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This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Aug. 8, 1988.
Appeal from the United States District Court for the District of Nevada, No. CR-87-0032-ECR; Edward C. Reed, Jr., District Judge, Presiding.
D.Nev.
REVERSED.
Before EUGENE A. WRIGHT and POOLE, Circuit Judges, and WILLIAMS, District Judge .
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
MEMORANDUM **
In Young v. United States ex rel Vuitton et Fils S.A., 481 U.S. 787 (1987) (Young), the Supreme Court disapproved of the practice of appointing counsel for a party who is the beneficiary of a court order to undertake criminal contempt prosecutions for alleged violations of that order. This appeal presents the question whether the rule established in Young is violated when the court appoints counsel for an interested party ostensibly toassist the public prosecutor, then countenances an arrangement by which the private counsel plays the entire active role in preparing and presenting the case against the defendant, unsupervised by the public prosecutor. We hold that such an arrangement violates Young, and we therefore reverse the judgment of contempt entered against appellant.
FACTS AND PROCEEDINGS BELOW
Smith, a tax attorney, represented Elmas Trading Co. and its president, who, along with Republic Overseas Bank, Ltd. (ROBL), were named as defendants in an action for injunctive and other equitable relief brought by the Securities and Exchange Commission in district court. (SEC v. Elmas, et al., Dist. of Nevada, No. CV-R-85-263-ECR). The complaint alleged that the defendants promoted, offered and sold securities in violation of federal securities laws. On June 24, 1985, the district court appointed Richard Shaffer as Receiver for Elmas and ROBL and permanently enjoined them, as well as Smith, from engaging in certain securities violations. On October 16, 1986, the Receiver filed a complaint naming Smith and others as defendants and alleging misappropriation of investor funds and transfer of the funds to foreign financial institutions for the purpose of concealing assets from the court and the Receiver. Shaffer v. Attarian, et al., Dist. of Nevada, No. CV-N-86-486-ECR, (referred to by the parties as the "Nipshire action"). On the same day, the district court ordered Smith to appear on November 21 to show cause why he should not be held in civil contempt until such time as he complied with the court's previously issued orders in SEC v. Elmas, et al. After he failed to appear, the district court issued a bench warrant for Smith's arrest. He was subsequently arrested and charged with criminal contempt for failure to appear as ordered. Eventually he was charged with another count of criminal contempt in the Nipshire action and with civil contempt in both actions. All the contempt charges were heard together, but only the criminal charge relating to SEC v. Elmas, et al. is involved in this appeal. Smith was acquitted of the criminal charge arising out of the Nipshire action.
On May 1, 1987, the law firm of Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Case (Finley firm), attorneys for the Receiver in SEC v. Elmas, et al. and in the Nipshire action, was appointed Special Prosecutor for the purpose of prosecuting the criminal contempt charges against Smith. A few weeks later, on May 26, the Supreme Court issued its decision in Young, 481 U.S. 787, holding that "counsel for a party that is the beneficiary of a court order may not be appointed to undertake contempt prosecutions for alleged violations of that order." Id. at 790. In view of that decision, and recognizing the potential for impropriety of its appointment as prosecutor, the Finley firm filed a motion to vacate the appointment and requested that it be appointed as special assistant to the United States Attorney instead. On June 19, 1987, the district court granted the motion, vacating the prior appointment and ordering that "at all times relevant to these proceedings, the United States Attorney shall be in control of and principally responsible for the prosecution efforts against Russell B. Smith III." At the same time, the district court appointed the Finley firm as "Special Assistant to the United States Attorney."
As Smith's trial began, an Assistant United States Attorney, Brian Sullivan, designated to handle the case for the government, outlined the proposed functioning in the trial of the United States Attorney's Office and the Finley firm. The entire colloquy between Mr. Sullivan and the court is set forth in the Appendix. Mr. Sullivan stated that it had been agreed that the United States Attorney's Office would undertake the prosecution with the assistance of the Finley firm. He explained to the court that he had worked with the Finley firm during the pre-trial phase of the case, that those attorneys had deposed or spoken to most of the witnesses, and that the witnesses had been selected and subpoenaed at their suggestion. He further explained that the firm's lawyers had prepared letters outlining the facts of the case and legal memoranda outlining the elements of and defenses to the crime. Mr. Sullivan informed the court that the private counsel understood the case much better than he and that they would be examining the witnesses during trial, although he would be present. Finally, Mr. Sullivan represented, at the court's prompting, that he would be supervising the prosecution, although he did not indicate then or at any other time specifically of what his supervision would consist.
The trial was held on July 20 and 21, 1987. Finley lawyers conducted all the witness examination for the prosecution and produced all the evidence. Smith was found guilty of contempt as charged, and he now appeals from that conviction on the grounds that the Finley firm, not the United States Attorney, in fact had conducted the prosecution in violation of Young.
STANDARD OF REVIEW
The standard for reviewing the Finley firm's participation in the prosecution is not straightforward. The district court withdrew its order appointing the firm as special prosecutor, thus avoiding the "fundamental error" which would compel reversal whether or not there was any actual impropriety or prejudice to Smith thereby. Young, 481 U.S. at 811-12. However, the question we must decide is whether the Young holding is implicated on this record; that is, whether the arrangement amounted to allowing the firm to become the actual prosecutor, the problem which concerned the court in Young. While our inquiry necessarily involves some assessment of the facts of record, our primary focus is on the values underlying Young. Because this is the thrust of our inquiry, our review is de novo. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).
The government argues that we should apply the "plain error" standard because Smith failed to object below to the Finley firm's appointment as special assistant. Although we have some doubt whether that is the proper standard here, we need not decide the question. The essence of Smith's objection is that the district court's appointment of the firm as Special Assistant to the United States Attorney resulted in the firm, not the government, prosecuting the public charges. If this be so, we think that under Young, such error is reversible per se. See discussion in Young, 481 U.S. at 809-11.
Under 28 U.S.C. § 546(d), the district court's authority to appoint interim United States Attorneys is limited to filling a short-term vacancy.
DISCUSSION
The Young court was concerned with eliminating the opportunity for conflict of interest and the appearance of impropriety where counsel for the very party which stands to gain if the prosecution for violation of a court order is successful actually does the prosecution. Id. at 804-5 (plurality opinion). The Court said that even the appearance of impropriety "diminishes faith in the fairness of the criminal justice system in general." Id. at 811. Although otherwise divided in its rationale, all members of the Court, except Justice White, agreed that it was error to appoint an interested prosecutor; even Justice White did not endorse the practice. Id. at 802 (plurality opinion); 815 (Scalia, J., concurring in the judgment); 826 (Powell, J., joined by Rehnquist, C.J. and O'Connor, J., concurring in part and dissenting in part); 827 (White, J., dissenting). The plurality further held that such appointments are error whether or not any actual prosecutorial impropriety emerges from a particular case. Id. at 805-806. It reasoned that when a prosecutor represents an interested party, there arises an inherent conflict with the prosecutor's sworn duty to seek justice, not merely convictions. Id. at 807. In the face of such a conflict, "we cannot have confidence in a proceeding in which this officer plays the critical role of preparing and presenting the case for the defendant's guilt." Id. at 811. Because harmless error analysis would not be sensitive to this underlying concern, the plurality held that convictions obtained by interested prosecutors call for per se reversal. Id. at 811-814.
That part of the plurality opinion (Part III-B) holding harmless error analysis to be inappropriate was not supported by a majority of the justices, but is nonetheless the opinion of the Court. Justice Brennan's plurality opinion was joined by the Chief Justice and by Justices Marshall, Blackmun, Powell, Stevens and O'Connor, except with respect to Part III-B, which characterized appointment of an interested prosecutor as "fundamental error" and held that harmless error analysis was inappropriate. Id. at 809-814. Justices Marshall, Blackmun and Stevens joined Part III-B. Justice Powell dissented from Part III-B and was joined by the Chief Justice and Justice O'Connor. The dissenters believed that contempt convictions should not be overturned if the error were shown to be harmless; they would have remanded to the district court to make that determination. Id. at 826-827. Justice Scalia did not join in any part of Justice Brennan's opinion, but he concurred in the judgment reversing the contempt convictions. He was of the view that federal courts have no power to appoint private attorneys, interested or otherwise, to conduct contempt prosecutions. Id. at 825. Justice White did not endorse the practice of appointing interested prosecutors, but he dissented separately on the grounds that Fed.R.Crim.P. 42 and long-standing practice give authorization to such appointments. Justice Blackmun filed a separate concurring opinion, joining in all parts of the plurality opinion but stating his view that the error was of constitutional dimension. Id. at 814-815. Neither Justice White's dissent nor Justice Blackmun's separate concurrence bears on the effect of Part III-B of the plurality opinion.
The Supreme Court has explained that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....' " Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976)). Hence, Part III-B of Justice Brennan's opinion in Young must be regarded as the holding of the Court, as it is the narrowest grounds supporting reversal of the contempt convictions. Appointment of an interested prosecutor is therefore reversible per se.
Under a proper reading of the case it is clear that Young cannot be avoided by securing the nominal involvement of the United States Attorney's Office if, in fact, the private counsel, as here, plays "the critical role of preparing and presenting the case for the defendant's guilt." Id. at 811. On the other hand, a public prosecutor is not to be denied the assistance of counsel for the beneficiary of the allegedly violated court order. Footnote 17 of the Young opinion states:
The potential for misconduct that is created by the appointment of an interested prosecutor is not outweighed by the fact that counsel for the beneficiary of the court order may often be most familiar with the allegedly contumacious conduct. That familiarity may be put to use in assisting a disinterested prosecutor in pursuing the contempt action, but cannot justify permitting counsel for the private party to be in control of the prosecution.
Id. at 806 n. 17 (emphasis in original). Smith does not dispute that counsel for an interested party may assist in the prosecution, if that is all it does. His position is that the Finley firm did not merely "assist." We understand the role and identification of lead counsel in litigation.
At trial, Mr. Sullivan explained, on the record, that the Finley firm lawyers had discussed the case with him and had provided the letters and documents which outlined the facts and the applicable law. These lawyers also conducted depositions of potential witnesses and decided which should be subpoenaed and which should be released. Mr. Sullivan admitted that the firm members understood the case much better than he. The Finley firm lawyers then proceeded to conduct all witness examination for the prosecution. Mr. Sullivan spoke on the record on only three occasions. First, at the beginning of the trial when he briefly consulted with the bench about certain witnesses who would be called. Second, he explained his role and that of the Finley lawyers, as set forth in the Appendix. Third, later in the trial he informed the court that he would be unable to attend one session of the trial. At that point Smith appeared to waive objection to that contemplated absence, but the minor role Mr. Sullivan played is illustrated by the unanimous agreement of the court, defense counsel, and Mr. Sullivan himself, that his presence was unnecessary.
The attorney representing Smith stated, "I will be willing to waive Mr. Sullivan's presence, Your Honor. I think the record has been satisfied." While this might be understood as a waiver of any specific errors directly resulting from his absence, we do not understand it as acquiesence in the entire arrangement for prosecuting the criminal charges.
The record before us demonstrates that Mr. Sullivan had no primary role in the prosecution. His participation at trial was de minimis, and his own description of the out-of-court activities of the prosecution pointed up the private counsel's substantial responsibility for the important functions, such as preparing documents, presenting the factual and legal basis of the case, selecting and deposing witnesses, and generally preparing for trial. The United States Attorney's Office was at no time actively or meaningfully involved in the prosecution.
These are some, although not all, of the functions involving prosecutorial discretion which concerned the court in Young:
The trial court apparently believed the Finley firm could legally proceed under the aegis of Mr. Sullivan's passive supervision once its formal appointment as prosecutor was withdrawn. The government seems to agree, attaching importance to the court's finding of limited potential for prosecutorial bias in this particular case.
At a hearing on May 1, 1987, prior to the decision in Young, the district court first addressed the propriety of appointing the Finley firm as special prosecutor. It said, "[T]his case involves only a petty offense, it does not involve the merits of the civil case, that is it's hard to see what [the Finley firm's] client is going to gain by Mr. Smith's conviction on these charges of not appearing on these two occasions.... [T]hese charges merely vindicate the authority of the court...."
The judgment is REVERSED.
APPENDIX
Excerpt from Reporter's Transcript, July 20-21, 1987, at 82-84:
MR. SULLIVAN: Your honor, if it please the court, I would like to just take a moment to outline the involvement of the United States Attorney's Office in this case.
As you well know Mr. Nolan's law firm was appointed to act as a special prosecutor. I had talked with him about this case prior to that time, I've had several conversations with him and with Miss Marzano regarding this matter and regarding Mr. Attarian's case.
I want the court to be aware of the fact that I was, as Mr. Nolan has pointed out in his moving papers, have received a copy of the Young case, I discussed that as he states or stated in his affidavit and did agree that if the court found it appropriate to refer the matter to the United States Attorney that we would undertake that obligation with the assistance of his law firm. I am aware of the order which resulted from Mr. Nolan's motion moving to withdraw, that order being the order that you entered on or about June 18, 1986, allowing him to withdraw and referring the matter to the United States Attorney's Office
THE COURT: Is that '87?
MR. SULLIVAN: '87, I'm sorry, and also appointing Mr. Nolan's law firm as a special assistant to the United States Attorney making reference to the footnote in the Young case, making provision for that type of an appointment or assistance to the United States Attorney. I have spent on a number of occasions time with either Mr. Nolan or with Miss Marzano discussing this case as it was proceeding towards trial. I have received a number of documents from Mr. Nolan or Miss Marzano which include letters outlining the facts. I have received a number of legal memoranda which outlined the elements of the crime of contempt, the central elements as well as any defenses.
I have reviewed all of those documents. I have discussed those with Miss Marzano and Mr. Nolan. We have discussed potential witnesses. I have received documents from them indicating what witnesses should be subpoenaed. I did that about two weeks ago in accordance with their suggestion. We subpoenaed a number of witnesses after discussing the matter. Further last week we agreed to release a couple of those witnesses.
And after discussing the matter further and realizing that of course Mr. Nolan and Miss Marzano understand this case a lot better than we do, they have been intimately involved with the case, I requested that Mr. Nolan, since he had deposed or had spoken to most of these witnesses that he examine the witnesses and he has agreed to do that. So with this brief statement I wanted you to be aware of what was going on; that Mr. Nolan will examine the witnesses, I will stay here of course throughout the trial.
THE COURT: I take it the prosecution is subject to your supervision; is that right?
MR. SULLIVAN: Exactly, Your Honor. I am aware as I indicated on the record of everything that's going on in this case and have discussed it with, the merits of the case, I agree that the case should be prosecuted, it's just that I think because of Mr. Nolan and Miss Marzano's understanding of the case, because they have reviewed the depositions and know, would be in a better position to examine the witnesses, I have requested that he examine the witnesses and he has agreed to do that subject to my supervision.
THE COURT: Thank you.
FN* Honorable David W. Williams, Senior United States District Judge for the Central District of California, sitting by designation.
A prosecutor exercises considerable discretion in matters such as the determination of which persons should be targets of investigation, what methods of investigation should be used, what information will be sought as evidence, which persons should be charged with what offenses, which persons should be utilized as witnesses, whether to enter into plea bargains and the terms on which they will be established, and whether any individuals should be granted immunity.
There is no indication of the extent to which the Finley firm was involved in the remaining decisions.