Here is a fine tribute to Bob Sussman from Houston lawyer Murray Newman. Bob clearly touched many lives, professionally and personally.
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Word has just reached me of the death of native Houstonian Bob Sussman, a friend and one of the country’s truly outstanding white collar defense attorneys. Bob practiced for many years at Hinton Sussman & Bailey and, more recently, at Locke Lord Bissell and Liddell. He was a skilled negotiator and trial lawyer with a marvelous sense of humor. It is hard to believe that members of the bar will no longer encounter Bob, gregariously working the halls at the ABA’s Annual White Collar Crime Seminar. We first met on opposite sides of a savings and loan fraud case that I was prosecuting. Later, Bob was very gracious and helpful to me when I transitioned from the Office of Independent Counsel into private practice. He did it because he was a nice guy.
The Houston Chronicle obituary is here. According to the Chronicle, Bob “was a mediocre golfer, but played quickly.” The Chronicle also reports that Bob recently “fulfilled a lifelong dream” and attended the Masters. “This past Monday while traveling overseas in Jordan, he once again exhibited in an e-mail to a friend his signature great humor: ‘This place reminds me of Augusta, but less azaleas, less dogwoods, less grass, more bunkers. And the course marshalls have automatic weapons. Need to catch up. Much to report.’” Our sympathies go out to Bob’s wife, son, and brother and to all of his many friends. Houston has lost one of its great ones.
The trial judge rightfully admonished Manhattan Assistant District Attorney Elizabeth Loewy for her outrageous reference to one of Anthony Marshall’s defense attorneys in Loewy’s opening statement in the Marshall/Morrissey fraud trial. The court rejected the defense’s motion for a mistrial, however. John Eligon’s New York Times story here, describing the second day of trial, covers the court’s ruling in the very last paragraph. No word from Eligon on whether Judge Bartley instructed the jury not to consider the prosecutor’s comments, or informed them that the comments were improper. This kind of conduct, striking over the defendant’s shoulders at his attorney, is something that even baby prosecutors are routinely taught not to do. That it would be attempted during a trial of this magnitude is stunning.
The New York Times reports here on opening statements in the Anthony Marshall/Francis X. Morrissey criminal trial in Manhattan. Marshall is the son of the late socialite Brooke Astor. He and Morrissey are charged in state court with looting Astor’s estate. Astonishingly, Manhattan Assistant District Attorney Elizabeth Loewy referenced one of Marshall’s criminal trial attorneys, Kenneth E. Warner, in her opening statement. Loewy mentioned Warner’s alleged role in some of the transactions involved in the criminal case. This is outrageous prosecutorial conduct and should result in a mistrial. It is hornbook law that a prosecutor should not strike at the client by attacking his attorney or bringing the attorney into the underlying case as a witness or virtual witness. Loewy has justified her conduct by pointing out that she tried to have Warner recused. This is beside the point. Loewy lost that motion and she was under a duty to avoid any references to Warner by name.
The SEC has filed a securities fraud complaint against Danny Pang and Private Equity Management Group in the Central District of California. Henry Blodget has the story here in businessinsider.com. This is another case containing allegations of a classic Ponzi scheme.
Here is New York Times Columnist Frank Rich’s latest take on the Bush Administration’s authorization of torture or extremely harsh interrogation methods, depending upon your point of view. Rich (echoing Senator Carl Levin) thinks that “it’s time for the Justice Department to enlist a panel of two or three apolitical outsiders, perhaps retired federal judges, ‘to review the mass of material’ we already have.” He wisely eschews the idea of a truth commission: “We don’t need another commission. We don’t need any Capitol Hill witch hunts.” But then Rich goes too far too fast: “What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.”
Aren’t you jumping the gun there a little bit, Frank? Don’t we need to first ascertain whether there was even a crime cognizable under federal law, and, if so, who committed it? And then, don’t the prosecutors need to determine, in their professional judgment, if the case is winnable? And finally, doesn’t Attorney General Holder (or a Special Counsel, if President Obama and AG Holder have deemed that one is appropriate) need to exercise his prosecutorial discretion as to whether prosecution is appropriate under all of the circumstances? That’s the way it is usually done and the way it should be done here. We don’t need no stinking Truth Commissions and we don’t need any left-wing screechers trying to bully DOJ. We have already had too much political pressure on DOJ in recent years.
As for “a panel of two or three apolitical outsiders, perhaps retired federal judges,” I don’t know of many: 1) successful prosecutions run by a panel; 2) apolitical retired federal judges; or, 3) retired judges who are qualified to lead an investigation at the operational level. How about picking a current well-respected career prosecutor? There are plenty of those around.
According to this Karl Vick piece in today’s Washington Post, former DOJ Office of Legal Counsel chief Jay Bybee, now a judge on the Ninth Circuit, regrets his role in signing the infamous “torture memos.” Since he is a sitting judge, Bybee is not commenting directly, but the article could not have been written without input from his friends. Vick’s story is balanced but short on substantive analysis of the memos in question, and notes that Bybee is friendly and admired by ideological friend and foe alike. I can attest to Bybee’s friendliness. We worked together in DOJ’s Office of Legal Policy in the 1980s and he was a consummate professional who did not appear to have a mean bone in his body. Calls for Bybee’s impeachment, based on conduct occurring before he became a judge, appear premature to me.
On the other hand, if DOJ professionals can make a reasoned argument that certain Bush-era legal memos sought merely to cover obviously illegal activities, let the investigations begin. After all, we investigate (and sometimes even prosecute) lawyers for fraudulently legitimizing tax fraud schemes with dubious letters of legal advice. I don’t see why dubious torture memos warrant different treatment. Just keep the politicians away. We don’t need any of Senator Leahy’s Truth Commissions.
AG Eric Holder has declassified and released a congressionally prepared decision-making timeline (and analysis) regarding harsh interrogation techniques approved and employed by the Bush Administration. At least one former Bush Administration official has criticized the timeline as incomplete. The document highlights the knowledge and key decisionmaking roles of Vice-President Cheney, National Security Advisor Rice, and AG Ashcroft. According to Senator Jay Rockefeller, Colin Powell and Donald Rumsfeld were not briefed unitl late in the day and had little or no substantive role in the decisionmaking process. The Washington Post story is here.
Susan Carey of the Wall Street Journal has an excellent background story here on the Tom Petters federal fraud prosecution, being handled out of Minnesota. As in so many of the recent Wall Street scandles, there are claims that Petters’ alleged fraud contained “elements” of a classic Ponzi scheme. There are also stories of investment advisors who were sharp enough to steer their clients away from Petters after doing rather rudimentary research. The heart of the charged fraud centers around purportedly phony purchases and sales of surplus audio/video products by Petters’ company–phony in the sense that no actual equipment existed. Several persons and entities have already pled guilty.
We have been away for a few days, and apologize to our millions of readers worldwide who have expressed concern. Okay–so there were only ten of you, and nine of those wanted to sell me something. It is still nice to know that we were missed.
Today’s Washington Post has a piece here by Del Quentin Wilber on Senator Stevens’ rejection of a no-jail plea deal and his strategy of demanding a speedy trial.
Sunday’s Post had this very good story by Carrie Johnson on some of the things that went wrong, including the short time between indictment and trial and the last-minute cobbling together of the final trial team.
Hey, talk to the prosecutors and defense attorneys in the Eastern District of Virginia about going to trial 60 days after indictment. It happens a lot over the river.
And here in the Sunday New York Times, Neil Lewis opines that Ted Stevens is not really innocent, even with Judge Sullivan’s setting aside of the verdict and dismissal of the charges with prejudice, because the trial showed the former Senator to be less than candid about his reporting of gifts. Dana Milbank said something similar last week in this Washington Sketch.
I think these guys miss the point. Plenty of public figures and public servants are exposed all the time as having alleged ethical or moral blind spots. But most of them don’t get indicted and tried in federal court. Indictment for a federal crime is really a defining life event–a whole different ball game. So the trial’s revelation that Stevens is less than perfect is irrelevant to me.
Here is a SunSentinel.com story on Judge Alan Gold’s Hyde Amendment ruling in U.S. v. Shaygan. Here is Judge Gold’s Order. Shaygan was acquitted on all counts in a health care-related prosecution. It was discovered during trial that two witnesses secretly taped their conversations with the defense team and that Government prosecutors and case agents approved the taping.
The Washington Post’s Carrie Johnson reports here on the implications of Attorney General Holder’s latest prosecutorial personnel moves. Mary Patrice Brown is only the third person in history to head DOJ’s Office of Professional Responsibility, first established in 1975. The original OPR Chief was the late and legendary Mike Shaheen. How I miss having him around to talk about life in general and all of the issues swirling around the DOJ.
According to the story here by the Washington Post’s Carrie Johnson, current OPR Chief Marshall Jarrett will move over to head the Executive Office of U.S. Attorneys. The new OPR Chief will be Mary Patrice Brown, now Criminal Division Chief in the U.S. Attorney’s Office for the District of Columbia.
So much for my theory that Judge Sullivan might wait to rule on the Motion Of The United States To Set Aside The Verdict And Dismiss The Indictment With Prejudice in order to “better exert the Court’s own disciplinary authority.” What was I thinking? He is a federal judge. He don’t need no stinking pending indictment! He can exert control irrespective of whether the jury verdict stands or an indictment is pending. In fact, he has appointed veteran DC criminal attorney Hank Schuelke to investigate the conduct of six Stevens prosecution team members on behalf of the Court. According to the Washington Post story here Judge Sullivan publicly criticized DOJ’s Office of Professional Responsibility at yesterday’s hearing for its silence to date with respect to its investigation of the Stevens prosecution.
From the L.A. Times, here it is.
Law.com here carries a Legal Times piece by Mike Scarcella and Joe Palazollo on the series of errors that dogged the Stevens prosecution team. According to the story, Public Integrity’s Deputy Chief Brenda Morris wasn’t assigned to the case until days before the indictment. Though the article fails to mention it, this presumably means that Morris did not participate in the April 15, 2008, interview with Bill Allen and may not have ever known about it.
Most commentators are assuming that Judge Sullivan will quickly grant the Government’s Motion to Set Aside and Dismiss, but Sullivan could wait awhile in order to fully satisfy himself concerning the Government’s conduct in the case and to better exert the Court’s own disciplinary authority. It may be harder for him to do this as a practical matter if he immediately grants the Motion to Set Aside and Dismiss.
Hat Tip to Professor Ellen Podgor, over at White Collar Crime Prof Blog, who reports here that Judge Sullivan issued two new Orders this evening in U.S. v. Theodore F. Stevens.
The first Order states as follows:
“MINUTE ORDER as to THEODORE F. STEVENS. The Court, sua sponte, directs that by no later than 10:00 a.m. on April 6, 2009, the government shall provide to the Court copies of all material gathered post-trial and produced to the defendant. The government shall also provide to the Court all exculpatory evidence, witness interviews, 302s, and affidavits gathered, created and/or reviewed as part of the investigation into the Joy Complaint, and the attorneys notes regarding the April 15, 2008 interview with Bill Allen, whether or not that material has been produced to the defendant. Signed by Judge Emmet G. Sullivan on April 5, 2009.”
The second Order states as follows:
“MINUTE ORDER as to THEODORE F. STEVENS. The Court, sua sponte, ORDERS that the Department of Justice, the Federal Bureau of Investigation, the Internal Revenue Service, and any and all other government agencies involved in the investigation and/or prosecution of Senator Stevens immediately preserve any and all documents related to this matter, including but not limited to emails, notes, memoranda, investigative files, audio recordings, and any and all electronically stored information, until further Order of this Court. Signed by Judge Emmet G. Sullivan on April 5, 2009.”
My guess is that Judge Sullivan wants to keep control of the process and certainly doesn’t want DOJ’s Office of Professional Responsibility (”OPR”) to have sole responsibility for ferreting out any wrongdoing.
Lesson #1: Don’t ever conduct a pre-indictment witness interview that fails to generate a 302 or similar report. In fact, don’t ever conduct a post-indictment witness interview that fails to generate a 302, unless it is a genuine testimony prep session. If exculpatory information is revealed during a testimony prep session, turn it over to the defense.
Lesson #2: Look to the exculpatory information and not the format, if any, in which it is memorialized. If a witness reveals exculpatory information and the only written record of it is contained in privileged attorney notes, you may not have to reveal the notes but you damn well better reveal the exculpatory information.
Lesson #3: In a white collar case, unless there are issues of witness intimidation, turn over all 302s to the defense before the trial. Yes, I know, most 302s do not constitute Jencks material, unless the agent who prepared them is testifying. But every 302 of a testifying witness contains potential Brady material. Do you really want to be worrying during trial whether a witness’ real time testimony is inconsistent with the information contained in his six previous 302s? Turn the stuff over and concentrate on winning your case. The federal criminal trial system is already heavily weighted in favor of the prosecution. If your case is so weak that you are afraid of turning over the 302s to the defense, maybe it is time to re-think your case.
The most interesting thing to me about the MOTION OF THE UNITED STATES TO SET ASIDE THE VERDICT AND DISMISS THE INDICTMENT WITH PREJUDICE (”Motion to Set Aside”) in U.S. v. Theodore F. Stevens is the revelation that no FBI-302 was ever prepared of star Government witness Bill Allen’s April 15, 2008 interview. This was a pre-indictment interview attended by four Government attorneys and one FBI agent. Not to prepare a 302 “Memorandum of Interview” of this session was a clear departure from standard FBI practice. (Two of the prosecutors took notes, however, which is presumably how the review team learned about the April 15 interview.) In fact, post-indictment interviews of witnesses and potential witnesses should also generate 302s, the only exception being testimony preparation sessions. (But even exculpatory statements made in pre-trial testimony prep sessions must be reported to the defense by the prosecution, whether or not notes of the session are produced.)
It is hard for me to believe than an agent would have taken it on himself or herself not to prepare a 302 of the April 15 interview. The OPR investigation may ultimately provide the answer, but my guess is that the lone agent in attendance was ordered by somebody not to prepare a 302. The Stevens defense team had produced the October 6, 2002 “Torricelli Letter” to the Government in early 2008, prior to the April 15 interview. That letter, in which Senator Stevens specifically asked Allen to bill him for construction work, was obviously a potential problem for the Government. By the time of trial Allen recalled a conversation with Stevens’ friend Bob Persons in which Persons told Allen not to worry about the Torricelli Letter because “Ted is just covering his ass.” But Allen recalled no conversation, with Persons or anyone else, about the letter during the April 15 interview. Allen first told the prosecutors about the “covering his ass” conversation with Persons shortly before trial in a testimony prep session. As soon as they heard the story and anticipated using it at trial, prosecutors were duty bound to reveal the contradictory content of the April 15, 2008 interview to the defense team. But the original prosecution team never revealed the existence of the April 15 interview to the Court or to Stevens’ attorneys.
Did the original prosecutors forget about the April 15 interview during pre-trial, trial, and immediate post-trial? I suppose it is possible. We will await the OPR report to find out. The interview was in April 2008. Stevens was indicted in July 2008 and went to trial in late September 2008. By demanding an immediate trial, which was his right, Stevens forced the Government to get ready for trial in a hurry. Of course, it is easier to forget about an exculpatory interview when no 302 is prepared in the first place.
The prosecution team also prepared the GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL, filed in January 2009. In that Opposition, in discussing Allen’s testimony about the Torricelli Letter, the Government stated:
“In claiming that Allen’s testimony was false, defendant relies first on the fact that Persons’s comment was not recorded in the government’s memoranda of its interviews with Allen. This fact proves nothing, however, because the government was not even aware of the October 6, 2002 note until defendant produced it in early 2008, long after most of the memoranda were prepared. Moreover, it was not until shortly before trial that the government questioned Allen about defendant’s statement that he had asked Persons to speak to Allen about a bill, and thereby learned about Persons’s remark. Allen’s recollection on this point was not recorded in an FBI 302 because it was disclosed during a trial preparation session.” (Emphasis added).
In its recent Motion to Set Aside, the Government rightfully informed Judge Sullivan that this statement was inaccurate in light of the review team’s recent discovery of the April 15, 2008 interview.
The defense team correctly noted that many judges routinely accept the Government’s boilerplate pronouncement that all Brady material has been provided to the defense. Judge Sullivan, to his credit, did not do so here. The defense also admirably commended the new review team and AG Holder and stressed that some prosecutors who came to the case late may not have known about all of the Brady problems.
We are left for now with the sobering comments of the Stevens’ defense team:
“[I]t is crucial that this matter be fully investigated to determine the complete facts and assess responsibility.”
Here is Ben Conery’s story in today’s Washington Times. Patrick Fitzgerald’s office had no comment this time.
Here is a copy, courtesy of the Wall Street Journal.
Here, courtesy of the Washington Post, is the statement issued today by Williams & Connolly’s Brendan V. Sullivan, Jr. and Robert M. Cary, Senator Stevens’ attorneys. The statement excoriates the original prosecution team and praises the new DOJ review team, Judge Sullivan, and AG Holder. Here is the Motion of the United States to Set Aside the Verdict and Dismiss the Indictment With Prejudice.
Taken together these documents reveal that the results of an April 15, 2008 government interview with star witness Bill Allen were improperly withheld from the defense. The Motion states that two prosecutors took notes of the interview. The defense statement reveals that four prosecutors and one agent were present for the interview. The government’s opposition to Stevens’ new trial motion was also inaccurate, according to the government’s Motion to Set Aside.
The Washington Post reports here that Attorney General Eric Holder has filed a motion seeking to dismiss all charges (with prejudice) against former Senator Ted Stevens. This action is being taken after DOJ review of the case by a new set of attorneys not involved in the original prosecution. Holder’s decision was apparently bottomed on the discovery of new Brady violations and “in consideration of the totality of the circumstances of this particular case.” Stevens’ age and electoral defeat undoubtedly played a part. Needless to say, dismissal of charges against a high-profile defendant already found guilty by a jury doesn’t happen every day–or even every decade.