U.S. v. Bolden

Decision Date24 December 2003
Docket NumberNo. 02-6249.,02-6249.
Citation353 F.3d 870
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Gary Lionell BOLDEN, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Arlene Joplin, Assistant United States Attorney (Robert G. McCampbell, United States Attorney, and Sue Tuck Richmond, Assistant United States Attorney, with her on the briefs), Office of the United States Attorney, Oklahoma City, OK, appearing for Appellant.

Paul Antonio Lacy, Assistant Federal Public Defender, Office of the Public Defender, Oklahoma City, OK, appearing for Appellee.

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 of Oklahoma disqualified the entire office of the United States Attorney for the Western District of Oklahoma ("USA") from representing the government on Defendant Gary Lionel Bolden's motion to compel. The USA's office immediately appealed the disqualification. Pursuant to the collateral order doctrine under 28 U.S.C. § 1291, we take jurisdiction and REVERSE.

I. Background

On May 5, 1999, a grand jury indicted Mr. Bolden on seven drug-related counts. On July 19, 1999, he entered into a plea agreement 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 under 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solely within the discretion of the United States, and that a negative decision will not allow a guilty plea to be withdrawn." The district court sentenced Mr. Bolden on November 9, 2000.

In December 2001, Mr. Bolden sent a letter to the USA's office, requesting that the government seek a reduction of his sentence. Assistant United States Attorney Jay Farber notified Mr. Bolden's counsel that the downward departure committee had elected not to seek a reduction of Mr. Bolden's sentence. An exchange of letters between Mr. Bolden's counsel and the USA's office followed.

On June 14, 2002, Mr. Bolden moved to compel the government to file a motion for reduction of sentence, alleging multiple instances of bad faith on the part of the government. The government filed a motion 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 from another judicial district?" Mr. Bolden then filed a motion to recuse the USA's office.

On July 10, 2002, the district court entered an order disqualifying the entire USA's office, directing it to arrange for an Assistant United States Attorney ("AUSA") from another district to respond to the original 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, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998) (quoting 28 U.S.C. § 1291) (internal citations omitted). A decision is "not final, ordinarily, 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, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) (internal quotations omitted). Thus, "[t]he law normally requires a defendant to wait until the end of the trial to obtain appellate review of a pretrial order." Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 2182, 156 L.Ed.2d 197 (2003).

The Supreme Court has, however, "interpreted the term `final decision' in § 1291 to permit jurisdiction over appeals from a small category of orders that do not terminate" a case. Cunningham, 527 U.S. at 204, 119 S.Ct. 1915. For a district court order to fall within the narrow confines of the collateral order 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 test when parties pursued immediate appeal of trial court rulings on motions to disqualify counsel." Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 86 L.Ed.2d 340 (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, 105 S.Ct. 2757 (plaintiff); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 370, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (defendant). Similarly, the Court has held that a criminal defendant may not immediately appeal a pretrial order disqualifying his counsel. Flanagan v. United States, 465 U.S. 259, 260, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). The Court has yet to consider the immediate 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. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988); see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) ("[T]he issue of appealability under § 1291 is to be determined for the entire category to which a claim belongs, without regard to 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 must decide the appealability of orders as a class, not based on the distinctive circumstances of each case). Thus, we address whether the government may immediately appeal an order disqualifying an entire United States Attorney's office from post-conviction proceedings.1 This issue is a matter of first impression for our court.

1. Conclusively Determines The Disputed Issue

We must first determine whether the disqualification 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 conclusively settles the disputed issue. Id. (looking to the record to determine whether the order conclusively settled a matter); see also Pindus v. Fleming Cos., 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 all matters related to Mr. Bolden's motion. We thus find that the disqualification 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 request for a reduction of sentence.

We find Mr. Bolden's objections on this point unpersuasive. 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 events he envisions. The disqualification order states that it disqualifies the USA's office from representing the government on the motion to compel. We read this to include all matters relating to the motion 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 event unconnected to the current dispute.

2. An Important Issue Separate From The Merits Of The 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 government attorneys can "trigger weighty separation of powers concerns"). These concerns are undoubtedly jurisprudentially important. United States v. Whittaker, 268 F.3d 185, 192 (3d Cir.2001) (finding that an order disqualifying a United States Attorney's office from a criminal prosecution is "a jurisprudentially important issue"). Mr. Bolden admits as much in his brief.

In judging separability, we consider whether such disqualification orders are so "enmeshed in the factual and legal issues comprising" the underlying action, see Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (internal quotation marks omitted), that interlocutory review will force an appellate court to consider the same or similar issues more than once, Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). We conclude that, on the whole, orders disqualifying an entire United States Attorney's office are separate from the underlying issues.

In reaching this conclusion, we are strongly influenced by the fact that we can only rarely — if ever — imagine a scenario in which a...

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