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Not Guilty! Leonard Lawson and Bill Nighbert Acquitted in Kentucky Federal Court

January 29, 2010 in Dismissed! by Solomon Wisenberg | No comments

Congratulations to businessman Leonard Lawson and former Kentucky Transportation Secretary Bill Nighbert who were acquitted on all charges today by a federal trial jury sitting in the U.S. District Court for the Eastern District of Kentucky. The jury deliberated only about eight hours, after a hard-fought three week trial, before reaching its verdict. The Louisville Courier-Journal has the story here.

The government had charged Lawson and Nighbert with various counts of conspiracy, bribery, and obstruction of justice. Judge Karl Forester knocked out some of the bribery charges after the government rested, but sent the rest of the counts to the jury on Thursday.

Kudos are also in order for the stellar defense team. I admit to being a little biased here. Lawson was represented by my law partners, Larry Mackey and Jason Barclay, and by Guthrie True. Nighbert was represented by Howard Mann and Kent Wicker.

The government’s case rested largely on testimony from James Rummage, who was decimated on cross-examination. The trial and pre-trial proceedings were marked by extensive litigation over alleged Brady violations. Only days before trial, prosecutors produced case agent notes indicating that Rummage had been told by a Lawson emissary to “tell the truth” to government investigators. Judge Forester ruled that this was obvious Brady material which should have been previously turned over.

I will have more to say about the Brady aspects of this case in days to come. Suffice it to say that the investigation was marked by many irregularities. For now it is enough to congratulate Lawson and Nighbert and to wish them a speedy return to normalcy. Their long nightmare is over.

One Columnist’s View Of DC Jury Duty

January 23, 2010 in American Beat, Dismissed! by Solomon Wisenberg | No comments

The Washington Post’s Gene Weingarten has a fascinating column here about his recent experience as an alternate juror in DC Superior Court. Weingarten would have voted to acquit, in a $10 heroin buy-bust, despite his certainty beyond a reasonable doubt that the defendant was guilty. Why? Weingarten was equally certain that the officers who testified for the prosecution lied in a key portion of their testimony. Weingarten figured that he was the only juror or alternate who felt this way, but the jury hung 10-2 in favor of acquittal. The prosecution decided not to re-indict. The defendant was represented by the incomparable Jon W. Norris, who established that the police officers’ testimony about how they identified the defendant could not have been accurate.

Weingarten’s experience as a Superior Court juror was similar to mine. Amazingly, the prosecutor did not move to strike me, despite my status as a criminal defense attorney. The other jurors and I listened to a day and a half of testimony and argument in a gun possession case, and almost immediately voted to acquit, because the lone police officer’s story was simply not credible. I didn’t have to do any arguing. Nobody did. We all walked backed to deliberate, took a vote, and found that it was 12-0 for acquittal.

It Doesn’t End with Stevens, Kuehne, and Broadcom

December 25, 2009 in Dismissed!, Government Overreaching by Solomon Wisenberg | No comments

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.

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.

DOJ Shocker: Holder Moves To Drop All Charges Against Ted Stevens With Prejudice

April 1, 2009 in DOJ Issues, DOJ Scandal, Dismissed!, Prosecutorial Misconduct, Public Corruption by Solomon Wisenberg | No comments

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.

Department Of Justice Dismisses All Charges Against Stockman, Barnaba, And Co-Defendants

January 10, 2009 in Dismissed! by Solomon Wisenberg | No comments

The U.S. Attorney’s Office for the Southern District of New York dismissed all criminal charges yesterday against former OMB Director David Stockman and his co-defendants. Paul Barnaba, one of the co-defendants, is my client. I will post some extended thoughts on this prosecution at a future time. Here for now is David Glovin’s Bloomberg News story and my law firm’s press release. Below is a statement that Adrienne Urrutia Wisenberg and I put out on behalf of Paul Barnaba.

“It is always a victory when justice is served as it was, eventually, in this case. When the headlines fade, and participants move on to their next case, Paul Barnaba will be left to pick up the pieces of his life. We are overjoyed for Paul, but we also acknowledge the toll this process has taken on him. Our Constitution is supposed to protect the innocent, and even though the eventual outcome of the case was correct, the public likely has no idea what sort of devastation an accusation like this can cause to an ordinary individual. Paul Barnaba is 39 years old. He was a salaried employee at Collins & Aikman. He had no stock options or ownership interest in the company. The investigation and indictment cost him virtually everything—his peace of mind for years of his life, his profession, and, until today, his faith in a system that is supposed to be built on the presumption of innocence.”