     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

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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.




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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.




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