United States v. Williams

The Ninth Circuit Court of Appeals has appellate jurisdiction over prejudgment orders for prosecutorial misconduct because the issue is “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). Additionally, disqualification of an entire U.S. Attorneys Office is only appropriate when grounded in “a clear basis in fact and law,” United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985), which requires that (1) “a district court must find a strong factual predicate for blanket disqualification,” and; (2) “a district court must determine that the U.S. Attorney’s Office continued representation of the government will result in a legal or ethical violation.” United States v. Williams et al., __F.3d__ (9th Cir. 2023).

The government appealed an order that disqualified the entire Arizona U.S. Attorney’s Office from litigating a misconduct motion by alleged members of the Western Hill Bloods during prosecution of RICO charges. The order required counsel be brought in from outside the district of Arizona to litigate the motion. Defendant Williams, along with 15 other co-defendants, filed a motion that alleged “professional misconduct” in violation of their Fifth and Sixth Amendment rights. Specifically, Williams alleged a U.S. Attorney prosecuting the case knew of a potential conflict of interest between defense counsel and defendants, but did not notify defendants or the district court of the conflict. The court held a status conference, and determined that, like a corporation accused of wrong doing that cannot use in-house counsel for investigation, the Arizona U.S. Attorney’s office could not itself litigate the misconduct motion, and outside counsel was required. The government sought interlocutory appeal. The Ninth Circuit determined it had appellate jurisdiction under the collateral order doctrine, which dictates that the court has jurisdiction over “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). The court then determined that, based on separation-of-powers principles, disqualification of an entire U.S. Attorney’s Office is only appropriate in extraordinary circumstances and must be grounded in “a clear basis in fact and law.” United States v. Gatto, 763 F.2d 1040, 1046 (9^th Cir. 1985). This required that (1) “a district court must find a strong factual predicate for blanket disqualification,” and; (2) “a district court must determine that the U.S. Attorney’s Office continued representation of the government will result in a legal or ethical violation.” In other words, there must be a specific factual finding of misconduct on the part of the accused prosecutors and proof that misconduct was pervasive within the entire office. The Ninth Circuit determined the court below abused its discretion in disqualifying the entire U.S. Attorney’s Office because it could not make such a showing. REVERSED.