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Judge Cormac Carney: Words To Remember

December 22, 2009 in Broadcom, Dismissed!, Government Overreaching, Mother Justice, Overcriminalization, Prosecutorial Misconduct by Solomon Wisenberg | No comments

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.

Broadcom Dismissal Order

December 19, 2009 in Broadcom, Dismissed!, Government Overreaching, Mother Justice, Overcriminalization, Prosecutorial Misconduct by Solomon Wisenberg | No comments

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.

More On Broadcom Dismissals

December 16, 2009 in Broadcom, Dismissed!, Government Overreaching, Prosecutorial Misconduct, Securities Fraud by Solomon Wisenberg | No comments

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 Carney Throws Out Entire Broadcom Criminal Case

December 15, 2009 in Broadcom, DOJ Issues, DOJ Scandal, Dismissed!, Government Overreaching, Mother Justice, Securities Fraud by Solomon Wisenberg | No comments

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.

Stunning and Unprecedented

December 11, 2009 in Broadcom, DOJ Issues, DOJ Scandal, Dismissed!, Prosecutorial Misconduct, Securities Fraud by Solomon Wisenberg | No comments

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.

“I have looked at the plea agreement. I have listened to your testimony and you didn’t make a false material statement.”

December 10, 2009 in Broadcom, Dismissed!, Prosecutorial Misconduct, Securities Fraud by Solomon Wisenberg | No comments

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.

The Samueli Dismissal

December 10, 2009 in Broadcom, DOJ Scandal, Dismissed!, Prosecutorial Misconduct by Solomon Wisenberg | No comments

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.

More Broadcom Bombshells: AUSA Stolper Admits Improper Leaks; Samueli Guilty Plea Thrown Out

December 10, 2009 in Broadcom, Prosecutorial Misconduct, Securities Fraud by Solomon Wisenberg | No comments

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?

Memo To Holder: Broadcom Trial Shows Need For More Ethics Training

December 7, 2009 in Broadcom, Prosecutorial Misconduct, Securities Fraud by Solomon Wisenberg | No comments

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.