United States of America v. David Zagami

Honorable Christopher C. Conner, United States District Judge for the Middle1
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-3846
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UNITED STATES OF AMERICA
v.
DAVID ZAGAMI,
Appellant
_____________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 07-cr-752)
District Judge: Honorable J. Curtis Joyner
_____________
Submitted Under Third Circuit L.A.R. 34.1(a),
January 25, 2010
Before: FUENTES and FISHER, Circuit Judges and CONNER, District Judge.* 1
(Opinion Filed:March 19, 2010)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant David L. Zagami’s attorney has filed a brief requesting to withdraw as

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counsel pursuant to Anders v. California, 386 U.S. 738 (1967). Appellant has received
notice of his attorney’s motion, but has not filed a brief in opposition to counsel’s Anders
brief. We find that no nonfrivolous issues for appeal exist, and as such, we affirm the
District Court’s sentence and grant counsel’s Anders brief to withdraw from the
representation.
I.
Because we write for the parties, we discuss only the facts relevant to our
conclusion. In August 2004, Appellant was charged with one count of interstate
transportation of a stolen vehicle in violation of 18 U.S.C. § 2312, one count of
conspiracy to transport a stolen vehicle in violation of 18 U.S.C. § 371, and one count of
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922 (g)(1).
Following the entry of Zagami’s guilty plea on all counts, he was sentenced to
forty months’ imprisonment and three years of supervised release. On or about April 17,
2007, Zagami was transferred to the Kintock Group Community Corrections Center
(“KGCCC”) in Philadelphia, Pennsylvania. On June 30, 2007, Zagami escaped from
KGCCC and was not located until he surrendered to authorities on July 9, 2007.
Zagami was charged with escape, in violation of 18 U.S.C. § 751(a). He pled
guilty to the aforementioned charge. Pursuant to the plea agreement entered into by
Zagami and the Government, Zagami agreed to waive his right to appeal, so long as his
sentence did not exceed the statutory maximum and so long as the District Court did not

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depart upward from the Sentencing Guidelines range. Prior to the entry of the plea
agreement, the Government and Zagami agreed that the applicable range of imprisonment
was between fifteen and twenty-one months. He was sentenced to twenty-one months’
imprisonment followed by three years of supervised release for the escape charge.
II.
The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. §
3231, and this Court possesses jurisdiction to hear this appeal pursuant to 28 U.S.C. §§
1291 and 3742.
In Anders, 386 U.S. at 744, the Supreme Court held that appointed counsel who
conscientiously believes that there are no nonfrivolous grounds for an appeal must request
permission to withdraw from the representation and submit a brief outlining any possible
nonfrivolous arguments in support of the appeal. Counsel’s affirmative duties when
submitting an Anders brief are “to satisfy the court that counsel has thoroughly examined
the record in search of appealable issues,” and “to explain why the issues are frivolous.”
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citing United States v. Marvin,
211 F.3d 778, 780 (3d Cir. 2000)).
Thus, our analysis for an Anders brief is twofold. First, we must consider
“whether counsel adequately fulfilled the rule’s requirements, and [second], whether an
independent review of the record presents any nonfrivolous issues.” Youla, 241 F.3d. at
300. The latter inquiry is curtailed, however, “[w]here the Anders brief initially appears

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adequate on its face.” Id. at 301. In such cases, “the proper course is for the appellate
court to be guided in reviewing the record by the Anders brief itself.” Id. (quotation
marks and citation omitted). The instant brief appears adequate on its face. Zagami’s
counsel identifies three possible issues for appeal: 1) whether the District Court erred in
considering the Government’s recommendation that it impose a sentence at the upper end
of the Guidelines range; 2) whether the District Court erred in allowing a United States
Attorney, who had previously prosecuted Appellant in a separate matter, to prosecute
Appellant again; and 3) whether the District Judge presiding over Appellant’s case abused
his discretion in failing to recuse himself in light of Appellant’s assertions that the Judge
had previously presided over an unrelated criminal matter involving Appellant. Zagami
filed no pro se brief and has not drawn our attention to any additional issues. We
therefore turn to the three matters raised in the Anders brief.
A. Impropriety of Appellant’s Sentence
The first issue identified by Zagami’s attorney is whether the Government was
inappropriate and vindictive in arguing at sentencing that Zagami should be sentenced at
the upper end of the Guidelines range. We agree with Zagami’s attorney that this claim is
frivolous. “[A] prosecutor may prosecute with earnestness and vigor – indeed, he should
do so.” United States v. Morena, 547 F.3d 191, 193 (3d Cir. 2008) (quotations and
citation omitted). It was not prosecutorial misconduct for the Government to have argued
in favor of a Guidelines-range sentence. See id. at 194 (to rise to the level of

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prosecutorial misconduct, action must infect the proceedings with unfairness). The
arguments raised by the Government, and the facts relied upon by the District Court in
imposing the sentence, focused appropriately on the relevant 18 U.S.C. § 3553(a)
considerations, including Zagami’s lengthy criminal history; his history of recidivism
toward the same offenses, including escape; and the need to impose a sentence that
promotes respect for the law. We therefore agree with Zagami’s appellate counsel that
this issue is frivolous.
B. Disqualification of the Assistant United States Attorney
The second issue identified by Zagami’s attorney in his Anders brief is whether
the fact that the Assistant United States Attorney handling the matter had previously
prosecuted Zagami in an unrelated matter created a conflict of interest requiring the
prosecutor’s disqualification. We agree with Zagami’s counsel that this issue is frivolous.
Instances in which the courts have found it necessary to disqualify a particular United
States Attorney are rare. As a District Court in our Circuit explained:
The disqualification of Government counsel is a “drastic measure and a court
should hesitate to impose it except where necessary.” United States v. Bolden,
353 F.3d 870, 878 (10th Cir. 2003) (citing Bullock v. Carver, 910 F. Supp.
551, 559 (D. Utah 1995)). Accordingly, Courts have allowed disqualification
of government counsel only in limited circumstances. See, e.g., Young v.
United States, 481 U.S. 787, 807 (1987) (actual conflict of interest because
appointed prosecutor also represented another party); United States v. Heldt,
668 F.2d 1238, 1275 (D.C. Cir. 1981) (bona fide allegations of bad faith
performance of official duties by government counsel in a civil case); United
States v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985) (prosecutor who will
act as a witness at trial).

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United States v. Vega, 317 F. Supp. 2d 599, 602 (D.V.I. 2004) (serial citation
omitted). The Assistant United States Attorney in this case merely prosecuted Zagami
for a prior, unrelated offense. There is no authority to suggest that a prosecutor must
disqualify himself under such circumstances, and we thus agree with Zagami’s
counsel that this issue is frivolous.
C. Recusal of the District Court Judge
Finally, Zagami contends that the District Judge had presided over a prior criminal
case and had “permitted that case [to] go forward . . . [k]nowing that there was no
substantial evidence . . . [and] [u]nder a new [j]udge[,] the unsubstantiated charges that
[h]e permitted were dropped.” (App. 2). Again, Zagami’s counsel is correct that this
argument is frivolous. The Supreme Court has held that it is not improper for a judge to
hear multiple cases involving the same defendant—“[i]t has long been regarded as normal
and proper for a judge to . . . sit in successive trials involving the same defendant.” Liteky
v. United States, 510 U.S. 540, 551 (1994). There is no suggestion from the record that
the two cases were related in any way, and we see nothing improper about the District
Judge presiding over successive criminal matters involving the same defendant.
Zagami’s counsel is correct that the District Judge did not abuse his discretion, and we
therefore conclude that the final issue identified in counsel’s Anders brief is frivolous.
III.
For the foregoing reasons, we agree with counsel that no nonfrivolous issues for

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appeal exist in this case. Accordingly, we affirm the District Court’s judgment of
conviction and sentence and grant counsel’s motion to withdraw.

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