Judge Ricardo Urbina today dismissed all charges against the five Blackwater defendants with prejudice. Here is the opinion. The dismissal was based on the Government’s multiple violations of Kastigar v. United States through its improper use of compelled statements and admissions (under Garrity v. New Jersey) made by the defendants to State Department investigators.
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My Uncle Adolph Westheimer (far left, with his siblings, circa 1930) died two weeks ago at the age of 94. I will miss him very much. He was a really great uncle, and was practically a second father to me when I was young.
Like his younger brothers Sam and Junior, who died before him, and like his little brother Siggy, who lives on, Uncle Adolph was a modest man. Along with so many others of the greatest generation, who lived through the depression and served in World War II, he did his duty proudly and came home to raise a family and become a solid citizen. Uncle Adolph was a veteran of Iowa Jima and a volunteer in Korea, but you would never know that from hanging around him. He did not boast, brag, or even speak about such things.
According to family legend, the doctor attending the birth told my grandmother that Adolph was too sickly to live. My grandmother ignored the doctor and nursed her first-born back to health. When Adolph was a toddler, he thought that his name was Adog, so he called himself Abow-wow for awhile. The name Adolph wasn’t very popular in America during World War II. Adolph became Joe during that struggle and the name stuck all through his professional career at Southern Pacific. Two of his favorites songs were “The World Is Mine Tonight” and “I’m A Ding-Dong Daddy From Dumas.”
It is impossible to distill all of the great memories I have of Uncle Adolph in the space of a few minutes or even a few hours. Two things stand out that I want to talk about.
First–the driving. I spent literally hundreds of hours in the back seat of his car when I was young. Uncle Adolph’s running commentary on the shortcomings of other drivers became part of the very essence of my automotive being. Even to this day, I channel his denunciations effortlessly. When I tell my passengers that the driver ahead of me is “making a career out of a left turn” it is my Uncle Adolph speaking through me.
Second–a conversation. It is sometime around 1998. Both of my parents are dead. After a career as a federal prosecutor, I have gone to Washington to work for Ken Starr on the Whitewater Investigation. I become one of Judge Starr’s deputies and participate in the grand jury questioning of the President of the United States. In the quiet of an evening phone call Uncle Adolph softly reminds me of how proud my parents would be. A simple gesture on his part. Coming straight from the heart. Moving me deeply.
And now he is gone. We are saddened, but feel fortunate to have had him around for so long. Our hearts go out to Aunt Cookie and to my cousins, Paulette, Linda, and Vaughn.
Lest you think that federal prosecutorial overreaching is confined to a few isolated cases, we hereby offer a story from R. Robin McDonald of the Fulton County Daily Report, carried via Law.com, about the government’s vendetta against Columbus, Georgia criminal defense attorney J. Mark Shelnutt. Shelnutt was prosecuted by the Southern District of Georgia on money laundering and drug conspiracy charges, but was acquitted on all counts. U.S. District Judge Clay D. Land has now blasted the U.S. Attorneys’ Offices in the Southern and Middle Districts of Georgia for their handling of the case. Land accused the offices of working in tandem to offer sweetheart deals to big-time drug dealers in an effort to bring down Shelnutt. Land refused to accept the stipulated drug quantity for one such drug dealer, Shawn Bunkley. Hat tip to Douglas Berman’s Sentencing Law and Policy Blog for bringing this to our attention.
Here also is Judge Land’s written order in U.S. v. Bunkley, which is well worth reading. This is a relatively rare example of a federal judge stepping in and challenging the plea bargaining power of the government through rejection of a stipulated drug quantity. The Order is interesting for the light it sheds on the Shelnutt case and for the methodology resorted to by Judge Land to impose a Booker-based upward variance in the face of Guidelines Section 1B1.8.
Here is the transcript of the hearing in which Judge Cormac Carney granted Defendant’s Motion to Dismiss in U.S. v. William Ruehle. Ruehle was Broadcom’s former CFO. The dismissal was based on prosecutorial misconduct (primarily witness intimidation by AUSA Andrew Stolper) and insufficient evidence. Carney also dismissed the Indictment against Broadcom’s co-founder and former CEO Henry Nicholas, who had not yet gone to trial. The Nicholas dismissal was based solely on prosecutorial misconduct involving witness intimidation. Carney had previously thrown out the guilty plea of Broadcom co-founder Henry Samueli and dismissed the felony information to which Samueli pled guilty.
There were stirring and memorable words spoken at the hearing, and the transcript is well worth reading in its entirety. Here is a portion of Judge Carney’s closing remarks:
NOW, I’M SURE THERE ARE GOING TO BE MANY PEOPLE WHO ARE GOING TO BE CRITICAL OF MY DECISION IN THIS CASE AND ARGUE THAT I’M BEING TOO HARD ON THE GOVERNMENT. I STRONGLY DISAGREE. I HAVE A SOLEMN OBLIGATION TO HOLD THE GOVERNMENT TO THE CONSTITUTION. I’M DOING NOTHING MORE AND NOTHING LESS. AND I ASK MY CRITICS TO PUT THEMSELVES IN THE SHOES OF THE ACCUSED.
YOU ARE CHARGED WITH SERIOUS CRIMES AND, IF CONVICTED ON THEM, YOU WILL SPEND THE REST OF YOUR LIFE IN PRISON. YOU ONLY HAVE THREE WITNESSES TO PROVE YOUR INNOCENCE AND GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED EACH ONE OF THEM. IS THAT FAIR? IS THAT JUSTICE? I SAY ABSOLUTELY NOT.
Here is Judge Cormac Carney’s Dismissal Order in U.S. v. William J. Ruehle and U.S. v. Henry T. Nicholas. Most of the newspaper stories on the Broadcom debacle failed to note that Judge Carney dimissed the case against Ruehle for insufficiency of the evidence as well as prosecutorial misconduct. Ruehle’s Rule 29 Motion was granted after jeopardy attached, but before the jury began deliberating. Therefore, the government cannot appeal, and Ruehle cannot be re-tried. With respect to Nicholas, he wasn’t even on trial yet at the time of Carney’s order dismissing the Indictment with prejudice. The government can therefore appeal the dismissal in Nicholas’s case.
Here is the LATimes’ take on Judge Carney’s dismissal of criminal charges against former Broadcom execs William Ruehle and Henry T. Nicholas III, due to prosecutorial misconduct. It is safe to assume that the government will be appealing at least some of Carney’s rulings.
Judge Cormac Carney has just dismissed the criminal stock option backdating cases, against former Broadcom CFO William Ruehle and former CEO Henry T. Nicholas III, based on government misconduct. The Orange County Register story is here. Nicholas had not yet gone to trial. In Ruehle’s case, the prosecution and defense had closed, and jury arguments were set for Thursday. Needless to say, dismissals based on prosecutorial misconduct are exceedingly rare. AUSA Andrew Stolper was at the center of the misconduct allegations and findings.
Here is Roger Aronoff’s latest piece on the White House gate-crashers and on the silly non-investigation being conducted by Homeland Security Committee Chairman Bennie Thompson.
Here is more legal analysis on Judge Cormac Carney’s stunning and unprecedented dismissal of the felony charge against Broadcom co-founder Henry Samueli in the middle of William Ruehle’s trial. The Orange County Register story is by Andrew Galvin and Rachanee Srisavasdi.
So far, all of the articles I have seen on Judge Carney’s dismissal order fail to discuss whether it can be appealed. It can. It is one thing to throw out a guilty plea for an insufficient factual basis. It is quite another to throw out a felony charge brought by the government, particularly when the order of dismissal is based on evidence developed in a separate trial. On the other hand, the felony charge here was contained in a felony information. Felony informations are only valid when the defendant waives indictment. Defendants typically waive indictment when they enter a guilty plea, and that is what Samueli did when he originally entered his guilty plea. If the factual basis for the plea is insufficient, the felony information would have to be dismissed, absent a new waiver by Samueli. But Samueli no longer has any motivation to waive the information.
It isn’t at all clear to me what the Ninth Circuit will do if the government appeals. Generally, district courts are given broad discretion to decide whether to let defendants withdraw guilty pleas, and that is essentially what happened here.
Perhaps the more interesting question is what the courts will do if the government now indicts Samueli for lying to the SEC or for engaging in securities fraud. Before even thinking about the double jeopardy implications of indicting Samueli for lying to the SEC, the government would have to analyze the likelihood of meeting its Kastigar obligations in the wake of Samueli’s immunized testimony in the Ruehle trial. Not a pretty picture. I’m guessing that the Samueli prosecution is totally over.
So said Judge Cormac Carney to Broadcom co-founder Henry Samueli, after Samueli left the witness stand on Wednesday in U.S. v. William Ruehle. Here is the Orange County Register’s coverage of the dramatic events, which culminated in Judge Carney’s dismissal of Samueli’s guilty plea and federal felony charge.
Here, from today’s LATimes, is more context on Judge Cormac Carney’s apparently unprecedented dismissal of the felony charge against Broadcom co-founder Henry Samueli during the middle of the William Ruehle trial.
Samueli originally pled guilty to a one-count felony information charging a violation of Title 18, U.S. Code, Section 1001, for lying to the SEC. The guilty plea was made pursuant to a plea agreement with the government, represented by the U.S. Attorney’s Office for the Central District of California. Judge Carney rejected the plea agreement in September 2008, because, among other things, it called for Samueli to receive a probationary sentence. Unlike most plea agreements, Samueli’s was binding if the Court accepted it. By rejecting the plea agreement, Carney left Samueli free to withdraw his guilty plea. Samueli declined to do so, presumably in order to avoid a lengthy and expensive trial which would have included additional charges. Samueli’s sentencing date had been continued until 2010.
Fast forward to last week, when Judge Carney, who is presiding over the related criminal trial of forner Broadcom CFO William Ruehle, granted Samueli derivative use immuntiy so that Ruehle could call Samueli to the stand as a defense witness. (Since Samueli did not have the protection of a plea agreement, and was designated as a Ruehle co-conspirator by the government, his attorneys had quite properly told the Court that Samueli would invoke his Fifth Amendment privilege against self-incrimination if called to testify.)
Samueli testified on Tuesday and Wednesday of this week. After Samueli stepped down from the stand, Judge Carney told him to face the bench. And then Judge Carney did something that, as far as I know, is unprecedented in the annals of the federal criminal justice system. He threw out Samueli’s guilty plea and dismissed the charges against Samueli, based on his assessment of Samueli’s (post-guilty plea) testimony. Samueli’s testimony convinced Judge Carney that Samueli’s misstatements under oath to the SEC had been unintentional in nature.
Every finding of guilt in a federal criminal case, even one based on a guilty plea, must be supported by a sufficient factual basis. In effect, Judge Carney ruled that there was no factual basis for a finding of guilt as to Samueli.
Perhaps most remarkably, none of this occurred during proceedings in Samueli’s case. It happened in the middle of Ruehle’s criminal trial. But it all took place in the context of AUSA Andrew Stolper’s rather massive misconduct in the Ruehle and Samueli cases. And this misconduct has only recently come to light–right in front of Judge Carney.
Central District of California AUSA Andrew Stolper admitted yesterday that he leaked Broadcom co-founder Henry Samueli’s Fifth Amendment grand jury invocation to the news media. According to this Orange County Register story by Rachanee Srisavasdi, Stolper called it “the stupidest thing I’ve done in my career.” That’s saying quite a lot, since Judge Cormac Carney has already ruled that Stolper engaged in wholly separate misconduct during the ongoing trial of former Broadcom CFO William Ruehle. Stolper claimed that he did not know such leaks were against DOJ policy when he made them. Actually, the intentional leaking of federal grand jury information by a court reporter, grand juror, or prosecutor is a crime.
According to Srisavasdi’s piece, Judge Carney also “dismissed” Samueli’s prior guilty plea. Samueli had pled guilty to a violation of 18 U.S.C. Section 1001 for lying to the SEC. It is unclear from the story whether Judge Carney dismissed Samueli’s felony information or simply allowed him to withdraw his guilty plea. [Update: Judge Carney threw out the guilty plea and the felony conviction. See Samueli Dismissal.] Nothing relating to this has been posted on PACER, which is not surprising given the overall efficiency of the U.S. District Clerk’s Office in the Central District.
Stolper’s misconduct in the Ruehle case involved his phone call to lawyers for former Broadcom general counsel David Dull, right after Judge Carney granted Dull derivative use immunity so that Dull could testify as a defense witness for Ruehle. Stolper, who was no doubt unhappy with the the Court’s ruling, told Dull’s lawyers that if Dull testified consistent with his prior SEC testimony, Dull could face perjury charges.
Two Srisavasdi stories from Monday and Tuesday of this week, here and here, detail Stolper’s earlier misconduct, Judge Carney’s reaction to it, and Samueli’s testimony in Ruehle’s trial. Judge Carney has set a hearing for Tuesday at 9:00 to consider Ruehle’s Motion to Dismiss the case for prosecutorial misconduct.
Meanwhile, who the hell is minding the store here? We are talking about one of the premier U.S. Attorney Offices in the country. How could somebody like Stolper be put in a position of prominence in an investigation of this magnitude?
Ian Urbina of the NYTimes has this excellent and sobering story on a recent District of Columbia internal investigation concerning the DC Police Department’s mass illegal arrests of protesters and innocent bystanders during the 2002 IMF/World Bank Meetings. The investigation, into missing records, was conducted by former federal judge Stanley Sporkin. Sporkin’s investigative report calls for further inquiry and suggests that pertinent documents were intentionally destroyed by city officials. The Times story also discusses the city’s problems litigating the case in front of U.S. District Judge Emmet G. Sullivan, who threatened the DC AG’s Office with sanctions before the case was settled. Particularly disturbing is this passage from Urbina’s article:
“In November, the city agreed to pay $450,000 to eight war protesters to settle a civil lawsuit in which they accused F.B.I. agents of detaining them in a Washington parking garage and interrogating them on videotape about their political and religious beliefs.
For years, the city police and the F.B.I. said that the interrogation had never happened and that they had no records of such an incident. The police also said no F.B.I. agents had been present when officers arrested the protesters for trespassing.
But as lawyers for the protesters were preparing for the trial, which was scheduled to begin in federal court Nov. 30, they unearthed police logs that confirmed the role of a secret F.B.I. intelligence unit in the incident.” (Emphasis added).
There they go again. This is unfortunately part of a longstanding pattern by elements within FBI headquarters of stonewalling and/or making misleading statements concerning the existence vel non of records sought by citizens and litigants.
I’ve said it before and I’ll say it again, the FBI street agent is, generally speaking, the crown jewel of federal law enforcement. He/she is often ill-served, however, by certain rogue elements within headquarters leadership.
The illegal mass arrests occurred on former Police Chief Charles H. Ramsey’s watch.
Amazing things have been happening in the stock option backdating criminal trial of former Broadcom CFO William Ruehle. First, U.S. District Judge Cormac Carney did something that federal judges almost never do. He granted immunity to two witnesses who the defense wanted to call, but who had declined to testify on Fifth Amendment grounds. The government had designated the witnesses as co-conspirators, so their reluctance to testify was understandable. The government plays this game all the time; telling potential defense witnesses that they are targets, which effectively terrorizes them into silence. Well, Judge Carney decided not to put up with it and granted “limited immunity” to former Broadcom General Counsel David Dull and Broadcom co-founder Henry Samueli. Presumably this “limited immunity” was derivative-use immunity which in fact is quite broad.
After Carney issued the immunity ruling, Assistant U.S. Attorney Andrew Stolper called Dull’s attorney and told him that if Dull repeated the essentials of his prior SEC testimony on the witness stand, Dull could face perjury charges. Judge Carney rightfully found this to be prosecutorial misconduct and so informed the jury. The government, aware of its massive screw-up, agreed to give Dull ”full immunity” (presumably transactional) in order to avoid outright dismissal of the case. Dull testified last week and Stolper was prevented from cross-examining him. (Another AUSA took over that task.) All in all, a very bad week for the government. Stolper’s threat is the kind of conduct that has long been condemned by federal courts. For some AUSAs Brady refresher courses may not be enough. The Orange County Register has the story here.
Roger Aronoff of Accuracy in Media has an entirely different take on the Salahi gate-crashing affair. Here is his November 30 column exploring the issue.
Here is Main Justice’s take on yesterday’s announcement by Deputy Attorney General David Ogden that he is resigning effective February 5. Apparently Ogden and Attorney General Holder never meshed. The Washington Post separately reported that if a permanent replacement is not found by February, Gary Grindler, a Deputy Assistant AG in the Criminal Divison, will fill the DAG position in an acting capacity. That seems a little weird, since Grindler currently reports to Assistant AG Lanny Breuer, head of the Criminal Division, but would become Breuer’s boss as acting DAG.
Carrie Johnson of the Washington Post reports here that Washington criminal defense attorney Hank Schuelke, hired by U.S. District Judge Emmet Sullivan to investigate possible obstruction of justice by the DOJ in the Ted Stevens case, is set to interview the six DOJ attorneys at the center of the scandal. Schuelke is purportedly near the end of his work and has already sifted through thousands of documents.
I was struck by the last two paragraphs, and particularly the last sentence, of Johnson’s story:
“In naming a special prosecutor, U.S. District Judge Emmet G. Sullivan identified six people to be scrutinized — members of the prosecution team and the chief of the public integrity unit. Other leaders at the department’s criminal division weighed in on the case from time to time, especially after the judge began to complain in the course of last year’s trial about evidentiary problems, according to sources familiar with the investigation.
New officials at the Justice Department this year sifted through files and provided documents and e-mail about the case to Schuelke and the subjects of his investigation. But the criteria they used for sharing electronic messages may not have captured all the communications involving people in the criminal division or other areas of the department’s front office about the Stevens case, the sources said. Officials turned over only e-mail in which at least two of the six Stevens prosecutors were included as addressees, they said.”
Such a limitation on the DOJ’s disclosure of documents to Schuelke is quite remarkable and alarming. If Schuelke knew about it, he certainly should not have put up with it. The DOJ pledged full co-operation with Judge Sullivan’s probe. If DOJ higher-ups, past or present, had a hand in any of the conduct causing Judge Sullivan to hold the six Stevens-connected prosecutors in contempt, the truth must come out.
The Washington Post reports here that the Salahis have (wisely) decided not to testify in front of the House Committee on Homeland Security. They have also lawyered up with Dewey & LeBoef, since, among other things, their original lawyer (Paul W. Gardner) has become a witness. This new-found silence is probably too little too late, given the couple’s two-day interview with the Secret Service. Meanwhile, the Post reports here that the Washington Redskins Cheerleaders Alumni Association is livid, because Michaele Salahi performed with the group at a September 20 halftime show. Turns out that Michaele never was an actual Redskins Cheerleader. She lied her way onto the alumni group’s membership list. Even worse, ”she was too tall and couldn’t dance.” And, this just in, the Post reports here that the State of Virginia is now investigating the fundraising activities of America’s Polo Cup, a Salahi-run business entity that raises funds for the Salahis’ charity, Journey for the Cure. The Post had previously reported that the Salahis left a long line of vendors with unpaid bills related to America’s Polo Cup events. Let’s hope Dewey & LeBoef got its money up front. The White House wants the story to go away. It won’t.
Today’s Washington Post reports here on the dubious history of Tareq and Michaele Salahis’ annual charity polo event and their Journey for the Cure foundation. According to the story, the Salahis stiffed a number of vendors who worked on the event and misrepresented the extent of corporate sponsorship. The Land Rover America’s Polo Cup web site lists some sponsors, including Land Rover, who “say that they are not sponsors for that event.” Plenty of material for any federal law enforcement types intent on ginning up a prosecution.
Here is the latest news from the Washington Post about Michaele and Tareq Salahi, the social-climbing Northern Virginia “power couple” who revealed to the world how easy it is for just about anyone to slip into the White House and gain access to the President during a state dinner.
Initial stories about the Salahis’ caper quoted U.S. Secret Service sources to the effect that a criminal investigation was in the works, but nobody said what criminal law the couple may have violated.
Now some press accounts are trudging out 18 U.S.C. Section 1001, as a possible prosecution vehicle. I have written extensively over the years about Section 1001, the statute that criminalizes lying to government agents. Okay, I’ve actually written one article and revised it several times.
Section 1001 literally covers ”whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States knowingly and willfully–(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”
Whether the Salahis’ conduct on the night of the state dinner fits into one of these subsections obviously depends on the particular circumstances of their case. But the Salahis have apparently made it infinitely easier for the government to prosecute them under Section 1001. The New York Times reports here that the Salahis submitted to interviews, over the course of two days, with Secret Service agents.
Unless they were immunized beforehand, a highly unlikely scenario, submitting themselves to these interviews was a really stupid thing for the Salahis to do. Lying to a government agent during an interview, even if you are not under oath, is a crime under Section 1001, as long as the lie is material. The materiality threshold under the statute is very low. Indeed, most of the abuse that takes place under Section 1001 arises from the prosecution of people who allegedly fibbed during interviews with government law-enforcement agents.
The Salahis were under no obligation to talk to the Secret Service. There was no upside to such an interview. The Secret Service is embarrassed and out for blood. It’s hard for me to believe that the Salahis enjoyed the services and advice of a criminal attorney prior to their Secret Service interview. Of course, sometimes clients do unwise things, against the advice of counsel. The Salahis crave publicity and are doing everything within their power to milk their 15 minutes of fame.
I have long complained about the breadth and misuse of Section 1001. In a government of purportedly limited and enumerated powers, the idea of criminalizing a simple lie to any federal agent who comes knocking at a citizen’s door is appalling.
On the other hand, the Salahis’ conduct on the night of the state dinner, assuming that they were uninvited, is not funny in the least. It sent a terrible signal to the world about Presidential security. Nor should the Salahis be celebrated in any way. The couple actively engaged in a planned and publicized effort to enter the White House complex. If they lied in order to do this, and if their conduct clearly falls within an appropriate criminal statute, they should be prosecuted.