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December 20, 1995


The opinion of the court was delivered by: KUGLER

 KUGLER, Magistrate Judge:

 According to Ms. Utley-Williams, as she was leaving, Defendant Bazin said to her in a sarcastic and threatening manner, "I want to thank you for all of your cooperation in this investigation. Just remember, what goes around, comes around." She asked if that was a threat. She certifies that Defendant Bazin "responded by slamming the metal door to his office against the left side of my body, making contact with my body, with the intent of causing bodily harm to me." She said, "So, you are going to be violent, too?" and he responded "I would if I could." (Utley-Williams Aff.)

 She filed a complaint with the Hamilton Township Municipal Court, alleging that Defendant Bazin harassed her in violation of N.J.S.A. § 2C:33-4(a) and committed simple assault in violation of N.J.S.A. § 2C:12-1(a)(1). The U.S. Attorney's Office undertook representation of Bazin and removed this matter to federal court. The Hamilton Township prosecutor, the Mercer County Prosecutor, and the New Jersey Attorney General's office all refused to prosecute the matter. Complainant's union then retained the firm of Stark & Stark to prosecute the action on behalf of the State of New Jersey. Defendant moves to dismiss the case on three grounds: (1) prosecution of the case by a private attorney violates the defendant's due process rights; (2) the charges are de minimis; and (3) the defendant, as a federal officer, is immune from prosecution for the charges brought under state law.


 Defendant argues that the prosecution by the complainant's private attorney violates his right to due process and a fair trial because that attorney's loyalties and self-interest are inextricably tied to those of the complaining witness, and, thus, the attorney is not the "disinterested prosecutor" to which the defendant is entitled.

 The constitutional concerns arising from private criminal enforcement have been discussed by the United States Supreme Court, federal courts in the District of New Jersey, and New Jersey state courts. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987), the United States Supreme Court reversed a criminal contempt conviction of individuals found to have violated an injunction because the attorney appointed by the District Court to prosecute the contempt was the same attorney who was involved in the underlying civil trademark litigation. The Court first explained why a contempt proceeding was subject to the same criminal procedure protections as those actions brought under general criminal laws, and then distinguished the role of the prosecutor with that of the private litigant and found a tension between the two. "The Government's interest is in dispassionate assessment of the propriety of criminal charges for affronts to the Judiciary. The private party's interest is in obtaining the benefits of the court's order. While these concerns sometimes may be congruent, sometimes they may not." Id. at 805.

 While expressing no opinion on whether there was actual prosecutorial impropriety, the Court found it sufficient that the appointment of the interested lawyer created the potential for private interests to influence the discharge of public duty. The trademark litigation brought by Vuitton resulted in the injunction and a consent decree which contained a liquidated damages provision of $ 750,000 for violation of the injunction, and the prospect of such a damages award had the potential to influence whether the particular defendants were selected as a target of an investigation and whether plea bargains or immunity would be offered. In addition, the interested attorney was a defendant in a defamation action brought by one of the contempt proceeding defendants, creating the possibility that the criminal investigation was shaped in part by a desire to obtain information useful in the defamation action. Finally, as Vuitton had various civil claims pending against some of the criminal defendants, this could have created the temptation to use the criminal investigation to gather information for the civil suits and to use the civil suits as bargaining leverage in obtaining pleas in the criminal prosecution. 481 U.S. at 805-06. "A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision." Id. at 808 (quoting Bloom v. Illinois, 391 U.S. 194, 207, 20 L. Ed. 2d 522, 88 S. Ct. 1477 (1968)).

 Because of the wrenching intrusion that a criminal investigation can have upon an individual's life, the Court stated:

We must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice. A prosecutor of a contempt action who represents the private beneficiary of the court order allegedly violated cannot provide such assurance, for such an attorney is required by the very standards of the profession to serve two masters.

 481 U.S. at 814. Although Justice Blackmun in his concurrence stated that he would find the appointment of an interested party's counsel to prosecute for criminal contempt to be a violation of due process, the majority avoided the constitutional question by exercising its supervisory power to reverse the conviction.

 Neither the Federal Rules of Criminal Procedure nor the Local Rules provide for criminal prosecution by private litigants or attorneys. New Jersey Court Rule 7:4-4(b), however, provides:

(b) Appearance of Prosecution. Whenever in his or her judgment the interests of justice so require, or upon the request of the court, the Attorney General, county prosecutor, municipal court prosecutor, or municipal attorney, as the case may be, may appear in any court on behalf of the State, or of the municipality, and conduct the prosecution of any action, but if the Attorney General, county or municipal court prosecutor or municipal attorney does not appear, any attorney may appear on behalf of any complaining witness and prosecute the action for and on behalf of the State or the municipality.

 The federal courts that have discussed the application of Rule 7:4-4(b) are unanimous in holding that the rule contains both substantive and procedural rights, allowing a complaining witness who is the victim of a disorderly persons offense to enforce the criminal law in cases where the state or municipality lacks the resources to do so. New Jersey v. Imperiale, 773 F. Supp. 747, 748 (D.N.J. 1991); New Jersey v. Kinder, 701 F. Supp. 486, 488 (D.N.J. 1988); Voytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315, 328 n.21 (D.N.J. 1978). As such, and because there is no conflicting federal rule, Rule 7:4-4(b) applies in a criminal case which is removed from state to federal court. The rule has been considered important because "absent its use, disorderly persons offenses would go unprosecuted, harming not only the state's interest in enforcing its laws, but also the victim's (if not society's) interest in obtaining satisfaction for wrongs committed." New Jersey v. Kinder, 701 F. Supp. at 488. See also State v. Storm, 141 N.J. 245, 251-52, 661 A.2d 790, 793-94 (1995).

 The hazards of the rule also have been pointed out:

The risk of abuses from such practice is equally obvious. Individuals can and do utilize such criminal proceedings to bolster a related civil proceeding or merely for vindictive or harassing purposes. In addition to possible improper initiation, the conduct of such proceedings risks a violation of due process. The strictures which guide and limit a prosecutor are unknown to the private citizen and are difficult to enforce. Plea bargains which are otherwise available would not be. Duties of disclosure and other constitutional safeguards likewise would be unknown and unenforced. Thus, in the initiation and the conduct of such private prosecutions, the self-interest of the complainant-prosecutor, absent the safeguards imposed upon a neutral prosecutor, place the constitutional rights of the named defendant in jeopardy.

 New Jersey v. Imperiale, 773 F. Supp. at 748. See also State v. Storm, 141 N.J. at 252-53, 661 A.2d at 794.

 To balance the benefits and the risks of Rule 7:4-4(b), its proper application requires a court to evaluate the particular circumstances to determine if the private attorney has a conflict of interest which impinges upon a criminal defendant's due process rights so as to prevent the defendant from receiving a fair trial. New Jersey v. Imperial, 773 F. Supp. at 751; New Jersey v. Kinder, 701 F. Supp. at 490-92; State v. Storm, 141 N.J. at 255, 661 A.2d at 795. If a court finds a conflict, the appropriate procedure would be to disqualify the private attorney, and if no satisfactory private prosecutor subsequently comes forward, then the court may dismiss the complaint. New Jersey v. Imperiale, 773 F. Supp. at 754, 756. This evaluation primarily involves an inquiry into the private attorney's pecuniary or other interest in the outcome of the criminal case and whether the attorney is involved in a related civil case.

 The New Jersey Supreme Court in State v. Storm, supra, held that a private attorney wishing to prosecute a criminal action under Rule 7:4-4(b) must disclose in a written certification all facts that foreseeably may affect the fairness of the proceedings. *fn1" 141 N.J. at 255, 661 A.2d at 795. The relevant facts include the identity of the complainant, indicating (1) whether the complainant is an individual, a business, or an entity with its own police department; (2) any actual conflict of interest arising from the attorney's representation of, and fee arrangement with, the complainant; (3) any civil litigation, existing or anticipated, between the complainant and the defendant; (4) whether the defendant is, or is expected to be, represented by counsel; and (5) any other facts that reasonably could affect the impartiality of the prosecutor and the fairness of the proceedings or otherwise create the appearance of impropriety. Id.

 Counsel for the complainant, Thomas B. Lewis, Esquire, has submitted such a certification. He explains that Ms. Utley-Williams requested that Stark & Stark represent her in this criminal matter and that the union, Trenton Metro Area Local, American Postal Workers Union, agreed to pay legal fees based on Stark & Stark's regular hourly rate. Stark & Stark does not represent Ms. Utley-Williams or the Trenton Metro Area Local in any other matter, and it has not been requested to represent them in any related civil action against Mr. Bazin. There is no existing civil litigation between Ms. Utley-Williams and Defendant Bazin, and Mr. Lewis is unaware of any contemplated civil litigation. Other than the hourly rates, Stark & Stark has no other pecuniary interest in the outcome of the criminal litigation. Mr. ...

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