{"id":"court_sdny_120_0","court":"SDNY","case_no":"","doc_number":120,"sub_number":null,"doc_type":"DOC","filed_date":"2023-08-04","title":"SDNY ECF 120","summary_zh":null,"summary_en":null,"body_en":"UNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\n\nUNITED STATES OF AMERICA,\n\n            v.\n\nYANPING WANG,\n     a/k/a “Yvette,”\n\n                                          Defendant.\n\nS1 23 Cr. 118 (AT)\n\nPARTIALLY SEALED AND EX PARTE\nMEMORANDUM OF LAW OF THE UNITED STATES OF AMERICA\nIN SUPPORT OF ITS MOTION TO DISQUALIFY EMIL BOVE\n\nDAMIAN WILLIAMS\n\nUnited States Attorney for the\n\nSouthern District of New York\n\nOne St. Andrew’s Plaza\n\nNew York, New York 10007\n\nJuliana N. Murray\nRyan B. Finkel\nMicah F. Fergenson\nAssistant United States Attorneys\n\nOf Counsel\n\n---\n\n1\nTABLE OF CONTENTS\n\nBACKGROUND ............................................................................................................................ 2\nARGUMENT ................................................................................................................................ 11\nI. Because Bove Previously Supervised a Federal Criminal Investigation of Kwok, Bove\nShould Be Disqualified from Representing Kwok’s Co-Defendant ......................................... 11\nA. Applicable Law ................................................................................................................ 11\n1. The Evans Test .............................................................................................................. 13\n2. Ethical and Criminal Prohibitions Specific to Former Government Attorneys ............ 15\n3. Knowing Waivers of Conflicts ..................................................................................... 18\nB. Discussion ........................................................................................................................ 20\n1. Bove Should Be Disqualified Under the Evans Test .................................................... 20\n2. Bove Should be Disqualified Under New York Rule of Professional Conduct\n1.11(a)(2) and 18 U.S.C. § 207 ......................................................................................... 25\n3. Bove Should Be Disqualified to Avoid Trial Taint ...................................................... 26\nCONCLUSION ............................................................................................................................. 28\n\n---\n\n1\nPRELIMINARY STATEMENT\nThis Court should disqualify Emil Bove from representing Yanping Wang.\nFrom September 19, 2019, through December 20, 2021, Bove was Co-Chief of the\nTerrorism and International Narcotics Unit (“TIN”) for the United States Attorney’s Office for the\nSouthern District of New York (the “Office”).  In that role, Bove personally supervised a TIN\ninvestigation of Ho Wan Kwok—Wang’s co-defendant, the leader of the charged criminal\nconspiracy, and Wang’s longtime boss. Now, less than two years after leaving the Office for\nprivate practice, Bove is seeking to represent Wang in this prosecution by the United States of\nWang and Kwok.\nApplicable statutes, ethical rules, and Second Circuit precedent regarding conflicts of\ninterest require Bove’s disqualification in this case on two primary grounds.  First, this Court can\nhave no confidence that Bove will not use, whether intentionally or not, information obtained while\na Government lawyer against the Government.  Bove’s representation would thereby prejudice his\nformer client, the United States, and undermine trust in the notion that public employees must\nwork for the public benefit and not their own private interests.  Second, the Government has an\ninterest in a fair trial and in obtaining a conviction that can be defended on appeal and from\ncollateral attack.  Those interests are at risk if Bove represents Wang, because she cannot give the\ninformed consent required to validly waive Bove’s conflicts.  Specifically, Bove cannot explain to\nWang the numerous limitations on the kinds of information he can share and the actions he can\ntake on behalf of Wang in light of his prior work as an AUSA, because such an explanation would\nrequire divulging classified, privileged, and confidential information, which the law and the rules\nof professional conduct governing attorneys prevent Bove from doing.  Accordingly, the Court\nshould disqualify Bove from representing Wang.\n\n---\n\n2\n BACKGROUND\nA. Bove’s Employment with the U.S. Attorney’s Office\nBove was an Assistant United States Attorney in this Office from approximately October\n2012 to December 20, 2021.  On September 19, 2019, Bove was appointed as a supervisor of the\nOffice’s TIN Unit.  Bove remained in that position until his departure from the Office in December\n2021.  Supervisory AUSAs participate “personally and substantially” in any and all cases under\ntheir supervision.  See 18 U.S.C. §  207(a)(1).  During his time as a TIN supervisor, Bove was\nresponsible for supervising all matters in the TIN unit, which includes consulting with AUSAs\nregarding their cases, receiving factual briefings, reviewing AUSA work product, providing advice\nand guidance, and directing investigative steps and other government actions.  Supervisors often\nbrief the Office’s executive management on selected matters and interface with supervisors of\nother units as appropriate, including when cases overlap.\nB. The TIN Investigation of Kwok\nKwok emigrated from China to the United States in approximately 2015.  On or about\nSeptember 6, 2017, Kwok filed an application for political asylum from the Chinese Communist\nParty, which remains pending.  (Dkt. 10 at 1-2.)  From April 2018 through May 2019, Kwok\nvoluntarily provided information to the Federal Bureau of Investigation (“FBI”) in the hope of\nreceiving assistance with respect to his U.S. immigration status.  Typically, Kwok met with a\nparticular FBI agent (“FBI Agent-1”).\nSee Classified Supplement Part I.1\n\n1 The Government has prepared and will submit a sealed, ex parte classified supplement.\n\n---\n\n---\n\n4\nStreet.3\n\n The FBI executed the warrants on October 3, 2019, and seized, among other evidence,\nmore than 100 electronic devices and documents that were stored inside safes.\n\nAt the time that the search warrants were executed, Bove was participating in a trial, which\nended on October 18, 2019.  Following trial, Bove returned to his full-time responsibilities\nsupervising TIN and all of its matters, including the TIN Matter.\n\n3 The Sherry-Netherland was where Kwok was arrested in the case before this Court.  The day of\nKwok’s arrest, the FBI executed a search warrant at that same apartment and located dozens of\nelectronic devices, valuables, and documents.\n\n---\n\n5\nBove was not recused from the TIN Matter and thus was briefed, consulted, and provided\nadvice regarding the case.  As is typical with TIN investigations, Bove had knowledge of, or access\nto, classified information relating to the investigation.\nAs an example of Bove’s general supervision of the TIN Matter, on October 31, 2019—\nshortly after his trial ended—Bove sent the TIN Matter AUSAs an email titled “Guo.”  The body\nof the email requested that the TIN AUSAs pass along the internal case tracking number for the\nTIN Matter.  (Ex. A (Oct. 31, 2019 email).)  This email likely signifies that Bove was drafting a\ncase update regarding the TIN Matter to send to the Office’s executive leadership.  As a general\npractice, case updates contain both public and non-public information including, for example,\nstrategy, short and long-term goals of an investigation, individuals whom the Office may be\nproffering and seeking to cooperate, and discussions about possible future investigative actions\n(such as search warrants or arrests) which may (or may not) happen.  In the TIN Unit, drafting\ncase updates for the Office’s executive management was the responsibility of the unit supervisors\nand necessarily required the unit supervisors to have knowledge of each of their unit’s cases.\nOver the next several months, the TIN Matter AUSAs kept Bove and his Co-Chief\nregularly updated on the progress of the TIN Matter.  Given the sensitivity of aspects of the\ninvestigation, those updates were often oral.4  Among other things, the AUSAs discussed with\nBove\n\n.\n\n4 These facts are based on the Government’s discussions with the AUSAs assigned to the TIN\nMatter.\n\n---\n\n6\nOn July 1, 2020, Bove and his TIN Co-Chief received an email from the Office’s Criminal\nDivision Chief regarding a press inquiry into a potential SDNY investigation “related to the source\nof funds that\n received through his work with Chinese businessman Miles Guo and\nhis associate, William Je.”  ((Ex. B [July 1, 2020 email).)  Approximately 16 minutes later, Bove\nresponded to the email with the following message, copying in one of the TIN Matter AUSAs:\nI copied in [TIN AUSA], who is working with FBI on a [TIN] investigation of Guo\nin which\n.  [TIN AUSA] and FBI executed\npremises warrants targeting Guo in the fall, which led him to retain [a particular\nattorney (“Attorney-1”)5] to convey\n\n.  The team is working still reviewing the warrant take (they seized a\nlot of media) and following up on leads.  [TIN AUSA] is also aware of a [Complex\nFrauds and Cybercrime Unit (“CFU”)] investigation being run by [a particular CFU\nAUSA] that involves Guo and relates to cryptocurrency investments.\n\n(Id.)  Thus, in this email, Bove responded to a question about Kwok and another co-defendant in\nthis case, William Je, by referencing an interaction the Office had with Kwok’s then-counsel.\nIndeed, Bove offered an opinion about the counsel’s outreach.  Bove also was aware of, and\nreferenced, the CFU investigation—which is the investigation that led to the charges in the case\nbefore this Court.6\nOn July 8, 2020, Bove and his TIN Co-Chief received an email from FBI agents with a\nlink to an article that referenced Kwok\n.  (Ex. C (July 8-9,\n2020 email chain).)  The next day, Bove’s Co-Chief forwarded that message, copying Bove, and\nwrote, “In case you haven’t seen it” to one of the TIN AUSAs assigned to the TIN Matter.  (Id.)\n\n5 Attorney-1 represented Kwok throughout the Government’s fraud investigation.  On the day of\nKwok’s arrest, the Government spoke with Attorney-1’s partner and understood that Attorney-1\nwould be representing Kwok in this case.  However, it appears that changed and ultimately Kwok\nhired different attorneys.\n6 The CFU AUSA named by Bove is presently the Deputy Chief of CFU and is supervising this\ncase.\n\n---\n\n7\nThat AUSA, in turn, forwarded the message to the particular CFU AUSA then working on the\ninstant case.  (Id.)\nIn the ensuing months, Bove’s Co-Chief became conflicted from aspects of the TIN Matter,\nmeaning as a practical matter that Bove became the only supervisor of the matter.  As the sole\ndirect supervisor of the TIN Matter, Bove continued receiving updates on the investigation and\nwas consulted about the case.\nC. The Current Case\nThe CFU investigation resulting in the case before this Court was opened in or around May\n2020.  As this Court is aware, Kwok, Wang, and Je are charged with conspiring to defraud\nthousands of victims of more than $1 billion through several interrelated schemes (the “Fraud”).\nThe proceeds of the fraud were then laundered and misappropriated.  Kwok is the leader of, and\ndirected, the Fraud.  Je is the financial architect and key money launderer for the Fraud.  Wang\noperated as Kwok’s “chief of staff” and managed the day-to-day operations of the entities used to\nperpetrate the fraud.  The investigation has revealed that Wang’s relationship with Kwok extends\nback many years including during the time of the TIN search warrants.  Indeed, in this case,\nKwok’s counsel has represented that Wang was a translator for Kwok including during\nconversations with Attorney-1.\n\n---\n\n---\n\n---\n\n10\nand Proposed Order of Substitution of Counsel, signed by Wang and her counsel of record,\nrequesting to substitute Bove for Wang’s lead counsel, Priya Chaudhry.  (Dkt. 113.)  Alex Lipman,\nmeanwhile, was set to remain as additional counsel to Wang.9  On July 24, 2023, the Government\nadvised the Court that it was considering potential conflict issues associated with Bove’s\nrepresentation of Wang and requested that the Court stay its consideration of the Proposed Order\nof Substitution of Counsel to permit the Government and Bove to discuss potential conflict issues.\n(Dkt. 114.)\nThe AUSAs presently assigned to the instant case spoke with Bove on July 24, 2023.\nDuring the call, Bove confirmed he was a supervisor of TIN while that unit was investigating\nKwok.  But Bove said, in sum and substance, that he had no real recollection of the TIN Matter,\nand was on trial when the TIN search warrant was executed, so was not involved in it.  The AUSAs\nalso noted that Bove’s firm represents Kwok’s daughter, Mei Guo, in the Connecticut bankruptcy\nproceedings and in a parallel Securities and Exchange Commission case before the Honorable Paul\nG. Gardephe in this District.  Bove stated that he was not personally working on the Mei Guo\nrepresentation but that both Mei Guo and Wang had waived any conflict, and Bove stated that a\nCurcio hearing regarding that potential conflict would be appropriate.\n  Days after that conversation, the Associate United States Attorney discussed the matter\nwith Bove and advised him that representing Wang implicated conflict-of-interest restrictions in\n18 U.S.C. § 207, as well as applicable rules of professional conduct.  Bove disagreed.  The\nAssociate United States Attorney subsequently emailed Bove to memorialize his determination.\n\n9 Despite the proposed substitution, Chaudhry appears to continue to represent Wang.  On July 31,\n2023, Chaudhry sent the Office an eight-page letter requesting a Bill of Particulars.\n\n---\n\n11\n ARGUMENT\nI.   Because Bove Previously Supervised a Federal Criminal Investigation of Kwok, Bove\nShould Be Disqualified from Representing Kwok’s Co-Defendant\n\nTo safeguard the United States’s confidential information, ensure fairness, and protect the\nintegrity of the adversary process, Bove should be disqualified from representing a defendant in\nthis prosecution.  Bove directly supervised the TIN Matter—one of this Office’s investigations of\nKwok—concurrently with the investigation of Kwok that led to the charges in this case.  As a\nresult, Bove had knowledge of, or access to, confidential and classified factual matters that are\npotentially relevant to this prosecution. These circumstances plainly call for Bove’s\ndisqualification under Second Circuit precedent, ethical rules, and statutory prohibitions.\nMoreover, Bove’s proposed client, Wang, cannot knowingly waive Bove’s conflicts, because Bove\nis restricted from informing Wang of material facts of his prior representation of the United States\nin connection with its investigation of Kwok.  That inability risks tainting the trial, to the prejudice\nof the Government, should it obtain a conviction.  Conversely, Wang will not be prejudiced by\nBove’s disqualification, as the Government has sought his disqualification promptly, minimizing\nany potential delay, and Wang will retain her other lawyer in all events. For these reasons, the\nCourt should disqualify Bove.\nA.   Applicable Law\n  The Sixth Amendment gives a criminal defendant the right to the assistance of counsel.\nU.S. Const. amend. VI.  The right to counsel under the Sixth Amendment entails a correlative right\nto representation that is free from conflicts of interest.  Wood v. Georgia, 450 U.S. 261, 271 (1981).\nWhile a defendant generally may waive her Sixth Amendment right to an unconflicted attorney,\n“the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal\ndefendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom\n\n---\n\n12\nhe prefers.”  Wheat v. United States, 486 U.S. 153, 159 (1988); United States v. Lussier, 71 F.3d\n456, 461 (2d Cir. 1995).  A “defendant’s right to counsel of his choice is not an absolute\none.” United States v. Ostrer, 597 F.2d 337, 341 (2d Cir. 1979) (citations omitted).\nWhen deciding motions for disqualification in criminal cases, the court must balance a\ndefendant’s right to counsel of her choice and “the interests of the courts in preserving the integrity\nof the process and the government’s interests in ensuring a just verdict and a fair trial.”  United\nStates v. Levy, 25 F.3d 146, 155 (2d Cir. 1994); see United States v. Jones, 381 F.3d 114, 119 (2d\nCir. 2004) (“Federal courts have an independent interest in ensuring that criminal trials are\nconducted within the ethical standards of the profession and that legal proceedings appear fair to\nall who observe them.”).  The power to disqualify an attorney derives from a court’s “inherent\npower to preserve the integrity of the adversary process,” Hempstead Video, Inc. v. Incorporated\nVillage of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005), and “is a matter committed to the\nsound discretion of the district court.”  Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994).\nBecause disqualification motions may cause delay and “are often tactically motivated,”\nthey are “generally not favored.”  United States v. Shea, 20 Cr. 412-4 (AT), 2022 WL 4298704, at\n*6 (S.D.N.Y. Sept. 19, 2022) (quotations omitted); see id. (“Disqualification is reserved for\nsituations of prior representation, conflicts of interest, prosecutorial misconduct, and other\nunethical attorney behavior.” (quotations omitted)).  Nevertheless, courts in the Second Circuit\n“have not hesitated to disqualify counsel when the circumstances warranted it.”  Evans v. Artek\nSystems Corp., 715 F.2d 788, 791 (2d Cir. 1983).  In such a situation, “any doubt is to be resolved\nin favor of disqualification.”  Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975).\n\n---\n\n13\n1.   The Evans Test\n\nWhen a former client seeks to disqualify an adverse party’s counsel, the applicable test in\nthe Second Circuit is well established.  Specifically, the Second Circuit has held that\ndisqualification of an adverse party’s counsel is warranted where: “(1) the moving party is a former\nclient of the adverse party’s counsel; (2) there is a substantial relationship between the subject\nmatter of the counsel’s prior representation of the moving party and the issues in the present\nlawsuit; and (3) the attorney whose disqualification is sought had access to, or was likely to have\nhad access to, the relevant privileged information in the course of his prior representation of the\nclient.”  United States v. Prevezon Holdings, Ltd., 839 F.3d 227, 239 (2d Cir. 2016) (citing Evans,\n715 F.2d at 791 and N.Y. Rules of Prof’l Conduct 1.9(a)).10  The Evans test “focuses on identifying\nsituations in which there exists the potential that confidential information obtained during\nrepresentation of an adverse party could be used in the present action.”  Giambrone v. Meritplan\nIns. Co., 117 F. Supp. 3d 259, 269 (E.D.N.Y. 2015) (emphasis in original); accord Pergament v.\nLadak, No. CV 2011-2797 ARR MDG, 2013 WL 3810188, at *3 (E.D.N.Y. July 23, 2013) (“The\ncentral concern underlying disqualification based on successive representation is the possibility\nhowever slight, that confidential information acquired from a client during a previous relationship\nmay subsequently be used to the [former] client’s disadvantage.” (quotations omitted) (emphasis\n\n10 Rule 1.9 of the New York Rule of Professional Conduct provides that “[a] lawyer who has\nformerly represented a client in a matter shall not thereafter represent another person in the same\nor a substantially related matter in which that person’s interests are materially adverse to the\ninterests of the former client unless the former client gives informed consent, confirmed in\nwriting.”  N.Y. Rules of Prof’l Conduct 1.9(a).  Subsequent representations are “substantially\nrelated” if, among other things, they “involve the same transaction or legal dispute or if, under the\ncircumstances, a reasonable lawyer would conclude that there is otherwise a substantial risk that\nconfidential factual information that would normally have been obtained in the prior representation\nwould materially advance the client’s position in the subsequent matter.”  N.Y. Rules of Prof’l\nConduct 1.9, cmt. 3.\n\n---\n\n14\nadded)).  Thus, “‘disqualification motions should be granted where the attorney in question is\npotentially in a position to use privileged information obtained during prior representation of the\nmovant.’” United States v. James, 708 F.2d 40, 45 (2d Cir. 1983) (quoting United States v.\nCunningham, 672 F.2d 1064, 1072 (2d Cir. 1982)) (emphasis added); accord Bd. of Educ. v.\nNyquist, 590 F.2d 1241, 1246 (2d Cir. 1979) (disqualification is warranted “where an attorney is\nat least potentially in a position to use privileged information concerning the other side through\nprior representation” (emphasis added)).\nWith respect to the test’s second prong, a “‘substantial relationship’ exists where facts\npertinent to the problems underlying the prior representation are relevant to the subsequent\nrepresentation.”  Prevezon Holdings, Ltd., 839 F.3d at 239.  The inquiry turns not on “whether the\nlegal claims or underlying theories are similar, but rather whether the successive representations\nshare common material fact issues.”  Giambrone v. Meritplan Ins. Co., 117 F. Supp. 3d 259, 272-\n73 (E.D.N.Y. 2015); Revise Clothing, Inc. v. Joe’s Jeans Subsidiary, Inc., 687 F. Supp. 2d 381,\n392 (S.D.N.Y. 2010) (“It is the congruence of factual matters, rather than areas of law, that\nestablishes a substantial relationship between representations for disqualification purposes.”)\n(quoting U.S. Football League v. National Football League, 605 F. Supp. 1448, 1460 n.6\n(S.D.N.Y. 1985) (emphasis in original) (collecting cases)).  In determining whether a “substantial\nrelationship” exists between two matters, courts have considered, among other things, the breadth\nof the prior relationship, the extent to which the matters are related, and the timing between the\nfirst and second matter.  See, e.g., Hickman v. Burlington Bio-Med. Corp., 371 F. Supp. 2d 225,\n230 (E.D.N.Y. 2005).\nOnce a substantial relationship between two cases is established, the moving party need\nnot prove that the former attorney had access to relevant privileged information.  Instead, “where\n\n---\n\n15\nthe same individual lawyer participated in the prior and current representation, the movant is not\nrequired to make a specific showing that confidences were passed to counsel.  Instead, the movant\nis entitled to the benefit of an irrebuttable presumption that confidences were shared.”  Prevezon\nHoldings, Ltd., 389 F.3d at 240.  In other words, the substantial relationship test removes the need\nfor courts to make direct inquiry into whether confidential information was actually transmitted.\nId. at 241.  After finding that a substantial relationship exists,\nThe Court will assume that during the course of the former\nrepresentation confidences were disclosed to the attorney bearing on\nthe subject matter of the representation.  It will not inquire into their\nnature and extent. Only in this manner can the lawyer’s duty of\nabsolute fidelity be enforced and the spirit of the rule relating to\nprivileged communications be maintained.\nEmle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570 (2d Cir. 1973) (quoting T.C. Theatre\nCorp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268-69 (S.D.N.Y. 1953)).  Indeed,\ndisqualification has been warranted to avoid the “risk [of] the chance” that an attorney’s\n“unconscious impressions might be influenced by [his former client’s] confidential information.”\nTufAmerica, Inc. v. Codigo Music LLC, No. 11 Civ. 1434, 2013 WL 1903867, at *5 (S.D.N.Y.\nMay 7, 2013) (disqualification of attorney sustained regardless “whether or not confidences were\nshared or either party recalls the confidences” because the current and former matters were\nsubstantially related).\n2.   Ethical and Criminal Prohibitions Specific to Former Government Attorneys\n\n“Public service is a public trust.”  5 C.F.R. § 2635.101.  The above standards—and others\ndiscussed below—apply to former Department of Justice attorneys who seek to represent private\nclients in matters related to their government service, and courts have consistently given close\nscrutiny to situations involving “side switching” government attorneys.  See, e.g., United States v.\nPhilip Morris, Inc., 312 F. Supp. 2d 27, 38 (D.D.C. 2004) (court “must be especially careful” in\n\n---\n\n16\nsuch situations).  Considerations that weigh in favor of disqualification in situations involving\nformer government attorneys include:\n[t]he treachery of switching sides; the safeguarding of confidential\ninformation from future use against the government; the need to\ndiscourage\ngovernment\nlawyers\nfrom\nhandling\nparticular\nassignments in such a way as to encourage their own future\nemployment in regard to those particular matters after leaving\ngovernment service; and the professional benefit derived from\navoiding the appearance of evil.\nUnited States v. Escobar-Orejuela, 910 F. Supp. 92 (E.D.N.Y. 1995) (quoting United States v.\nBrothers, 856 F. Supp. 370, 375 (M.D. Tenn. 1992)).\nNew York Rule of Professional Conduct 1.11 applies the principle of Rule 1.9 more\nspecifically in the context of former government employees: a former government lawyer\n“(1) shall comply with Rule 1.9(c); and (2) shall not represent a client in connection with a matter\nin which the lawyer participated personally and substantially as a public officer or employee,”\nabsent consent of the appropriate government agency.  N. Y. R. Prof’l Conduct 1.11(a)(2).  As the\nDistrict of Columbia Court of Appeals explained with respect to a similar rule in that District, the\nlimitations on former government lawyers’ future representations are “meant to induce a former\ngovernment lawyer considering a representation to err well on the side of caution.”  In re Sofaer,\n728 A.2d 625, 638 (D.C. 1999).  “Substantially” has been interpreted to mean “substantively,” not\n“extensively”—requiring some involvement, but not necessarily direct responsibility.  See, e.g.,\nUnited States v. Smith, 995 F.2d 662, 675-76 (7th Cir. 1993) (concluding that an attorney’s role as\nimmediate supervisor of the attorney in charge of an investigation that was intertwined with the\ninvestigation and prosecution at issue were sufficient for the district court to conclude that the\nattorney had “substantial involvement” with the investigation and thus was presumed to have\n“received confidential information.”); United States v. Uzzi, 549 F. Supp. 979 (S.D.N.Y. 1982)\n\n---\n\n17\n(disqualifying law firm of former AUSA, despite former AUSA being walled-off at the firm, and\ndespite the former AUSA having “never had administrative or supervisory responsibilities for the\ninvestigation and had no recollection of any substantive aspect of the case” (quotations omitted)).\nThe term “matter” has been given a broad definition, being satisfied when “the former government\nattorney may have had access to information legally relevant to, or otherwise useful in, the\nsubsequent representation.”  Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d\n37, 49-50 (D.C. 1984) (en banc) (recognizing that this standard “broadened the scope of the\n‘substantially related’ test for revolving door purposes”).\nFormer Department of Justice attorneys are also subject to statutory prohibitions relating\nto conflicts of interest.  Title 18, United States Code, Section 207 prohibits certain acts by former\ngovernment employees that “involve, or may appear to involve, the unfair use of prior Government\nemployment.”  5 C.F.R. § 2641.101 (explaining the scope and content of 18 U.S.C. § 207 as it\napplies to former government employees).  The post-employment restrictions under Section 207\nvary depending on, among other factors, the nature of the individual’s involvement in a prior\nmatter.  Former Department of Justice attorneys are permanently barred from appearing as private\nattorneys “in connection with a particular matter” if: (a) the United States “is a party,” (b) “the\nperson participated personally and substantially” in the matter as a Government employee, and\n(c) the matter “involved a specific party or specific parties at the time of such participation.”  18\nU.S.C. § 207(a)(1).  A “particular matter” includes “any investigation, application, . . . or judicial\nor other proceeding.”  18 U.S.C. § 207(i)(3).  “The term ‘participated’ means an action taken as\nan officer or employee through decision, approval, disapproval, recommendation, the rendering of\nadvice, investigation, or other such action.”  18 U.S.C. § 207(i)(2).\n\n---\n\n18\nEven where a former government supervisor did not “participate” in a prior matter, the\nformer supervisor may be subject to a two-year cooling-off period.  Specifically, a former\ngovernment attorney is restricted from appearing before any court in connection with a particular\nmatter involving specific parties for a period of two years when “such person knows or reasonably\nshould know [the matter] was actually pending under his or her official responsibility as\nsuch officer or employee within a period of 1 year before the termination of his or her service or\nemployment.”  18 U.S.C. 207(a)(2).  “[O]fficial responsibility” is defined as “the direct\nadministrative or operating authority, whether intermediate or final, and either exercisable alone\nor with others, and either personally or through subordinates, to approve, disapprove, or otherwise\ndirect Government action.”  18 U.S.C. § 202(b).\n3.   Knowing Waivers of Conflicts\nWhere a court determines that a conflict of interest exists between an attorney and his\ncurrent client that is not so severe as to require disqualification automatically, a court may permit\nthe attorney to continue representing that client only if the client makes a “knowing and intelligent\nwaiver of his right to conflict-free counsel.” United States v. Jones, 381 F.3d 114, 119 (2d Cir.\n2004); accord United States v. Perez, 325 F.3d 115, 125 (2d Cir. 2003).  Informed consent\n“requires that each affected client be aware of the relevant circumstances, including the material\nand reasonably foreseeable ways that the conflict could adversely affect the interests of that client.”\nFilippi v. Elmont Union Free Sch. Dist. Bd. Of Educ., 722 F. Supp. 2d 295, 311 (E.D.N.Y. 2010).\nA client must be given sufficient information to fully understand that potential conflict before any\nwaiver can be “knowing and intelligent.”  See, e.g., United States v. Armedo-Sarmiento, 524 F.2d\n591, 593 (2d Cir. 1975) (“The district judge should fully explain to [defendants] the nature of the\nconflict . . . .”); see generally United States v. Curcio, 680 F.2d 881, 888 (2d Cir. 1982) (“The first\n\n---\n\n19\ntask of the trial court is to alert the defendants to the substance of the dangers of representation by\nan attorney having divided loyalties in as much detail as the court's experience and its knowledge\nof the case will permit.”).  If counsel cannot apprise his client of the full extent of the conflict—\nbecause doing so would require divulging privileged or confidential information—then the client\ncannot make a “knowing and intelligent waiver.”  United States v. Pappa, 37 F. App’x 551, 554\n(2d Cir. 2002) (client could not make “knowing and intelligent” waiver where “attorney-client\nprivilege precluded [current defense counsel] from divulging all of the details of the\nconflicts . . . and because [defense counsel’s] explanation of the conflict indicated there was ‘more\nhere than meets the eye’”).\nA district court has “substantial latitude in refusing waivers of conflicts of interest,” not\nonly “in those rare cases where an actual conflict may be demonstrated before trial” but also “in\nthe more common cases where a potential for conflict exists which may or may not burgeon into\nan actual conflict as the trial progresses.”  Wheat, 486 U.S. at 162-63.  This discretion is necessary\nbecause “[t]he likelihood and dimensions of nascent conflicts of interest are notoriously hard to\npredict.  . . . Nor is it amiss to observe that the willingness of an attorney to obtain such waivers\nfrom his clients may bear an inverse relation to the care with which he conveys all the necessary\ninformation to them.”  Id.\nMoreover, the Government has an independent interest in ensuring that waivers of conflict\nof interest are sufficiently informed.  Where defense counsel operates with a conflict of interest,\nthe Government's interest in a conviction that can withstand appellate scrutiny and collateral attack\nis prejudiced.  An insufficient waiver can be the basis of a successful collateral attack on an\notherwise valid conviction.  See I&Yy, 25 F .3d at 152 (“a defendant has suffered ineffective\nassistance of counsel . . . if his attorney has (1) a potential conflict of interest that resulted in\n\n---\n\n20\nprejudice to the defendant, or (2) an actual conflict of interest that adversely affected the attorney's\nperformance”).  “In the disqualification situation, any doubt is to be resolved in favor of\ndisqualification.”  Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975).\nB.   Discussion\nBove should be disqualified to preserve the legitimate interests of the United States in the\nconfidentiality of its privileged information, internal deliberations, and classified information, and\nto preserve the fairness and integrity of this criminal prosecution.  Specifically, Bove should be\ndisqualified on at least three grounds.  First, disqualification is warranted under the Second\nCircuit’s Evans test.  Second, the ethical rules and statutory prohibitions applicable to former\ngovernment attorneys bar Bove’s representation and require his disqualification.  Third, Bove\nshould be disqualified to avoid tainting the trial, as Wang cannot knowingly waive Bove’s\nconflicts.\n1.   Bove Should Be Disqualified Under the Evans Test\n\nApplication of the Evans test calls for Bove’s disqualification.  See Evans, 715 F.2d at 791.\nThere can be no dispute that the first requirement is satisfied: the moving party, the United States,\nis Bove’s former client.  And since the third requirement (access to confidential information) is\npresumed from the second, Bove’s disqualification turns on the second requirement, namely\nwhether there is a “substantial relationship” between the TIN Matter and this case.  Prevezon\nHoldings, Ltd., 389 F.3d at 240.  Because “facts pertinent to” issues in the TIN Matter “are relevant\nto” this criminal prosecution of Kwok and Wang—Kwok’s long-time deputy, including at the time\nof the TIN investigation—such a “substantial relationship” exists.  Id.\nFirst, Kwok—the leader of the criminal enterprise charged in this case—was not a\nperipheral figure in the TIN Matter.  Kwok was the focus of the TIN Matter.  Wang worked for\n\n---\n\n21\nKwok at the time, serving as his effective chief of staff and at times as his translator.  And the TIN\nMatter directly overlapped with the time period of the charged offenses in this case.  The\nIndictment alleges that the offense conduct began in or about 2018 and continued at least through\nthe defendants’ arrests; the TIN Matter began in the fall of 2019 and continued during Bove’s\nentire tenure as a TIN supervisor.  Notably, in October 2019, the TIN investigation executed search\nwarrants at Kwok’s office and penthouse residence, during which approximately 252 electronic\ndevices were recovered.  Over the ensuing months, Bove supervised the TIN investigation as it,\namong other things, processed the results of that search and reviewed evidence.\nBased on these points alone,11 there can be no question that the TIN Matter that Bove\nsupervised involved facts that are potentially relevant to the criminal case against Kwok and Wang.\nIndeed, months before Bove’s notice of appearance, the Government had already relied on “facts\npertinent to” the TIN Matter in its detention memorandum in this case.  (See Dkt. 7, at 20 (“[I]n\nOctober 2019, in connection with an unrelated investigation of Kwok, the FBI executed a search\nwarrant on Kwok’s New York City penthouse.  During that judicially-authorized search, the FBI\nrecovered approximately 252 electronic devices (i.e., cellphones, hard drives, flash drives,\ncomputers, routers, audio pens, and voice recorders, among other devices), including\napproximately 96 cellphones, approximately 44 of which were located inside Faraday bags in\nsafes. Another approximately six iPhones were maintained in a Faraday bag inside a desk\ndrawer.”)).12  Moreover, the penthouse that was subject to a search warrant in the TIN Matter in\n\n11 Facts overlap in other ways.  For example, based on review of one of Wang’s cellphones\nobtained as a result of a search warrant in this case, Wang conducted an internet search for FBI\nAgent-1 on February 16, 2023—approximately one month before her arrest.\n12 The Government has provided the NSIN investigation’s search warrant affidavits and the search\ninventories to the defendants in this case as part of its Rule 16 discovery.\n\n---\n\n---\n\n23\n(2d Cir. 1983) (affirming disqualification because “interrogation stemming from confidential\ncommunications . . . would give the defendants an advantage that is unfair” and would create an\nunacceptable “arrangement so open to violation of significant interests” of fairness).\nMoreover, to the extent that Wang seeks to blame Kwok for her activities, Bove could be\nin a position to utilize information he obtained as a Government employee investigating Kwok to\nadvance Wang’s interest.  On the other hand, to the extent Wang and her counsel enter a joint\ndefense agreement with Kwok and others—through which information is shared among defendants\nand/or subjects, and which is not uncommon in cases with multiple defendants and/or subjects14—\nconfidential information from Bove’s government service supervising the TIN Matter could be\nused improperly for the benefit of others besides Wang.  Applicable statutes and rules prohibit\nthese possibilities for good reason.\nThird, the TIN Matter that Bove supervised existed concurrently with the investigation that\nled directly to the charges in this case.  While the investigation that led to the case before this\nCourt, which began in the summer of 2020, arose independently from and was conducted\nindependently of the TIN Matter, that is not determinative of whether there exists a “substantial\nrelationship” between the two matters, such that the TIN Matter involved confidential facts\nrelevant to this case.   As the supervisor of an investigation of Kwok, Bove was at a minimum\n“aware” of this fraud investigation of Kwok and his co-conspirators, including Wang.  (See Ex. B\n(July 1, 2020 email).)  Access to such information raises the concerns that call for disqualification.\nSee United States v. Huawei Techs. Co., No. 18 Cr. 457 (AMD), 2020 WL 903007 (E.D.N.Y. Feb.\n25, 2020) (disqualifying the former Deputy Attorney General of the United States based on his\n\n14\n\n---\n\n24\naccess to relevant confidential information during service in government, which he had left five\nyears prior); United States v. Miller, 624 F.2d 1198, 1202 (3d Cir. 1980) (opining, in a case where\na former AUSA testified that he had no direct involvement in the preparation of the prosecution at\nissue, that “[i[f the court’s hypothetical private citizen were to view the present case, he would see\nthat [the former AUSA] had some involvement in almost all criminal tax cases in the U.S.\nAttorney’s office, including Strike Force cases.  The citizen would see little to assure himself that\n[the former AUSA] had not utilized his position to obtain confidential information or to serve\nconflicting loyalties.”).\nFourth, see classified supplement part II.\nFinally, it is irrelevant that Bove may not at this time recall the details of the Kwok\ninvestigations from his time in the U.S. Attorney’s Office.  Indeed, even if Bove does not now\nrecall certain details, his participation in the case may refresh his memory at any point.  See, e.g.,\nUnited States v. Uzzi, 549 F. Supp. 979, 981–83 (S.D.N.Y. 1982) (disqualifying the law firm of a\nformer AUSA, notwithstanding the facts that the former AUSA was walled-off from the case at\nthe law firm, and the former AUSA “could barely remember even discussing the case” with the\nline prosecutor while at the U.S. Attorney’s Office, reasoning in part that “[m]emory is not so fixed\nand absolute that we can say with confidence: [the former AUSA] has forgotten everything”);\nHuawei Techs. Co., 2020 WL 903007, at *5 (“The fact that [the former Deputy Attorney General\nof the United States] currently has ‘no recollection of the matters’ (ECF No. 51-1) does not change\nthe analysis.”).\n\n---\n\n25\n2.   Bove Should be Disqualified Under New York Rule of Professional Conduct\n1.11(a)(2) and 18 U.S.C. § 207\nBove should also be disqualified because the ethical and statutory standards set forth,\nrespectively, in New York Rule of Professional 1.11(a)(2) and 18 U.S.C § 207(a)(1)-(2), bar his\nrepresentation of Wang.\nFirst, for the same reasons that the TIN investigation and this case are substantially related,\nthey qualify as the same “matter” for purposes of Rule 1.11(a)(2).  So too under Section 207, as\n“matter” there includes an investigation or judicial proceeding, and at the time of Bove’s\nparticipation the TIN investigation involved a specific party: Kwok, the same party being\nprosecuted in this case by the same prosecutor’s office, and the co-defendant of Bove’s proposed\nclient.  And as noted above, the record makes clear that Bove had received information relating to\nthe CFU investigation of Kwok, which led to the charges in this case.\nSecond, Bove participated personally and substantially in the TIN Matter under both\nprovisions.  Bove supervised the TIN Matter as Co-Chief of the TIN Unit.15  He was privy to the\nfruits of the search warrants executed against Kwok and the United States’s assessments of that\nevidence.  He received confidential information and updates, was briefed and consulted by the line\nAUSAs, and provided advice and guidance.  That amply satisfies the applicable standards for\nformer government attorneys.  See, e.g., United States v. Smith, 995 F.2d 662, 675-76 (7th Cir.\n1993) (concluding that an attorney’s role as immediate supervisor of the attorney in charge of an\ninvestigation that was intertwined with the investigation and prosecution at issue were sufficient\nfor the district court to conclude that the attorney had “substantial involvement” with the\n\n15 This Office has long taken the view that, unless recused, unit chiefs participate personally and\nsubstantially in all matters within their unit.\n\n---\n\n26\ninvestigation and thus was presumed to have “received confidential information”); United States\nv. Uzzi, 549 F. Supp. 979 (S.D.N.Y. 1982) (disqualifying law firm of former AUSA, despite former\nAUSA being walled-off at the firm, and despite the former AUSA having “never had\nadministrative or supervisory responsibilities for the investigation and had no recollection of any\nsubstantive aspect of the case,” because the former AUSA informally consulted on the\ninvestigation) (quotations omitted); United States v. Brothers, 856 F. Supp. 370 (M.D. Tenn. 1992)\n(disqualifying former AUSA who assisted in the drafting and filing of a search warrant and a\nseizure warrant as a courtesy to an out-of-district investigation).\nThird, even assuming, arguendo, that Bove’s involvement in the TIN investigation did not\nrise to the level of substantial participation, Bove is still within the two-year ban for matters that\nwere “actually pending under his . . . official responsibility . . . within a period of 1 year before”\nhe left the U.S. Attorney’s Office.  18 U.S.C. § 207(a)(2).  As Co-Chief of the TIN Unit, Bove\nsupervised the TIN investigation, so he exercised “direct administrative or operating authority,\nwhether intermediate or final, and either exercisable alone or with others, and either personally or\nthrough subordinates, to approve, disapprove, or otherwise direct Government action.”  18 U.S.C.\n§ 202(b).  Bove held his position as Co-Chief until December 2021, and the TIN investigation was\npending when Bove left the Office.  Accordingly, Bove’s participation in this matter is proscribed\nby 18 U.S.C. § 207(a)(2) until at least December 2023.\n3.   Bove Should Be Disqualified to Avoid Trial Taint\n\nThe Government has an interest in “ensuring a just verdict and a fair trial” in this case.\nLevy, 25 F.3d at 155.  That interest will be prejudiced if Bove represents Wang, because\nWang will not be able adequately to waive any conflict created by Bove’s role. As a result,\n\n---\n\n27\nany conviction would likely be vulnerable to an appeal or collateral attack based on a claim\nof ineffective assistance of counsel.\nBove may be in possession of information he learned when he supervised the TIN Matter,\nincluding classified information that he cannot reveal, let alone use, in this representation.\nThis dynamic creates a conflict of interest given that Bove cannot give his clients his undivided\nloyalty. See N. Y. R. Prof’l Conduct l.7(a)(2).  The conflict could arguably be resolved by\nobtaining a knowing and intelligent waiver of any potential conflict from Wang. See Jones, 381\nF.3d at 119; see also N. Y. R. Prof’l Conduct 1.7(b)(4). Here, however, because Bove may be also\naware of classified information, Bove cannot provide Wang with more than the most cursory\ndescription of the conflict—that he knows something related to his current representation of Wang\nthat he cannot share or use—because he is not permitted to do so.  The limited information Bove\ncould share is far short of what would be required for Wang to waive the potential conflict at\nissue here knowingly and intelligently. See, e.g., Pappa, 37 F. App’x at 554 (statement by a\nFederal Defender representing defendant that the Federal Defenders had previously represented a\npotential government witness, but not divulging “all of the details of the conflicts,” was insufficient\nto allow a knowing and intelligent waiver of a potential conflict); Armedo-Sarmiento, 524 F.2d\nat 593 (“The district judge should fully explain to [defendants] the nature of the conflict.”);\nUnited States v. Schwarz, 283 F.3d 76, 95 (2d Cir. 2002) (vacating conviction and ordering a new\ntrial due to conflicted counsel, notwithstanding the defendant’s waiver at a Curcio hearing).\nBecause Wang cannot knowingly and intelligently determine whether to waive the conflict, any\n\n---\n\n28\nrepresentation by Bove may taint the trial process and any ultimate conviction, prejudicing the\nGovernment and wasting judicial resources. As a result, Bove should be disqualified.\n CONCLUSION\nThe Government does not make this motion lightly. This motion was specifically\nauthorized, reviewed, and approved by the Chief of the Criminal Division and the Associate United\nStates Attorney, who is the Ethics Advisor for the U.S. Attorney’s Office.  The application of the\nfacts to the law is clear:  Bove is not permitted to represent a defendant in this case.  In 2022, Bove\nrecognized that prior Government employment barred him from representing an individual\nassociated with Kwok (Mei Guo) because, as a Government employee, he supervised an\ninvestigation of Kwok.  But eighteen months later, Bove has changed his position, and seeks to\nrepresent Kwok’s chief of staff in this criminal case.  The Government now asks this Court to\nsafeguard the United States’s confidential information, ensure fairness, and protect the integrity of\nthis matter by disqualifying Bove from representing Wang.\nAccordingly, the Government’s motion should be granted.\n\nRespectfully submitted,\n\nDAMIAN WILLIAMS\n\nUnited States Attorney\n\n      By:\n\n/s/\n\n Julianna N. Murray\n Ryan B. Finkel\n\n Micah F. Fergenson\n\n Assistant United States Attorneys\n\n 212-637-2314 / -6612 / -2190","body_zh":null,"key_entities":[],"ecf_references":[],"word_count":7259,"status":"published","published_at":"2023-08-04 00:00:00","created_at":"2023-08-04","updated_at":"2026-07-06 20:50:26"}