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.

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.

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.

“Sources said that among the questions investigators are pursuing is how closely the work of the Stevens trial team was supervised by officials in the Criminal Division. Senior political and career lawyers there may have offered input and monitored decisions about the kinds of material to turn over to Stevens’s defense team at Williams & Connolly, the sources added.”

Senior political and career lawyers in the Criminal Division were monitoring and offering input on the trial team’s discovery obligations? If true, this is extraordinarily unusual, even for a high-profile corruption case, absent a specific complaint or request by the defense team. And if these senior officials really were micro-managing the trial team’s Brady productions, they seem to have screwed up in spectacular fashion.

The Anchorage Daily News story is here. DOJ’s press release announcing the move is here. The Government’s Motion in Kott’s case is here.

Attorney General Eric Holder stated as follows: “After a careful review of these cases, I have determined that it appears that the Department did not provide information that should have been disclosed to the defense….Department of Justice prosecutors work hard every day and perform a great service for the American people. But the Department’s mission is to do justice, not just win cases, and when we make mistakes, it is our duty to admit and correct those mistakes. We are committed to
doing that.”

Assistant AG Lanny Breuer added: “The Criminal Division must ensure that defendants receive all appropriate discovery materials, and today’s action demonstrates that commitment to this responsibility….We will continue regular discovery training for all Criminal Division prosecutors to make certain that they perform their duties in adherence to the highest ethical standards. Every day, hundreds of career prosecutors work to uphold this Division’s proud tradition of being vigilant, ethical and stellar in the
execution of their work. This action is faithful to that tradition.”

Kudos are in order for Holder and Breuer. Their statements strike just the right balance. The overwhelming majority of DOJ prosecutors perform their work in an entirely ethical manner. The production of exculpatory material to defense counsel remains the chief area in which some fall short of the mark. Of course, the jury is still out on who fell short and why in the Stevens and other Alaska prosecutions.

Kohring is an arch-conservative Republican. According to his attorney, DOJ’s action “is enough to make Vic Kohring become a Democrat.”

Reminds me of the old joke: A conservative is a liberal who got mugged. A liberal is a conservative who got arrested.