involvement with the underlying civil action, then they more closely resemble the "interested parties" in Vuitton than impartial U.S. Attorneys.
F.T.C. v. American Nat'l Cellular, 868 F.2d 315, 319 (9th Cir. 1989).
Furthermore, disqualification is required when there is even the appearance of a conflict. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. at 806 ("as will generally be the case, the appointment of counsel for an interested party to bring the contempt prosecution in this case at a minimum created opportunities for conflicts to arise, and created at least the appearance of impropriety." (emphasis in original)).
Finally, the Attorney General will receive no financial benefit, for either his office or the State of New York, from the criminal contempt proceedings. This Court has already indicated that any fines imposed in this criminal proceeding would be deposited into the federal treasury and not paid to the State of New York. Furthermore, this Court has previously announced that it does not intend to award any attorneys' fees to the Attorney General for prosecution of the alleged criminal contempt. Transcript of Proceedings of August 5, 1992 at 12.
The Court now turns to each of the two related civil proceedings, in order to determine whether either creates an actual or apparent conflict of interest for the Attorney General which would require his disqualification from the criminal prosecution of Terry.
1. The Underlying Civil Litigation
On July 13, 1992, the Attorney General obtained a preliminary injunction enjoining Terry, among others, from engaging in certain activities. At the present time, the Court is aware of no activity on the part of the Attorney General with respect to the July 13 Preliminary Injunction which would create a conflict of interest. The Attorney General is not currently seeking a modification of the July 13 Preliminary Injunction or its conversion into a permanent injunction. In United States ex rel. SEC v. Carter, 907 F.2d 484 (5th Cir. 1990), the court held that the Securities and Exchange Commission ("the SEC") could not be appointed as a special prosecutor in a contempt action while the SEC was "locked in an on-going civil struggle" with the alleged contemnor. Id. at 486. The Carter court noted that "a pending civil action in which the special prosecutor had an interest 'theoretically could have created temptation to use the criminal investigation to gather information of use in those suits, and could have served as bargaining leverage in obtaining pleas in the criminal prosecution.'" Id. (quoting Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. at 806).
Because the Attorney General is not actively pursuing 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. This is in marked contrast to the fact patterns in Vuitton and Carter, where civil claims were pending in the underlying litigation at the time of the criminal contempt investigations and prosecutions.
In addition, as the Attorney General notes, he "cannot derive from this criminal proceeding any practical advantage in the underlying civil action," Memorandum in Opposition at 14, because there has been no grand jury convened to elicit evidence and because the Attorney General has at least as much ability to collect evidence in the civil litigation under Rules 26, 30, 33, 34 and 45, Fed. R. Civ. P., as he does in the criminal prosecution pursuant to Rule 17, Fed. R. Cr. P..
Furthermore, while the Attorney General has sought to be reimbursed for the attorneys' fees and costs associated with the underlying preliminary injunction, Amended Complaint at 25, any recovery would go directly into the general coffers of the State of New York. The Attorney General has represented that he would reap no direct institutional gain from this recovery of expenses. September 24, 1992 Oral Argument Tr. at 28. The only financial interest the Attorney General conceivably might have in the underlying civil litigation is in increased general state revenues. This interest is simply too remote to require disqualification. See Marshall v. Jerrico, Inc., 446 U.S. 238, 250-52, 64 L. Ed. 2d 182, 100 S. Ct. 1610 (1980). Finally, the Attorney General has not sought any damages in the underlying civil action.
In conclusion, on the facts of this case, the Attorney General's involvement in the underlying civil litigation does not create a conflict of interest, real or potential.
2. The Concurrent Civil Contempt Proceedings
In the instant matter, the civil contempt proceedings also present no conflict of interest, real or potential, for the Attorney General. As an initial matter, the purposes of civil and criminal contempt proceedings, while different, are convergent. A civil contempt proceeding is remedial and intended to coerce the contemnor, while a criminal contempt proceeding is designed to vindicate the authority of the court. 3 Charles A. Wright, Federal Practice and Procedure § 704 (1982). Nevertheless, criminal contempt has the same incidental effect as civil contempt and vice versa:
In contempt cases, both civil and criminal relief have aspects that can be seen as either remedial or punitive or both: when a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking to give effect to the law's purpose of modifying the contemnor's behavior to conform to the terms required in the order.
Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 635, 99 L. Ed. 2d 721, 108 S. Ct. 1423 (1988); see Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 443, 55 L. Ed. 797, 31 S. Ct. 492 (1911). Therefore, the Vuitton court's concern that the prosecutor in a criminal contempt proceeding not be placed in a position where he must "serve two masters" Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. at 814, is simply not an issue when the source of conflict is the prosecution of both civil and criminal contempt.
Furthermore, as indicated above, all charges of civil contempt against Terry have been dismissed and Terry's counsel does not represent any of the defendants in the civil contempt proceedings. Accordingly, there is no opportunity for the Attorney General to use this criminal contempt prosecution to pressure Terry to settle any civil contempt proceeding.
The Attorney General will reap no financial gain, for either himself or the State of New York, from the civil contempt proceedings. This Court has already indicated that any fines imposed in the civil contempt proceedings would be made payable to the United States and not the State of New York. In addition, consistent with its oral decision rendered July 24, 1992 and judgment dated August 5, 1992 in People of the State of New York v. Operation Rescue National, 92 Civ. 4884 (RJW), this Court does not intend to award attorneys' fees in the civil contempt proceedings, even if the Attorney General prevails in those proceedings. Because the Attorney General has no financial interest in the outcome of either the civil or criminal contempt proceedings, there is no reason to disqualify him on this ground.
Finally, as with the underlying civil action, the Attorney General is not in a position to acquire evidence under the Federal Rules of Criminal Procedure that cannot presently be acquired pursuant to the Federal Rules of Civil Procedure.
For these reasons, the Court finds that the Attorney General's involvement in the concurrent civil litigation pending before this Court does not make the Attorney General an "interested party" under the standards of Vuitton and its progeny. Accordingly, disqualification is not required as a result of this involvement.
B. Robert Abrams' Alleged Personal Animosity Toward Randall Terry
Terry asserts Abrams' alleged gestures on April 5, 1992 indicate overt hostility toward Terry and require the disqualification of the Attorney General. In their submissions to the Court, the parties do not provide any case law concerning the standards to be used in determining whether a publicly-expressed "statement" of the sort attributed to Abrams requires disqualification of a prosecutor.
While a prosecutor must harbor no personal animosity, he need not be disinterested on the question of whether a defendant is guilty. As the Second Circuit has written:
The concept [of a "disinterested" prosecutor] is not altogether easy to define. Of course, a prosecutor need not be disinterested on the issue whether a prospective defendant has committed the crime with which he is charged. If honestly convinced of the defendant's guilt, the prosecutor is free, indeed obliged, to be deeply interested in urging that view by any fair means. True disinterest on the issue of such a defendant's guilt is the domain of the judge and the jury -- not the prosecutor. It is a bit easier to say what a disinterested prosecutor is not than what he is. He is not disinterested if he has, or is under the influence of others who have, an axe to grind against the defendant, as distinguished from the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime with which he is charged.
Wright v. United States, 732 F.2d 1048, 1056 (2d Cir. 1984) (citation omitted), cert. denied, 469 U.S. 1106, 83 L. Ed. 2d 774, 105 S. Ct. 779 (1985).
Terry's allegations concerning Abrams' gestures on April 5, 1992, if true, suggest that Abrams may have a personal "axe to grind" against Terry. For this reason, the Court conducted an evidentiary hearing on November 18, 1992, at which Randall Terry, Jeff White, Diane Schulder Abrams and Robert Abrams testified. Each of these individuals provided testimony consistent with his or her affidavit or declaration. On the basis of this testimony, the Court finds that (a) neither the prosecutor nor the defendant has established that his version of the events of April 5, 1992 is true and (b) even if the Court accepts Terry's and White's version of the facts as true, the gesture and comment made by Abrams toward the defendant was of no more than five seconds duration and does not demonstrate that Abrams harbors a personal animosity toward Terry.
Defendant also asserts that Abrams' personal animosity is evidenced by a television commercial Abrams ran repeatedly during his primary campaign to become the Democratic nominee for a United States Senate seat from New York.
As a voice-over says, "while Abrams stood up to the anti-abortion extremists, Ferraro was silent," the viewer sees an unidentified newspaper headline which reads, "Abrams to prosecute Operation Rescue chief." On the basis of this commercial, defendant argues that, "not only does the Attorney General harbor a deep seated enmity toward Randall Terry, the Attorney General also seeks to parlay any prosecution of Randall Terry into political gain." Defendant's Reply Memorandum at 5.
This television commercial demonstrates no personal animosity on the part of Abrams. The newspaper headline simply states a fact in objective terms and indicates no prejudice. While the use of the classification "anti-abortion extremists" makes clear Abrams' view of the activities of Terry and his colleagues, such a word choice appears to represent a professional opinion by Abrams concerning the general tactics used by Terry and others affiliated with Operation Rescue. It simply does not rise to the level of a personal "axe to grind."
Finally, the undisputed fact that Abrams sought to obtain political gain from his prosecution of Terry is not enough to disqualify him. There is no evidence that potential political gain was the motivating force behind the Attorney General's decision to prosecute, rather than a by-product of his participation in the prosecution.
Indeed, it was this Court, not the Attorney General, which: (1) indicated that criminal, not civil, contempt was appropriate with respect to Terry and (2) in light of the United States Attorney's decision not to prosecute, asked the Attorney General to prosecute the criminal contempt. If, as is the case here, a prosecutor believes that a charged defendant has violated the law, it does not demonstrate personal prejudice for that prosecutor to inform the voters of his efforts to "bring[ that] defendant to justice with respect to the crime with which he is charged." Wright v. United States, 732 F.2d at 1056.
In summary, Terry has failed to demonstrate personal animosity on the part of Abrams. Accordingly, the Attorney General should not be disqualified on this ground.
For the reasons stated above, the Court finds that the Attorney General is not an interested party under the standards set forth in Vuitton. In addition, Randall Terry has failed to prove that Robert Abrams harbors a personal animosity against him. Therefore, defendant's motion to disqualify is denied.
It is so ordered.
Dated: New York, New York
November 20, 1992
Robert J. Ward