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U.S. v. SANCHEZ

United States District Court, S.D. New York


February 17, 2004.

UNITED STATES OF AMERICA, -V- MANUEL A. SANCHEZ, JR., a/k/a "Manny Sanchez," Defendant

The opinion of the court was delivered by: RICHARD CASEY, District Judge

OPINION AND ORDER

Defendant Manuel A. Sanchez has been charged with conspiracy to obstruct justice and making false statements to the government. Sanchez now moves to disqualify Assistant United States Attorney Richard Sullivan from this case. For the reasons set forth below, Defendant's motion is DENIED in its entirety.

I. Background

  Manuel A. Sanchez is a lawyer who has been charged with two separate conspiracies to obstruct justice during the course of his representation of Cesar Agramonte, who was arrested on federal narcotics charges in the Eastern District of New York in July, 1996.

  Count One of the indictment alleges that Sanchez conspired with other named defendants to produce false sureties in an effort to obtain bail for Agramonte. Count Two of the indictment alleges that Sanchez conspired with the other flamed co-defendants to provide fabricated information to the government in order to receive a cooperation agreement and a reduced Page 2 sentence for Agramonte.*fn1

  On August 6, 1998, during the investigation of the alleged conspiracies, Sanchez was interviewed at his law office by two DEA agents and Assistant United States Attorney Richard J. Sullivan, the lead prosecutor in this case.*fn2 The Government plans to use the report of Sanchez's interview at trial and expects to call both DBA agents to testify about the report.

  Sanchez now moves to disqualify Assistant United States Attorney Sullivan from the case on account of Sullivan's participation in the August 6, 1998 interview of Sanchez.

  II. Discussion

  Sanchez advances two arguments in support of his motion to disqualify Sullivan from trying the case. First, he argues that Sullivan will become an unsworn witness if the Government introduces the Sanchez interview at trial. Second, Sanchez claims that even if Sullivan's participation in the interview is not mentioned at trial, the defense should have the right to call Sullivan as a witness if there is a compelling and legitimate need to do so.

  In order for a defendant to call a prosecutor as a witness, the defendant must "demonstrate a compelling and legitimate reason to do so." United States v. Regan, 103 F.3d 1072, 1083 (2d Cir. 1997). "Where witnesses other than the prosecutor can testify to the same matters or conversations, no compelling need exists." United States v. Wallach, 788 F. Supp. 739, 744 Page 3 (S.D.N.Y. 1992).

  Because two other government agents were present during the entirety of Sanchez's interview, the defense does not have a legitimate or compelling reason to call Sullivan as a witness. The other agents that were present will be able to testify regarding the substance of the interview, as well as the manner in which the interview was conducted. See United States v. Regan, 103 F.3d 1072, 1083 (2d Cir. 1997) (holding that there was no legitimate need to call the prosecutor as a witness because a third party could be called to testify as to whether the prosecutor had created a "hostile or aggressive atmosphere during his questioning before the Grand Jury.")

  Moreover, Sullivan conducted Sanchez's interview in accordance with the policy of the United States Attorney's Office, which requires that a third party be present whenever a prosecutor is interviewing a witness. See United States v. Wallach, 788 F. Supp. 739, 744 (S.D.N.Y. 1992). This policy helps to ensure that the prosecutor will not be required to testify regarding a prior conversation with the witness. Id.

  Even if Sullivan does not testify, Sanchez claims that Sullivan should be disqualified because Sullivan would become an unsworn witness at trial when the Government presents evidence of the Sanchez interview. Although prosecutors have been disqualified for being an unsworn witness, "disqualification is a drastic remedy to the unsworn witness problem." United States v. Locascio, 6 F.3d 924, 934 (2d Cir. 1993).

  Disqualification of a prosecutor might be justified to preclude an attorney from "subtly impart[ing] to the jury his first-hand knowledge of the events without having to swear an oath or be subject to cross examination." Id. at 933. The Second Circuit has held however, that simply Page 4 witnessing the defendant's prior statements or even eliciting those prior statements does not warrant disqualification of the prosecutor. United States v. Regan, 103 F.3d 1072, 1083 (2d Cir. 1997) (holding that "the mere fact that a prosecutor took part in grand jury proceedings in which a defendant presented false testimony should not bar that prosecutor from participating in a subsequent trial for perjury"). Even if the jury is aware of Sullivan's participation in the prior Sanchez interview, this fact does not make Sullivan an unsworn witness. See id. ("The jury's awareness of [the prosecutor's] role in the grand jury proceedings did not by itself make [the prosecutor] an unsworn witness for the government"). As the District Court in Regan pointed out, "every lawyer in every trial is to some extent an `unsworn witness.'" United States v. Regan, 897 F. Supp. 748, 758 (S.D.N.Y. 1995), aff'd, 103 F.3d 1072 (2d Cir. 1997).

  Another important factor weighing against disqualification is the fact that Sullivan has already played a significant role in this case. He conducted the investigation regarding Sanchez's alleged involvement in the conspiracies and has been an attorney on this case for over five years. Sanchez filed this motion to disqualify less than three months prior to the commencement of trial. Removing Sullivan from the case at this late stage would prejudice the government. See United States v. Wallach, 788 F. Supp. 739, 744 (S.D.N.Y. 1992). Furthermore, replacing Sullivan after years of working on the case would be "an unwarranted waste of resources." United States v. Regan, 103 F.3d 1072, 1083 (2d Cir. 1997).

  II. Conclusion

  For the foregoing reasons, Sanchez's motion to disqualify Sullivan is denied. Trial will proceed as scheduled on March 1, 2004.

  SO ORDERED.


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