United States v. Farrell
United States v. Farrell
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Defendants Dennis P. Farrell and Gary L. Southern are former officials of Freedom Industries, Inc. (“Freedom”), a West Virginia corporation that stored, sold, and transported industrial chemicals. Federal criminal charges have been filed against them in connection with a chemical spill by Freedom that occurred last year in this district and contaminated drinking water for an estimated 300,000 West Virginia residents.
In December, 2014, the Defendants filed motions to disqualify the United States Attorney’s Office for the Southern District of West Virginia. (ECF 7, 22, and 25.) The Defendants argue that, because members of the United States Attorney’s Office were among those affected by the spill, that Office should be disqualified from prosecuting this case.
For the reasons set forth below, the Court DENIES the motions to disqualify.
I. BACKGROUND
On January 9, 2014, it was discovered that a chemical substance used in the coal-
- During this water crisis, schools and businesses in the affected areas temporarily closed. Businesses suffered revenue losses, and workers lost wages. Many residents of Southern West Virginia were forced to purchase bottled water. Many also traveled to non-affected areas to bathe and wash clothes. Several hundred people were treated in West Virginia hospitals for symptoms thought to be caused by the contaminated water, including skin rashes. The chemical spill and its aftermath garnered extensive local and .some national media attention. • .;
After the chemical spill, numerous lawsuits were filed against Freedom and the Defendants. Among them, is a consolidated class actión lawsuit seeking recovery for alleged personal injuries and economic losses and- requesting medical monitoring funded by the defendants. On January 17, 2014, as a result of th'e numerous'lawsuits, Freedom filed for Chapter 11 bankruptcy protection.
On December 17, 2014, a grand jury returned an indictment charging the Defendants with negligent discharge of a pollutant in violation of the Clean Water Act, negligent discharge of refuse matter in violation of the Refuse Act, and negligent violation of an environmental permit. Southern has also been charged with bankruptcy fraud, wire fraud, making a false oath, and fraud by interstate commercial carrier, all in connection with his participation in Freedom’s bankruptcy proceedings.
On January 26, 2015, Farrell and Southern moved for the Court to order the U.S. Attorney’s Office to respond to discovery requests in order to develop the factual basis for them motions to disqualify. (ECF 83 and 87.) On February 27, 2015, the Court held a hearing on the discovery motions. The Court declined to take the unusual step of ordering the broad, civil-style discovery requested by the Defendants.
According to the, questionnaires, all three supervisory attorneys lived in a “Do Not Use” area during the water crisis. Casto and Wright lacked clean water in their homes from January 9, 2014, until January 14, 2014; Goodwin did not remember how long his home was without
On May 5, 2015, after the conclusion of this limited discovery, Southern filed supplemental briefing on disqualification motions (EOF 163; see also EOF 189), in which Farrell joined (EOF 166). On May 6,2015, the Court heard closing arguments on the motions.
The disqualification motions are now ripe for adjudication.
II. LEGAL STANDARD
The prosecutor’s unique role was explained in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935):
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer.
Prosecutors are permitted to be zealous in their prosecution of a crime. Marshall v. Jerrico, Inc., 446 U.S. 238, 248, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). However, prosecutors have a responsibility to seek justice, not merely to convict. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 803, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987).
“Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The authority of federal courts to disqualify attorneys appearing before them derives from their inherent power to “preserve the integrity of the adversary process,” Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (citation omitted), and federal government attorneys are “subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State,” 28 U.S.C. § 530B. The local rules of this Court provide that “[i]n all appearances, actions and proceedings within the jurisdiction of this court, attorneys shall conduct themselves in accordance with the Rules of Professional Con
Because of their duty to pursue the public interest, the Supreme Court has recognized the “requirement of a disinterested prosecutor.” Young, 481 U.S. at 808, 107 S.Ct. 2124 (1987). An interested prosecutor would not be “in a position to exercise fairminded judgment with respect to (1) whether to decline to prosecute, (2) whether to reduce the charge ..., or (3) whether to recommend a suspended sentence or other clemency.” Ganger v. Peyton, 379 F.2d 709, 713 (4th Cir. 1967). Although prosecutors are “traditionally accorded wide discretion ... in the enforcement process,” nevertheless, “[a] scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant of impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” Jerrico, 446 U.S. at 249-50, 100 S.Ct. 1610. Moreover, a prosecutor with a conflict of interest “creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general.” Young, 481 U.S. at 811, 107 S.Ct. 2124.
However, “prosecutors may not necessarily be held to as stringent a standard of disinterest as judges.” Young, 481 U.S. at 807, 107 S.Ct. 2124. “This difference in treatment is relevant to whether a conflict is found, ... not to its gravity once identified.” Id. at 810-11, 107 S.Ct. 2124. “We may require a stronger showing for a prosecutor than a judge in order to conclude that a conflict of interest exists.” Id. at 811,107 S.Ct. 2124. A biasing influence may be “too remote and insubstantial” to pose a “realistic possibility” of distorting the judgment of officials tasked with pros-ecutorial functions. Jerrico, 446 U.S. at 250-51, 100 S.Ct. 1610. Yet, once a court has concluded that a conflict of interest exists, “we have deemed the prosecutor subject to influences that undermine confidence that a prosecution can be conducted in disinterested fashion,” and it is deemed a fundamental error which undermines confidence in the integrity of the proceeding. Young, 481 U.S. at 811, 107 S.Ct. 2124.
III. DISCUSSION
Defendants Farrell and Southern allege that the supervisory attorneys for United States, and most if not all of the members U.S. Attorney’s Office for the Southern District of West Virginia, as well as their respective family members, have economic interests in the outcome of this case and are victims of the environmental crimes with which the Defendants have been charged.
A. Supervisory Attorneys’ Alleged Pecuniary Interests
The Defendants assert that U.S. Attorney R. Booth Goodwin II and the two other supervisory attorneys, First Assistant U.S. Attorney Carol A. Casto and supervisory Assistant U.S. Attorney Philip H. Wright, have a financial stake in the puteóme of this case, creating a conflict of interest that requires the disqualification of the entire U.S. Attorney’s Office for the Southern District of West Virginia.
If a federal prosecutor participates in a judicial proceeding, in which he or she knows that he or she, a family member, or a business partner, has a financial interest, that attorney would be open to a charge of violating the criminal conflict of interest statute, 18 U.S.C. § 208(a). Such conduct may also violate the legal profession’s ethical rules against personal interest conflicts if it would present a significant risk of materially limiting the representation of the client. See Model Rules , op PROf’l Conduct R. 1.7(a)(2) (2013) (hereinafter Model Rules); W. Va. Rules Of PROf’l ConduCt R. 1.7(a)(2) (2014) (hereinafter W. Va. Rules). The client in this instance is the United States, “a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done;” Berger, 295 U.S. at 88, 55 S.Ct. 629. The potential for prosecutor partiality created by a. pecuniary stake in the outcome of a criminal decision may also implicate due process. The Supreme Court has held that “[a] scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible' factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” Jerrico, 446 U.S. at 249-50, 100 S.Ct. 1610. The Fourth Circuit has also held that due process is violated when a prosecutor has a pecuniary interest in the outcome of a criminal case that threatens to deny a defendant “the possibility of fair minded exercise of the prosecutor’s discretion.” Ganger, 379 F.2d at 712, 714.
1. Class Action Lawsuit
The Defendants argue .that a conflict of interest exists because the supervisory government attorneys are putative members of a consolidated class action suit currently pending before another judge in this district. The plaintiffs in that case have sought to certify the following class: “All persons and businesses supplied with, using, or exposed to water contaminated with Crude MCHM and provided by West Virginia-American Water Company, in Logan, Clay, Lincoln, Roane, Jackson, Boone,
The disposition of this criminal case could undoubtedly have collateral consequences for the class action suit. If a jury in this case finds that the Defendants neg- • ligently or unlawfully operated Freedom’s chemical storage tank in Charleston, they might be collaterally estopped from contesting these issues in the class action suit. If they admit the same as part of a plea agreement, their admissions might be admissible in the civil trial. In addition, the seizure of Southern’s assets in this case might ensure that they will be available to satisfy any civil damages ordered pursuant to the class action.
However, it does not necessarily follow that the participation in this ease of a prosecutor that is a putative member of the class action suit would be improper. A pecuniary interest that is too remote, insubstantial, or speculative generally does not require the disqualification of a judge. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 826, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986); In re New Mexico Natural Gas Antitrust Litig., 620 F.2d 794, 797 (10th. Cir. 1980); In re Virginia Elec. & Power Co., 539 F.2d 357, 368 (4th Cir. 1976).
In Aetna, the Supreme Court held that any pecuniary interest judges may have had as putative members in a pending class action was highly speculative and contingent, given that the trial court had not yet certified a class,, let alone awarded any class relief of a pecuniary nature. 475 U.S. at 826, 106 S.Ct. 1580. The Court concluded that “at some point, ‘[t]he biasing influence ... [will be] too remote and insubstantial’” to require disqualification as a matter of due process. Id. (citing Jerrico, 446 U.S. at 243, 100 S.Ct. 1610).
In In re New Mexico Natural Gas Antitrust Li%ig., the Tenth Circuit found that judicial recusal was not necessary under 28 U.S.C. § 455(b)(4)
In re Virginia Elec. & Power Co., the Fourth Circuit found that judicial recusal was not warranted by Canon 3C of the Code of Conduct for United States Judges
The Court finds the above cases instructive: the substantiality of a potential benefit, the certainty of receiving the benefit, and the extent to which receipt of the benefit is likely to be influenced by a judge’s decisions rather than by intervening acts, are material to whether that interest creates a conflict. As “prosecutors may not necessarily be held to as stringent a standard of disinterest as judges,” Young, 481 U.S. at 807, 107 S.Ct. 2124, a prosecutor, like a judge, cannot be disqualified on the basis of a financial interest that is too remote, insubstantial, or speculative to create an actual or potential conflict of interest.
Here, a class has not yet been certified in the pending class action lawsuit. A hearing on the motion for class certification is not set to be heard until September 25, 2015. See Order at 2, Good v. Am. Water Works Co., No. 2:14-cv-1374 (S.D.W.Va. Oct. 27, 2014). The responses to the Court-ordered questionnaires by the supervisory attorneys for this case have revealed that they suffered only trivial economic harms and some inconvenience. The supervisory attorneys also affirmed that they do not expect to benefit from the class action lawsuit filed in connection with the water crisis. Even assuming that these attorneys were to become members of this class action — itself a remote possibility at this time — their financial interest in the outcome of the case as putative class action members would likely be too insubstantial to necessitate disqualification, in light of the insignificant harms they have personally suffered as a result of the water crisis.
Thus, the Court finds that the supervisory prosecutors’ continued participation in this case despite the pendancy of the class action lawsuit in which they are putative members neither violates due process nor rises to the level of an actual conflict of interest.
2. Bankruptcy Claims
Southern has also asserted that the supervisory attorneys are under a conflict of interest as putative claimants in Freedoni’s bankruptcy case. (ECF 22 at 3.)
Assistant U.S. Attorney Philip H. Wright stated at the January 5, 2015, hearing that no one on the prosecution team has filed a bankruptcy claim and that none may now do so given that the date for filing such a claim has passed. (See also ECF 26 at 11-12.) At the motion hearing, Southern preferred the fact that a proof of claim had been filed in bankruptcy court on behalf of members of the pending class action lawsuit. However, as the supervisory attorneys’ pecuniary stake in the pending class action is de minimis, so too must be their financial interest in any future recovery flowing from the class action through bankruptcy proceedings.
3. Criminal Restitution
Finally, Southern has asserted that the supervisory attorneys are potential beneficiaries of any criminal restitution that is ordered in this case.
The Mandatory Victims Restitution Act (MVRA) provides for mandatory restitution to individuals “directly and proximately harmed” by specified offenses. 18 U.S.C. § 3663A(a)(2). Mandatory restitution is limited to those who have suffered “physical injury or pecuniary loss,” 18 U.S.C. § 3663A(e)(l)(B), and restitution is not required if “the number of identifiable victims is so large as to make restitution impracticable,” 18 U.S.C. § 3663A(c)(3)(A).
The supervisoiy attorneys have suffered no physical injuries. They did incur minor out-of-pocket expenses. If the harm suffered by the supervisory attorneys suffices for them to be considered identifiable “victims” for the purposes of the MVRA,
B. Supervisory Attorneys’ Alleged Status as “Victims”
The Defendants argue that, because the supervisory attorneys suffered inconveniences and hardships as a result of the water crisis, they are victims of the environmental crimes with which the Defendants are charged. The Defendants argue, in turn, that this creates a conflict of interest that requires the disqualification of the entire U.S. Attorney’s Office for the Southern District of West Virginia..
A conflict of interest exists when,there is a “significant risk” that, a representation will be “materially limited” by an attorney’s “personal interest.” Model Rules R. 1.7(a)(2). See also, W. Va, Rules R. 1.7(a)(2) (same). ; Although the rales .of legal ethics do not specifically address situations in which a prosecuting attorney is, or has a relationship with, a victim,
Southern essentially argues that, once the label of “victim” is attached to a prosecutor, the prosecutor has an impermissible interest in prosecuting the alleged crime of which he or she is a victim. (See ECF 163 at 2, 8, 9.) Even assuming arguendo that the harms suffered by the supervisory attorneys are neither too trivial nor too factually attenuated to establish “victim” status under the CVRA,
Farrell argues that, once a conflict is found, the Court does not weigh the gravity of the conflict, citing Young, 481 U.S. at 810-11, 107 S.Ct. 2124. However, the Court here does not discuss the gravity of an actual or potential conflict; rather, the Court asks whether the alleged interest is of sufficient gravity to create a conflict in the first place. See Aetna, 475 U.S. at 826, 106 S.Ct. 1580. There may be many circumstances in which a prosecutor’s status as a victim creates a conflict, but the Court finds that this exceptional ease is not one of them.
The facts of this case are somewhat unique in that (1) the U.S. Attorney and other supervisory members of the prose-cutorial team were among approximately 300,000 local community residents affected by the Defendants’ alleged conduct, (2) the harms suffered by the U.S. Attorney and other supervisory members of the prose-cutorial team appear likely to be no different than those suffered by the least affected of area residents, and (3) the harms suffered by them personally were not at all great in magnitude.
In short, the harms suffered by the supervising attorneys do not undermine the
C. U.S. Attorney’s Spouse’s Professional Activities
The Defendants have argued that the professional activities of U.S. Attorney Goodwin’s spouse, Amy Goodwin, also require disqualification of the entire United States Attorney’s Office for the Southern District of West Virginia.
During the water crisis, Mrs. Goodwin was employed as the communications director for the Governor’s Office of West Virginia. Defendant has pointed to statements made to the press by Mrs. Goodwin on January 21, 2014, after a second chemical was identified as having been released during the chemical spill, which impugn the credibility of Freedom,
At present, Mrs. Goodwin is the Commissioner of the West Virginia Division of Tourism. During her tenure there, the Division of Tourism decided to allocate an additional $1.6 million of its budget to ad
In another twist on this argument, Farrell also urges the Court to find that Mrs. Goodwin’s current job gives her a significant interest in pursuing this case in order to restore West Virginia’s reputation, and that this, in turn, creates divided loyalties in Mr. Goodwin. This alleged interest is entirely speculative. Moreover, recognizing a conflict every time a prosecutor is married to a policy-making official on the basis of a criminal case’s perceived policy implications or public profile would stretch the notion of a personal interest too far, pushing it from the domain of a private interest to that of the public interest.
D. Appearance of Impropriety
Farrell and Southern also argue that, even if the Court does not find an actual conflict of interest, an appearance of a conflict of interest or loss of impartiality exists and requires the disqualification of the entire United States Attorney’s Office for the Southern District of West Virginia. (ECF 7 at 1, 7; ECF 22 at 1, 8, 10; ECF 25 at 6-7.) -
model Code op Peof’l Responsibility Canon 9 (1980) provides that' “[a] lawyer should avoid even the appearance of professional impropriety.”
Southern argues that there is an appearance of a conflict of interest based on all of the facts set forth in the previous sections. However, the Court disagrees, substantially for the same reasons as discussed previously. The supervisory attorneys have a speculative, remote, and insubstantial financial stake, if any, in the outcome of this case. They have suffered only de minimis personal harms as a result of the water crisis, making it unlikely that they have any special emotional stake in the outcome of the case. In addition, the professional activities of the U.S. Attorney’s wife cited by the Defendants has little relevance to these proceedings! The Court is confident that a reasonable person knowing and understanding all the relevant facts would not find an appearance of impropriety or that these legal proceedings appear unfair.
Southern also argues that various actions undertaken by U.S. Attorney’s Office in his case create an appearance that Southern has been singled out for harsh treatment. (ECF 22 at 9-11; ECF 35 at 9.) Southern complains (1) that he was charged with wire fraud based on an ECF filing made by his attorneys (ECF 22 at 9); (2) that he was arrested at his home in Florida on December 8, 2014, without notice to his attorneys and without any factual basis.to believe he was a flight risk (id. at 9-10); (3) that certain of his property was seized before he was found guilty of any crime (id- at 10); and (4) that a motion to reconsider Southern’s bond poted that Southern lives in a “gated-community in a luxurious home.” (id.).
The Court does not find that these actions create an appearance of impropriety. The wire fraud count was contained in a criminal complaint reviewed by a neutral* detached federal magistrate judge, who issued a warrant for Southern’s arrest upon a showing of probable cause.
Southern has also pointed to various statements to the media, press releases, and Twitter “tweets” by U.S. Attorney Goodwin, and their timing in relation to this case, which he argues have created an appearance of partiality or impropriety. The Court finds no disqualifying impropriety in the proffered “tweets” and other statements. It is not unusual for a U.S. Attorney to comment on the policy impli
Having reviewed carefully the facts of this case and the Defendants’ numerous submissions, the Court does not find that they create an appearance of impropriety. The Court does not find that the peculiar circumstances of this case are likely to affect the public’s confidence in the fairness and integrity of these judicial proceedings.
E. Neither Disqualiñcation of the Entire United States Attorney’s Office, nor Further Discovery, is Warranted
“While a private attorney’s conflict of interest may require disqualification of that attorney’s law firm in certain cases, such an approach is not favored when it comes to the office of a United States Attorney.” United States v. Hasarafally, 529 F.3d 125, 128 (2d Cir. 2008). “[I]f the disqualification of one government attorney could serve as the predicate for the disqualification of the entire United States Attorney’s Office, the administration of justice would be irreparably damaged.” Grand Jury Subpoena of Ford v. United States, 756 F.2d 249, 254 (2d Cir. 1985). “An entire U.S. Attorney’s Office should only be disqualified, if ever, when special circumstances demonstrate that the interest of justice could only be' advanced by this drastic remedy.” United States v. Basciano, 763 F.Supp.2d 303, 312 (E.D.N.Y. 2011).
Here, the Court has not found more than a de minimis personal or -financial interest in the outcome of this case on the part of the three supervisory attorneys or the two other prosecutors assigned to this case. In other words, no conflict of interest has been uncovered which may be imputed to the entire U.S. Attorney’s Office.
The Defendants initially alleged that all or most members of the U.S. Attorney’s Office for the Southern District of West Virginia have a conflict with this case. Defendant Southern has objected that the questions submitted to the supervisory attorneys in this case should have been submitted to every person who works at the U.S. Attorney’s Office. (ECF 163-1 at 1.) Although the Defendants have made plausible allegations that other members of the U.S. Attorney’s Office may have suffered harms as a result of the water crisis, further development of the record to determine how other members of the U.S. Attorney’s Office might have been personally affected is not warranted. Even assuming arguendo that any harms suffered by other members of the U.S. Attorney’s Office were not de minimis, the only conflicts alleged are personal conflicts. Even in the private law firm context, the disqualification of a lawyer due to a personal interest conflict is ordinarily not imputed to other lawyers in the firm. See Model Rules R. 1.10(a)(1); W. Va. Rules R. 1.10(a)(1). Moreover, the trend among federal courts has been to limit vicarious disqualification to firms, absent attorney-specific findings that the entire U.S. Attorney’s office was disqualified,
Thus, the Court does not find a basis for imposing the drastic remedy of disqualifying the entire U.S. Attorney’s Office for the Southern District of West Virginia.
IV. CONCLUSION
The motions to disqualify the U.S. Attorney’s Office for the Southern District of West Virginia filed by Defendants Gary L. Southern [ECF 7 and 22] and Dennis P. Farrell [ECF 25] are therefore DENIED.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to the Defendant and counsel, the United States Attorney, the United States Probation Office, and the United States Marshal.
. On January 21, 2014, it was reported that a second chemical, a mixture of polyglycol ethers, had also been released during the spill. (ECF 164-1 at 1.)
. On December 8, 2014, the United States filed a Criminal Complaint charging Southern with bankruptcy'fraud, making a false oath in a bankruptcy case, and wire fraud, in connection with .statements made ,by Southern, at hearings in Freedom’s bankruptcy case and ,a document electronically filed with the bankruptcy court. (ECF 3.) On December 17, 2014, á grand jury returned a thirteen-count Indictment against Southern and Farrell. The Indictment charges the Defendants with one count each of negligent discharge of a pollutant in violation of the Clean Water Act, negligent discharge of refuse matter in violation of the Refuse Act, and negligent violation of an environmental permit. (ECF 8.) In addition, the Indictment charges Southern with six counts of bankruptcy fraud, one count of wire fraud, and three counts of making a false oath in a bankruptcy case. Finally, the Indictment seeks the forfeiture from Southern of personal accounts worth $7.95 million, in addition to real property and an automobile. On January 21, 2015, a fourteen-count Superseding Indictment was returned in! this .case, adding a charge against Southern for fraud by interstate commercial carrier. (ECF 75.) On May 12, 2015, the United States filed a fifteen-count Second Superseding Indictment, charging Southern with an additional count of bankruptcy fraud. The Indictment and Superseding Indictment in this case also charged former Freedom officers William E. Tis and Charles E. Herzing with negligent' discharge of a pollutant in violation of the u Clean- Water Act, negligent discharge of refuse
. Farrell’s motion sought "discovery to be propounded by defendant.” (ECF 83 at 1.) Southern's motion sought; inter alia, to' depose the U.S. Attorney and several supervisory Assistant U.S. Attorneys, to receive copies of all email correspondence by and between all members of the U.S. Attorney's Office for the Southern District of West Virginia regarding the impact of the water crisis on their personal and professional lives, and a list and description of every recusal directed by the Executive Office for the U.S. Attorneys and the Department of Justice since 2000 based on the premise than a U.S. Attorney’s Office staff member was an actual or potential victim. (ECF 87 at 17-18.) The goal, according to Southern,
. Mr. Wright is both a supervisor within the U.S. Attorney’s Office and, m addition to Assistant U.S. Attorneys Larry R. Ellis and Eric P. Bacaj, is also specifically assigned as counsel in this case.
. Southern and Farrell first asserted in their motions to disqualify that all or most of the members of the United States Attorney's 'Office and their family members suffered inconveniences as a result of the chemical spill— including pecuniary loss; the inability to work for a time; the inability to drink, cook, bathe, wash with, or come into contact with contaminated water; and concerns about the effects of exposure to the chemical by them and their family members. (ECF 7 at 2, 5; ECF 25 at 4.) The position appeared to be based not on hard facts but on conjecture grounded in the notoriety of the widespread impact of the water crisis in Southern West Virginia and the temporary closure of the United States Attorney's Office, Southern repeatedly asserted that "every person in the United States Attorney's Office suffered the same inconveniences and hardships as the other 300,000 plus victims of the water crisis.” (ECF 7 at 2; see also id. at 3, 7, 8; ECF 22 at 3, 4, 5.) However, the statements of the prosecutors in this case at the motion hearing held on January 5, 2015, made it clear that different prosecutors were affected in different ways. Two of the prosecutors in this case
. Southern initially moved to disqualify "the United States Attorney’s Office for the Southern District of West Virginia, its agents and investigators.” (ECF 7 at 1; ECF 22 at 1.) At the first hearing on the disqualification motions, Southern abandoned the, request to disqualify investigators or any law enforcement agencies and clarified that the focus of his motion is the U.S. Attorney’s- Office and its , staff.
. § 455(b)(4) requires disqualification if a judge "has a financial interest in the subject matter in controversy or in a party; to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
. Canon 3C, like § 455(b)(4), also requires disqualification when a judge "has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” Code of Conduct for United States Judges Canon 3C(l)(c) (2014).
. The difference in treatment between judges and prosecutors "is relevant to whether a conflict is found, ... not to its gravity once identified.” Young, 481 U.S. at 810-11, 107 S.Ct. 2124. The Court here does not discuss the gravity of an actual or potential conflict; rather, the Court asks whether the alleged interest is of sufficient gravity to create a conflict in the first place.
.Although the prosecutors’ ultimate financial interest could increase if a class were certified, the Defendants were found liable, and punitive damages were awarded, such an outcome would be out of the hands of the prosecutors in this case and are even more speculative at this time.
. The Defendants also argued in their initial briefing that "[e]ven if any person associated with the United States Attorney’s Office were not monetarily affected by the leak, they would certainly be interested in seeing that any subsequent medical monitoring that might be ordered in the future was adequately funded.’’ (ECF 7 at 4 n. 2; see also ECF 25 at 5.) However, limited discovery in this case did not suggest the need for medical monitoring by any of the prosecutors involved in this case or members of their households, and all three supervisory prosecutors have affirmed that if medical monitoring is awarded neither they nor any members of their'household intend to participate in the medical monitoring.
. The Court’s conclusions are only underscored by the information the Court has received that both of these Defendants have settlements pending in the class action case.
. The MVRA’s definition of a "victim” is similar to the CVRA’s definition of a "victim." The CVRA definition is discussed infra, at note 17.
. The United States moved this Court for authorization to employ alternative means of victim notification under 18 U.S.C. § 3771(d)(2), arguing that the large number of potential victims in this case makes compliance with the victim notification requirements of 18 U.S.C. § 3771 impracticable. (ECF 60 and 154.) The Court granted the motion, finding that "the number of potential victims in this case make the statutory methods of notification impracticable.” (ECF 188.).
. The rules of legal ethics do, however, recognize the potentially distorting influence on professional judgment posed by a lawyer’s emotional involvement with a client. See Model Rules R. 1.8 cmt. 17 (a client-lawyer sexual relationship “presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment”); W. Va. Rules R. 1.8 cmt. 22 (same). Cf. also Aba Standards For Criminal Justice 3-3.2 (2014) (“The prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim.”).
. See also United States v. Basciano, 763 F.Supp.2d 303, 312 (E.D.N.Y. 2011) (declining to disqualify entire U.S. Attorney’s Office based on allegation that it had “an axe to grind” with defendant over his'solicitation of the murder of an Assistant U.S. Attorney in that Office); In re Grand Jury Proceedings, 700 F.Supp. 626, 629 (D.P.R. 1988) (declining to disqualify entire U.S. Attorney's Office based on allegation that the U.S. Attorney had an emotional interest in his grand jury inves
. Determining who has been "directly and proximately” harmed can be a vexing issue in environmental crime cases. See Andrew At.kins, Note, A Complicated Environment: The Problem with Extending Victims’ Rights to Victims of Environmental Crimes, 67 Wash. & Lee L.Rev. 1623, 1639-43 (2010) (discussing ' cases). The United States has denied, for the purpose -of the present disqualification motions, that the prosecutorial team or the supervisory attorneys for this case are victims of the water crisis and has asserted that only the undifferentiated "public” is a victim. (ECF 26 at 8.) It has, indeed, been said that "[t]he Clean Water Act is public-welfare legislation and the victims of violations are the public,” United States v. Snook, 366 F.3d 439, 445 (7th Cir. 2004), (citing United States v. Technic Servs,, Inc., 314 F.3d 1031, 1049 (9th Cir. 2002)), albeit not in interpretation of the CVRA. However, the principle that the public is the victim clearly does not control here, as the United States has moved this Court for authorization to employ alternative means of victim notification - under 18 U.S.C. § 3771(d)(2), arguing that the large number of potential victims in this case makes compliance with the victim notification requirements of 18 U.S.C. § 3771 impracticable.
. It is fair to assume that nearly all those residing in "Do Not Use" areas lost the use of clean tap water for a few days. However, members of the pending class action suit also allege suffering eye irritation, rashes, vomiting, diarrhea, nausea, difficulty breathing, personal injury, and unknowing exposure to MCHM during pregnancy. In contrast, the supervisory attorneys did not report suffering any medical symptoms or unknown exposure. Members of the pending class action suit also allege that they incurred expenses traveling to and paying for hotels outside of the "Do Not Use” area, lost wages, and lost business revenues. In contrast, the supervisory attorneys lost no wages or revenues, and incurred only small expenses associated with acquiring bottled water.
. These facts also distinguish this case from Cox, 167 So.2d at 352, on which the Defen
The district attorney was here confronted with an accused who had allegedly made statements which defamed his character; he was the injured party. A sincere and conscientious public official like District Attorney Pitcher would naturally be outraged by the alleged defamatory statements, as would any person having his good reputation. He would naturally feel that a conviction of the accused would be a public vindication of the wrong done him, and he would have a great personal interest in seeing that the accused was convicted.
167 So.2d at 357. Here, unlike in Cox, the supervisory attorneys suffered minor and generalized inconveniences unlikely to cause the prosecutors to put the vindication of their individual harms before the vindication of the public interest.
. "It is absolutely absurd that we did not have this information from day one from this company,” Mrs. Goodwin is quoted as saying. ■ "To say there is a distrust and concern of information that Freedom continues to provide is an understatement.”
. The Model Code’s “appearance of impropriety” standard did not, make it into the more current Model Rules of Professional Conduct. This has. left "the viability of the appearance of impropriety standard somewhat in doubt.” . United States v. Dancy, No. CRIM. 3:08CR189, 2008 WL 2901682, at *7 (E.D.Va. July 23, 2008). Although West Virginia has adopted the Model Rules, courts in this district have continued to affirm the appearance of impropriety standard. See United States v. Dyess, 231 F.Supp.2d 493, 498 (S.D.W.Va. 2002) (Haden, J.) (disqualifying entire U.S. Attorney’s office based, in part, on an appearance of impropriety); Roberts & Schaefer Co. v. San-Con, Inc., 898 F.Supp. 356, 359 (S.D.W.Va. 1995) (Goodwin, J.) ("The Court is aware that the comments to W.Va.R.Prof. Conduct 1.10 and the Model Rules criticize the 'appearance of impropriety’ standard.... The Court, however, does not believe that those criticisms are wholly valid.”); Syl. pt. 2, State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 697 S.E.2d 740, 743 (2010) ("[A] lawyer may be disqualified from participating in a pending case if his continued representation would give rise to an apparent conflict of interest or appearance of impropriety based upon that lawyer’s confidential relationship with an opposing party.”). However, it is not clear whether an appearance of impropriety alone, absent an actual conflict or facts indicating, the potential for a conflict, would suffice to require disqualification. See, e.g., United States v. Titus, No. CRIM.2:08CR154, 2009 WL 1675081,. at *2 n. 5 (E.D.Va. June 15, 2009) ("To avoid any possible appearance of impropriety, despite the lack of a factual basis for an actual or a potential conflict, the court recommends, but does not require, that the Public Defender’s Office not have Colgan assist Dalton on this case.’’). The Court need not resolve- this question, however, because the circumstances of this case do not create an appearance of impropriety.
. The indictments returned by the grand jury also include a wire fraud count, but they are based on different allegations than those contained in the Criminal Complaint.
. See Hasarafally, 756 F.2d at 254 (denying motion to recuse entire U.S. Attorney’s office, where recusal of Attorney General Michael B. Mukasey, who had previously served as district judge before whom defendant appeared, avoided potential for conflict of interest); Cope v. United States, 272 Fed.Appx. 445, 449 (6th Cir. 2008) (fact that Defendant was charged with attempting to murder an Assistant U.S. Attorney did not render constitutionally ineffective the failure of counsel to seek to disqualify the entire U.S. Attorney's office); United States v. Bolden, 353 F.3d 870, 879 (10th Cir. 2003) (reversing disqualification order where district court failed to detail either misconduct or alleged conflicts of interest on the part of the entire U.S. Attorney’s office); United States v. Vlahos, 33 F.3d 758, 762-63 n. 5 (7th Cir. 1994) (vacating order disqualify
. In light of Southern’s renewal of his initial motion for disqualification after the filing of the Indictment, the Government’s motion to deny Southern's initial motion to disqualify on the basis that it was filed in the Criminal Complaint matter [ECF 11] is DENIED AS MOOT. The pending motions for discovery [ECF 83 and 87] related to the disqualification motions are also DENIED AS MOOT.
Reference
- Full Case Name
- United States v. Dennis P. FARRELL and Gary L. Southern
- Cited By
- 1 case
- Status
- Published