitutional objection to counsel's disqualification is
in no danger of becoming moot upon conviction and
sentence."). Thus, the position of a defendant with respect
to the disqualification of his attorney is materially different
from that of the Government in a criminal case and
Flanagan therefore is not controlling.

We also recognize that when a court disqualifies counsel
in a civil case, its order is not immediately appealable. See
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 426, 105
S.Ct. 2757, 2758 (1985); see also Comuso, 2001 WL
1167268, at *4. There, too, however, an appeal after final
judgment is not precluded because "if the client obtains an
unsatisfactory judgment with substitute counsel, the
disqualification ruling may be challenged on appeal of a
final judgment." Id. at 435, 105 S.Ct. at 2763. Accordingly,
Richardson-Merrell is no more controlling here than
Flanagan.

Insofar as we are aware, we have not addressed the issue
of whether the United States may appeal from an order
disqualifying a United States Attorney from prosecuting a
criminal case. The United States, however, cites three cases
addressing the point, and all conclude that the United
States immediately may appeal from such an order. See
United States v. Vlahos, 33 F.3d 758, 761 (7th Cir. 1994);
In Re Grand Jury Subpoena of Rochon, 873 F.2d 170, 173
(7th Cir. 1989); United States v. Caggiano, 660 F.2d 184,
189-90 (6th Cir. 1981). Whittaker does not cite any case
holding to the contrary.

We carefully have reviewed these cases and have
concluded that we should join with them. As the court
explained in Rochon after discussing Flanagan:

An order disqualifying government counsel in a
criminal case, however, is a different matter, for if it is
not immediately appealable, it is effectively
unreviewable. For example, in this case, if the grand
jury declines to issue any indictments, the government

12
 could not appeal because the case would be over. If the
grand jury does issue indictments and any defendants
subsequently are found guilty, the government, of
course, would not seek review. If, on the other hand,
any defendants were found not guilty, appellate review
of the district court's disqualification order would be
precluded by the double jeopardy clause. Thus, in the
only instance in which the government would want to
press an appeal, the district court's decision preventing
the [attorney general] from participating in the grand
jury investigation is unreviewable.

Rochon, 873 F.2d at 173 (citation omitted).

Finally, we point out that if we found that we did not
have appellate jurisdiction, we could and would exercise
mandamus jurisdiction. The situation here is like that in
Vlahos in which the court, after concluding that the
collateral order doctrine supported its jurisdiction,
indicated that even if it had held differently, it would
exercise mandamus jurisdiction because "the district court
exceeded the boundaries of its lawful role by prohibiting the
designated representatives of the Executive Branch from
prosecuting this criminal contempt action." Vlahos, 33 F.3d
at 762. In Hahnemann University Hospital v. Edgar, 74 F.3d
456, 461 (3d Cir. 1996) (internal quotation marks omitted),
we said that a court "should grant [mandamus] only in
extraordinary circumstances in response to an act
amounting to a judicial usurpation of power." As will be
seen, the Edgar circumstances justifying mandamus are
present here. Nevertheless, we do not issue mandamus as
it "should not be issued where relief may be obtained
through an ordinary appeal." Id. In view of our holding
under the collateral order doctrine, that is the situation
here.

III. STANDARD OF REVIEW

Our standard of review on an attorney disqualification
issue includes both deferential and de novo elements. To
the extent that the district court made factual findings, our
review is for clear error, though in this case the historical
facts are not in dispute. On the other hand, we exercise

13
plenary review to determine whether the district court's
disqualification was arbitrary in the sense that the court
did not appropriately balance proper considerations of
judicial administration against the United States' right to
prosecute the matter through counsel of its choice, i.e., the
duly appointed United States Attorney. See United States v.
Stewart, 185 F.3d 112, 120 (3d Cir.), cert . denied, 528 U.S.
1063, 102 S.Ct. 618 (1999). If the disqualification was not
arbitrary, we use an abuse of discretion standard in
reviewing the court's decision. See id. In this case, however,
the selection of the standards of review is not important as
we would reach the result that there was no basis for the
court to disqualify the United States Attorney regardless of
how deferential our review might be.

IV. DISCUSSION

It is perfectly clear that the district court had no basis to
disqualify the United States Attorney in this case. The
undisputed facts are that Reed did not intend that the
January 29 letter be sent to Whittaker or any other person
who the Government believed had cooperated in an
insurance give-up. Unfortunately, a paralegal in his office
did not follow his mailing instructions. But, as even the
district court recognized, Reed acted in good faith. The
worst thing that can be said about Reed in particular and
the United States Attorney's office in general is that they
were negligent.

Significantly, Whittaker makes no claim that his receipt
of the January 29 letter in any way prejudiced his defense,
such as leading him to destroy exculpatory evidence upon
its receipt. Moreover, the United States did not attempt to
gain any tactical advantage from the letter as, for example,
attempting to interview Whittaker after sending it.

Notwithstanding the undisputed fact that the United
States simply made a mistake in sending out the victim
impact letters, the district court in an unjustified
conclusion found that the United States through its
attorney made "a false statement of material fact or law to
a third person" in violation of Rule 4.1. Indeed, the district
court went so far in its opinion as to label the section

14
dealing with Rule 4.1 as "The Government's Admitted
Falsehood." Whittaker, 201 F.R.D. at 368. Of course, the
letter should not have been sent, but this case involved a
mistake, not a lie, and the district court certainly should
have treated it in that way. In this regard, we point out that
it is not unusual for parties in a judicial proceeding to
correct mistakes. For example, every judge and attorney
knows that pleadings and answers to interrogatories often
are amended.4 In the circumstances, neither Reed nor his
office violated Rule 4.1.

The court also found that the United States Attorney did
not comply with Rule 4.3(c), which provides that when a
lawyer knows or reasonably should know that an
unrepresented person misunderstands that lawyer's role in
the matter, the lawyer should make reasonable efforts to
correct the misunderstanding. Even though the
Government knew that Stretton represented Whittaker, the
district court treated Rule 4.3(c) as applicable to its direct
communication with Whittaker, and we will accept this
treatment of the rule on this appeal. What we cannot
accept is the court's finding that the oral representation to
Stretton that the January 29 letter had been a mistake was
not a reasonable effort to correct the misunderstanding.
While the court apparently believed that the Government
should have sent a letter further explaining the error, that
conclusion ignores the fact that on February 11, 2001,
Stretton wrote Miller and requested that he "please call"
him and Miller did exactly that. Thus, the United States
corrected its mistake precisely as Stretton requested and,
accordingly, complied with Rule 4.3.5 In sum, we reject the
district court's findings that the United States Attorney did
not make reasonable efforts to correct the
misunderstanding it created by sending the January 29
letter.

We also reject the court's conclusion that the
Government did not state "its definitive position" that
_________________________________________________________________

4. Fed. R. Civ. P. 60(a) and 60(b)(1) deal with correcting mistakes.

5. We do not hold that our result would have been different if Stretton
did not request a telephone call. Rather, we simply predicate our result
on the facts before us.

15
"Whittaker is a criminal" until it sent its May 31, 2001
letter. The grand jury indicted Whittaker on February 22,
2001, and he appeared in court and pleaded not guilty on
March 8, 2001. Surely, by obtaining the indictment, the
Government made clear, quite aside from its statement to
Stretton to disregard the letter, that it considered Whittaker
to be a criminal. Indeed, the only way the district court
could have avoided this obvious conclusion would have
been to believe that a run-a-way grand jury returned the
indictment.

Finally, the court found that the United States violated
Rule 8.4(d) by its conduct "prejudicial to the administration
of justice." Whittaker, 201 F.R.D. at 370-71. The court
reached this conclusion because of what it deemed was the
seriousness of the United States Attorney's "repeated
unprofessional conduct," which the court believed
"undermined public confidence in a most sensitive part of
our legal institutions." Id. at 371. We reject this unjustified
finding. The only thing the United States Attorney did was
send a letter to Whittaker and to certain other persons by
mistake. Moreover, we reiterate that it promptly clarified
the situation when Stretton inquired about it. In the
circumstances it is not true that the Government
prejudiced the administration of justice. Indeed, we do not
doubt that if the court simply had denied the motion to
dismiss without converting it into a request to disqualify
the Government's attorneys, these proceedings would have
gone unnoticed.

We recognize that the district court was concerned that
Reed might be called as a witness at the trial. See id. at
366, 379-80. While we do not intend our opinion to be
regarded as an in limine admissibility ruling, we do state
that it is questionable that the court, upon reflection, will
permit Whittaker to elicit evidence regarding the January
29 letter before a jury. The letter indisputably was sent in
error and thus Reed did not send it because he had
evidence exculpatory as to Whittaker. Accordingly,
inasmuch as the trial concerns mail fraud it is difficult to
understand how the letter could "make the existence of any
fact that is of consequence to the determination of the
action more probable or less probable than it would be

16
without the evidence." Fed. R. Evid. 401. Therefore the
district court well may hold that if Whittaker attempts at
trial to use the January 29 letter that it is not admissible
into evidence.

V. CONCLUSION

This panel regrets having to file an opinion so critical of
a district court. After all, the members of this panel have
had more than 80 years of judicial service on the trial and
appellate benches in the state and federal courts and
recognize that a judge, like anyone else, can have a bad
day. Here, however, the district court's unjustified view of
this matter extended over a period of weeks during which
it had an opportunity to reconsider its position, particularly
when the Government moved for reconsideration. But the
district court adhered to its unjustified conclusions,
seemingly losing all sense of proportion. For the foregoing
reasons, the order of June 13, 2001, will be reversed, and
the case will be remanded to the district court for further
proceedings.6

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

6. In view of our conclusion, we need not consider issues addressed in
the briefs of whether, and if so under what conditions, a court should
disqualify an attorney for violation of the Rules of Professional Conduct
or whether separation of powers considerations precluded the
disqualification here.

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