06-4239-cr U.S.A. v. Hasarafally
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 _______________ 5 6 August Term, 2007 7 8 (Motion Submitted: February 13, 2008 Decided: June 12, 2008) 9 10 Docket No. 06-4239-cr 11 12 _______________ 13 14 United States of America, 15 16 Appellee, 17 18 v. 19 20 Ameer Hasarafally, 21 22 Defendant-Appellant. 23 24 _______________ 25 26 Before: 27 CARDAMONE, SOTOMAYOR, and RAGGI, 28 Circuit Judges. 29 30 _______________ 31 32 Defendant Ameer Hasarafally moves to recuse the United 33 States Department of Justice from representing the government on 34 his appeal from the United States District Court for the Southern 35 District of New York because the criminal judgment under review 36 was rendered by then-District Court Judge Michael B. Mukasey, 37 prior to his appointment as Attorney General of the United 38 States. 39 40 Denied. 41 _______________ 42 43 B. Alan Seidler, New York, New York, for Defendant-Appellant. 44 45 Sarah Y. Lai, Assistant United States Attorney, (Michael J. 46 Garcia, United States Attorney for the Southern District of 47 New York, New York, New York), for Appellee. 48 49 _______________ 1 CARDAMONE, Circuit Judge:
2 Defendant Ameer Hasarafally, who has appealed from a
3 judgment of conviction finding him guilty of one count of a
4 cocaine conspiracy, moves to recuse the United States Department
5 of Justice as attorney for the United States in this case. The
6 reason is that defendant's trial was held in the United States
7 District Court for the Southern District of New York before Judge
8 Michael B. Mukasey, who after retirement from the bench and a
9 time in private practice, has become the Attorney General of the
10 United States, the appellee on defendant's appeal. We write
11 because the circumstances of this case are present in about 40
12 appeals pending in this Court.
13 Defendant maintains that Judge Mukasey's appointment as
14 Attorney General creates a conflict of interest. Courts are
15 sensitive to such a claim because it quickly raises an issue of a
16 lack of prosecutorial impartiality. If given credence, the
17 claim, which is easy to assert and slow to dissipate, casts a
18 pall over the case. Fortunately, in this case, the conflict of
19 interest claim is completely without foundation and is entitled
20 to no credence whatever.
21 BACKGROUND
22 The current Attorney General of the United States served as
23 a federal district court judge for nearly 20 years prior to his
24 appointment as the nation's chief law enforcement officer.
25 During his time in the United States District Court for the
26 Southern District of New York, Judge Mukasey presided over
2 1 hundreds of cases, a number of which are now being appealed to
2 this Court.
3 One of those appeals is, as noted, this one. In 2006
4 Hasarafally was tried by a jury and convicted of possession with
5 intent to distribute cocaine. Judge Mukasey sentenced him to 96
6 months in prison, five years of supervised release, and a $100
7 special assessment. Hasarafally has appealed his conviction and
8 sentence and he now moves to recuse the entire Department of
9 Justice from representing the government in this appeal due to an
10 asserted conflict of interest caused by Judge Mukasey's new
11 position as Attorney General.
12 The government responds to defendant's motion by stressing
13 that while the Attorney General has supervisory power over all
14 litigation to which the United States is a party, see 28 U.S.C.
15 §§ 503, 509, it is in fact the United States Attorney for the
16 Southern District of New York who, by virtue of 28 U.S.C. § 547,
17 represents the United States in this case. Moreover, the
18 government advises us that Attorney General Mukasey has recused
19 himself from all matters in which he participated as a United
20 States District Judge. The Solicitor General is currently the
21 Acting Attorney General for such matters, and pursuant to 28
22 U.S.C. § 508, a Deputy or Associate Attorney General will
23 automatically take over this role should one of these offices be
24 filled by someone who has been nominated by the President and
25 confirmed by the Senate during Attorney General Mukasey's tenure.
26 We turn to the merits of the motion before us.
3 1 DISCUSSION
2 I Attorneys General Formerly Judges
3 This is not the first time the country has had an Attorney
4 General with prior experience as a judge. William Bradford, the
5 country's second Attorney General, was a Justice of the
6 Pennsylvania Supreme Court at the time of his appointment in
7 1794. See U.S. Dep't of Justice, Attorneys General of the United
8 States, 1789-1979 4 (1980). At least 18 other Attorneys General
9 after Bradford, up to and including Attorney General Mukasey's
10 immediate predecessor, have served as judges prior to their
11 appointments. See id. at 8-144 (noting the judgeships held by
12 Attorneys General Levi Lincoln, William Wirt, John MacPherson
13 Berrien, Felix Grundy, John Young Mason, Caleb Cushing, Jeremiah
14 Sullivan Black, Edward Bates, Ebenezer Rockwood Hoar, George
15 Henry Williams, Edwards Pierrepont, Alphonso Taft, Charles
16 Devens, Judson Harmon, Joseph McKenna, Alexander Mitchell Palmer,
17 Francis Biddle, and Griffin Boyette Bell); Who's Who in American
18 Law, 2007-2008 426 (Janine Fechter et al. eds., 15th ed. 2007)
19 (noting Attorney General Alberto R. Gonzales's experience as a
20 judge). There are also, no doubt, numerous examples of other
21 prosecutors, at both the federal and state levels, who have come
22 to their positions with valuable judicial experience. See, e.g.,
23 State v. Tate, 925 S.W.2d 548, 549 (Tenn. Crim. App. 1995);
24 Commonwealth v. Ford, 650 A.2d 433, 443 (Pa. 1994); Ross v.
25 State, 57 P. 924, 925 (Wyo. 1899).
4 1 We find very little precedent, however, on the potential
2 conflict of interest created by the transition from judge to
3 prosecutor in any given case. Such a conflict surely may exist
4 in certain circumstances, as when a trial judge receives
5 confidential communications by the defendant during ex parte
6 proceedings, and then goes on to act as prosecutor in the same
7 case, see Tate, 925 S.W.2d at 553-54, or when a trial judge who
8 has been personally criticized or shown disrespect by a party
9 goes on to prosecute this party for criminal contempt, cf. Fed.
10 R. Crim. P. 42(a)(3) (prohibiting such a judge from presiding at
11 the contempt trial absent defendant's consent). In other
12 circumstances, the alleged conflict may be absent, particularly
13 when the prosecutor has had only minimal involvement as trial
14 judge in the defendant's case. See Ross, 57 P. at 925-26
15 (holding no conflict to exist where the prosecutor, in his prior
16 role as judge, had merely denied defendant bail). We recently
17 noted that Attorney General Mukasey's formal appearance in the
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06-4239-cr U.S.A. v. Hasarafally
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 _______________ 5 6 August Term, 2007 7 8 (Motion Submitted: February 13, 2008 Decided: June 12, 2008) 9 10 Docket No. 06-4239-cr 11 12 _______________ 13 14 United States of America, 15 16 Appellee, 17 18 v. 19 20 Ameer Hasarafally, 21 22 Defendant-Appellant. 23 24 _______________ 25 26 Before: 27 CARDAMONE, SOTOMAYOR, and RAGGI, 28 Circuit Judges. 29 30 _______________ 31 32 Defendant Ameer Hasarafally moves to recuse the United 33 States Department of Justice from representing the government on 34 his appeal from the United States District Court for the Southern 35 District of New York because the criminal judgment under review 36 was rendered by then-District Court Judge Michael B. Mukasey, 37 prior to his appointment as Attorney General of the United 38 States. 39 40 Denied. 41 _______________ 42 43 B. Alan Seidler, New York, New York, for Defendant-Appellant. 44 45 Sarah Y. Lai, Assistant United States Attorney, (Michael J. 46 Garcia, United States Attorney for the Southern District of 47 New York, New York, New York), for Appellee. 48 49 _______________ 1 CARDAMONE, Circuit Judge:
2 Defendant Ameer Hasarafally, who has appealed from a
3 judgment of conviction finding him guilty of one count of a
4 cocaine conspiracy, moves to recuse the United States Department
5 of Justice as attorney for the United States in this case. The
6 reason is that defendant's trial was held in the United States
7 District Court for the Southern District of New York before Judge
8 Michael B. Mukasey, who after retirement from the bench and a
9 time in private practice, has become the Attorney General of the
10 United States, the appellee on defendant's appeal. We write
11 because the circumstances of this case are present in about 40
12 appeals pending in this Court.
13 Defendant maintains that Judge Mukasey's appointment as
14 Attorney General creates a conflict of interest. Courts are
15 sensitive to such a claim because it quickly raises an issue of a
16 lack of prosecutorial impartiality. If given credence, the
17 claim, which is easy to assert and slow to dissipate, casts a
18 pall over the case. Fortunately, in this case, the conflict of
19 interest claim is completely without foundation and is entitled
20 to no credence whatever.
21 BACKGROUND
22 The current Attorney General of the United States served as
23 a federal district court judge for nearly 20 years prior to his
24 appointment as the nation's chief law enforcement officer.
25 During his time in the United States District Court for the
26 Southern District of New York, Judge Mukasey presided over
2 1 hundreds of cases, a number of which are now being appealed to
2 this Court.
3 One of those appeals is, as noted, this one. In 2006
4 Hasarafally was tried by a jury and convicted of possession with
5 intent to distribute cocaine. Judge Mukasey sentenced him to 96
6 months in prison, five years of supervised release, and a $100
7 special assessment. Hasarafally has appealed his conviction and
8 sentence and he now moves to recuse the entire Department of
9 Justice from representing the government in this appeal due to an
10 asserted conflict of interest caused by Judge Mukasey's new
11 position as Attorney General.
12 The government responds to defendant's motion by stressing
13 that while the Attorney General has supervisory power over all
14 litigation to which the United States is a party, see 28 U.S.C.
15 §§ 503, 509, it is in fact the United States Attorney for the
16 Southern District of New York who, by virtue of 28 U.S.C. § 547,
17 represents the United States in this case. Moreover, the
18 government advises us that Attorney General Mukasey has recused
19 himself from all matters in which he participated as a United
20 States District Judge. The Solicitor General is currently the
21 Acting Attorney General for such matters, and pursuant to 28
22 U.S.C. § 508, a Deputy or Associate Attorney General will
23 automatically take over this role should one of these offices be
24 filled by someone who has been nominated by the President and
25 confirmed by the Senate during Attorney General Mukasey's tenure.
26 We turn to the merits of the motion before us.
3 1 DISCUSSION
2 I Attorneys General Formerly Judges
3 This is not the first time the country has had an Attorney
4 General with prior experience as a judge. William Bradford, the
5 country's second Attorney General, was a Justice of the
6 Pennsylvania Supreme Court at the time of his appointment in
7 1794. See U.S. Dep't of Justice, Attorneys General of the United
8 States, 1789-1979 4 (1980). At least 18 other Attorneys General
9 after Bradford, up to and including Attorney General Mukasey's
10 immediate predecessor, have served as judges prior to their
11 appointments. See id. at 8-144 (noting the judgeships held by
12 Attorneys General Levi Lincoln, William Wirt, John MacPherson
13 Berrien, Felix Grundy, John Young Mason, Caleb Cushing, Jeremiah
14 Sullivan Black, Edward Bates, Ebenezer Rockwood Hoar, George
15 Henry Williams, Edwards Pierrepont, Alphonso Taft, Charles
16 Devens, Judson Harmon, Joseph McKenna, Alexander Mitchell Palmer,
17 Francis Biddle, and Griffin Boyette Bell); Who's Who in American
18 Law, 2007-2008 426 (Janine Fechter et al. eds., 15th ed. 2007)
19 (noting Attorney General Alberto R. Gonzales's experience as a
20 judge). There are also, no doubt, numerous examples of other
21 prosecutors, at both the federal and state levels, who have come
22 to their positions with valuable judicial experience. See, e.g.,
23 State v. Tate, 925 S.W.2d 548, 549 (Tenn. Crim. App. 1995);
24 Commonwealth v. Ford, 650 A.2d 433, 443 (Pa. 1994); Ross v.
25 State, 57 P. 924, 925 (Wyo. 1899).
4 1 We find very little precedent, however, on the potential
2 conflict of interest created by the transition from judge to
3 prosecutor in any given case. Such a conflict surely may exist
4 in certain circumstances, as when a trial judge receives
5 confidential communications by the defendant during ex parte
6 proceedings, and then goes on to act as prosecutor in the same
7 case, see Tate, 925 S.W.2d at 553-54, or when a trial judge who
8 has been personally criticized or shown disrespect by a party
9 goes on to prosecute this party for criminal contempt, cf. Fed.
10 R. Crim. P. 42(a)(3) (prohibiting such a judge from presiding at
11 the contempt trial absent defendant's consent). In other
12 circumstances, the alleged conflict may be absent, particularly
13 when the prosecutor has had only minimal involvement as trial
14 judge in the defendant's case. See Ross, 57 P. at 925-26
15 (holding no conflict to exist where the prosecutor, in his prior
16 role as judge, had merely denied defendant bail). We recently
17 noted that Attorney General Mukasey's formal appearance in the
18 caption of an appeal from a decision he issued as trial judge was
19 without legal significance. Ogunwomoju v. United States, 512
20 F.3d 69, 71 n.3 (2d Cir. 2008). But that comment was made only
21 in passing and not in response to any assertion of a conflict of
22 interest.
23 II Attorney General Mukasey's Recusal
24 In order to fully address Hasarafally's motion for recusal,
25 we proceed with our own analysis of the facts and precedent,
26 mindful, as we tread into uncharted territory, of a former
5 1 colleague's memorable warning (when he was a district court
2 judge) that "[w]hen dealing with ethical principles, it is
3 apparent that we cannot paint with broad strokes," as the "lines
4 are fine and must be so marked." United States v. Standard Oil
5 Co., 136 F. Supp. 345, 367 (S.D.N.Y. 1955) (Kaufman, J.); see
6 also Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979).
7 With respect to Attorney General Mukasey's potential conflict of
8 interest, we may dispose of that quickly. Whatever conflict
9 would exist were the Attorney General serving as prosecutor in
10 this case, it has been avoided by virtue of his recusal. We
11 accept the government's representation that Attorney General
12 Mukasey will play no role in Hasarafally's appeal, and that, in
13 the unlikely event any supervision at the level of the Attorney
14 General's office is necessary, it will be carried out by the
15 Solicitor General or by a Deputy or Associate Attorney General.
16 In these circumstances, recusal of the entire Department of
17 Justice is both unnecessary and inappropriate. While a private
18 attorney's conflict of interest may require disqualification of
19 that attorney's law firm in certain cases, see, e.g., Fund of
20 Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 229 n.10
21 (2d Cir. 1977); cf. Hempstead Video, Inc. v. Inc. Vill. of Valley
22 Stream, 409 F.3d 127, 137-39 (2d Cir. 2005) (holding that this is
23 not a categorical rule), such an approach is not favored when it
24 comes to the office of a United States Attorney, see United
25 States v. Badalamenti, 794 F.2d 821, 828 (2d Cir. 1986); Grand
26 Jury Subpoena of Ford v. United States, 756 F.2d 249, 254 (2d
6 1 Cir. 1985), or, a fortiori, to the Department of Justice as a
2 whole.
3 A. Screening Procedure Alleviates Burden on the Government
4 Instead, we acknowledge the propriety of screening
5 procedures that insulate a government attorney from matters in
6 which he or she would face a conflict of interest. Ford, 756
7 F.2d at 254. This is because the burden on the government and
8 the public of office-wide disqualification is much higher than
9 the burden on a private party, who can easily choose from a range
10 of law firms. See id. Moreover, the Justice Department's
11 institutional characteristics lessen the need for wide-ranging
12 office-wide disqualification, see United States v. Caggiano, 660
13 F.2d 184, 190-91 (6th Cir. 1981) (citing ABA Comm. on Prof'l
14 Ethics, Formal Op. 342, 62 A.B.A. J. 517, 521 (1976)), while
15 simultaneously causing such disqualification to implicate
16 concerns over the administration of justice, see id., and
17 separation of powers, see United States v. Bolden, 353 F.3d 870,
18 879 (10th Cir. 2003). See also United States v. Frega, 179 F.3d
19 793, 799-800 (9th Cir. 1999); United States v. Vlahos, 33 F.3d
20 758, 763 n.5 (7th Cir. 1994); United States v. Lorenzo, 995 F.2d
21 1448, 1453 & n.1 (9th Cir. 1993). Just as these considerations
22 weigh against the disqualification of individual United States
23 Attorneys' offices, they weigh even more heavily against
24 disqualification of the entire Department of Justice.
7 1 B. Limits of Our Holding
2 To resolve this motion, we need not now decide whether
3 circumstances might ever arise warranting disqualification of the
4 entire Justice Department or an office within that Department.
5 We can readily conclude that in the present case, Attorney
6 General Mukasey's potential conflict of interest is too
7 attenuated to warrant such extraordinary action. Indeed, even
8 with respect to the Attorney General himself, the alleged
9 conflict is more apparent than real, and extremely narrow even in
10 that respect. There is no allegation that he received, as trial
11 judge, any privileged communications that should be kept out of
12 the prosecution's hands on appeal. Cf. Ford, 756 F.2d at 254.
13 Nor is there any allegation that the Attorney General harbors
14 some personal interest in this case that would damage
15 Hasarafally's right to a neutral prosecutor. Cf. Marshall v.
16 Jerrico, Inc., 446 U.S. 238, 249-50 (1980). All we are faced
17 with is the Attorney General's prior role as trial judge -- a
18 role in which he was held to a higher standard of neutrality than
19 the one to which he must now conform as a prosecutor. See id.
20 While this role might create an appearance of impropriety
21 sufficient to disqualify the Attorney General himself from
22 participating in this appeal regardless of any personal interest
23 (and we do not say that it does), we see no reason to exclude the
24 rest of his Department from appearing.
8 1 CONCLUSION
2 Accordingly, for the foregoing reasons, we deny
3 Hasarafally's motion to recuse the Department of Justice from
4 representing the United States on his appeal.