BENNIE W. BOLTON, PETITIONER V. UNITED STATES OF AMERICA No. 90-5446 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A11) is reported at 905 F.2d 319. JURISDICTION The judgment of the court of appeals was entered on May 30, 1990. The petition for a writ of certiorari was filed on August 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the assistant prosecutor should have been disqualified because he had represented petitioner, five years earlier, in an unrelated criminal matter. STATEMENT After a jury trial in the United States District Court for the Northern District of Oklahoma, petitioner was convicted of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1), and possession of a firearm not registered in the National Registration and Transfer Record, in violation of 26 U.S.C. 5861(d). He was sentenced to concurrent terms of 40 years' imprisonment without possibility of parole on the first count and ten years' imprisonment on the second count. The court of appeals affirmed. Pet. App. A1-A11. 1. The evidence at trial is summarized in the opinion of the court of appeals. Pet. App. A2-A3. It showed that on October 14, 1987, at approximately 1:30 a.m., Officer Wilson of the Tulsa Police Department noticed a car driven by petitioner approaching him with its bright lights on. Wilson flashed his lights several times as a signal to petitioner to dim his lights, but petitioner did not do so. Suspecting that petitioner was intoxicated, Officer Wilson turned his car around and activated his siren and lights. Petitioner, however, failed to stop. Officer Wilson requested assistance over his radio, and three other officers joined in pursuit of petitioner. Id. at A2. During the pursuit, petitioner's car went off the road, hit a fire hydrant, and came to rest with its front end two feet off the ground. Petitioner got out of the car and ran toward the nearby woods, where he was arrested by Officer Wilson and another officer. Officer Wilson had noticed an object fall to the ground as petitioner got out of his car. That object turned out to be a sawed-off shotgun. Pet. App. A2-A3. 2. Early in the trial, the defense moved to disqualify the assistant prosecutor, Ron Wallace. The basis for the motion was that Wallace had represented petitioner on an unrelated armed robbery charge five years earlier, when he was working for the Tulsa County Public Defender's Office. That charge had been dismissed prior to trial. In the absence of any indication that Wallace had obtained information during his representation of petitioner that would be useful in this case, the court denied the disqualification motion. Pet. App. A3-A4. Wallace gave the closing argument for the government, but otherwise did not speak during the trial. However, at several points during the trial the district court inquired about Wallace's previous representation of petitioner. On petitioner's post-trial motion seeking to disqualify Wallace, the court expressed its concern about the appearance of impropriety presented by Wallace's participation in the trial, but concluded that petitioner was not entitled to a new trial. Pet. App. A4. 3. The court of appeals held that the district court did not abuse its discretion by deciding not to disqualify Wallace. Pet. App. A3-A5. It concluded that there was no "factual relationship" between the instant case and the matter in which Wallace had represented petitioner five years earlier, and it also concluded that Wallace was not aware of any "confidential information" as a result of the previous representation. Id. at A5. However, agreeing with the district court that there was an "appearance of impropriety," the court of appeals expressed strong disapproval of the government's insistence on keeping Wallace on the case and indicated that the district court would not have abused its discretion by granting the disqualification motion. Ibid. ARGUMENT Petitioner renews his contention that the district court's refusal to disqualify Assistant United States Attorney Wallace requires reversal of his conviction. The court of appeals correctly rejected this claim. The basic policies governing potential conflict of interest problems are set forth in Canons 4 and 9 of the ABA Code of Professional Responsibility. Canon 4 provides that "a Lawyer Should Preserve the Confidences and Secrets of a Client." Canon 9 provides that "a Lawyer Should Avoid Even the Appearance of Professional Impropriety." Pursuant to these ethical imperatives, the courts have uniformly held that "a former client seeking to disqualify an attorney who appears on behalf of his adversary need only show that 'the matters embraced within the pending suit * * * are substantially related to the matters or cause of action wherein the attorney previously represented him.'" In re Yarn Patent Validity Litigation, 530 F.2d 83, 89 (5th Cir. 1976), quoting T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y. 1953). See also, e.g., Havens v. State of Indiana, 793 F.2d 143, 144 (7th Cir.), cert. denied, 479 U.S. 935 (1986); Smith v. Walcott, 757 F.2d 1098, 1100 (10th Cir. 1985); Kevlick v. Goldstein, 724 F.2d 844, 851 (1st Cir. 1984); Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980); State of Arkansas v. Dean Foods Products Co., 605 F.2d 380, 383 (8th Cir. 1979). Under this test, "(s)ubstantiality is present if the factual contexts of the two representations are similar or related." Trone, 621 F.2d at 998. /1/ In this case, there was no "substantial relationship," so that disqualification was not required. First, the prosecution for armed robbery in which Wallace represented petitioner was unrelated to the firearm offense for which he was convicted in this case. Furthermore, both courts below correctly found that there was not "the slightest indication that Wallace had obtained sensitive information during his earlier representation of (petitioner) that could have been used against him in the instant proceeding." Pet. App. A3-A4. It is true that the prior convictions that were used in this case to prove the predicate felony, to impeach petitioner's credibility, and to enhance his sentence were pleaded in the earlier prosecution for purposes of sentence enhancement. But those prior convictions were "not confidential information because (they were) a matter of public record." Havens, 793 F.2d at 145. Based essentially on the same reasoning, the court of appeals in Havens upheld the defendant's conviction against the same claim petitioner raises. In fact, in Havens the very charges against which the prosecutor had earlier defended Havens were used to support the prosecution's request for sentence enhancement. Id. at 145-146. In this case, the government did not use the previous armed robbery charge on which Wallace represented petitioner (which was dismissed before trial) for any purpose. /2/ Petitioner's argument is essentially just that the two lower courts erred in applying the substantial relationship test in this case. Pet. 9. Petitioner does not quarrel with the test itself or contend that there is a conflict between the decision in this case and the decision of another court of appeals; instead he seeks to distinguish Havens. Pet. 10. Furthermore, since the court of appeals expressed strong disapproval of the government's decision to keep Wallace on the case, it is unlikely that the issue presented by this case will recur in the Tenth Circuit. In these circumstances, further review by this Court is unwarranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOEL M. GERSHOWITZ Attorney NOVEMBER 1990 /1/ The "substantial relationship" test is consistent with Rule 1.9 of the ABA Model Rules of Professional Conduct, which prohibits a lawyer who has formerly represented a client in a matter from representing another person "in the same or (a) substantially related matter" if that person's interests are materially adverse to the former client's interests. /2/ There is no merit to petitioner's argument that he was prejudiced by Wallace's participation in this case in that, as a result of the earlier representation, Wallace "gained insight into (petitioner's) personality that could have given the government a tactical advantage in prosecuting him." Pet. 6. Such "insight" simply does not constitute confidential information. Moreover, acceptance of petitioner's argument would essentially negate the "substantial relationship" test, since disqualification would be required in virtually every case of prior representation.