Opposition Brief — Terry v. United States

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No. 94-141 SEP 23 1994

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OFFICE OF THE OLERK

In the Supreme Court of the Unites States ——

OCTOBER TERM, 1994

{ANDALL A. TERRY. PETITIONER

.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III

Solicitor Genera!

JOANN HARRIS

Assistant Attorney General

JOSEPH DOUGLAS WILSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the district court erred in appointing the

Attorney General of the State of New York, who

represented the State in obtaining a preliminary

injunction against -petitioner, to prosecute criminal

contempt charges based on the allegation that petitioner

had violated the injunction.

(I)

TABLE OF CONTENTS

Page

Opinions below .................cccccccsrccsessccsccscecccccssesssssesesseoesccoes 1

a ecnumemnonerosruceseutecboovecses 1

a ec ansamnesnibbasbertnsesevvevscevese 2

ATBOMON ...00ccccescssescsccrcscsssccssvccsccccccnscccceseccscessssssssssosssssccsees 8

al canmapuctonesnenscnccscoscocscesesecees 17

TABLE OF AUTHORITIES

Cases:

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.

ais semenececnszccecoececccecoes 11, 13

Berger v. United States, 295 U.S. 78 (1985) 0... cseeeeees 8

Brotherhood of Locomotive Firemen & Enginemen v.

United States, 411 F.2d 312 (5th Cir. 1969) .................. 9

Farmland Dairies v. Commissioner of N.Y. Dep't of

Agric., 847 F.2d 1038 (2d Cir. 1988) .........csseeeceeeeeeeeeeeees 11

FTC v. American Nat'l Cellular, 868 F.2d 315 (9th Cir.

a sehreicnnnatntnnsannessaccctveseaensoceeccess 14, 15

New York v. United States, 112 S. Ct. 2408 (1992) .......... 10

People v. Brooklyn, F. & CI. Ry., 89 N.Y. 75 (1882) ....... 11

People v. Lowe, 22 N.E. 1016 (N.Y. 1889) ........ssseseseeeess 11

Polo Fashions, Inc. v. Stock Buyers Int'l, Inc., 760 F.2d

698 (6th Cir. 1985), cert. denied, 482 U.S. 905 (1987) .... 10

State by Abrams v. New York City Conciliation &

Appeals Bd., 472 N.Y.S.2d 839 (Sup. Ct. 1984) ............. 11

United States v. Birdman, 602 F.2d 547 (3d Cir. 1979),

cert. denied, 444 U.S. 1032 and 445 U.S. 906 (1980) ...... 16

United States v. John Doe, Inc. I, 481 U.S. 102 (1987) .... 16

United States v. Wencke, 604 F.2d 607 (9th Cir. 1979) .... 16

United States ex rel. SEC v. Carter, 907 F.2d 484 (5th

Retr IIIT oc sssencnddnsbentensnecteneponscccemueccesoossoooese 14, 15, 16

Young v. United States ex rel. Vuitton et Fils S.A., 481

BR. FE CRED vccsecnccessncncnteterscesoccoccccsesees 4, 8, 9, 10, 11, 14, 17

IV

Statutes:

1B UBC, SOU) cccesecescssivecnscrsesiovssesssvccccussasssecececcsnesssences

N.Y. Pub. Health Law (McKinney):

SBI CR ainicccastinnecstccicicccssaineienniscesnnnncecesonemaivnie

§ 4162 (1985 & Supp. TV 1994) ..............ccccccscrscereccecsees

Page

In the Supreme Court of the Auted States

OCTOBER TERM, 1994

No. 94-141

RANDALL A. TERRY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-10a) is

reported at 17 F.3d 575. The opinion of the district court

denying petitioner’s motion for recusal and finding the

preliminary injunction constitutional (Pet. App. 13a-31a)

is reported at 802 F. Supp. 1094. The district court’s

opinion denying petitioner’s motion for disqualification

(Pet. App. 32a-47a) is reported at 806 F. Supp. 490. The

district court’s opinion finding petitioner in criminal

contempt (Pet. App. 48a-67a) is reported at 815 F. Supp.

728.

JURISDICTION

The judgment of the court of appeals was entered on

February 25, 1994. A petition for rehearing was denied

(1)

2

on April 22, 1994. Pet. App. 80a. The petition for a writ

of certiorari was filed on July 21, 1994. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a bench trial in the United States District

Court for the Southern District of New York, petitioner

was convicted of criminal contempt, in violation of 18

U.S.C. 401(3). He was sentenced to five months’

imprisonment. The court of appeals affirmed. Pet. App.

la-10a.

1. On July 138, 1992, the State of New York,

represented by Attorney General Robert Abrams,

obtained a preliminary injunction in the United States

District Court for the Southern District of New York

forbidding petitioner, along with Operation Rescue

National and other individuals, from “presenting or

confronting either Governor Bill Clinton or Senator

Albert Gore with any fetus or fetuses or fetal remains in

the City of New York” during the Democratic National

Convention.’ Pet. App. 2a, 48a, 49a. On July 14, 1992,

petitioner caused Harley David Belew to present then-

Governor Clinton with a fetus in a plastic container in

1 That aspect of the preliminary injunction was based upon

N.Y. Pub. Health Law § 4162 (McKinney 1985 & Supp. 1994),

which governs “[t]he removal, transportation, burial or other

disposition of remains resulting from a fetal death.” See Gov’t

C.A. Br. 4 & n.4. The Attorney General of the State of New York

is authorized to “bring an action for an injunction against any

person who violates, disobeys or disregards any term or provision”

of the Public Health Law. N.Y. Pub. Health Law § 12(5)

(McKinney 1990). The injunction also required petitioner to

“make good faith efforts to instruct all organizations and

individuals * * * not to engage in the proscribed activities.” Pet.

App. 15a-16a. Petitioner was acquitted of violating that provision

of the injunction. Jd. at 64a-65a.

3

front of the Inter-Continental Hotel in New York City.’

Id. at 54a-55a.

2. On July 15, 1992, the district court issued an order

to show cause why petitioner should not be held in civil

contempt for violating the preliminary injunction. At a

contempt hearing on July 16, 1992, the district court

noted that coercive civil contempt fines had failed to have

any effect on petitioner’s conduct and that criminal

sanctions would be appropriate if it could be proved that

petitioner had violated the preliminary injunction. The

district court subsequently referred the matter to the

United States Attorney for the Southern District of

New York for possible prosecution of petitioner for

criminal contempt. The United States Attorney de-

clined to prosecute the alleged criminal contempt and

instead suggested that the court appoint a private

prosecutor. On August 5, 1992, the court, on its own

initiative, inquired whether Attorney General Abrams

would agree to prosecute petitioner for the alleged

criminal contempt. Attorney General Abrams agreed,

and the court appointed him to prosecute the criminal

contempt. At the same hearing, the district court

dismissed the civil contempt charges against petitioner

initiated by its July 15 order to show cause. Pet. App.

33a-34a.

Petitioner moved to disqualify Attorney General

Abrams from conducting the criminal contempt prose-

2 On several occasions prior to July 14, petitioner stated that he

and his supporters planned to present Governor Clinton with a

fetus. After Belew presented Governor Clinton with the fetus,

petitioner admitted that he had “plott[ed]” to take that action (Pet.

App. 62a), and he issued several statements taking credit for

Belew’s conduct. Relying on those statements, the district court

found that petitioner had aided and abetted Belew’s presentation of

the fetus to Governor Clinton. Jd. at 60a-64a.

4 Yee

cution. Pet. App. 34a. Petitioner asserted that Attorney

General Abrams should be disqualified because he was

involved in the underlying civil litigation and in civil

contempt proceedings against other individuals arising

from the July 13 injunction; because he stood to gain

financially if the State of New York was awarded

attorneys’ fees as a prevailing party in the civil or

criminal litigation; and because he harbored a persona!

animosity toward petitioner. In support of the last claim,

petitioner filed declarations stating that Attorney

General Abrams had taunted him at a pro-abortion rally

on April 5, 1992, in Washington, D.C., by putting his

fingers in his ears, sticking out his tongue, and telling

petitioner, “[Y]ou are going to lose.” In response,

Attorney General Abrams filed affidavits from himself

and his wife denying that he had engaged in those acts.

Id. at 35a.

After a hearing, the district court denied petitioner’s

motion. At the outset, the court stated that the “central

case” bearing on petitioner’s motion was this Court’s

decision in Young v. United States ex rel. Vuitton et

Fils S.A., 481 U.S. 787 (1987), which the district court

construed to hold that “counsel for a party that is the

beneficiary of a federal court. order may not be appointed

by a federal court to bring a charge of criminal contempt

for an alleged violation of the underlying court order.”

Pet. App. 37a. In applying Vuitton to petitioner’s motion,

the court noted that Attorney General Abrams did not

represent the interests of a private party but instead

“occupies a position similar to that of the United States

Attorney and is entitled to the same presumption of

impartiality as a ‘servant of the law.’” Id. at 39a. At the

same time, the court acknowledged that “a sovereignty

* * * might still face a conflict of interest in a

prosecution for criminal contempt” and that “disqualifi-

5

cation is required when there is even the appearance of a

conflict.” Ibid.

The court rejected petitioner’s claim that Attorney

General Abrams should be disqualified because he had

represented the State of New York in obtaining the July

13, 1992, preliminary injunction and had participated in

civil contempt proceedings arising out of the alleged

violation of that injunction. It found that because

Attorney General Abrams was “not actively pvrsuing

any claims in connection with the underlying civil

litigation, there is not even the appearance that the

prosecution for criminal contempt might be used for -

leverage in the underlying civil litigation or vice versa.”

Pet. App. 4la. In addition, the court noted, Attorney

General Abrams could not derive an advantage in the

civil litigation through his prosecution of the criminal

contempt charges, because no grand jury had been

convened to investigate the alleged criminal contempt,

and Attorney General Abrams had at least as much

ability to collect information under the Federal Rules of

Civil Procedure as he did through discovery in a federal

criminal case. [bid.

The court further found that Attorney General

Abrams’ participation in the pending civil contempt

proceedings did not raise a conflict of interest. Pet. App.

42a-43a. Because the purposes served by civil and

criminal contempt are “convergent,” the court held,

there is no danger that a prosecutor handling related

civil and criminal contempt proceedings will have to

“serve two masters.” Jd. at 42a. In addition, the court

noted that civil contempt proceedings against petitioner

had been dismissed and that petitioner's counsel did not

represent any of the defendants in the ongoing civil

contempt proceedings. /d. at 43a.

6

The district court also rejected petitioner’s claim that

Attorney General Abrams stood to benefit financially

from his prosecution of petitioner. The court noted that

any fines imposed on petitioner would be paid into the

federal treasury; that the court had already announced

that it would not award attorneys’ fees to the State of

New York for its prosecution of the alleged civil or

criminal contempt proceedings; and that any attorneys’

fees and costs that might be awarded to New York in the

underlying civil preliminary injunction litigation

constituted “too remote” a benefit to require Attorney

General Abrams’ disqualification. Pet. App. 40a, 41a-42a,

43a.

The district court also rejected the contention that

Attorney General Abrams should be disqualified because

he had a personal animosity toward petitioner. Initially,

the court found that’ neither petitioner nor Attorney

General Abrams had established the truth of his version

of the events of April 5, 1992. Taking petitioner’s version

as true, however, the court found that Attorney General

Abrams’ alleged actions on that day did not “demonstrate

that Abrams harbors a personal animosity toward”

petitioner. Pet. App. 45a. The court also rejected

petitioner’s contention that a television commercial

broadcast by Attorney General Abrams during his

campaign in the Democratic Senate primary showed his

animosity toward petitioner. Jd. at 45a-46a. Finally, the

court held that “the undisputed fact that Abrams sought

te obtain political gain from his prosecution of

[petitioner] is not enough to disqualify him,” because

“[t]here is ne evidence that potential political gain was

the motivating force behind the Attorney General’s

decision to prosecute.” Jd. at 46a.

3. The court of appeals affirmed. Pet. App. la-10a. It

agreed with the district court that this Court’s decision

7

in Vuitton “focused on the danger of entrusting coercive

powers of the state to counsel for a private litigant” and

that “the Attorney General of the State of New York

represents a sovereignty and is presumed to act with a

sense of impartiality.” Jd. at 3a-4a. Although the court

of appeals recognized the possibility that a government

attorney could have a disabling conflict of interest, it

held that “Vuitton does not automatically disqualify

government attorneys who bring a civil action from

serving as special prosecutors in a subsequent contempt

proceeding|[], and that where a case involves appointment

of a government attorney, the court must examine the

particular facts of the case to determine if reversible

error has occurred.” Jd. at 5a.

The court of appeals’ conclusion that Attorney

General Abrams did not have “an actual or apparent

conflict of interest” was based on four factors. Pet. App.

oa. First, the Attorney General’s financial interest in

the outcome of the underlying civil litigation was limited

to the possibility that attorneys’ fees might be awarded

to the State, and was therefore “too remote to implicate a

conflict.” Ibid. Second, the Attorney General would not

profit financially from the criminal contempt prose-

cution. Third, at the time of the criminal] contempt

prosecution, the civil contempt proceedings against

petitioner had been dismissed. Finally, “at the time of

the contempt prosecution there were no ongoing

activities in the underlying civi! action that could cloud

the Attorney General’s judgmeni in the criminal case or

exert undue pressure on [petitioner].” bid.

The court of appeals also upheld the district court’s

finding that Attorney General Abrams did not harbor a

personal bias against petitioner. Pet. App. 7a. The court

agreed with the district court’s conclusion that neither

the alleged April 5, 1992, exchange between the Attorney

8

General and petitioner nor the Attorney General’s

campaign commercials constituted evidence of bias.

Finally, the court noted that petitioner had failed to

show that he suffered any prejudice as a result of the

Attorney General’s alleged animosity toward him. Ibid.

ARGUMENT

Petitioner renews his contention that the district

court’s appointment of New York Attorney General

Abrams to prosecute the criminal contempt charges

against him contravened this Court’s decision in Young

v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787

(1987). The district court and the court of appeals

correctly rejected that argument, and no other court of

appeals has addressed the application of Vuitton to

attorneys who represent a State. Further review is

therefo.e unwarranted.

1. In Vuitton, private attorneys who had obtained an

injunction against trademark infringement on behalf of a

leather goods manufacturer were appointed to prosecute

as a criminal contempt an alleged violation of the

injunction. In assessing the propriety of the appoint-

ment, the Court first observed that a criminal prose-

cutor “is the representative not of an ordinary party toa

controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to

govern at al-and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but that

justice shall be done.” 481 U.S. at 803 (quoting Berger v.

United States, 295 U.S. 78, 88 (1935)). “Because of this

* The court of appeals also rejected (Pet. App. 8a-10a)

petitioner’s claims that the preliminary injunction was unconsti-

tutional and that it did not prohibit the activities giving rise to his

conviction. Petitioner does not pursue those claims in this Court.

9

unique responsibility,” the Court observed, federal

prosecutors are subject to demanding conflict-of-interest

provisions. 481 U.S. at 803-804. The duty of the private

attorney, by contrast, is not to seek justice in a

dispassionate fashion, but to demonstrate “unquestioned,

continuing fidelity to the client.” Jd. at 804 (quoting

Brotherhood of Locomotive Firemen & Enginemen v.

United States, 411 F.2d 312, 319 (5th Cir. 1969)).

This Court concluded that the district court had

“erred in appointing as prosecutors counsel for an

interested party in the underlying civil [trademark

infringement] litigation.” 481 U.S. at 802. The Court

reasoned that “[a] private attorney appointed to

prosecute a criminal contempt * * * certainly should be

as disinterested as a public prosecutor who undertakes

such a prosecution.” Jd. at 804. It noted, however, that

“[t]he Government’s interest is in dispassionate assess-

ment of the propriety of [the] criminal charges,” while

“[t]he private party’s interest is in obtaining the benefits

of the court’s order.” Jd. at 805. Those interests may

not be “congruent,” because counsel for a private party

may be ethically required to pursue a prosecution that

would be financially beneficial to the client or to abandon

a prosecution if a lucrative settlement is offered. Ibid.

For these reasons, the Court held that prosecution of a

criminal contempt by counsel for an interested private

party always carries the potential for a conflict of

interest; it therefore concluded that counsel for an

interested private party cannot discharge the “unique

responsibility” (id. at 803) of the prosecutor to see that

justice is done. Relying on its supervisory power, the

Court accordingly held that “counsel for a party that is

the beneficiary of a court order may not be appointed as

prosecutor in a contempt action alleging a violation of

that order.” Id. at 809.

10

Even where no conflict of interest is present, the

Court recognized, “prosecutors may on occasion be

overzealous and become overly committed to obtaining a

conviction.” 481 U.S. at 808 n.18. The Court drew a

sharp distinction, however, between the “structural”

problem created when the lawyer conducting a criminal

prosecution represents a private party in a related

matter, and the “personal” problem that exists when a

prosecutor, for whatever reason, manifests bias or

overzealousness. [bid. Where the latter problem arises,

the Court stated, “the courts deal with it on a case-by-

case basis as an aberration.” Jbid. (quoting Polo

Fashions, Inc. v. Stock Buyers Int’l, Inc., 760 F.2d 698,

705 (6th Cir. 1985), cert. denied, 482 U.S. 905 (1987)).

2. Petitioner asserts that the per se rule announced

in Vuitton applies with the same force to a State’s

attorney general as to counsel for a private party. As

petitioner points out, see Pet. 10-11, Attorney General

Abrams represented the State of New York in both the

underlying civil litigation and the civil contempt

proceedings, while representing the United States in the

criminal contempt prosecution. Petitioner observes that

“(t]he interests of the State of New York and the United

States are obviously not necessarily congruent, as

illustrated by litigation between the two sovereigns.”

Pet. 11 (citing New York v. United States, 112 S. Ct.

2408 (1992)). Petitioner contends that “[Vuitton]’s

bright-line test” therefore precluded the appointment of

the New York Attorney General to conduct the criminal

contempt prosecution. Pet. 11.

In our view, this argument lacks merit. As the court of -

appeals recognized, see Pet. App. 4a, the district court’s

appointment of a state attorney general to prosecute the

criminal contempt charges against petitioner does not

raise the same concerns as the appointment of counsel

il

for a private party. An attorney general is the

representative of a sovereign and acts on behalf of the

public interest. “[T]he attorney-general, in an action

brought by him, represents the whole people and a public

interest, and not mere individuals and private rights.”

People v. Brooklyn, F. & C.L Ry., 89 N.Y. 75, 93 (1882).

Accord State by Abrams v. New York City Conciliation

& Appeals Bd., 472 N.Y.S.2d 839, 841 (Sup. Ct. 1984)

(“when the state does bring suit, it must be for [the]

redress of wrongs done to the interests of the people as a

whole and not merely to vindicate the individual or

private interests of certain citizens”); People v. Lowe, 22

N.E. 1016, 1020 (N.Y. 1889); Farmland Dairies vy.

Commissioner of N.Y. Dep’t of Agric., 847 F.2d 1038,

1044 (2d Cir. 1988). Cf. Alfred L. Snapp & Son, Inc. v.

Puerto Rico, 458 U.S. 592, 600-608 (1982) (State may file

suit as parens patriae to vindicate its “quasi-sovereign”

interest in protecting the well-being of its residents). In

this case, Attorney General Abrams’ duty in conducting

the underlying civil litigation that produced the pre-

liminary injunction was to vindicate the interests of the

public, not to demonstrate “unquestioned, continuing

fidelity” to a private party. Vuitton, 481 U.S. at 804.

Thus, the principle upon which the Vuitton rule is

based—that the conduct of a criminal prosecution may

not be entrusted to an attorney who has pledged, in the

same underlying matter, to protect the interests of a

private client even at the expense of the public good—

generally has no application to cases in which a state

official is assigned to prosecute a criminal contempt.

This is not to say that the appointment of a state

attorney general to conduct a criminal] contempt prose-

cution will always be appropriate. The State of New

York and the United States are different sovereigns, and

cases will inevitably arise in which their interests

12

diverge. There may also be instances in which either the

circumstances of the underlying litigation or the prior

course of dealing between state officials and the alleged

contemnor creates an unacceptable risk of bias or

overzealousness. We do not believe, however, that either

the frequency of such conflicts or the difficulty of

identifying them on a case-by-case basis is so great as to

justify a per se rule of disqualification.

3. At the time that the district court initiated

criminal contempt proceedings against petitioner, there

were two related civil actions pending in the district

court. First, the civil action that resulted in the July 13,

1992, preliminary injunction against petitioner and

others remained pending. Second, Attorney General

Abrams represented the State of New York in civil

contempt proceedings pending against other individuals

and organizations who had allegedly violated the July 13

injunction. Although Attorney General Abrams repre-

sented the State of New York in both proceedings, his

participation in those actions did not require him to

accept obligations incompatible with his responsibility

for conducting the criminal contempt prosecution.

First, the Attorney General’s participation in

concurrent civil and criminal contempt proceedings does

not raise the concerns addressed in Vuitton. Both

contempt proceedings sought vindication of the same

injunction and thus involved congruent interests.

Moreover, petitioner was not a party to the civil

contempt proceedings, because the district court had

dismissed those charges against petitioner at the time

that it initiated criminal contempt proceedings against™

him. See Pet. App. 5a, 34a.

Nor did the conduct of the underlying civil litigation

require Attorney General Abrams to accept obligations

incompatible with his role as public prosecutor.

13

Attorney General Abrams sought the preliminary

injunction to ensure order and public safety during an

important public event in New York City. He thereby

sought to vindicate the State’s interest in the protection

of its residents and the enforcement of public laws, an

interest entirely consistent with that of the United

States and its citizens in obtaining compliance with the

orders of its courts.‘

Finally, there was no danger that the Attorney

General could obtain any improper benefit in the civil

actions by prosecuting the criminal contempt. Because

no grand jury was empaneled, Attorney General Abrams

could not use the criminal prosecution to further the

State’s gathering of information for the civil actions. As

a party to a civil action in federal court, Attorney

General Abrams could obtain at least as much infor-

mation through civil discovery as he could acquire

pursuant to his conduct of the criminal contempt

prosecution. See Pet. App. 5a.’

4 Different concerns might be raised if the underlying civil

litigation had involved, for example, the State’s operation of a

commercial enterprise. In that setting the interests of the State as

an institution might more plausibly be distinguished from those of

the public, and the role of the Attorney General could more

readily be analogized to that of counsel for a private entity. Cf.

Alfred L. Snapp & Son, Inc., 458 U.S. at 601 (distinguishing

between State’s “sovereign” and “proprietary” interests, and

noting that “[a]s a proprietor, [a State] is likely to have the same

interests as other similarly situated proprietors.”).

* In support of his claim that Attorney General Abrams had an

impermissible conflict of interest, petitioner notes (Pet. 7) that

evidence introduced at the criminal trial, including copies of

petitioner’s radio broadcasts and the depositions of two individuals,

“was * * * obtained through civil discovery in the underlying

action.” But Attorney General Abrams (or any other attorney

appointed to conduct the criminal contempt prosecution) could

14

4. In the courts below, petitioner contended that

Attorney General Abrams harbored a personal bias

against him, and that Attorney General Abrams’ appoint-

ment to prosecute the criminal contempt was therefore

improper. See Pet. App. 7a, 44a-46a. Although the

petition summarizes the testimony underlying that

contention, see Pet. 6-7, petitioner appears to have

abandoned that factbound claim in this Court. In any

event, as the court of appeals recognized (Pet. App. 7a),

Vuitton has no bearing on the question whether

Attorney General Abrams’ alleged personal animosity

toward petitioner required his disqualification. Vaitton

addresses only the “structural” problem caused by the

appointment of a prosecutor whose representation of a

private interest raises the risk of a conflict of interest; it

does not address the “personal” problem of prosecutors

who are “overzealous and become overly committed to

obtaining a conviction.” See Vuitton, 481 U.S. at 808

n.18.

5. Petitioner identifies no decision that has applied

this Court’s analysis in Vuitton to attorneys who

represent a State. He contends (Pet. 12-15), however,

that the court of appeals’ decision conflicts with

decisions of several other courts of appeals. In parti-

cular, petitioner asserts that the courts in FTC v.

American Nat'l Cellular, 868 F.2d 315 (9th Cir. 1989),

and United States ex rel. SEC v. Carter, 907 F.2d 484

(5th Cir. 1990), “have ruled that [Vuitton] applies to

government attorneys.” Pet. 12. Contrary to peti-

have used a criminal subpoena to obtain the broadcasts and to

compel the testimony at trial of the two individuals. Indeed, the

Attorney General was prepared to call the two individuals as

witnesses at trial, but petitioner stipulated to the admission of their

civil deposition transcripts. Pet. App. 6a.

15

tioner’s contention, both of those decisions are

consistent with the Second Circuit’s holding in the

instant case.

In American Nat'l Cellular and Carter, the question

was whether attorneys for a federal government agency

could be appointed to prosecute as a criminal contempt a

violation of a court order obtained by the agency in civil

litigation. In both cases, the courts of appeals found that

Vuitton did not dictate the answer to that question.’ See

American Nat’l Cell ular, 868 F.2d at 319 (“We doubt the

Supreme Court intended Vuitton to disqualify

automatically any FTC attorney as ‘interested’ simply

by virtue of employment with the agency that brought

the underlying suit.”); Carter, 907 F.2d at 486 (Vuitton

“does not precisely control [this] case”). Instead, in each

case the court examined the circumstances surrounding

the appointment of the federal attorney to prosecute the

criminal contempt and the conduct of the attorneys

during that prosecution to determine whether the

agency attorneys had “an extraneous interest * * *

that may create ‘the appearance of impropriety.”

Carter, 907 F.2d at 486; see American Nat’] Cellular,

868 F.2d at 319 (inquiring whether FTC attorneys “lack

® That conclusion was surely correct. The principle that a

prosecutor may not simultaneously represent the government in a

criminal proceeding and a private client with potentially divergent

civil interests clearly has no application to federal attorneys, whose

“client” in both civil and criminal proceedings is the United States

government. See American Nat’! Cellular, 868 F.2d at 319 (“The

Vuitton opinion focused quite narrowly on the conflicts of interest

faced by private attorneys trying to represent simultaneously both

their private clients’ interests and the public interest in prosecut-

ing contemnors.”).

16

the impartiality and appearance of impartiality that our

system of justice demands of its prosecutors”).

Contrary to petitioner’s assertion (Pet. 13), therefore,

Carter does not stand for the broad proposition that “a

government prosecutor cannot conduct parallel civil and

criminal proceedings without running afoul- of

[Vuitton].”* Instead, the Carter court concluded that the

facts and circumstances of the particular case “raise[d]

serious doubt about the SEC’s ability in this case to

perform disinterestedly the duties of a_ special

prosecutor.” 907 F.2d at 487. In support of that

conclusion, the court noted that the SEC attorneys

remained “locked in an on-going civil struggle” with the

defendant during the criminal prosecution and that the

SEC had made misrepresentations in its brief on appeal

>

t

’ Petitioner also argues (Pet. 14) that because the Ninth Circuit

in American Nat'l Cellular relied on two factors that are not

present in this case, its approach conflicts with the analysis of the

court of appeals here. That contention is without merit. Although

petitioner correctly states that the Ninth Circuit focused on two

factors—the involvement of the United States Attorney and the

fact that different FTC attorneys prosecuted the contempt and

conducted the underlying civil litigation—the court did not

suggest that other factors would not be relevant in another case.

8 To the contrary, this Court’s decision in United States v.

John Doe, Inc. I, 481 U.S. 102 (1987), which held that an Antitrust

Division lawyer who had conducted a grand jury investigation

could continue to use grand jury materials during subsequent civil

proceedings, clearly presumes that a federal attorney may

legitimately participate in civil and criminal proceedings involving

the same potential defendants and arising from the same under-—

lying events. See also United States v. Wencke, 604 F.2d 607, 611

(9th Cir. 1979); United States v. Birdman, 602 F.2d 547, 561-563

(3d Cir. 1979), cert. denied, 444 U.S. 1032 and 445 U.S. 906 (1980).

There is no reason why a different rule should apply to

prosecutions for criminal contempt.

17

of the criminal conviction. Jd. at 486-487. Rather than

treating the participation of the SEC attorneys in both

civil and criminal proceedings as a “structural” violation

subject to a per se bar, the Carter court thus addressed

the attorneys’ apparent overzealousness “on a case-by-

case basis as an aberration.” Vuitton, 481 U.S. at 808

n.18. The court of appeals here took a similar approach,

inquiring whether the Attorney General had a financial

or other interest that created an actual or potential

impediment to his disinterested conduct of the prose-

cution.®

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREWS. Days III

Solicitor General

JOANN HARRIS

Assistant Attorney General

JOSEPH DOUGLAS WILSON

Attorney

SEPTEMBER 1994

® Petitioner also alleges (Pet. 12-13) a conflict between the court

of appeals’ decision and several other cases. The decisions on

which he relies, however, simply restate the general rule

announced in Vuitton that appointment of counsel for an

interested party to conduct a prosecution for criminal contempt

requires reversal of a resulting conviction. None of those cases

involves attorneys representing a State, and the decisions do not

address the question whether a per se bar applies to state govern-

ment attorneys who have participated in the litigation from which

the alleged contempt arises.