Riley v. USA

Filing 29

ORDER denying 24 Motion Recuse New Hampshire United States Attorney's Office. So Ordered by Magistrate Judge Margaret J. Kravchuk.(ko)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
DANIEL RILEY,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent

)
)
)
)
) 1:12-cv-00047-GZS
) 1:07-cr-00189-GZS
)
)
)
ORDER

Petitioner Daniel Riley has filed a motion to recuse the entire New Hampshire United
States Attorney’s Office from continuing to appear on behalf of the United States in this pending
Section 2255 civil case. The basis of Riley’s motion appears to be that Riley has filed a Bivens
lawsuit naming as defendants three members or former members of the New Hampshire United
States Attorney’s Office. (ECF No. 24.) The Government has objected to the motion for
recusal, offering the following explanation:
On May 7, 2012, petitioner filed a Bivens action against former United States
Attorney Thomas Colantuono, current United States Attorney John P. Kacavas,
and Assistant United States Attorney Seth Aframe alleging numerous claims
against the three defendants. Riley v.Colantuono, et al., 1:12-cv-175-MML,
Docket Entry (“DE”) 1 (D.N.H. May 7, 2012). After the Bivens action was filed,
the Office of General Counsel for the Executive Office of the United States
Attorneys was consulted as to AUSA Aframe’s continued representation of the
United States in the instant action. The General Counsel advised that Aframe’s
recusal was not required, but in an abundance of caution the United States
Attorney for the District of New Hampshire should consider assigning the case to
a different AUSA. The General Counsel also advised that recusal of the entire
office was not necessary. The United States Attorney accepted the advice,
walled-off AUSA Aframe, and assigned responsibility for the case to the
undersigned AUSA. The undersigned filed an appearance on August 10, 2012.
Riley v. United States, 1:12-cv-47-01-GZS, DE 23. AUSA Aframe has been
walled-off from any participation or activity in the instant litigation.

(Objection at 1-2, ECF No. 25 (footnotes omitted)). I have reviewed the parties’ submissions
and I now deny the motion for recusal because Riley has not shown a legal basis for recusal of
the entire New Hampshire United States Attorney’s Office.
Legal Standard
Disqualification of an Assistant United States Attorney based on a conflict of interest
requires the movant to meet a demanding standard, most frequently by showing actual prejudice.
United States v. Heldt, 668 F.2d 1238, 1277 & n. 80 (D.C. Cir. 1981). There must be a “very
strong” reason for the Court to interfere with a prosecutor’s own professional discretion in terms
of making a determination that the prosecutor is disqualified. United States v. SantiagoRodriguez, 993 F. Supp. 31, 38 (D. P.R. 1998) (quoting Heldt). Riley has not made that kind of
showing in this case.
The New Hampshire Office undertook reasonable steps in light of Riley’s pending
Bivens action. They conferred with DOJ to ascertain national policy. The assistant actually
named as a defendant in the Bivens action withdrew from this action even though his withdrawal
may not have been legally necessary. While Riley and the United States are clearly adversaries
in the underlying criminal action and in this Section 2255 proceeding, there is no reason to
exclude every member of the office, including an assistant who appears to have had only a
minimal role in the underlying prosecution, if any role at all, from defending this Section 2255
proceeding. I therefore deny the motion for recusal.
CERTIFICATE
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
So Ordered.
September 10, 2012

/s/ Margaret J. Kravchuk
U.S. Magistrate Judge
2