The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions.
The defendant, Chris Cain ("the defendant"), has filed a motion wherein he seeks an "order disqualifying Assistant United States Attorney Anthony M. Bruce, Esq. from prosecution of this case and all related actions and proceedings in the United States Courts (sic) against Defendant Chris Cain and for (sic) co-defendants in this case." (Docket #74).
The government has filed a Response in opposition to this motion (Docket #77) along with an affidavit sworn to by Assistant United States Attorney Bruce ("Bruce") on October 25, 2006. (Docket #78).
AUSA Anthony Bruce ("Bruce") has been assigned as "lead prosecutor in an investigation that has led to, among others, the indictment of Shawna Fish, for a violation of 18 U.S.C. § 1623 (making false material statements while testifying under oath before the grand jury (United States v. Fish, 05-CR-228-A), and the indictment of David Cain, Jr., Chris Cain, and James (sic) Soha." (Docket #78, ¶ 1).
Shawna Fish first appeared before the grand jury on February 1, 2005 wherein she allegedly gave false testimony relating to the grand jury investigation of David Cain, Jr. (Docket #78, ¶ 6(c)). On May 3, 2005, Bruce and case investigators "interviewed Shawna Fish at length, and during that interview, Ms. Fish, in essence, confessed to having committed perjury when she testified before the grand jury on February 2, (sic) 2005." (Docket #78, ¶ 7). "Shortly after [that] interview . . . Ms. Fish reappeared before the May 2004 grand jury and, in sum and substance, confessed under oath to having committed perjury during her prior (February 1, (sic) 2005 appearance," which testimony "was recorded in its entirety." (Docket #78, ¶ 8). This May 3, 2005 testimony resulted in the aforementioned indictment against Fish.
Thereafter, motions were made on behalf of Fish to dismiss that indictment or, in the alternative, suppress the use of her May 3, 2005 grand jury testimony at the trial of her case. (Docket #10). This Court filed its Report, Recommendation and Order dated April 28, 2005 wherein it recommended suppression of the May 3, 2005 grand jury testimony of Fish. (Docket #22). Thereafter, the government filed its objections to this Court's Report, Recommendation and Order on May 26, 2006 (Docket #27) recommending suppression. The defendant Fish likewise filed objections to this Court's recommendation that her motion to dismiss the indictment against her be denied. (Docket #28).
An evidentiary hearing on the government's objections and Fish's objections was held before Chief Judge Arcara on August 29 and 30, 2006 and thereafter, oral argument by the parties was held before the Chief Judge on November 14, 2006 as to their objections to this Court's Report, Recommendation and Order of April 28, 2006. Decision was reserved on November 14, 2006.
While the aforesaid proceedings were taking place, AUSA Bruce obtained an indictment against the named defendants herein (Docket #25) which was filed as a "First Superseding Indictment" on May 5, 2006, and Bruce has continued as the lead prosecutor in this case and plans on being the lead trial attorney for the government when this case is called for trial. (Docket #78, ¶ 14).
The defendant argues that Bruce "should be disqualified from serving as Attorney for the United States in the prosecution of Defendants David Cain, Jr. and Chris Cain (sic), Indictment Number 05-CR-360-A because the United States intends to call AUSA Anthony Bruce as a principle witness in its prosecution of Shawna Fish, Indictment Number 05-CR-228-A." (Docket #75, p. 1). Because of this, the defendant claims that this would result in a violation of the "advocate-witness rule, ethical principles of professional conduct and both Federal and New York State law." (Docket #75, p. 1).
Further, the defendant speculates that "it is highly likely that Shawna Fish may be called as a witness in the present case, either for the government or for Defendants, where in either case, Defendants would question her at great length regarding the obvious influence that AUSA Anthony M. Bruce had on her recanted testimony; particularly his incorrect and misleading legal advice to Shawna Fish that she had the right to counsel only after giving her sworn testimony. As a result, AUSA Anthony M. Bruce would be forced to argue his own credibility before the jury." (Docket #75, p. 1). The defendant also claims that he may call "Bruce ...