The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
The defendants, Chris Cain and David Cain, Jr., are charged in a multi-count indictment with inter alia racketeering, Hobbs Act violations, and conspiracy. The case was referred to Magistrate Judge H. Kenneth Schroeder, Jr., for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). On October 19, 2006, defendant Chris Cain filed a motion to disqualify Assistant United States Attorney ("AUSA") Anthony Bruce as counsel for the government. The government opposed the motion and on November 24, 2006, Magistrate Judge Schroeder issued a Decision and Order denying the motion to disqualify.
Chris Cain filed objections to Magistrate Judge Schroeder's Decision and Order and David Cain, Jr., joined in those objections. The government filed a response in opposition and this Court heard oral argument on February 2, 2007.
On that same date, February 2, 2007, Chris Cain filed a second motion to disqualify AUSA Bruce and David Cain, Jr. joined in that motion also. On February 15, 2007, the government filed a response in opposition to the motion and on February 28, 2007, the defendants filed a reply. The Court held oral argument on the defendants' second motion to disqualify on March 9, 2007. The Court also granted the parties leave to file additional submissions by March 23, 2007 and deemed the matter submitted on that date.
A. Objections to Magistrate Judge Schroeder' s Decision and Order
Defendants appeal Magistrate Judge Schroeder's Decision and Order denying their first motion to disqualify AUSA Bruce. Pursuant to 28 U.S.C. § 636(b)(1)(A), this Court "may reconsider any pretrial matter under this [section] where it has been shown that the magistrate's order is clearly erroneous or contrary to law."
Having reviewed the Magistrate Judge's Decision and Order, the submissions of the parties and upon hearing argument from counsel, the Court finds that Magistrate Judge Schroeder's Decision and Order is neither clearly erroneous nor contrary to law. The defendants sought disqualification primarily on the ground that the AUSA had a potential conflict of interest because he was expected to be a key witness in a perjury prosecution against an individual named Shawna Fish. Fish is the girlfriend of one of Cain Jr.'s alleged criminal associates.
Many of the arguments raised by the defendants in their first motion to disqualify and their objections have been rendered moot by the government's subsequent decision to dismiss all criminal charges against Shawna Fish.*fn1 The dismissal of all charges eliminates any possibility that the AUSA will testify against her, and moots the defendants' concern of a potential conflict. The government has represented that it does not intend to call either the AUSA or Fish during its case-in-chief against the defendants in this case. In the event that either of the defendants find it necessary to call Fish as a defense witness, the Court finds that disqualification is unwarranted for the reasons stated in Magistrate Judge Schroeder's Decision and Order. Because Magistrate Judge Schroeder's Decision and Order is neither clearly erroneous or contrary to law, the defendants' appeal is denied.
B. Second Motion to Disqualify
Following argument on their appeal from the Decision and Order, the defendants filed a second motion to disqualify AUSA Bruce wherein they cited additional grounds for disqualification. Specifically, they assert that the AUSA has engaged in a pattern of prosecutorial misconduct that is likely to prejudice them and taint the criminal proceedings. In support of their claim of prosecutorial misconduct, the defendants allege that the AUSA: (1) committed improprieties and constitutional violations in connection with the Shawna Fish prosecution; (2) committed Jencks Act and Brady violations in an unrelated criminal prosecution against David Cain, Jr.; and (3) made improper extra-judicial statements to the media in violation of Rule 23 of the Federal Rules of Criminal Procedure for the Western District of New York ("Local Rule 23") and Rule 6(e) of the Federal Rules of Criminal Procedure.
1. Shawna Fish Prosecution
The defendants allege that the AUSA committed prosecutorial misconduct in connection with the criminal proceedings against Shawna Fish, United States v. Fish, 05-CR-228A. In that case, the government charged Shawna Fish with committing perjury before the grand jury. The grand jury was investigating whether David Cain, Jr., had committed witness tampering with regard to Fish's boyfriend, Larry Kropp. The grand jury believed that Fish had information about the facts underlying that alleged witness tampering. When Fish initially testified before the grand jury, she testified falsely. She later recanted that testimony in a second grand jury proceeding. Fish moved to dismiss the indictment alleging, inter alia, that certain prosecutorial actions by the AUSA ...