That is what Joe Palazollo says here at Main Justice. Court-appointed special prosecutor Hank Schuelke has apparently completed interviewing all relevant players. According to Palazollo, Schuelke has been sharing information with DOJ’s OPR, which is conducting its own separate investigation into the allegations of prosecutorial misconduct. There is no question that serious Brady violations occurred. The issue for the investigators is whether it was intentional or inadvertent.
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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.
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?
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.
Yesterday the Ninth Circuit reversed former Brocade CEO Gregory Reyes’ securities fraud convictions, related to stock option backdating, due to prosecutorial misconduct. Here is the opinion, which I have not had time to read in full and analyze. More to come.
We have been away for a few days, and apologize to our millions of readers worldwide who have expressed concern. Okay–so there were only ten of you, and nine of those wanted to sell me something. It is still nice to know that we were missed.
Today’s Washington Post has a piece here by Del Quentin Wilber on Senator Stevens’ rejection of a no-jail plea deal and his strategy of demanding a speedy trial.
Sunday’s Post had this very good story by Carrie Johnson on some of the things that went wrong, including the short time between indictment and trial and the last-minute cobbling together of the final trial team.
Hey, talk to the prosecutors and defense attorneys in the Eastern District of Virginia about going to trial 60 days after indictment. It happens a lot over the river.
And here in the Sunday New York Times, Neil Lewis opines that Ted Stevens is not really innocent, even with Judge Sullivan’s setting aside of the verdict and dismissal of the charges with prejudice, because the trial showed the former Senator to be less than candid about his reporting of gifts. Dana Milbank said something similar last week in this Washington Sketch.
I think these guys miss the point. Plenty of public figures and public servants are exposed all the time as having alleged ethical or moral blind spots. But most of them don’t get indicted and tried in federal court. Indictment for a federal crime is really a defining life event–a whole different ball game. So the trial’s revelation that Stevens is less than perfect is irrelevant to me.
So much for my theory that Judge Sullivan might wait to rule on the Motion Of The United States To Set Aside The Verdict And Dismiss The Indictment With Prejudice in order to “better exert the Court’s own disciplinary authority.” What was I thinking? He is a federal judge. He don’t need no stinking pending indictment! He can exert control irrespective of whether the jury verdict stands or an indictment is pending. In fact, he has appointed veteran DC criminal attorney Hank Schuelke to investigate the conduct of six Stevens prosecution team members on behalf of the Court. According to the Washington Post story here Judge Sullivan publicly criticized DOJ’s Office of Professional Responsibility at yesterday’s hearing for its silence to date with respect to its investigation of the Stevens prosecution.
Law.com here carries a Legal Times piece by Mike Scarcella and Joe Palazollo on the series of errors that dogged the Stevens prosecution team. According to the story, Public Integrity’s Deputy Chief Brenda Morris wasn’t assigned to the case until days before the indictment. Though the article fails to mention it, this presumably means that Morris did not participate in the April 15, 2008, interview with Bill Allen and may not have ever known about it.
Most commentators are assuming that Judge Sullivan will quickly grant the Government’s Motion to Set Aside and Dismiss, but Sullivan could wait awhile in order to fully satisfy himself concerning the Government’s conduct in the case and to better exert the Court’s own disciplinary authority. It may be harder for him to do this as a practical matter if he immediately grants the Motion to Set Aside and Dismiss.
The most interesting thing to me about the MOTION OF THE UNITED STATES TO SET ASIDE THE VERDICT AND DISMISS THE INDICTMENT WITH PREJUDICE (”Motion to Set Aside”) in U.S. v. Theodore F. Stevens is the revelation that no FBI-302 was ever prepared of star Government witness Bill Allen’s April 15, 2008 interview. This was a pre-indictment interview attended by four Government attorneys and one FBI agent. Not to prepare a 302 “Memorandum of Interview” of this session was a clear departure from standard FBI practice. (Two of the prosecutors took notes, however, which is presumably how the review team learned about the April 15 interview.) In fact, post-indictment interviews of witnesses and potential witnesses should also generate 302s, the only exception being testimony preparation sessions. (But even exculpatory statements made in pre-trial testimony prep sessions must be reported to the defense by the prosecution, whether or not notes of the session are produced.)
It is hard for me to believe than an agent would have taken it on himself or herself not to prepare a 302 of the April 15 interview. The OPR investigation may ultimately provide the answer, but my guess is that the lone agent in attendance was ordered by somebody not to prepare a 302. The Stevens defense team had produced the October 6, 2002 “Torricelli Letter” to the Government in early 2008, prior to the April 15 interview. That letter, in which Senator Stevens specifically asked Allen to bill him for construction work, was obviously a potential problem for the Government. By the time of trial Allen recalled a conversation with Stevens’ friend Bob Persons in which Persons told Allen not to worry about the Torricelli Letter because “Ted is just covering his ass.” But Allen recalled no conversation, with Persons or anyone else, about the letter during the April 15 interview. Allen first told the prosecutors about the “covering his ass” conversation with Persons shortly before trial in a testimony prep session. As soon as they heard the story and anticipated using it at trial, prosecutors were duty bound to reveal the contradictory content of the April 15, 2008 interview to the defense team. But the original prosecution team never revealed the existence of the April 15 interview to the Court or to Stevens’ attorneys.
Did the original prosecutors forget about the April 15 interview during pre-trial, trial, and immediate post-trial? I suppose it is possible. We will await the OPR report to find out. The interview was in April 2008. Stevens was indicted in July 2008 and went to trial in late September 2008. By demanding an immediate trial, which was his right, Stevens forced the Government to get ready for trial in a hurry. Of course, it is easier to forget about an exculpatory interview when no 302 is prepared in the first place.
The prosecution team also prepared the GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL, filed in January 2009. In that Opposition, in discussing Allen’s testimony about the Torricelli Letter, the Government stated:
“In claiming that Allen’s testimony was false, defendant relies first on the fact that Persons’s comment was not recorded in the government’s memoranda of its interviews with Allen. This fact proves nothing, however, because the government was not even aware of the October 6, 2002 note until defendant produced it in early 2008, long after most of the memoranda were prepared. Moreover, it was not until shortly before trial that the government questioned Allen about defendant’s statement that he had asked Persons to speak to Allen about a bill, and thereby learned about Persons’s remark. Allen’s recollection on this point was not recorded in an FBI 302 because it was disclosed during a trial preparation session.” (Emphasis added).
In its recent Motion to Set Aside, the Government rightfully informed Judge Sullivan that this statement was inaccurate in light of the review team’s recent discovery of the April 15, 2008 interview.
The defense team correctly noted that many judges routinely accept the Government’s boilerplate pronouncement that all Brady material has been provided to the defense. Judge Sullivan, to his credit, did not do so here. The defense also admirably commended the new review team and AG Holder and stressed that some prosecutors who came to the case late may not have known about all of the Brady problems.
We are left for now with the sobering comments of the Stevens’ defense team:
“[I]t is crucial that this matter be fully investigated to determine the complete facts and assess responsibility.”
Here, courtesy of the Washington Post, is the statement issued today by Williams & Connolly’s Brendan V. Sullivan, Jr. and Robert M. Cary, Senator Stevens’ attorneys. The statement excoriates the original prosecution team and praises the new DOJ review team, Judge Sullivan, and AG Holder. Here is the Motion of the United States to Set Aside the Verdict and Dismiss the Indictment With Prejudice.
Taken together these documents reveal that the results of an April 15, 2008 government interview with star witness Bill Allen were improperly withheld from the defense. The Motion states that two prosecutors took notes of the interview. The defense statement reveals that four prosecutors and one agent were present for the interview. The government’s opposition to Stevens’ new trial motion was also inaccurate, according to the government’s Motion to Set Aside.
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.
The full text of Judge Emmet Sullivan’s Friday, November 28, order in the Ted Stevens case reads as follows:
“MINUTE ORDER as to THEODORE F. STEVENS. The Court, sua sponte, cancels the hearing scheduled for December 1, 2008. The government is directed to file a response to the defendant’s Motion to Access Government Filing and for Consideration of Additional Remedies by no later than December 15, 2008. The government shall also address any reasons why the Court should not strike the government’s ex parte pleading for failure to comply with Local Criminal Rule 49.1(h). The Court notes it has reminded the government of LCrR 49.1(h) in the past with respect to sealed filings in this case. See, e.g., MINUTE ORDER dated September 4, 2008. The defendant’s reply shall be filed December 29, 2008. A hearing is scheduled on the pending motions for January 15, 2009 at 2:00 pm in Courtroom 24A. Signed by Judge Emmet G. Sullivan on November 28, 2008.”
How did we get here? To recap, on November 15, government witness David Anderson sent a post-verdict letter to the Court alleging that some of his trial testimony was false and that the government knew it was false. (The government had been forced to call Anderson to the stand after Judge Sullivan struck Anderson’s time sheets from the record based on the government’s failure to disclose exculpatory information to the defense concerning Anderson’s work history.) Anderson’s letter apparently arrived at the Court on November 20. Judge Sullivan entered Anderson’s letter into the record on November 21. Later that day, the defense filed a motion for discovery and an evidentiary hearing regarding Anderson’s allegations.
Even later that day, the government filed an initial response, promising to respond more fully by November 24. November 24 came and went, seemingly without a government filing. But that’s because the government made its filing on that date ex parte. On November 25, the Court set a “brief hearing” on the defense’s motion, for Monday, Decmber 1 at 10:30. On November 26, the Court issued a new order changing the hearing to a staus conference.
Also on the 26th, the defense filed a motion for access to the government’s allegedly unauthorized November 24 ex parte filing, and for additional remedies, contending that: “The government’s unilateral ex parte communication with the Court is a clear violation of the rules. The ex parte filing should be rejected; its contents should be disclosed to defense counsel; and the Court should consider whether other remedies are appropriate.” The defense maintained that the government should have informed the defense of its intent to file an ex parte motion ahead of time, so that the defense could have litigated the issue with the Court. It looks from the wording of yesterday’s order as if the Court is inclined to agree with the defense. The Anchorage Daily News has a story about the latest developments here.
According to an ADN.com story here, the government did make its promised Monday filing, responding to allegations of subornation of perjury, in the Ted Stevens case. It’s just that the filing was ex parte, allegedly to protect a separate ongoing investigation. To nobody’s surprise, Stevens’ lawyers are upset about the manner in which the government made the ex parte filing and notified, or failed to notify, the Stevens camp.
US District Judge Emmet Sullivan on Wednesday scheduled a hearing for next Monday to consider a request by attorneys for Sen. Ted Stevens to question prosecution witness Dave Anderson about the letter he sent to the court and lawyers for both sides (earlier here and here). Anderson, a former VECO employee and nephew of former VECO CEO Bill Allen, is is seking to “clarify” his testimony at trial that he had not been offered immunity in exchange for his testimony against Stevens (WaPo).
In its preliminary response last Friday to Senator Stevens’s Motion For Discovery And An Evidentiary Hearing Regarding Allegations In Letter From David Anderson, the government noted its intent “to provide a more detailed submission to the Court on Monday.” The government also claimed to have “obtained substantial additional evidence…that prove [sic] the falsity of Mr. Anderson’s allegations and that further explicitly prove [sic] Mr. Anderson’s collusion with an interested party in the preparation and transmission of Mr. Anderson’s letter.” The government then stated that it would “describe and submit that additional information to the Court in a subsequent filing on Monday.” Well, Monday has come and gone, and the PACER docket sheet indicates no new filings, under seal or otherwise, by the government. Anderson’s letter claimed, among other things, that his trial testimony denying government-offerred immunity to him and his family members was untrue and obtained under duress.
TIME reported on Friday that it has obtained internal documents showing that USA Leura Canary continued to direct the prosecution of former Alabama Governor Don Siegelman long after she formally recused herself. Canary’s husband Bill is a close political ally of Alabama Governor Bob Riley, who defeated Siegelman in 2002 and easily won reelection against him in 2006 after he was convicted in mid-campaign. The documents are among those provided by whistleblower Tami Grimes, who was prominently featured in 60 Minutes’ feature on the Siegelman case. Grimes also provided evidence of contact between a juror and a member of the prosecution team.
The US Court of Appeals for the Eleventh Circuit will hear oral arguments December 9 in the appeal of Siegelman and co-defendant Richard Scrushy. The DOJ and the House Judiciary Committee continue to investigate. The Press-Register has more.
US District Judge Sean McLaughlin held a status conference on Friday afternoon in the pending retrial of former Allegheny County Coroner Cyril Wecht on public corruption charges. McLaughlin was named to handle the case only a week earlier. AUSA James Wilson told McLaughlin that the government plans to file for a change of venue, claiming bias due to media coverage will make it impossible to select jurors. That’s right — the government wants a change of venue. Considering the conduct of US District Judge Arthur Schwab and former lead prosecutor Stephen Stallings, it’s easy to see why they’re worried. AUSA Leo Dillon told McLaughlin that a new indictment will be filed which will see 27 counts dropped, reducing the number of counts to 14. The original indictment of January 2006 included 84 counts.
McLaughlin set this Friday as the deadline for filing a new indictment and November 21 as the deadline for the defense to file new dismissal and suppresion motions and for prosecutors to file a change of venue motion, but he declined to set a new trial date: “I just don’t think it makes sense right now to throw a dart out there to try to hit a date that isn’t likely to stick anyway.” Perhaps he sees the tenure of USA Mary Beth Buchanan coming to a merciful end soon into the coming administration (Pittsburgh Post-Gazette, Tribune-Review).
CQ Politics reports here on Judge Sullivan’s decision late this afternoon to deny a defense motion for mistrial, despite the government’s delayed production of exculpatory evidence. The judge ordered the government to turn over all rough FBI interview notes and told the parties to be back in court on October 6 for further discussion.
Former VECO CEO Bill Allen continued his testimony Wednesday in the public corruption trial of Sen. Ted Stevens, focusing on the renovations to Stevens’ Alaska home and confirming that VECO paid for the materials and labor. He also described a number of instances in which Stevens had helped VECO’s business.
Allen read a note Stevens had sent him in 2002 thanking him for the work on his house. It stated, in part: “You owe me a bill… Friendship is one thing, compliance with the ethics rules entirely different.” However, Allen said that Bob Persons, a neighbor who had helped oversee the project, later told him that the note was a ruse: “Don’t worry about getting a bill, Ted’s just covering his ass.” Allen’s testimony continues Thursday.
The US Court of Appeals for the Third Circuit on Tuesday denied a motion by attorneys for former Allegheny County Coroner Cyril Wecht requesting a 90 day stay of its order remanding the case to US District Court for possible retrial. Wecht’s attorneys sought the delay to prevent a retrial from starting while they try to get the Supreme Court to consider taking the case, which Wecht is appealing on double jeopardy grounds. In denying the motion as unnecessary, the court said that a retrial wouldn’t prevent Wecht from appealing (Pittsburgh Post-Gazette).
Attorneys for former Allegheny County Coroner Cyril Wecht said Thursday they plan to ask the US Supreme Court to review the recent Third Circuit ruling that a retrial of Wecht was not constitutionally barred. Wecht wants the charges dismissed on double jeopardy grounds (earlier). Wecht’s attorneys filed a motion with the Third Circuit requesting a 90 day delay in sending the case back to US District Court while they try to get the Supreme Court to consider taking the case (Pittsburgh Tribune-Review).
Here’s another strange development in the case of former Allegheny County Coroner Cyril Wecht: in the wake of the Third Circuit’s ruling that a retrial was not barred and its removal of US District Judge Arthur Schwab (earlier), it has been revealed that former Third Circuit Judge Timothy Lewis has been working with both sides to to avoid a retrial. In a statement released on Friday, USA Mary Beth Buchanan said she was approached by Lewis several months ago and agreed to participate, but threatened to retry Wecht if the talks fail. However, comments by Wecht attorney Jerry McDevitt indicate it’s a new effort following the Third Circuit’s ruling. McDevitt criticized Buchanan for discussing the matter, saying it violated an agreement not to go public. He added: “Threats of a willingness to proceed to trial are counterproductive to that effort, and a needless reminder of the power of the United States Attorney to do as she pleases.” (Pittsburgh Post-Gazette)
A three judge panel of the US Court of Appeals for the Third Circuit on Friday ruled (.pdf) that US District Judge Arthur Schwab erred in the procedures he used when he declared a mistrial on April 8 in the public corruption trial of former Allegheny County Coroner Cyril Wecht, but said that he was correct to conclude that there was “manifest necessity” to declare a mistrial without Wecht’s consent. As a result, the Court ruled that there was no constitutional bar to retrying Wecht. However, the Court remanded the case to the Chief Judge of the District Court to reassign the case to a different judge. USA Mary Beth Buchanan declined to say if she intended to retry the case (Pittsburgh Post-Gazette, Trib).
Chief Judge Dennis Jacobs, writing for a unanimous three-judge panel of the US Court of Appeals for the Second Circuit, today affirmed (.pdf) US District Judge Lewis Kaplan’s July 2007 dismissal of the indictments of 13 out of an original 19 defendants in US v. Stein et al. The case was was once the largest criminal tax shelter prosecution in US history. Kaplan had ruled that the defendants were deprived of their Sixth Amendment right to counsel as a result of KPMG’s decision to stop paying the defendants’ legal costs (despite contractual obligations to pay) after the government threatened to indict the firm. In affirming the dismisal, the appellate court ruled that no other remedy would return the defendants to the status quo.
As expected (earlier), Emperors Club VIP booking agent Tanya Hollander on Monday pleaded guilty before US District Judge Deborah Batts in Manhattan to one count of conspiracy to commit prostitution offenses. Hollander is the fourth and final defendant connected with the club to plead guilty in the prostitution ring case that ensnared former New York Governor Eliot Spitzer. She will be sentenced on November 25 and faces an estimated six to 10 months in prison under federal sentencing guidelines (Reuters, DOJ).
US District Judge Arthur Schwab has twice been ordered by the US Court of Appeals for the Third Circuit to release the names of jurors in the trial of former Allegheny County Coroner Cyril Wecht (earlier). Yesterday, instead of just releasing the names as ordered, he announced that he will release the names next Monday, after the jurors and alternates have been notified. That’s right: even though it was public knowledge in advance of the trial that he had been ordered to make the jurors’ names public, and even though he has to release the names even if a juror were now to object, he insists on informing them first and delaying another week (Pittsburgh Tribune-Review).
It may be months before the three-judge panel of the Third Circuit rules in the appeal of former Allegheny County Coroner Cyril Wecht, but if reports on Monday’s oral arguments are any indication, the outlook for Wecht is good. Jason Cato’s Pittsburgh Tribune-Review article quotes Senior Judge Franklin Van Antwerpen, who attended via conference call:
This isn’t the fault of the jury. This is the fault of the judge. For all we know, that jury could have been ready to acquit Wecht on all but one count that day. But we’ll never know.
He was referring to the failure of US District Judge Arthur Schwab to poll the jury before declaring a mistrial. He had done so five days earlier, but Wecht’s attorneys argued that they might have sought a partial verdict if the jury had been polled again. Schwab refused to let Wecht’s attorneys interrupt him as he declared a mistrial. Judges D. Brooks Smith and D. Michael Fisher also said that Schwab erred.
A three judge panel of the US Court of Appeals for the Third Circuit on Friday again overruled US District Judge Arthur Schwab in his machinations to keep the names of jurors secret in the public corruption trial of former Allegheny County Coroner Cyril Wecht. In January, ruling on an appeal by Wecht and news organizations, the Court ordered Schwab make the jurors’ names public before they were sworn in, but Schwab only allowed the seated jurors’ names to be read aloud once in court and later released a list of all prospective jurors without specifying which had been chosen.
In Friday’s ruling, the Court stated that juror identification is a “well-established part of American judicial tradition” and called Schwab’s reasons for disallowing it “conclusory and generic,” saying that his reasoning “would justify anonymity in virtually every jury trial, whether or not it attracts media attention.”
Wecht’s retrial is on hold pending appeal, and the same three judge panel will hear oral arguments today in that appeal. The primary issue is the defense motion for dismissal on grounds that a retrial would violate Wecht’s constitutional protection against double jeopardy (Pittsburgh Post-Gazette).
In an interview published on Thursday by WHNT in Huntsville, former Alabama Governor Don Siegelman attacked Karl Rove for his defiance of the House Judiciary Committee’s subpoena ordering him to appear and accused Rove of weaseling in his written response to the committee: “Even his written non-answers were not under oath and clearly evasive.” Siegelman also announced the launch of a petition drive located on his website urging Congress to find Rove in contempt.
At a House Judiciary Committee hearing on Wednesday, AG Michael Mukasey said that results of the OPR probe into the prosecution of former Alabama governor Don Siegelman will be released to Congress, and depending on the results, may be released to the general public (Huntsville Times/AP).
During the hearing it was revealed that purported emails between jurors during the trial were determined to be false but that US District Judge Mark Fuller failed to notify defense attorneys (Birmingham News).
Karl Rove on Wednesday responded in writing to questions posed by HJC Republicans, denying that he had anything to do with the Siegelman prosecution, either directly or indirectly (NY Times, LA Times).
Alex Latifi, the Iranian-born US citizen whose Huntsville, Alabama defense contracting firm Axion Corporation was essentially destroyed because of an incompetent and possibly malicious prosecution by USA Alice Martin, has filed a formal complaint with the OPR alleging misconduct by Martin. Latifi and Axion were awarded legal fees and other costs in an April ruling by US District Judge Inge Johnson. Latifi’s attorney Henry Frohsin said the DOJ has told him that the investigation has begun (Birmingham News).
Being Mary Beth Buchanan’s sock puppet must be tiring. Stephen Stallings, the lead prosecutor in the severely misguided public corruption case against former Allegheny County Coroner Cyril Wecht, has left the Western District of Pennsylvania to go into private practice. He says it’s not about his failure to convict Wecht (Pittsburgh Tribune-Review).
Former Allegheny County Coroner Cyril Wecht and five jurors who voted to acquit him got together on June 27 for a tailgate party and Pittsburgh Pirates baseball game, the Pittsburgh Tribune-Review reported on Saturday. These were the same jurors who spoke out after the mistrial was declared, despite US District Judge Arthur Schwab’s clumsy attempt to silence them. The jurors’ families and members of Wecht’s defense team also attended. Good publicity for Wecht = negative publicity for sore losers Schwab and USA Mary Beth Buchanan. Wecht is asking the Third Circuit to dismiss all charges; oral arguments are scheduled for July 25.
A subpoena issued last Friday by the House Judiciary Committee to AG Michael Mukasey for a number of previously requested documents includes a demand for “complete and unredacted versions” of all documents relating to the prosecutions of former Allegheny County Coroner Cyril Wecht and former Alabama Governor Don Siegelman. See paragraphs 13-21 of the subpoena. The deadline is July 7; don’t hold your breath.
In a decision filed on Tuesday and released on Wednesday, the US Court of Appeals for the Eleventh Circuit for the third time denied former HealthSouth CEO Richard Scrushy’s motion for bail pending appeal. Scrushy had asked for reconsideration because the court in March granted his co-defendant, former Alabama Governor Don Siegelman, release on bond pending appeal (earlier). However, the court ruled that Scrushy still “had not met his initial burden…of demonstrating by clear and convincing evidence that he is unlikely to flee if he is released pending resolution of this appeal.” The court made it clear that this is a separate issue from whether his appeal has a substantial chance of success (AP).
In a letter sent on Monday to Karl Rove’s attorney, US Rep. John Conyers (D-Mich.) made it clear that Rove’s anticipated July 10 testimony before the House Judiciary Committee cannot be limited to questions about the prosecution of former Alabama Governor Don Siegelman. Conyers’ letter states that “the Siegelman matter, other selective prosecution matters, and the U.S. Attorney firings are clearly related as part of the concerns regarding politicization of the Justice Department under this Administration that the Committee has been investigating.” The letter was also signed by Rep. Linda Sanchez (D-Calif.), chair of the administrative law subcommittee (h/t White Collar Crime Prof Blog).
The heat from the OPR and congressional investigations into the Siegelman/Scrushy case may be having some effect. The
puppets prosecutors who were appealing the 88 month prison sentence for former Alabama Governor Don Siegelman and the 82 month sentence for former HealthSouth CEO Richard Scrushy as too lenient have suddenly decided to drop their cross-appeal. The motion filed with the Eleventh Circuit earlier this week gives no expanation, simply saying “the government has elected not to proceed with its cross-appeal as to either defendant.” Unfortunately, they will still be opposing the defendants’ appeals (AP). Scott Horton at Harper’s has an overview of recent events in the case here.
In all the much-needed publicity surrounding the politically motivated prosecution of former Alabama Governor Don Siegelman, little attention has been paid to the other defendant: former HealthSouth CEO Richard Scrushy, whose prosecution in this case can easily be seen as payback for his 2005 acquittal on all counts in his accounting fraud case. Although Siegelman was granted bond in late March pending his appeal, Scrushy remains in prison serving a term of 6 years and 10 months; like Siegelman, he was taken into custody immediately after his sentencing last June.
However, late Monday afternoon attorneys for Scrushy filed an apellate brief with the US Court of Appeals for the Eleventh Circuit in Atlanta, asking the court to reverse his conviction or order a new trial. The appeal covers six claims: the government’s failure to establish a quid pro quo, juror misconduct, failure of US District Judge Mark Fuller to disclose conflict of interest, improper denial of Scrushy’s jury composition challenge, admission of erroneous and prejudicial hearsay from a non-witness and the barring of the bribery counts by the statute of limitations. An AP article has more here.
More positive news for former Alabama Governor Don Siegelman: Fifty-four former state attorneys general, both Democratic and Republican, have filed a brief with the US Court of Appeals for the Eleventh Circuit asking that Siegelman’s conviction be overturned. Following the primary argument in Siegelman’s appellate brief, the new brief states: “Completely absent from the trial record is any evidence that Governor Siegelman and Mr. Scrushy entered into an explicit agreement whereby Mr. Scrushy’s appointment to the CON board was conditioned upon Mr. Scrushy’s making the political contributions in question” (NYT, AP). Another AP article here has a complete list of the signatories.
The US Court of Appeals for the Third Circuit has scheduled oral arguments for July 25 in the appeal of former Allegheny County Coroner Cyril Wecht. The primary issue on appeal is the defense motion for dismissal on grounds that a retrial would violate Wecht’s constitutional protection against double jeopardy (Pittsburgh Post-Gazette).
US District Judge Arthur Schwab last Monday canceled the retrial, which had been scheduled to begin tomorrow, and released about 250 prospective jurors back into the pool for future jury duty (Pittsburgh Tribune-Review). On Friday, to no one’s surprise, Schwab denied defense motions to acquit Wecht, to dismiss all charges and to suppress certain evidence at the second trial (Tribune-Review).
Attorneys for former Alabama Governor Don Siegelman on Thursday asked the US Court of Appeals for the Eleventh Circuit to reverse his conviction and acquit him. Siegelman was ordered released on bond in March (earlier here and here). Siegelman was convicted of bribery and related charges for appointing former HealthSouth CEO Richard Scrushy to the Alabama hospital Certificate Of Need board, allegedly in exchange for Scrushy arranging $500,000 in donations to Siegelman’s campaign to institute a state lottery. The appeal rests heavily on the argument that the trial court fundamentally erred by failing to recognize that proof of a criminal violation requires an explicit quid pro quo linkage between a campaign contribution and official action (AP).
Meanwhile, as the House Judiciary Committee investigates allegations that the prosecution of Siegelman was politically motivated, on Thursday US Rep. John Conyers (D-Mich.) released a May 5 letter from the Office of Professional Responsibility (OPR) of the DOJ confirming that the OPR is currently investigating allegations of selective prosecution of Siegelman as well as the cases of former Allegheny County Coroner Cyril Wecht, former Mississippi Supreme Court Judge Oliver Diaz and attorney Paul Minor, and former Wisconsin state employee Georgia Thompson (Atlanta Journal-Constitution, Bloomberg).
US District Judge Arthur Tarnow last Thursday denied the request of acquitted former federal prosecutor Richard Convertino to order the government to pay his legal fees and to sanction prosecutors for disclosing records Tarnow had ordered sealed. Convertino was indicted in 2006 on conspiracy, obstruction of justice and perjury counts in connection with his alleged presentation of false evidence and concealment of exculpatory evidence in the prosecution of two Detroit men accused of being terrorists. The men were convicted but the verdicts were thrown out by government request after the USAO investigated and determined that the terrorism charges were baseless.
After Convertino was acquitted on all counts by a jury last October, he moved in January to have his defense costs reimbursed on grounds that the DOJ’s decision to prosecute him was “vexatious, frivolous or in bad faith.” However, Tarnow ruled that Convertino had failed to meet “the defendant’s heavy burden” to show that the government acted in bad faith by indicting him. He also noted that his order sealing the records applied to the trial, and that the sealed records had been introduced after the trial in response to Convertino’s attorney fee request. The records allegedly showed that Convertino had repeatedly lied about his credentials (ABA Journal, Detroit News).
The US Court of Appeals for the Ninth Circuit has upheld the dismissal of a 64-count indictment against Daniel Chapman and Sean Flanagan, two attorneys charged in 2003 in what was described as a complex securities trading scheme, because the prosecution withheld 650 pages of potentially exculpatory evidence, lied about it, and turned it over only after the indictment had been dismissed. US District Judge James Mahan dismissed all the charges in 2006 and ruled that a retrial would prejudice the defendants. The appellate court also refused to order a retrial. In the decision, Judge Kim Wardlaw called the Nevada USAO’s actions “prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available” (National Law Journal).
US Office of Special Counsel head Scott Bloch, whose office and home were raided on Tuesday by the FBI, ordered his agency’s own task force to stop an investigation it had begun into the prosecution of former Alabama Governor Don Siegelman. The task force was formed at the agency last year to pursue political investigations in Washington, including whether the White House played politics in firing nine US Attorneys and whether the White House improperly sponsored political briefings at federal agencies. The previously undisclosed investigation came to light in a memo (.pdf) written in January by the four task force attorneys and their three senior advsors and obtained last week by the nonprofit Project on Government Oversight. The memo states that in September and into October 2007, the task force worked to obtain publicly available evidence about the allegations, including the sworn statement and testimony before Congress of former Alabama Republican Party operative Jill Simpson, and had created an investigation plan to include information to be requested from the DOJ. But on October 11, Bloch ordered the investigation closed immediately because he did not authorize it. On October 15, “after concerns are expressed that OSC simply cannot close a file without conducting an investigation,” the task force was directed “to not further investigate this case and to wait for further instructions from the Special Counsel.” As of the January 18 memo, the task force was still requesting authorization to continue.
The AP/Birmingham News story quotes Siegelman: “The question is who told them to shut it down. Why would you start an investigation and let it proceed and then shut it down? The logical conclusion is that somebody intervened and told them to shut down the investigation.” The WaPo story here also discusses other investigations covered in the memo.
A three-judge panel of the US Court of Appeals for the Third Circuit on Thursday voted unanimously to stay indefinitely the retrial of former Allegheny County Coroner Cyril Wecht while it considers defense motions in the case. The ruling is a slap in the face of U.S. District Court Judge Arthur Schwab, who presided over Wecht’s trial. The retrial was scheduled to begin on May 27. The principal issue on appeal is the defense motion for dismissal, which contends that Schwab failed to follow proper federal procedures in declaring a mistrial and immediately ordering a retrial, violating Wecht’s constitutional protection against double jeopardy. Among other pending issues are a defense motion to remove Schwab and a local media appeal to force Schwab to follow an earlier Third Circuit order to release juror names (Pittsburgh Tribune-Review, Pittsburgh Post-Gazette).
On April 22, as we noted here, the Pittsburgh Tribune-Review, Pittsburgh Post-Gazette and WPXI-TV asked the US Court of Appeals for the Third Circuit to overturn US District Judge Arthur Schwab’s decision not to release the identities of jurors in the case of of former Allegheny County Coroner Cyril Wecht until after the case is resolved. That appeal was successful, but attorneys for the three media organizations on Monday filed an emergency appeal with the Third Circuit because Schwab allegedly has not followed through with the appellate court order. This would apply to jurors who heard the first trial and to the voir dire for the second trial, still scheduled to begin May 27 (Post-Gazette).
Five jurors from the mistrial of former Allegheny County Coroner Cyril Wecht held a news conference on Monday to speak about the trial and its aftermath (WTAE-TV raw video here). The bottom line: they believe the prosecution was politically motivated; they were disturbed by the actions of lead FBI investigator Brad Orsini; they felt demeaned when prosecutors immediately requested and Judge Schwab granted a retrial without even polling them and before they were even dismissed; they were treated well during the trial by Judge Schwab but felt he was biased against the defense; and they are opposed to a retrial (WTAE-TV text), Pittsburgh Post-Gazette).
On Tuesday Judge Schwab denied the defense’s motion for dismissal on double jeopardy grounds and refused to delay the retrial, which is scheduled for May 27 (Post-Gazette). Wecht’s attorneys immediately appealed that ruling to the US Court of Appeals for the Third Circuit and filed another motion asking Schwab to delay the retrial until the Third Circuit rules (Philly Inquirer).
The latest developments in the bizarre aftermath of the mistrial of of former Allegheny County Coroner Cyril Wecht:
- A defense motion for dismissal alleges that the FBI falsified the proabable cause affidavit that led to the search of Wecht’s office in 2005, then deliberately hid the information from the defense (Pittsburgh Tribune-Review).
- The juror who was excused from deliberations has stated that he never asked to be excused, contrary to what the trial record states (WTAE-TV).
- The Tribune-Review, Pittsburgh Post-Gazette and WPXI-TV have asked US Court of Appeals for the Third Circuit to overturn US District Judge Arthur Schwab’s decision not to release the identities of jurors until after the case is resolved; that ruling applies to jurors who heard the first trial and those yet to be seated for the second trial, scheduled to begin May 27 (Tribune-Review).
In yet another bizarre move, AUSA Stephen Stallings suggested in a court filing on Tuesday that the government may seek to empanel a jury of outsiders in the retrial of former Allegheny County Coroner Cyril Wecht. It was not a formal request, but Stallings said the government would accept a trial delay “if such a continuance were to become necessary to empanel a jury untainted by defendant’s unethical media campaign.” That’s right, the prosecution is complaining about prejudicial coverage (Pittsburgh Post-Gazette, Pittsburgh Tribune-Review).
On Wednesday US District Judge Arthur Schwab refused to delay the retrial, scheduled for May 27, and refused to recuse himself. Lawyers for Wecht will appeal (Post-Gazette).
Attorneys for former Allegheny County Coroner Cyril Wecht on Monday asked US District Judge Arthur Schwab to dismiss all charges against Wecht and to bar a retrial, asserting that Schwab erred in not following certain steps following last week’s declaration of a mistrial and that a retrial would subject Wecht to double jeopardy. Wecht’s attorneys also asked Schwab to order prosecutors to reveal how they obtained names of jurors contacted by the FBI last week after the mistrial was declared, asserting that that both sides were under strict orders from the judge not to record the jurors’ names (Pittsburgh Post-Gazette).
In a Monday Pittsburgh Tribune-Review op-ed, columnist Ralph Reiland lambasts USA Mary Beth Buchanan, calling her a thief and a fraud for wasting millions in public funds on the prosecution. And a Tuesday Tribune-Review editorial characterizes the prosecution “up to and including the questioning of the jurors, [as] nothing less than outrageous.”
Alex Latifi, the Iranian-born US citizen whose Huntsville, Alabama defense contracting firm Axion Corporation was essentially destroyed because of an incompetent and possibly malicious prosecution for allegedly violating arms export rules (earlier), has been awarded government reimbursement for his legal fees, filing costs and expert witness costs. In a ruling last week in Birmingham, US District Judge Inge Johnson ordered the DOJ to pay Axion and Latifi under the Civil Asset Forfeiture Reform Act (CAFRA), a 2000 law designed “to give owners innocent of any wrongdoing the means to recover their property and make themselves whole after wrongful government seizures.” Latifi’s defense costs are estimated at $500,000. However, the firm is still closed as a result of the government’s long freeze on the firm’s assets and Latifi’s personal assets. Judge Johnson dismissed all counts against Latifi and Axion last October after seven days of trial and ordered the government to post notice of the acquittal.
The ruling is unprecedented, according to Latifi’s attorney Henry Frohsin of Baker, Donelson: “We believe Axion is the only company ever to win such a ruling in an arms export control case.” USA Alice Martin said the ruling means her office cannot make another attempt to seize assets and that it does not wish to. Russell Hubbard in the Birmingham News, Harper’s commentary by Scott Horton, Baker, Donelson press release.
Last month we posted here concerning a 5-part series at folo about Keith Shelton, an attorney in Mississippi who was framed and disbarred in what can best be characterized as an outrageous miscarriage of justice by a former district attorney and a corrupt judge. We are pleased to note that the Mississippi Supreme Court on Friday reinstated Keith Shelton (.pdf) to the Mississippi Bar. The decision is well worth reading as an official confirmation of the underlying facts; note especially the concurring opinion of Justice Dickerson. The Clarion-Ledger story here fails to accurately report the background of the case. Congratulations to Mr. Shelton, and a hat tip to folo.
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).
A three-judge panel from the US Court of Appeals for the Second Circuit on Tuesday heard arguments in the government’s attempt to reinstate the indictments of 13 former KPMG LLC executives in what was once the largest criminal tax shelter prosecution in US history. In July 2007 US District Judge Lewis Kaplan dismissed the indictments of 13 out of an original 19 defendants in US v. Stein et al because the government threatened to indict KPMG if the company did not stop paying the defendants’ legal costs despite contractual obligations to do so. The Bloomberg News story indicates that the judges were highly critical of the government’s arguments. While AUSA Karl Metzner contended that a fair trial was still possible and that dismissal of the indictments was “too drastic a sanction” despite Kaplan’s ruling that the government’s actions violated the defendants’ rights, Chief Circuit Judge Dennis Jacobs noted that “time has moved forward” and Judge Peter Hall likened a reinstatement to “putting toothpaste back in the tube”.
Predictably, the government response to Jeff Skilling’s supplementary appellate brief denies that the Enron Task force withheld material exculpatory information from the former Enron CEO’s defense team. The government’s brief, filed on Tuesday, asserts, “Skilling’s claims rely on isolated snippets culled from 420 pages of handwritten notes and stripped of their context.” It accuses Skilling of using “hyperbolic rhetoric” and says that the Andrew Fastow interview notes that Skilling cites in his supplemental brief either contain information that Skilling had prior to the trial in the summaries of the notes “or would have had minimal value in impeaching Fastow.” Houston Chronicle here (with link to the brief), our earlier posts here, here and here. The US Court of Appeals for the Fifth Circuit has scheduled arguments in the appeal for April 2.
Following the news that the three former Merrill Lynch executives still possibly facing retrial in the Enron Nigerian Barge case have filed a motion asking US District Judge Ewing Werlein to order the government to give them the Andrew Fastow notes (earlier here; Chronicle here), Tom Kirkendall at Houston’s Clear Thinkers posts here on the motion filed by Sidney Powell, attorney for defendant James A. Brown, to dismiss the indictment on grounds of egregious prosecutorial misconduct, Brady violations and double jeopardy, and links here to the motion, which he has bookmarked. It’s a stunning motion which goes well beyond the Fastow notes in its allegations.
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.
Here, for our readers, is Jeff Skilling’s Supplemental Brief Regarding Andrew Fastow Interview Notes. Originally filed under seal, and now unsealed, the brief details the material withheld from Skilling and how this withholding affected Skilling’s trial defense. We breathlessly await the government’s response. Brady-Giglio claims seldom prevail on appeal. An appellant must prove, among other things, that the withheld information was material, non-cumulative, and unavailable to the defendant by other means. Nevertheless, my initial take on this issue, after coming to it late, is that Skilling has a decent chance to win. The government’s use of a composite 302, which allegedly masked Fastow’s changing stories, as well as the government’s failure to show all of its raw Fastow interview notes to the trial court, are, in my view, quite striking (troubling) factors–and highly unorthodox. Ideoblog discusses the matter further, here, as does the always informative Tom Kirkendall, in Houston’s Clear Thinkers.
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.
Former Reagan administration official and outspoken Bush administration critic Paul Craig Roberts pulls no punches in his new Counterpunch article about the Siegelman/Scrushy prosecution, blasting the DOJ in Alabama as a political tool of a corrupt administration. Expanding on Scott Horton’s earlier coverage, Roberts accuses prosecutors of withholding exculpatory evidence and knowingly allowing false testimony, and takes a critical look at the actions of political operatives and US District Judge Mark Fuller. Read the full story here.
A story here by Russell Hubbard in the Birmingham Daily News describes the ordeal of Iranian-born US citizen Alex Latifi and his Huntsville, Alabama defense contracting firm, Axion Corporation. After four years of investigations and raids, Latifi and his firm were indicted in 2007 by the US Attorney for the Northern District of Alabama on multiple counts including violating the Arms Export Control Act, despite what appeared to be convincing evidence that his actions did not require federal approval. After seven days of trial last October, US District Judge Inge Johnson dismissed all counts. But the business which once employed 60 is in ruins. Now Latifi has filed a Hyde Amendment claim for compensation; a hearing is scheduled for April 15 and his attorney plans to put USA Alice Martin on the stand.
The government’s notice of Latifi’s aquittal, which Judge Johnson ordered it to post, is here and Martin’s original indictment press release has disappeared from the website. It can still be viewed here.
The 60 Minutes feature on the prosecution and conviction of former Alabama Governor Don Siegelman can be found here. While it undoubtedly brought Siegelman’s sad situation to a much wider audience, as a piece of investigative journalism it was a disappointment. It was fine to have former Arizona AG Grant Woods (a Republican) opine that the prosecution was politically motivated, and to have a former Republican operative describe how she was allegedly told by Karl Rove to find evidence of wrongdoing by Siegelman. But scant attention was paid to the heart of the matter: the absence of evidence of a quid pro quo. AP and even the allegedly biased local coverage at the time of the trial made repeated and detailed mention of the defense contention that neither Siegelman nor former HealthSouth CEO Richard Scrushy received any personal benefit from HealthSouth’s contribution to Siegelman’s campaign for a state lottery to fund education. The 60 Minutes story only mentioned this in passing. Evidence that the government knew there was no quid pro quo and prosecuted anyway would have been more convincing.
Scott Horton at Harper’s has previously alleged DOJ misconduct in the prosecution of former Alabama Governor Don Siegelman; he has charged that Karl Rove was personally involved in this and other politically motivated investigations by US Attorneys in Alabama. But when Dickie Scruggs openly defied a federal judge’s order in Renfroe v. Rigsby (a matter still very much pending), why did other judges recuse themselves and why did USA Alice Martin of the Northern District of Alabama decline to pursue the matter? Horton thinks he may have the answer: Trent Lott’s influence. It’s speculative at this point, but certainly interesting speculation. Read his Thursday article here, which also has more on the other Alabama investigations; note that 60 Minutes has a Siegelman story scheduled for tomorrow night.
- Schering-Plough President Carrie Smith Cox’s large stock sale prior to the public release of the Vytorin clinical trial results has now come to the attention of the Congressional committee already investigating the Vytorin ad campaign. (Junkfood Science; earlier)
- Tom Kirkendall discusses the Enron Task Force’s continued refusal to turn over potentially exculpatory evidence, especially regarding Andrew Fastow. (Houston’s Clear Thinkers)
- Is the DOJ’s prosecution of Geoffrey Fieger a political vendetta? (Scott Horton in Harper’s)