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