Government Overreaching

Since US District Judge Sim Lake refused to answer last week’s private letter from attorney Lloyd Kelley asking him to recuse himself and gave the letter to the USAO instead (earlier), attorneys for convicted former Dynegy executive Jamie Olis on Tuesday filed a recusal motion in US District Court in Houston.

The Houston Chronicle/AP story notes that Olis is scheduled for release in August 2009. Due to the repeated and obstinate delays by the both the USAO and Lake, we would be surprised if the appeals process is completed by then.

Attorneys for convicted former Dynegy executive Jamie Olis on Friday filed a Response to the government’s answer to his §2255 Motion To Vacate. From the Introduction:

The government’s Answer starts with the cynical assertion that Olis should suffer a procedural default because the United States Attorney’s Office (“USAO”) successfully deceived Olis and his attorneys by concealing its interference with Olis’s lawful access to defense funding. From there, the Answer devolves downward. Contrary to the government’s contentions, the record establishes that (1) the USAO violated Olis’ fundamental rights by interfering with his access to defense funding; (2) the government constructively and impermissibly amended the indictment; (3) the government presented false testimony from Jeffrey Heil, a key government witness; (4) the petit jury included an admittedly biased and unrehabilitated juror; (5) the jury instructions erroneously defined the elements of wire fraud and mail fraud; and (6) Olis received ineffective assistance of counsel.

The response also asks for reconsideration of his motion for discovery in connection with the §2255 motion; US District Judge Sim Lake denied the motion for discovery in March. Also pending is last week’s request by Olis’ attorney Lloyd Kelley that Lake recuse himself.

Convicted former Dynegy executive Jamie Olis’ §2255 Motion to Vacate is pending before US District Judge Sim Lake (earlier). The Houston Chronicle’s Legal Trade blog reports that Olis’ attorney Lloyd Kelley has written Lake a seven-page private letter asking him to recuse himself:

Kelley’s basic argument seems to be that Lake was too close to the late Mike Shelby, who was the local U.S. Attorney when Olis was prosecuted. Shelby suffered greatly with cancer and eventually took his own life. Kelley notes that Lake and Shelby went to the same schools, served in the military and worked at the same law firm (all at different times) and that Lake swore in Shelby. Kelley argues that Shelby’s demise must cloud Lake’s judgment on the Olis case.

Kelley had requested that Lake respond by Friday (Olis’ reply to the government’s response to his motion is due Monday), but Lake on Thursday filed an order giving the letter to the US Attorney’s office and asking for a response within 20 days.

Just hours after the House Judiciary Committee asked the DOJ to release former Alabama Governor Don Siegelman under guard to allow him to testify before Congress in May (Montgomery Advertiser, AP) — a move brought about by the DOJ’s refusal to cooperate with the HJC — the US Court of Appeals for the Eleventh Circuit on Thursday granted Siegelman’s motion for release on bond pending appeal, finding that his appeal raises substantial questions of law or fact. Since this issue had twice before been remanded to district court, the decision can be viewed as a direct repudiation of US District Court Judge Mark Fuller’s actions. Siegelman may be released as early as today (NYT (with link to order), AP). Scott Horton at Harper’s has editorial commentary here. In related news, the 11th Circuit has has given attorneys for Siegelman and HealthSouth founder Richard Scrushy until May 23 to file appellate briefs. Siegelman’s attorney Vince Kilborn estimated oral arguments on the case could be heard in late 2008 (AP).

The US Court of Appeals for the Eleventh Circuit on Thursday granted former Alabama Governor Don Siegelman’s request to be released from prison pending the outcome of his appeal (Birmingham News).

Friday’s Miami Herald reports here that longtime GOP operative Roger Stone alerted the FBI to Eliot Spitzer’s call girl habit last year. In November of 2007, Stone’s Cosa Mesa, CA attorney sent a letter to the FBI declining an interview request but reporting Stone’s admittedly second-hand information about New York’s then-Governor. Stone had learned from Miami Velvet, an acquaintance, that Spitzer once used the services of a high-priced call girl in Miami. Stone, in the letter, reported what he knew and stressed that the information was second hand. Stone’s Florida lawyer released the letter last week in an effort to counter Internet-based conspiracy theories about his purported role in bringing down Spitzer, a long-time nemesis. Hat tip to TalkLeft for alerting us to this story. 

File this one under Department of Ho-Hum. Even if the snoopers revealed passport contents to outsiders, they have only committed misdemeanors. The Washington Post story, here, does suggest, somehwat murkily, that State Department employees and contractors accessing passport files must first represent (by touching a “Yes” button on a computer monitor) that they are authorized to view the contents. Will a zealous prosecutor claim that such a representation by an unauthorized person constitutes a false statement to the government under 18 U.S.C. Section 1001? Your guess is as good as mine. The Post says that the State Department’s OIG will investigate, but may ask for assistance from DOJ.

Kimberly Strassel, in WSJ’s Opinion Journal, analyzes Spitzer’s Media Enablers. WSJ’s Review & Outlook discusses the use and abuse of old statutes in prosecuting current crimes in Of Martin and Mann. The reference is to New York’s Martin Act, which Spitzer used as Attorney General as part of his effort to intimidate Wall Street, and the Mann Act, the old federal prostitution statute, which may be used against Spitzer himself. The Washington Post has the resignation story. One thing is clear as the fog begins to lift in this scandal; for the SDNY U.S. Attorney’s Office to be even contemplating charging Spitzer under the Mann Act is unprecedented and appalling. It is virtually unheard of for a call-girl customer to be prosecuted at the federal level. This would constitute a clear abuse of prosecutorial discretion.

The sad ordeal of former Dynegy executive Jamie Olis is no longer news, but we learn via White Collar Crime Prof Blog that US District Judge Sim Lake on Tuesday denied three pending motions by or on behalf of Olis: Olis’ motion for release on bond pending appeal, Olis’ motion for discovery in connection with his §2255 motion to set aside the conviction, and Professor Robert Weisberg’s motion for leave to file an amicus brief in support of Olis’ motion to set aside the conviction. However, Lake did order the government to respond to Olis’ §2255 motion on or before April 4, 2008, and he set a May 5 deadline for Olis’ reply. Olis Motions Ruling

Today’s Washington Post reports here on Lyglenson Lemorin, one of the “Liberty City Seven.” Indicted in Miami federal court for plotting to blow up the Sears Tower, Lemorin was acquitted. (The jury deadlocked on the other defendants. ) Over two months after the acquittal, Lemorin is still incarcerated, because the government wants to deport him back to Haiti. Lemorin, age 33, is a permanent legal resident who has lived in the U.S. for over 20 years. The government is seeking to deport Lemorin based upon the same charges the jury acquitted him on. Yes, the standard of proof is lower in immigration cases. Yes, the government does this kind of thing all the time. Yes, the government has the right to do it. But that doesn’t make it the right thing to do–particularly here where the evidence against Lemorin was so thin. Come January, certain segments within DOJ are due a major housecleaning.