## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 24 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. GARY LIONELL BOLDEN,

Defendant - Appellee. No. 02-6249

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. CR-99-59-A)
Arlene Joplin, Assistant United States Attorney (Ro bert G. McCampbell, United States Attorney, and Sue Tuck Richmond, Assistant U nited States Attorney, with her on the briefs), Office of the United States Att orney, Oklahoma City, Oklahoma, appearing for Appellant. Paul Antonio Lacy, Assistant Federal Public Defende r, Office of the Public Defender, Oklahoma City, Oklahoma, appearing for Ap pellee.

Before TACHA , Chief Circuit Judge, BRORBY , Senior Circuit Judge, and TYMKOVICH , Circuit Judge.

TACHA , Chief Circuit Judge.

On July 10, 2002, the United States District Court for the Western District-2-

of Oklahoma disqualified the entire office of the U nited States Attorney for the Western District of Oklahoma (“USA”) from represent ing the government on Defendant Gary Lionel Bolden’s motion to compel. T he USA’s office immediately appealed the disqualification. Pursuan t to the collateral order doctrine under 28 U.S.C. § 1291, we take jurisdicti on and REVERSE. I. Background On May 5, 1999, a grand jury indicted Mr. Bolden onseven drug-related counts. On July 19, 1999, he entered into a plea a greement in which he pleaded guilty to one count in exchange for the government dismissing the remaining charges. The agreement stated that the government, “in its sole discretion and by whatever means it deems appropriate, [would] evaluate Bolden’s cooperation in determining whether a motion for downward departure under § 5K1.1 of the Sentencing Guidelines or a reduction of sentence un der Rule 35(b), Federal Rules of Criminal Procedure is appropriate.” It further stated that “the decision to make such a motion is likewise solely within the discret ion of the United States, and that a negative decision will not allow a guilty pl ea to be withdrawn.” The district court sentenced Mr. Bolden on November 9, 2000. In December 2001, Mr. Bolden sent a letter to the U SA’s office, requesting that the government seek a reduction of his sentenc e. Assistant United States Attorney Jay Farber notified Mr. Bolden’s counsel that the downward departure-3-

committee had elected not to seek a reduction of Mr . Bolden’s sentence. An exchange of letters between Mr. Bolden’s counsel an d the USA’s office followed. On June 14, 2002, Mr. Bolden moved to compel the go vernment to file a motion for reduction of sentence, alleging multiple instances of bad faith on the part of the government. The government filed a mot ion for extension of time to respond. The district court denied the request and entered an order sua sponte directing the government to respond to the question , “In view of Mr. Bolden’s allegation, should the government’s representation with regard to defendant’s motion be provided by a United States Attorney fromanother judicial district?” Mr. Bolden then filed a motion to recuse the USA’s office. On July 10, 2002, the district court entered an ord er disqualifying the entire USA’s office, directing it to arrange for an Assist ant United States Attorney (“AUSA”) from another district to respond to the or iginal motion to compel, and ordering that the response could not simply reiterate AUSA Farber’s earlier response. This appeal followed. II. Discussion A. Jurisdiction “Section 1291 of Title 28 of the United States Code grants the courts of appeals . . . jurisdiction of appeals from all final decisions of the district courts.” Forney v. Apfel , 524 U.S. 266, 269 (1998) (quoting 28 U.S.C. § 129 1) (internal-4-

citations omitted). A decision is “not final, ordi narily, unless it ends the litigation on the merits and leaves nothing for the court to do but execute judgment.” See Cunningham v. Hamilton County, Ohio , 527 U.S. 198, 204 (1999) (internal quotations omitted). Thus, “[t]he law normally req uires a defendant to wait until the end of the trial to obtain appellate review of a pretrial order.” Sell v. United
States , ___ U.S. ___, 123 S. Ct. 2174, 2182 (2003). The Supreme Court has, however, “interpreted the te rm ‘final decision’ in § 1291 to permit jurisdiction over appeals from a s mall category of orders that do not terminate” a case. Cunningham , 527 U.S. at 204. For a district court order to fall within the narrow confines of the collateral o rder doctrine, it must “(1) conclusively determine[] the disputed question, (2) resolve[] an important issue completely separate from the merits of the action, and (3) [be] effectively unreviewable on appeal from a final judgment.” Sell , 123 S. Ct. at 2182. The Supreme Court “ha[s] strictly applied this testwhen parties pursued immediate appeal of trial court rulings on motions to disqualify counsel.” Richardson-Merrell, Inc. v. Koller , 472 U.S. 424, 431 (1985). The Court has held that neither a plaintiff nor a defendant in a civil case may immediately appeal a disqualification order. Koller , 472 U.S. at 431 (plaintiff); Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 370 (1981) (defendant). Similarly, the Court has held that a criminal defendant may not im mediately appeal a pretrial1 We acknowledge that disqualifying an entire United States Attorney’s

office differs materially from disqualifying an ind ividual prosecutor for purposes of the collateral order doctrine. Accordingly, thi s opinion does not address whether the government may immediately appeal an or der disqualifying one or (continued...) -5- order disqualifying his counsel. Flanagan v. United States , 465 U.S. 259, 260 (1984). The Court has yet to consider the immediat e appealability of an order disqualifying an individual prosecutor or an entire United States Attorney’s office. In conducting our analysis, we are mindful that “[i ]n fashioning a rule of appealability under § 1291 . . . we [must] look to categories of cases, not to particular injustices.” Van Cauwenberghe v. Baird, 486 U.S. 517, 529 (1988); see also Digital Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 868 (1994) (“[T]he issue of appealability under § 1291 is to b e determined for the entire category to which a claim belongs, without regard t o the chance that the litigation at hand might be speeded, or a ‘particular injustic [e]’ averted by a prompt appellate court decision.”) (citation omitted) ; United States v. McVeigh , 106 F.3d 325, 332 n.6 (10th Cir. 1997) (noting that courts m ust decide the appealability of orders as a class, not based on the distinctive cir cumstances of each case). Thus, we address whether the government may immediately appeal an order disqualifying an entire United States Attorney’s of fice from post-conviction proceedings. 1 This issue is a matter of first impression for ou r court.1 (...continued)

more prosecuting attorneys. -6-

1. Conclusively Determines The Disputed Issue We must first determine whether the disqualificatio n order conclusively determines the disputed issue. United States v. Deters , 143 F.3d 577, 581 (10th Cir. 1998). We look to the challenged order itself and the entire record to determine if the district court’s order conclusivel y settles the disputed issue. Id. (looking to the record to determine whether the ord er conclusively settled a matter); see also Pindus v. Fleming Co., Inc. , 146 F.3d 1224, 1226 (10th Cir. 1998) (looking to the plain language of an order to determine its finality). A review of the record in this case makes clear that the district court does not intend to revisit its disqualification decision and that its order prohibits the USA’s office from representing the government in al l matters related to Mr. Bolden’s motion. We thus find that the disqualific ation order conclusively determines that the USA’s office may not represent the government in Mr. Bolden’s effort to force the government to file a r equest for a reduction of

sentence. We find Mr. Bolden’s objections on this point unper suasive. Mr. Bolden argues that the order is not conclusive because it does not prohibit the USA’s office from participating in “the future,” although he does not identify what future-7-

events he envisions. The disqualification order st ates that it disqualifies the USA’s office from representing the government on th e motion to compel. We read this to include all matters relating to the mo tion to compel. We therefore reject Mr. Bolden’s argument that the order is not conclusive because the USA’s office may participate in some undefined future eve nt unconnected to the current dispute. 2. An Important Issue Separate From The Merits Of Th e

Underlying Action We next consider whether the order (1) resolves an important issue (2) that is completely separate from the merits. Deters , 143 F.3d at 581. Disqualifying the entire USA’s office from representing the government raises important separation of powers issues. United States v. Silva-Rosa , 275 F.3d 18, 22 (1st Cir. 2001) (finding that disqualification of govern ment attorneys can “trigger weighty separation of powers concerns”). These con cerns are undoubtedly jurisprudentially important. United States v. Whittaker , 268 F.3d 185, 192 (3d Cir. 2001) (finding that an order disqualifying a U nited States Attorney’s office from a criminal prosecution is “a jurisprudentiallyimportant issue”). Mr. Bolden admits as much in his brief. In judging separability, we consider whether such d isqualification orders are so “enmeshed in the factual and legal issues co mprising” the underlying action, see Coopers & Lybrand v. Livesay , 437 U.S. 463, 469 (1978) (internal-8-

quotation marks omitted), that interlocutory reviewwill force an appellate court to consider the same or similar issues more than once, Johnson v. Jones , 515 U.S. 304, 311 (1995). We conclude that, on the whole, o rders disqualifying an entire United States Attorney’s office are separate from the underlying issues. In reaching this conclusion, we are strongly influe nced by the fact that we can only rarely––if ever––imagine a scenario in whi ch a district court could properly disqualify an entire United States Attorne y’s office. Indeed, “[t]he disqualification of Government counsel is a drastic measure[,]” Bullock v. Carver , 910 F. Supp. 551, 559 (D. Utah 1995) (citing cases) , and even “where it is shown that an Assistant United States Attorney is subjectto a conflict of interest, the proper remedy [generally] is to remove that individ ual, not all of the attorneys in the district, from the case[,]” Crocker v. Durkin , 159 F. Supp. 2d 1258, 1284-85 (D. Kan. 2001). Thus, because disqualifying an ent ire United States Attorney’s office is almost always reversible error regardless of the underlying merits of the case, a reviewing court will rarely have to delve i nto the underlying claim to conclude that the disqualification was unwarranted. The Supreme Court’s rulings in Flanagan and Koller , which held respectively that a civil plaintiff and a criminal defendant may not challenge disqualification orders on interlocutory appeal, ar e inapposite. Here, the district court disqualified the prosecutor—indeed the entire USA’s office. Such an order-9-

implicates separation of powers concerns that were not at issue in Flanagan and Koller

. See Whittaker , 268 F.3d at 196 n.6 (noting separation of powers concerns in disqualifying an entire United States Attorney’s office, but reversing the disqualification on other grounds). Further, the unique nature of the separation of pow ers concerns that are relevant to this appeal renders the prejudice-relat ed separability concerns of Flanagan and Kollerinapplicable. The Flanagan and KollerCourts held that the parties could not immediately appeal their disquali fication orders, in part, because a court could not determine the propriety of the or der without considering whether the parties suffered prejudice, which requi res consideration of the underlying merits of the case. See Flanagan , 465 U.S. at 268-69 (finding that the disqualification appeal and the underlying dispute were intertwined); Koller , 472 U.S. at 439 (finding that an order disqualifying in dividual attorneys in a civil case was not directly appealable, in part, because such a review would likely require an examination of the merits of the underlying litigat ion). In contrast, the current appeal—and most appeals from the disqualification o f an entire United States Attorney’s office—will raise separation of powers i njuries that will allow a court to evaluate the order without reaching the issue of prejudice. Despite these considerations, Mr. Bolden urges us t o find that, in this case, “the issue of the government’s representation is in extricably intertwined and-10-

entangled in the merits of Mr. Bolden’s claims.” T his argument, however, overlooks that the Court has “consistently escheweda case-by-case approach to deciding whether an order is sufficiently collatera l.” Cunningham , 527 U.S. at 206. Every appeal that has considered the disquali fication of an entire United States Attorney’s office has found the disqualification issue to be entirely separate from the merits of the underlying case. See Whittaker , 268 F.3d at 192 (“the [disqualification] order unquestionably resol ves a jurisprudentially important issue completely separate from the merits of the dispute concerning whether Whittaker committed mail fraud”); United States v. Vlahos , 33 F.3d 758, 761 (7th Cir. 1994) (holding that the disqualificat ion order is “an issue completely independent of the merits of the action”); United States v. Caggiano , 660 F.2d 184 (6th Cir. 1981) (finding that the disqualificat ion order “was separable from, and collateral to the merits of the main proceeding ”) (internal quotations omitted). Thus, even if the issues in the underlying dispute in this case were to overlap with the disqualification order, an issue we do not reac h today, we find that on the whole such orders would satisfy the separability re quirement.

3. Effectively Unreviewable On Appeal From A Final O rder Finally, we must consider whether such disqualification orders are “effectively unreviewable on appeal from final judg ment.” Coopers & Lybrand, 437 U.S. at 468. An order is effectively unreviewa ble on appeal “where the order-11-

at issue involves ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial .’” Midland Asphalt Corp. v. United States , 489 U.S. 794, 799 (1989) (quoting United States v. MacDonald, 435 U.S. 850, 860 (1978)). Applying this standard in most criminal litigation leads to the conclusion that the government cannot effectively vindicate it s rights on appeal after a final judgment. If it loses at trial, the Double Jeopardy Clause will likely prohibit review. See, e.g., Montoya v. New Mexico , 55 F.3d 1496, 1498 (10th Cir. 1995). If the government prevails at trial, it will genera lly lack standing as a prevailing party to appeal the decision. See, e.g., Jarvis v. Noble/Sysco Food Serv. Co. , 985 F.2d 1419, 1424 (10th Cir. 1993) (stating that “it is the general rule that a party cannot appeal from a judgment in his favor”). The government asks us to find that the same holds true in this case. The government’s argument, however, overlooks the f act that the current dispute does not implicate the Double Jeopardy Clau se. That clause “provides three separate protections for criminal defendants: against prosecution for the same offense after an acquittal, against prosecutio n for the same offense after a conviction, and against multiple punishments for th e same offense.” Montoya , 55 F.3d at 1498. Because the current action is not a true criminal proceeding, but merely a dispute over whether the government has ho nored its obligations under-12-

the plea agreement, this matter does not implicate any of the protections provided by the Double Jeopardy Clause. Therefore, the gove rnment’s argument on this matter is unpersuasive. Nevertheless, we find that an appeal following an a dverse ruling on the merits would not effectively vindicate the alleged harm. On this point, the government argues that the true harm from disqualif ication is grounded in separation of powers. It points out that Congress has mandated that the United States Attorney for each district represent the gov ernment in all cases occurring within that district. See 28 U.S.C. § 547. Further, although not noted by t he government, the Constitution grants the Executive t he power to “take care that the laws are faithfully executed.” U.S. Const. art. II , § 3. Although caselaw is admittedly vague on the exact scope of this power, it is clear that this constitutional provision vests the Executive with s ubstantial discretion in choosing when and how to prosecute cases. See, e.g. , United States v. Andersen , 940 F.2d 593, 596 (10th Cir. 1991) (holding that th e Constitution vests prosecutors with significant discretion in choosing when and how to prosecute); United States v. Cox , 342 F.2d 167, 171 (5th Cir. 1965) (en banc) (“It follows, as an incident of the constitutional separation of pow ers, that the courts are not to interfere with the free exercise of the discretiona ry powers of the attorneys of the United States in their control over criminal prosec utions.”); Matter of Grand Jury-13-

Subpoena of Rochon , 873 F.2d 170, 174 (7th Cir. 1989) (“As a threshol d matter, a court may not exercise any supervisory power [over the Executive] absent a clear basis in fact and law for doing so . . . . A federa l court that imposes sanctions on executive conduct that is otherwise permitted by th e Constitution, a federal statute or a rule will most likely be invading the executiv e sphere . . . .”) (internal quotations omitted). Because the alleged injury is grounded in separatio n of powers, we find that appellate vindication would not effectively remedy the alleged harm. In doing so, we have fully considered the teachings of Flanagan , but find them inapposite. In Flanagan , the Supreme Court rejected interlocutory appellat e review, in part, because it found that the defendant could obtain ef fective post-trial relief from the improper disqualification of his counsel becaus e post-trial reinstatement of his counsel would remedy any injury he suffered. Flanagan , 465 U.S. at 267-68. In this case, however, no post-trial relief exists that could remedy the alleged separation of powers injury that would be i ncurred through wrongful disqualification of the entire USA’s office. The s eparation of powers doctrine, which acts as a “safeguard against the encroachmentor aggrandizement of one branch at the expense of the other,” Buckley v. Valeo , 424 U.S. 1, 122 (1976), confers on each branch “the ability . . . to be vig orous in asserting its proper authority[,]” Clinton v. City of New York , 524 U.S. 417, 452 (1998) (Kennedy, J.2 Because we find that we have jurisdiction to hearthis appeal under the

collateral order doctrine, we do not reach the government’s mandamus argumen t,. See In re Kozensky , 236 F.3d 615, 618 (10th Cir. 2000) (If a “court h as before it both an appeal and a petition for mandamus, as in t his case, and the order is properly reviewable by way of appeal, the court mus t review the [order] through appeal rather than mandamus.”). -14- concurring). The interests protected by the doctri ne simply will not abate during the possibly lengthy resolution of this matter, andappellate vindication cannot undo such an invasion of Executive authority. Ther efore, mindful of the fact that “[l]iberty is always at stake when one or more bran ches seek to transgress the separation of powers[,]” id. , we conclude the USA’s office may immediately appeal the disqualification order. 2
B. Merits Having established jurisdiction to hear this appeal , we now consider whether the district court erred by disqualifying the entire USA’s office. Like the jurisdictional issue, this is a matter of first imp ression for our court. We review attorney disqualification orders under a bifurcated standard of review. First, we review the district court’s fact ual conclusions under a clear error standard. United States v. Collins , 920 F.2d 619, 628 (10th Cir. 1990). Second, we review the district court’s legal interp retation of particular ethical norms under a de novo standard when that interpretation implicates important constitutional rights. Id . (applying de novo review when disqualification-15-

implicates the Sixth Amendment right to counsel). De novo review is especially appropriate “in disqualification cases . . . where the facts are not in dispute, [because] district courts enjoy no particular funct ional advantage over appellate courts in their formulation and application of ethi cal norms.” Id. (internal citations omitted). Thus, because the current disq ualification order implicates important constitutional principles and the distric t court did not base its order on highly disputed facts, we review the order under th e de novo standard of review. See id. “The disqualification of Government counsel is a dr astic measure and a court should hesitate to impose it except where nec essary.” Bullock, 910 F. Supp. at 559. Courts have allowed disqualification of go vernment counsel in limited circumstances. See, e.g., Young v. United States , 481 U.S. 787, 807 (1987) (actual conflict of interest because appointed pros ecutor also represented another party); United States v. Heldt , 668 F.2d 1238, 1275 (D.C. Cir. 1981) (bona fide allegations of bad faith performance of official du ties by government counsel in a civil case); United States v. Prantil , 764 F.2d 548, 552-53 (9th Cir. 1985) (prosecutor who will act as a witness at trial). F urther, because disqualifying government attorneys implicates separation of power s issues, the generally accepted remedy is to disqualify “a specific Assist ant United States Attorney . . . , not all the attorneys in” the office. Crocker , 159 F. Supp. 2d at 1284. In light of-16-

these principles, every circuit court that has cons idered the disqualification of an entire United States Attorney’s office has reversedthe disqualification. See Whittaker , 268 F.3d 185 (3d Cir. 2001); Vlahos , 33 F.3d 758 (7th Cir. 1994); Caggiano , 660 F.2d 184 (6th Cir. 1981). Noting these important principles, we reverse the d isqualification order for several reasons. First, the district court wrote an extremely short disqualification order, containing a paucity of facts to indicate ei ther misconduct in the representation or any alleged conflicts of intereston the part of the entire USA’s office. Cf. Collins , 920 F.2d at 628 (requiring the district court to make substantial findings on the record to justify disqu alification of defense counsel). Indeed, the order itself discounts several probable bases for disqualifying even individual attorneys in the office. It reads, “[R] egardless of whether [AUSA] Farber may become a witness or may have an actual c onflict of interest, the Court finds that the government’s response to Mr. Bolden’ s motion to compel should be prepared by counsel from another United States Atto rney’s office” to preserve objectivity. Thus, rather than extensively analyzi ng any alleged misconduct in the representation or conflicts of interest on the partof the entire USA’s office, the district court merely concluded that the USA’s offi ce was “too close to the case to3 From reading this statement, it appears that the district court disqualified

the USA’s office, at least in part, because it beli eved that the office would not provide effective counsel for the government. This concern seems misplaced. First, we can presume that, in most cases, the Exec utive is in a better position than a judge to decide who can best represent its p osition. Second, even if the USA’s office did not effectively represent the gove rnment, we cannot see how that would harm Mr. Bolden. Presumably, if the USA ’s office is an ineffective advocate, Mr. Bolden will obtain his desired relief. Thus, at least in this case, such concern for the government by the district cou rt is misplaced. -17- advocate effectively the government’s position.” 3 Finally, the district court did not indicate that it even considered the separation of powers concerns implicated by the disqualification order. Further, to support the disqualification, the distr ict court cited United States v. Berger , 251 F.3d 894, 907 (10th Cir. 2001), out of context. When read in full, it does not support the disqualification: During oral arguments in this case, the panel askedcounsel whether it was appropriate for attorneys who had testified as witnesses in the district court to argue the case on appeal. This co ncern was raised in light of standards such as Rule 3.7 of the Rules of Professional Conduct, adopted by the Oklahoma Supreme Court. See 5 O.S. 2000, Ch. 1, App. 3-A . . . . Although the rule thus does not appear to bar counsel’s representation in the instant appeal, we note the dual roles of the attorneys in this case have made the determi nation of the appeal more difficult . . . . In such circumstances, we think attorneys should consider whether it would be wiser to have different counsel handle the appeal, so as to keep separate the roles of attorney and witness, to preserve the ability of counsel to rema in objective, and to avoid any potential conflict of interest between th e attorney and the client. Id. at 906-07 (emphasis added). Reading Bergerin context makes clear that its suggestion ––that attorneys should-18-

consider potential conflicts caused by possible vio lations of specific ethical rules––does not support dismissing the entire USA’s office without basing this action on clearly stated ethical violations for eac h attorney. Indeed, in light of the serious ethical allegations and constitutional issues involved in such cases, we stress that the districtcourt must make attorneyspecific factual findings and legal conclusions bef ore disqualifying attorneys from the USA’s office. See Fullmer v. Harper , 517 F.2d 20, 22 (10th Cir. 1975) (“[T]he trial court should . . . make specific find ings and conclusions [before disqualification], to the end that this court will then have a record before it which will permit a meaningful review, should review be s ought.”). The record before us does not indicate that the district court made s uch findings in this case. III. Conclusion For the foregoing reasons, we REVERSE the district court’s disqualification order. Appellee’s motion to dismiss is denied.