United States v. David Williams ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10174
Plaintiff-Appellant, D.C. No.
v. 4:18-cr-01695-
JAS-EJM-1
DAVID KAPONE WILLIAMS;
MARCELL DEMETRIUS GRAY;
SHAWMAINE EUSTACE ARDELL OPINION
MOORE; SAMUEL LEE BERRELLE
RAKESTRAW III; MICHAEL
ANTHONY WILLIAMS; KEANA
NICOLE IWANKIW; CLIFFTON
MARTINEZ; JERMAINE LAMAR
MAXWELL; REGINALD COLE
JOHNSON; TROY JERMAINE
HOWELL; MARK ANTHONY
HOLGUIN; TENELL MICHAEL
MURE; LABARR MARTINEZ;
DAVID GOROSAVE; BUFFIE ANN
BRIDGES; DEZIRAE
ALEXANDRIA MONTEEN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
2 UNITED STATES V. WILLIAMS
Argued and Submitted December 7, 2022
Phoenix, Arizona
Filed May 18, 2023
Before: Kim McLane Wardlaw and Patrick J. Bumatay,
Circuit Judges, and Jack Zouhary, * District Judge.
Opinion by Judge Bumatay
SUMMARY **
Criminal Law
In a criminal case in which the government has charged
19 alleged members of the Western Hills Bloods with
multiple offenses, the panel reversed the district court’s
order disqualifying the entire District of Arizona U.S.
Attorney’s Office and directing the Department of Justice to
supply an attorney from outside Arizona to represent the
government in pending motions, brought by 16 defendants,
concerning misconduct allegations against one Assistant
U.S. Attorney in the Arizona office.
Addressing its jurisdiction over the interlocutory appeal,
the panel held that disqualification of an entire U.S.
*
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. WILLIAMS 3
Attorney’s Office warrants appellate review under the
collateral order doctrine.
The panel held that the district court’s sweeping
disqualification order was an abuse of discretion. The panel
wrote that based on separation-of-powers principles and the
consensus among courts, disqualification of an entire U.S.
Attorney’s Office is an extreme remedy—only appropriate
in the most extraordinary circumstances. 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. The panel held that the
record does not support an officewide disqualification, and
without any evidence of officewide involvement, it was pure
speculation to conclude that any conflict or misconduct
pervaded the entire U.S. Attorney’s Office. The panel also
held that no clear violation of law or ethics supports an
officewide disqualification. The panel wrote that the district
court—whose decision to disqualify was informed, in part,
by a comparison to an internal investigation of a private
company—does not appear to have sufficiently appreciated
the separation-of-powers concern.
4 UNITED STATES V. WILLIAMS
COUNSEL
Krissa M. Lanham (argued), Assistant United States
Attorney; Gary M. Restaino, United States Attorney for the
District of Arizona; Office of the United States Attorney;
Phoenix, Arizona; Shelley Kay-Glenn Clemens, Assistant
United States Attorney; United States Department of Justice;
Washington, D.C.; for Plaintiff-Appellant.
Erin M. Carrillo (argued), The Carrillo Law Firm PLLC,
Tucson, Arizona; Richard G. Novak, Richard G. Novak Law
Offices, Berkeley, California; for Defendant-Appellee
David Kapone Williams.
Trevor R. Hill, Ferguson Hill Filous PLLC, Tucson,
Arizona, for Defendant-Appellee Marcell Demetrius Gray.
Mark Paige, Paige Law Firm, Mesa, Arizona, for Defendant-
Appellee Shawmaine Eustace Ardell Moore.
Anthony Payson II, Payson and Gattone, Tuscon, Arizona,
for Defendant-Appellee Samuel Lee Berrelle Rakestraw III.
Ramiro Flores Jr., Law Office of Ramiro S. Flores, Tucson,
Arizona, for Defendant-Appellee Michael Anthony
Williams.
Jeffrey J. Rogers, Law Offices of Jeffrey J. Rogers PLC,
Tucson, Arizona, for Defendant-Appellee Keana Nicole
Iwankiw.
Saul M. Huerta, The Huerta Law Office, Tucson, Arizona,
for Defendant-Appellee Cliffton Martinez.
Steven P. Sherick, Sherick Law Office PC, Tucson, Arizona,
for Defendant-Appellee Jermaine Lamar Maxwell.
Laura Udall, Laura E. Udall PLLC, Tucson, Arizona, for
Defendant-Appellee Reginald Cole Johnson.
UNITED STATES V. WILLIAMS 5
Jessica H. Turk, Law Offices of Jessica Turk, Vail, Arizona,
for Defendant-Appellee Troy Jermaine Howell.
Nathan D. Leonardo, Leonardo Law Offices PLLC, Tucson,
Arizona, for Defendant-Appellee Mark Anthony Holguin.
Thomas E. Higgins, Law Offices of Thomas E. Higgins,
Tucson, Arizona, for Defendant-Appellee Tenell Michael
Mure.
Barbara T. Catrillo, Catrillo Law Firm, Tucson, Arizona, for
Defendant-Appellee Labarr Martinez.
Mark E. Evans, Evans Law Offices PLLC, Tucson, Arizona,
for Defendant-Appellee David Gorosave.
Raymond V. Panzarella, Law Offices of Raymond V.
Panzarella, Tucson, Arizona, for Defendant-Appellee Buffie
Ann Bridges.
Michael L. Brown, Law Office of Michael L. Brown,
Tucson, Arizona, for Defendant-Appellee Dezirae
Alexandria Monteen.
6 UNITED STATES V. WILLIAMS
OPINION
BUMATAY, Circuit Judge:
The U.S. Attorney’s Office in the District of Arizona has
180 federal prosecutors—known as Assistant U.S.
Attorneys. In this case, multiple defendants alleged that one
Assistant U.S. Attorney engaged in potential professional
misconduct. 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. The
Executive branch is a co-equal branch of government—
entitled to judicial respect. When disqualifying an entire
Executive branch office, separation of powers requires much
more than the district court provided. We thus reverse.
I.
The Western Hills Bloods, according to the government,
are a violent street gang operating in Tucson, Arizona. In
the government’s view, members of the gang have been
involved in drug trafficking, illegal firearms dealing,
assaults, and murders. The government alleges the gang ran
UNITED STATES V. WILLIAMS 7
a network of “crack houses” to distribute crack, cocaine,
marijuana, methamphetamine, heroin, and other narcotics. It
is also believed that gang members have been responsible
for several shootings since 2014, including the murders of
two rival gang members.
In 2018, the U.S. Attorney’s Office for the District of
Arizona indicted 19 alleged members of the Western Hills
Bloods. The government charged the defendants with 46
offenses, including RICO conspiracy, murder in aid of
racketeering, assault with a dangerous weapon, and various
drug and firearm offenses. David Williams was the lead
defendant in the indictment. Dezirae Monteen was also
charged as part of the conspiracy.
In April 2022, Williams, along with 15 other co-
defendants, filed a sealed motion alleging “professional
misconduct” violating their Fifth and Sixth Amendment
rights. Williams claimed that Monteen’s former attorney
had simultaneously represented Monteen and a defendant
arrested for unrelated charges who later agreed to cooperate
against the Western Hills Bloods. Williams further claimed
that the Assistant U.S. Attorney prosecuting the Western
Hills Bloods learned of the potential conflict of interest in
August 2021, but failed to notify defendants or the district
court of the conflict until March 2022. Williams sought
discovery and a sealed evidentiary hearing to investigate the
interactions between Monteen’s former attorney and the
Assistant U.S. Attorney. The defendants also filed a sealed
ex parte motion alleging further misconduct by the former
attorney. The government was not provided a copy of that
motion.
The government requested several extensions of time to
respond to Williams’s initial motion. The magistrate judge
8 UNITED STATES V. WILLIAMS
handling the Western Hills Bloods’ prosecution granted the
extensions, giving the government until June 2022 to
respond. But before the government responded, the
magistrate judge issued a sealed scheduling order setting a
status conference for May 2022. The sealed order did not
provide notice of the issues the magistrate judge wished to
discuss at the status conference. An Arizona Assistant U.S.
Attorney, who was not involved in the Western Hills Bloods’
prosecution, filed a special appearance to litigate the motion
and appeared at the status conference.
At the status conference, the magistrate judge disclosed
to the government that the court held an ex parte hearing on
the defendants’ ex parte motion the week before. The
magistrate judge stated that “defense counsel raised some
concerns about how the motion would be handled
procedurally . . . primarily in terms of the government’s
representation.” The magistrate judge advised that defense
counsel “thought it would be a good idea to get into court
before the government even filed its response” to the motion.
The magistrate judge informed the government that the
status conference was to “talk about some of those things.”
The magistrate judge then turned to Williams’s defense
counsel, who “spearheaded [the defendants’] argument.”
Williams’s counsel then asked the magistrate judge to
appoint “firewall counsel outside the District of Arizona” to
handle the defendants’ motion. Defense counsel explained
that “we don’t know how far this . . . conflict
issue . . . extended beyond” the one Assistant U.S. Attorney.
But she suggested that allowing the Arizona U.S. Attorney’s
Office to litigate the motion would be like allowing a law
firm “to investigate an ethics complaint involving [its] law
partner.”
UNITED STATES V. WILLIAMS 9
In response, the Assistant U.S. Attorney stated he was
there to litigate the defendants’ motions and that if the
magistrate judge wanted him to have “separation” from the
Western Hills Bloods’ prosecution, he “would be happy to
do it.” The Assistant U.S. Attorney argued that there was no
need to “be walled off,” that the “trial team [was] the trial
team,” and that he could continue to litigate the motions
independently. The prosecutor later stated he could review
any discovery involved in the motions, and he was prepared
to take any privileged information he learned “to [his]
grave.” He then reiterated that “[i]f [he is] segregated off”
from the trial team, “that’s fine,” and that his goal was to
ensure that the “United States [was] represented ably and
that [the court got] to the right result.”
The magistrate judge expressed concern that it was “too
late” to wall off the Arizona Assistant U.S. Attorney because
the magistrate judge “imagined” that “th[e] case generally
has gone up the food chain,” including to the Arizona U.S.
Attorney. The magistrate judge also thought that, along with
the U.S. Attorney, the “case went to [Main Justice in] D.C.”
based on the charges. The magistrate judge continued that
“there is no doubt in [the court’s] mind that th[e instant]
motion ha[d] gone up th[e] food chain, and . . . may have
leaked horizontally to other people in the [U.S. Attorney’s]
office.” The magistrate judge considered it a “problem” for
any Arizona Assistant U.S. Attorney to handle the motion
because “that [Assistant U.S. Attorney] is still reporting to
the [Arizona] U.S. Attorney.”
The Assistant U.S. Attorney “recognize[d] the
[magistrate judge’s] concerns,” but reiterated that he could
be “segregated off, do so ably, do so fairly, [and] do so
consistent with [his] ethical obligation.”
10 UNITED STATES V. WILLIAMS
The magistrate judge then compared the situation to an
internal investigation at a private company:
[A]s 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? [W]hat were they? [A]nd
what are we going to do about it? [A]nd I
think that is the proper analysis to do in this
case.
The magistrate judge then disqualified the entire Arizona
U.S. Attorney’s Office and ordered the government to obtain
“firewall counsel” from another district or from Main Justice
in Washington, D.C., to represent the government in the
pending motions.
The government objected to the magistrate judge’s
verbal disqualification order in the district court. The district
court upheld the order as “not contrary to law or clearly
erroneous.” The district court then set a deadline for the
government’s out-of-district “firewall counsel” to respond to
the pending defense motions. In response, the government
sought an interlocutory appeal and asked our court to stay
the district court’s deadline for firewall counsel to respond.
A motions panel of this court stayed the deadline pending
this appeal.
UNITED STATES V. WILLIAMS 11
II.
Before taking up the merits of the government’s appeal,
we must determine whether an interlocutory appeal is
appropriate here. The government argues that we have
jurisdiction over the disqualification order under the
collateral order doctrine. In the alternative, the government
contends we can assert jurisdiction by exercising mandamus
authority. Because we are satisfied that the collateral order
doctrine provides us jurisdiction here, we do not reach the
government’s alternative argument.
Under the collateral order doctrine, courts of appeal have
jurisdiction to review “a small set of prejudgment orders that
are collateral to the merits of an action and too important to
be denied immediate review.” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 103 (2009) (simplified). “To fall
within the limited scope of the collateral order doctrine, a
district court order . . . must (1) be conclusive on the issue at
hand; (2) resolve important questions separate from the
merits; and (3) be effectively unreviewable after final
judgment.” United States v. Acad. Mortg. Corp., 968 F.3d
996, 1002 (9th Cir. 2020) (simplified). Our application of
these requirements is “stringent,” and we should be reluctant
to expand the doctrine. Id.The disqualification order here satisfies the requirements
of the collateral order doctrine. First, the order conclusively
precludes the U.S. Attorney’s Office from litigating the
defendants’ misconduct motions. As we’ve previously said,
“the effect” of any attorney disqualification order “is fairly
irreversible” because it “materially change[s]” the party’s
position. In re Coordinated Pretrial Proc. in Petroleum
Prods. Antitrust Litig., 658 F.2d 1355, 1357 (9th Cir. 1981).
And, as a practical matter, a disqualification order is not
12 UNITED STATES V. WILLIAMS
“subject to reconsideration from time to time.” Id.(simplified). Here, that’s proven true—the district court
denied a motion to reconsider the order. Thus, the
disqualification order was “clearly conclusive and not
tentative” as it pertains to pending misconduct motions.
Hale v. Norton, 476 F.3d 694, 699 (9th Cir. 2007).
Second, although the disqualification order does not
resolve the guilt or innocence of Williams or his co-
defendants, it determines an important question. An order is
“important enough to merit immediate appellate
consideration” when “delaying review would imperil a
substantial public interest or some particular value of a high
order.” Acad. Mortg. Corp., 968 F.3d at 1004 (simplified).
Here, we must answer whether a court may properly prevent
an entire U.S. Attorney’s Office from defending itself
against motions alleging the ethical impropriety of an
individual Assistant U.S. Attorney. Considering the “special
solicitude” owed to Executive branch prerogatives under the
separation of powers, Nixon v. Fitzgerald, 457 U.S. 731, 743
(1982), our immediate review is warranted.
Third, the disqualification order will be effectively
unreviewable. Orders are effectively unreviewable “when
the legal and practical value of the asserted right will be
destroyed if not vindicated before judgment.” AdTrader,
Inc. v. Google LLC, 7 F.4th 803, 808–09 (9th Cir. 2021)
(simplified). Whether or not the government ultimately
prevails on the misconduct motions here, the harm to the
separation of powers cannot be remedied after a ruling on
the defendants’ charges. After a final judgment, it will be
too late for our court to undo any improper encroachment on
the Executive branch’s prosecutorial prerogatives. If a trial
results in an acquittal, then double jeopardy bars the
government from appealing or re-prosecuting the case. See
UNITED STATES V. WILLIAMS 13
United States v. Greger, 657 F.2d 1109, 1113 n.1 (9th Cir.
1981). And if the government obtains a guilty plea or
verdict, it’s unlikely we can rectify the situation because the
government has already prevailed. See United States v.
Good Samaritan Church, 29 F.3d 487, 488 (9th Cir. 1994).
On appeal, Williams argues that we should follow
Greger, in which we held that the disqualification of defense
counsel in a criminal matter was not immediately
appealable. 657 F.2d at 1113. But, in that case, we expressly
reserved judgment on the question here—whether
disqualification of government counsel fits within the
collateral order doctrine. Id. at 1113 n.1. And, unlike
government counsel, the improper disqualification of a
defense counsel is redressable on appeal after a guilty
verdict. “[I]f the defendant is found guilty and on appeal
attacks the order disqualifying his counsel, there is no reason
why his right to counsel of choice cannot be vindicated on
appeal.” Id. at 1113. Williams concedes as much and fails
to explain how the disqualification of the U.S. Attorney’s
Office can be remedied on appeal. And it makes little
difference that disqualification was limited to the
defendants’ misconduct motions rather than the whole
prosecution of the Western Hills Bloods. All the same
issues—irreversibility, separation-of-powers concerns, and
the lack of remedy—are implicated in the litigation of the
pending motions.
We thus 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. See United States
v. Bolden, 353 F.3d 870, 874–78 (10th Cir. 2003); United
States v. Whittaker, 268 F.3d 185, 192–93 (3d Cir. 2001);
United States v. Vlahos, 33 F.3d 758, 761–62 (7th Cir.
14 UNITED STATES V. WILLIAMS
1994); United States v. Caggiano, 660 F.2d 184, 189–90 (6th
Cir. 1981).
III.
We now turn to whether the district court properly
disqualified the entire Arizona U.S. Attorney’s Office from
litigating the misconduct motions here. We review orders
disqualifying counsel for abuse of discretion. Petroleum
Prods. Antitrust Litig., 658 F.2d at 1358. A district court
abuses its discretion when it applies the incorrect legal
standard or if its application of the correct legal standard was
illogical, implausible, or without support from the facts in
the record. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P.,
52 F.4th 1054, 1063 (9th Cir. 2022). Reversal is warranted
when “the district court misperceives the law or does not
consider relevant factors and thereby misapplies the law.”
Petroleum Prods. Antitrust Litig., 658 F.2d at 1358.
A.
Our Constitution divides federal power into three
“defined” branches—the Legislative, the Executive, and the
Judicial—to ensure “that each [b]ranch of
government . . . confine[s] itself to its assigned
responsibility.” INS v. Chadha, 462 U.S. 919, 951 (1983).
The Executive branch is charged with “tak[ing] Care that the
Laws be faithfully executed.” U.S. Const. art. II, § 3. Thus,
certain prosecutorial decisions are considered within the
“special province of the Executive [b]ranch.” Heckler v.
Chaney, 470 U.S. 821, 832 (1985). Within the Executive
branch, the U.S. Attorney’s Office for each district is
charged with “prosecut[ing] . . . all offenses against the
United States.” 28 U.S.C. § 547(1).
UNITED STATES V. WILLIAMS 15
“The doctrine of separation of powers requires judicial
respect for the independence of the prosecutor.” United
States v. Simpson, 927 F.2d 1088, 1091 (9th Cir. 1991).
Such independence generally means that we do not “have a
license to intrude into the authority, powers and functions”
of prosecutors. United States v. Jennings, 960 F.2d 1488,
1491 (9th Cir. 1992) (simplified). To be sure, prosecutorial
discretion is not absolute and may, at times, be subject to
review. Indeed, “certain potentially vindictive exercises of
prosecutorial discretion [are] both reviewable and
impermissible.” Chaney, 470 U.S. at 846 (Marshall, J.,
concurring) (discussing Blackledge v. Perry, 417 U.S. 21, 28
(1974)). See Bordenkircher v. Hayes, 434 U.S. 357, 365
(1978) (“There is no doubt that the breadth of discretion that
our country’s legal system vests in prosecuting attorneys
carries with it the potential for both individual and
institutional abuse. And broad though that discretion may
be, there are undoubtedly constitutional limits upon its
exercise.”). In any event, “[a]bsent a violation of . . . the
Constitution, a [federal] statute, or a procedural rule,”
Jennings, 960 F.2d at 1491, we do not dictate to the
Executive branch who will serve as its prosecutors. Put
differently, we do not stamp a “chancellor’s foot veto over
activities of coequal branches of government” unless
compelled by the law to do so. United States v. Gatto, 763
F.2d 1040, 1046 (9th Cir. 1985) (simplified).
We run an even greater risk of offending separation-of-
powers principles when disqualifying an entire office of
Executive branch attorneys. Such sweeping interference is
seldom warranted. Indeed, every circuit court that has
reviewed an officewide disqualification has reversed. See
Bolden, 353 F. 3d at 879; Whittaker, 268 F.3d at 194–95;
16 UNITED STATES V. WILLIAMS
Vlahos, 33 F.3d at 761–63; Caggiano, 660 F.2d at 185. We
briefly survey those decisions.
In Bolden, the Tenth Circuit reversed an order
disqualifying the entire U.S. Attorney’s Office based on
allegations that the government showed bad faith in
denying a defendant’s request for a sentence reduction. 353
F.3d at 873. The Tenth Circuit concluded that the record
didn’t support such a “drastic measure.” Id. at 878(simplified). Given the separation-of-powers concerns
involved, the Tenth Circuit observed that it “can only
rarely-if-ever imagine a scenario in which a district court
could properly disqualify an entire United States Attorney’s
office.” Id. at 875. Instead, it regarded officewide
disqualification as “almost always reversible error
regardless of the underlying merits of the case.” Id. Such
a broad disqualification, the Tenth Circuit held, must be
based “on clearly stated ethical violations for each attorney”
and that courts “must make attorney-specific factual
findings and legal conclusions” before ordering
disqualification. Id. at 880. It then reversed the district
court due to the “paucity of facts” indicating a conflict or
misconduct in the disqualification order. Id. at 879. It also
faulted the district court for failing to “even consider[] the
separation[-]of[-]powers concerns implicated by . . .
disqualification.” Id. at 879.
In Whittaker, the Third Circuit reversed the
disqualification of an entire U.S. Attorney’s Office after a
paralegal in the office inadvertently sent a target of
investigation a letter identifying him as a victim in the same
investigation. 268 F.3d at 187, 195–96. After being
charged, the defendant moved to dismiss the indictment,
alleging that the government was acting in bad faith by
treating him as both a victim and a suspect in the same case.
UNITED STATES V. WILLIAMS 17
Id. at 188. The district court declined to dismiss the
indictment but disqualified the U.S. Attorney’s Office from
prosecuting the defendant. Id. at 188–90. Even though the
district court found no bad faith on the prosecutor’s part, it
ordered the Attorney General to appoint an attorney from
outside the U.S. Attorney’s Office in the case. Id. at 191.
The Third Circuit found it “perfectly clear that the district
court had no basis to disqualify” the whole office. Id. at 194.
The court emphasized that the defendant had not shown that
the receipt of the letter “in any way prejudiced his defense,”
and the government’s action was “simply . . . a mistake.” Id.
at 194. The Third Circuit reversed the district court’s
“unjustified conclusions,” finding they lacked “all sense of
proportion.” Id. at 195–96.
In Vlahos, the Seventh Circuit reversed a district court’s
order disqualifying a U.S. Attorney’s Office from
prosecuting a criminal contempt charge. 33 F.3d at 763.
After disqualifying two Assistant U.S. Attorneys for
perceived conflicts of interest, the district court disqualified
the entire U.S. Attorney’s Office and appointed a private
attorney to prosecute the matter. Id. at 761. On appeal, the
Seventh Circuit found no basis to disqualify the entire office
when nothing in the record showed that it was “ill-prepared
or lacked sufficient ability to prosecute the case” or that the
prosecutors had a conflict of interest. Id. at 762–63.
In Caggiano, the Sixth Circuit reversed an officewide
disqualification after the U.S. Attorney’s Office hired a
defendant’s attorney as a prosecutor. 660 F.2d at 185. After
representing the defendant in criminal proceedings, the
defendant’s defense counsel accepted an offer to join the
same U.S. Attorney’s Office as an Assistant U.S. Attorney.
Id. at 186–87. The defendant and his co-defendants moved
to disqualify the entire U.S. Attorney’s Office, alleging that
18 UNITED STATES V. WILLIAMS
the hire created a conflict of interest. Id. at 186. Even
though the U.S. Attorney’s Office detailed plans to screen
the former defense counsel from the prosecution, the district
court granted the motion based on the “appearance of
impropriety.” Id. at 187–88. The Sixth Circuit disagreed. It
emphasized the “difference in the relationship between law
partners and associates in private law firms and lawyers
representing the government,” and thus held it was “not
necessary or wise” to disqualify an entire government office
after the conflicted attorney was “separated from any
participation on the matters affecting his former client.” Id.at 190–91 (simplified).
And while our circuit has yet to encounter an officewide
disqualification, our caselaw shows that we would take an
approach similar to our sister courts. In one case, we
affirmed a district court’s refusal to order officewide
disqualification even after a defendant alleged that the U.S.
Attorney himself had a personal conflict. United States v.
Lorenzo, 995 F.2d 1448, 1452 (9th Cir. 1993). In that case,
the U.S. Attorney and several Assistant U.S. Attorneys were
victims of the defendant’s tax scheme and testified against
him at trial. Id. But we upheld the district court’s refusal to
disqualify the entire office because the defendant failed to
show prejudice and there was no evidence that the “charges
were brought because of the victimization of the U.S.
Attorney himself” or that “the U.S. Attorney’s Office did not
exercise its discretionary function in an even-handed manner
or that its zeal was not born of objective and impartial
consideration of the merits of th[e] case.” Id. at 1453. And
elsewhere, we’ve held that defendants “must demonstrate
prejudice from [a] prosecutor’s potential conflict of interest”
or present “clear and convincing evidence of prosecutorial
misconduct” before a district court may disqualify a
UNITED STATES V. WILLIAMS 19
prosecutor. United States v. Kahre, 737 F.3d 554, 574–75
(9th Cir. 2013).
Based on separation-of-powers principles and the
consensus among courts, we believe disqualification of an
entire U.S. Attorney’s Office is an extreme remedy—only
appropriate in the most extraordinary circumstances. Such
extensive interference with Executive branch affairs
demands “a clear basis in fact and law.” Gatto, 763 F.2d at
1046 (quoting United States v. Chanen, 549 F.2d 1306, 1313
(9th Cir. 1977)). This is a two-part requirement. 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 exacting findings and legal conclusions
will we uphold the disqualification of an entire office of a
coequal branch. Accord Bolden, 353 F.3d at 880 (“[T]he
district court must make attorney-specific factual findings
and legal conclusions before disqualifying attorneys from
the [U.S. Attorney’s O]ffice.”). As we’ve previously said,
we will only “thwart the will” of the Executive branch when
its “behavior is not in accordance with law.” Simpson, 927
F.2d at 1091. We don’t disqualify an entire office of federal
prosecutors merely as a precautionary measure.
B.
Applying these considerations, the district court’s
sweeping disqualification was an abuse of discretion.
20 UNITED STATES V. WILLIAMS
Nothing in the magistrate judge’s verbal order or the district
court’s reconsideration order provides a “clear basis in fact
and law,” Gatto, 763 F.2d at 1046 (simplified), to disqualify
the entire U.S. Attorney’s Office. We thus reverse—for two
reasons.
First, the facts do not support an officewide
disqualification. Williams’s motions only alleged a conflict
or misconduct involving one Assistant U.S. Attorney. At the
status conference, Williams’s counsel admitted that the
defendants did not know whether any ethical issues
“extended beyond” that one prosecutor. And without any
evidence of officewide involvement, it was pure speculation
to conclude that any conflict or misconduct pervaded the
entire U.S. Attorney’s Office. Here, the magistrate judge
“imagine[d]” that “th[e] case generally has gone up the food
chain” to the Arizona U.S. Attorney. But if the separation of
powers means anything, it means we may not disqualify an
entire office of a co-equal branch based on an assumption.
Indeed, even if the Arizona U.S. Attorney himself was aware
of the allegations of misconduct, that alone may not justify
disqualifying the whole office. See Lorenzo, 995 F.2d at
1452. Rather, “the generally accepted remedy,” consistent
with separation of powers concerns, “is to disqualify a
specific Assistant United States Attorney, not all the
attorneys in the office.” Bolden, 353 F.3d at 879(simplified).
Second, no clear violation of law or ethics supports an
officewide disqualification. The district court did not
conclude that the U.S. Attorney’s Office’s representation
would lead to a legal or ethical violation. While Williams’s
motions allege some eyebrow-raising contacts between the
Assistant U.S. Attorney and Monteen’s former attorney, the
district court had yet to identify any “behavior . . . [of the
UNITED STATES V. WILLIAMS 21
whole office] not in accordance with law.” Simpson, 927
F.2d at 1091. It was therefore premature to resort to an
officewide disqualification.
As noted above, any officewide disqualification of a U.S.
Attorney’s Office must respect the separation of powers. It
does not appear that the district court sufficiently appreciated
this concern. The magistrate judge’s decision to disqualify
was informed, in part, by a comparison to an internal
investigation of a private company. “When you have an
internal investigation,” the magistrate judge observed, “you
don’t have in-house counsel doing that.” But that 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.
IV.
Before disqualifying an entire U.S. Attorney’s Office, a
district court must make specific factual findings that show
that the office’s continued representation would result in a
clear legal or ethical violation. Because the record does not
reveal pervasive misconduct or a blanket conflict here, we
reverse the disqualification order. Given our resolution of
this matter, we also deny defendants’ motions to file their
supplemental excerpts of record and answering brief under
seal and ex parte. See Dkt. Nos. 56 & 58.
REVERSED.