Crime in the Suites: An Analyis of Current Issues in White Collar Defense
Posts Tagged ‘Brady materials’
May 09

Brady Rights Require Attention, but This Bill Is Flawed

While the prosecution of former Senator Ted Stevens is long over, the fallout from the prosecutorial misconduct in that case continues. Congress is now considering legislation that attempts to ensure that federal prosecutors comply in a meaningful way with their obligations under Brady v. Maryland and its progeny. The legislation has some provisions that could possibly help protect Brady rights, but even if it passes – which appears doubtful – the bill is unfortunately more of a political gesture than an effective tool for protecting the rights of criminal defendants.

Perhaps the most significant provision in the proposed Fairness in Disclosure Act is one that addresses the timing of Brady disclosures. Under current practice, prosecutors often delay the required disclosures of exculpatory information as long as possible. Given that the only time limitation appears to be the ill-defined requirement that information must be provided within a reasonable time for the defense to use it at trial, the law effectively allows the government to disclose Brady information almost any time before trial. Because the legislation requires the disclosure of such information “without delay after arraignment,” it has the potential to lessen the incidence of late disclosure of Brady information by prosecutors. The proposed bill’s requirement that Brady information be provided before the entry of a guilty plea is also commendable.

Other provisions that address the location and possession of the information at issue may also be helpful. The act would make clear that information contained in witness statements must be disclosed, and may not be withheld until it is provided – after a witness testifies at trial – pursuant to the Jencks Act. The bill also requires that prosecutors disclose not only information that they know but also information that they should know – an attempt to prevent prosecutors from insulating themselves from exculpatory information. The proposed law also makes clear the requirement of disclosure not only of the information in possession of the prosecutors and the investigatory agency but also of information in the hands of any other agency that participates in the investigation.

Other provisions, such as those relating to whether inadmissible evidence must be disclosed and the remedies for violation of the act, also have the potential to have a favorable impact on Brady compliance.

The problem is that, in the end, the Fairness in Disclosure Act will be effective only to the extent that it clearly defines what information falls within the scope of prosecutors’ obligations to disclose. And in that respect, the bill largely substitutes one ambiguous standard for another. On the one hand, it discards the approach that turns entirely on “materiality” of the information – a concept that works for appellate courts after the fact but is an impossible standard to enforce against prosecutors before trial. On the other hand, the bill’s requirement that prosecutors disclose information that is favorable to the defense as to guilt or sentencing does not solve the real obstacle to ensuring that defendants’ Brady rights are protected. That’s because it still leaves it in the hands of prosecutors – who may not know what defense the defendant will utilize – to determine whether a piece of information is favorable or not. To many criminal defense lawyers, that is the real problem that causes problems with Brady compliance even with well-intentioned prosecutors.

Despite these flaws, a number of organizations, including the American Bar Association, have expressed support for this bill. Nevertheless, at least one website that carries predictions on the fate of legislation puts the likelihood of passage of the bill at 2 percent. It is surely a good development to have politicians and the public focused on the need for reform to protect criminal defendants’ rights, but the Fairness in Disclosure Act may not ultimately be the solution to this issue.

Mar 02

Justice Would Be Served by an ‘Open File’ Policy for Prosecutors

A couple of years ago, the U.S. Department of Justice made an effort to systematize and improve its discovery obligations under Brady v. Maryland, the 1963 Supreme Court case that requires prosecutors to disclose information in their files that would tend to exculpate criminal defendants. A U.S. attorney, speaking at a conference of defense lawyers, commented at the time that the department takes its Brady obligations seriously.

We replied then that in our view, the new Brady guidelines merely perpetuated the status quo rather than promising real change or a system in which prosecutors make significant disclosures to defendants before trial of the contents of their files.

“Whether criminal defendants will obtain discovery of all materials to which they are entitled will still be largely dependent on the judgments of the individual prosecutors,” we wrote. “Perhaps the answer is that the government should simply err in the direction of providing open discovery of its files to defendants.”

Just the other day, The New York Times editorialized in favor of such “open-file” policies, in which prosecutors turn over to defense lawyers all information favorable to the defense, regardless of whether that information would directly affect the outcome of the case.

In the same vein that we wrote in 2010, the Times said that the Justice Department “continues to take half-measures in response to its own failures to meet disclosure requirements.”

The department, while it adheres to the letter of the Brady case, says its policy is to turn over only those documents that are both exculpatory and material to the result of the case. The Times points out that this is inadequate. Since 96 percent of criminal cases end in a plea bargain, the rule “puts defendants at a disadvantage in negotiation: without access to information in the government’s files, they don’t know the evidence they face and can’t assess their odds at trial.”

We agree. An open-file policy makes sense for prosecutors at both the federal and state levels. Exceptions would need to be made to prevent, for example, the identity of a confidential informant or similar information. But we believe that a broad disclosure rule would help bring into reality a portion of the Justice Department’s mission statement – “to ensure fair and impartial administration of justice for all Americans.”

Dec 12

Judge Dismisses Lindsey FCPA Case, Finding Prosecutorial Misconduct

In May 2011, a federal jury in Los Angeles convicted Lindsey Manufacturing Co., its president Keith Lindsey, and CFO Steve Lee, on foreign bribery charges for their dealings with Mexico’s state-owned electricity utility, Comision Federal de Electricidad. The prosecutors claimed that Lindsey Manufacturing retained Enrique Aguilar, a Mexican company representative, after repeatedly failing to win contracts legitimately – and that the defendants knew that the sales commission they paid to Aguilar was used to cover more than $5 million in bribes to officials at the Comision.

The defendants faced as long as five years in prison for each of five counts of bribing a foreign official, as well as five years for a conspiracy count. However on December 1, 2011, U.S. District Judge A. Howard Matz, who oversaw the jury trial, dismissed those convictions with prejudice due to government misconduct after ruling on the defense’s Motion to Dismiss and Supplemental Brief in Support of Motion to Dismiss.

In his remarkable order dismissing the charges, Judge Matz acknowledged that “most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful, or in bad faith,” but he concluded that “it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.”

This is an extensive laundry list of serious allegations against government prosecutors. Over the summer, we wrote about some of the most significant misconduct by the prosecution, such as its failure to produce the transcript of some of FBI Special Agent Susan Guernsey’s October 2010 grand jury testimony until seven weeks after the jury entered its verdict in 2011. Agent Guernsey testified before the grand jury a total of four times, and her testimony contained a number of material misrepresentations and outright falsehoods that led to the indictment. The prosecution’s failure to turn over testimony from one of those sessions until after the conclusion of the trial hindered the defense’s ability to fully cross-examine her during the trial.

Although it was the prosecution’s continuous misrepresentations and misconduct which are ultimately at fault for these wrongful convictions, Judge Matz admirably took responsibility for not recognizing the misconduct sooner. He said,

“[W]hen a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees. That is what occurred here. This Court was confronted with so many motions challenging the Government’s conduct that it was difficult to step back and look into whether what was going on reflected not isolated acts but a pattern of invidious conduct. … The Government has acknowledged making many “mistakes,” as it characterizes them. “Many” indeed. So many in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry.”

While it is somewhat heartening that a federal judge would both straightforwardly reprimand federal prosecutors for an egregious series of acts of misconduct and take the blame for his own role in not stopping it sooner, it nonetheless remains an incredible injustice that that defendants were brought to trial, convicted, and faced jail time before this misconduct was adequately addressed. The government has already appealed the case to the Ninth Circuit. We can only hope that the appeals court agrees with Judge Matz and takes a firm stance against prosecutorial misconduct.

Sep 08

Prosecutors’ Misconduct Is More Than Just ‘Honest Mistakes’

A federal judge in the District of Columbia recently ruled that the U.S. Department of Justice will be allowed to retry star pitcher Roger Clemens on perjury charges after a mistrial was declared earlier this summer when the prosecution made reference to inadmissible evidence in open court.

The government claimed that its violation of court orders was done inadvertently and was not an instance of intentional prosecutorial misconduct. Government examples of misconduct seem to abound these days. We recently wrote about the Lindsey Manufacturing case under the FCPA and about the Lazare Kobayaga case, a genocide case, in which it was clear that traditional discovery standards were not followed.

It is curious to us that Assistant Attorney General Lanny Breuer recently told a group of assembled state prosecutors that although prosecutors must always abide by the highest standards of conduct, “certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct. This kind of gamesmanship is unfortunate.”

Breuer described steps that the department has taken, such as providing guidance to all prosecutors on gathering and reviewing discoverable information, to ensure that DOJ attorneys abide by their ethical obligations. At the same time, he said, the department will not “shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.”

His clear implication was that the department is now behaving ethically with few exceptions, and that defense lawyers who raise issues of misconduct, such as the withholding of potentially exculpatory documents, are merely gaming the system. We disagree with both of those ideas.

We don’t imply that all prosecutors cut corners, merely that it is a more significant problem than Breuer seems to think. We believe that defense attorneys who point out prosecutors’ errors and misconduct are both representing their clients zealously and functioning as an important check in the criminal justice system. They are not simply looking for tiny, nit-picking errors, and if they do so, judges will put defense attorneys in their place.

If the department really is doing what Breuer says and is going “farther than what the Supreme Court requires,” there should be no problem with pesky defense lawyers who ensure that this is indeed what’s happening. And if there are in fact a good many serious lapses, defense attorneys – not prosecutors’ training programs – are the last line of defense against overreaching.

Sep 01

DOJ Dismisses Genocide Charges After Failure to Make Disclosure to Defense

We have written previously about the number of times in which federal prosecutors seem to withhold crucial evidence from defendants — evidence that they are required under law to turn over. Here, for example, is a discussion of an important Foreign Corrupt Practices Act case in which this occurred.

A genocide case in Kansas poses a new instance in which the U.S. Department of Justice had to acknowledge that it had not provided information to the defense. After charging a Kansas man with one of the most horrific crimes imaginable, federal prosecutors ended their genocide case against Lazare Kobagaya on August 26 after his defense attorneys sought sanctions against prosecutors for withholding evidence.

In his trial, the government failed to disclose information from a U.S. consular officer listed on Kobagaya’s immigration application. The officer stated that even if she had known that Kobagaya was in Rwanda in 1994, she would not have questioned him about the genocide for his visa and alien registration application because he was not Rwandan, but rather a Burundian national. A key argument in the defense’s case was that Kobagaya’s presence in Rwanda during the genocide was not a material fact that would have caused further investigation by U.S. immigration officials if Kobagaya had disclosed it in his immigration papers. He did not make that disclosure regarding his presence in Rwanda in his application.

In May, jurors found that Kobagaya, now a U.S. citizen, lied on immigration forms about his whereabouts during the 1994 genocide. The jury did not, however, find that he had participated in the atrocities. When the jury deadlocked on a count relating to lying on his citizenship application, the prosecution informed the defense that they planned to retry the case.

In its response to the defense’s motion for acquittal, the prosecution revealed that it had failed to disclose the consular officer’s statements. The defense immediately latched onto that fact and wrote a letter to the judge stating that it would seek sanctions. As a result, in a stunning turn of events, prosecutors last week asked the judge not only to dismiss the charge against Kobayaga of lying on his citizenship application, but also to set aside his visa fraud conviction.

While the prosecutors may deserve a minimal amount of credit for disclosing this information even in that late stage, it is a classic case of too little, too late. An estimated $1 million of taxpayer money had already been spent trying the case, and 84-year-old Kobagaya’s life was put on hold as he was charged with monstrous crimes.

A jury can only reach a fair verdict if it has the opportunity to hear all relevant admissible evidence. The prosecution’s failure to disclose key evidence nearly cost Kobagaya his freedom. Whether the prosecution intentionally withheld the evidence to gain a desired verdict or inadvertently failed to disclose it due to negligence, the prosecution in this case did not fulfill its duty to see that justice is served. Again, it appears that Eric Holder’s Justice Department is not living up to the promises of fairness and accountability that it made when it came into power.

Jun 13

Disqualification of AUSA in Scruggs Case Is Message to Prosecutors

The botched prosecution of Senator Ted Stevens was a wake-up call of sorts for the U.S. Department of Justice that there would be severe consequences for prosecutors who did not comply with obligations under Brady and related cases. The Department took another hit recently when a federal judge removed an Assistant United States Attorney from the case against the son of disgraced anti-tobacco attorney Richard Scruggs based on a finding that the prosecutor inexcusably withheld information when negotiating the son’s 2008 guilty plea in a judicial bribery scandal.

Zach Scruggs pleaded guilty in March 2008 to failing to report his father’s alleged scheme to pay a Mississippi state judge in a fight over distribution of $26 million in attorneys’ fees from Hurricane Katrina insurance litigation. Scruggs says that he pleaded guilty because prosecutors told him that one of their witnesses was going to implicate him in the scheme.

According to an opinion issued by U.S. District Judge Neal B. Biggers, however, the witness’s testimony would implicate the father in the scheme, but not the son. After serving 14 months in prison, Zach Scruggs moved to vacate his conviction, claiming that he only recently learned of the government’s misrepresentation on which he relied.
Notably, Assistant U.S. Attorney Robert Norman – who has been involved in the case since its inception – will not be involved in litigation over that motion. In a written ruling, Judge Biggers found that the prosecutors’ “failure to correct [Norman’s] misrepresentation was probably a matter of neglect rather than intentional wrongdoing” but “that neglect [was] inexcusable under the law and the facts of this case.”

Noting the “unusually low burden of proof in attorney disqualification cases” and the government’s lack of an explanation for the failure adequately to correct the record, Judge Biggers was “compelled to find that the neglect reaches the level of ‘impropriety’ within the meaning of that term as contemplated by the Fifth Circuit.” Despite the objections of the U.S. Attorney’s Office that disqualification of Norman would place an unnecessary hardship on the government, Judge Biggers ruled that his conduct was enough to disqualify him.

This case offers some support for the views of those who believe that prosecutors often mislead defendants about the nature and strength of their evidence, particularly in the context of plea negotiations. It may also give some greater impetus to efforts to establish, either by legislation or rule, a requirement that prosecutors disclose Brady and similar information before a defendant enters a guilty plea.

Of course, an equally important question is whether the removal of the prosecutor is an adequate remedy for the government’s “impropriety” that may have cost Zach Scruggs 14 months in prison that he did not deserve. The court recently denied Scruggs’ motion for summary judgment on his request to vacate his conviction, on this and other grounds, based on unresolved questions about whether and when Scruggs and his attorney may have learned prior to the guilty plea that the witness in question would not have implicated him in the bribery scheme.

Mar 27

Ifrah Law’s Blog Wrap-Up, March 9-23

This is the fourth of a regular series of posts that summarize and wrap up our latest thoughts that have appeared recently on Ifrah Law’s blogs.

1. Proposed Gaming Bill Could Make Nevada First to Legalize Online Poker

Nevada, long an innovator in the gambling arena, may soon take another major step by becoming the first state to legalize online poker. We discuss the state’s importance in the gaming world, the chances of passage of the bill, and the groups that stand to benefit.

Read the full post here on the Crime in the Suites blog.

2. Brady Violation Leads to Reversal of Conviction in D.C.

When it comes to Brady violations, sometimes late is no better than never, it seems, as the D.C. Court of Appeals reverses a conviction for assault with intent to commit murder. We explain what information the prosecutors withheld and why it was important.

Read the full post here on the Crime in the Suites blog.

3. ‘Taking the Fifth’ Before Congress: A New Ethics Twist

It’s unethical for a prosecutor to put a witness on the stand with knowledge that the witness will exercise the privilege against self-incrimination. We look into a new D.C. Bar ethics opinion that gives a novel answer to the question of doing the same thing before a congressional committee.

Read the full post here on the Crime in the Suites blog.

4. Is FTC Action Needed Against Pricey Apps?

It’s true that children shouldn’t be buying expensive Smurfberries and other online goodies for their apps with real money (on Mom or Dad’s credit card). The FTC has been asked to take action. We discuss whether the agency is the right place to turn, or perhaps Mom and Dad are.

Read the full post here on the FTC Beat blog.

5. Does Google Need to Police Its Ads for Fraud?

There are unscrupulous merchants out there on the Internet. Does Google need to look into every advertiser before accepting its money? A consumer group’s letter to the FTC has awakened interest in this issue.

Read the full post here on the FTC Beat blog.

6. Online Sellers Need to Beware of State Attorneys General

A Philadelphia online electronics store is the target of Pennsylvania’s attorney general for alleged bait-and-switch practices. But it’s not just the state of origin that can target an online seller.

Read the full post here on the FTC Beat blog.

Mar 14

Brady Violation Leads to Reversal of Conviction in D.C.

Editor’s note: This is a guest blog post by David Deitch, a Washington, D.C.-based litigator and the author of the White Collar Criminal Defense Blog. He can be reached at

According to the D.C. Court of Appeals, when it comes to Brady disclosures, late is not necessarily better than never.

In Miller v. United States, decided on March 3, 2011, the court overturned a conviction for assault with intent to commit murder while armed and other related offenses based upon a finding that the government had committed a Brady violation by waiting until trial to disclose information favorable to the defense. The case should serve as a warning to prosecutors who routinely delay Brady disclosures until the latest possible moment.

The issue in Miller related to the question of which hand the gunman used when he shot the victim. The defendant was right-handed. At trial, Timothy Taylor testified that the assailant had shot the victim with his right hand. On cross-examination, however, Taylor admitted that a year earlier, he had twice told the grand jury that the gunman used his left hand.

Taylor’s grand jury testimony – including the suggestion that the gunman may have been left-handed – was provided to the defense for the first time during the trial as part of the government’s Jencks disclosures (of prior testimony of a witness). This information was particularly significant because police had arrested two people near the shooting in a truck that smelled strongly of gunpowder. It was not until the defense had rested and the judge had already begun instructing the jury that defense counsel realized that, during a videotaped police interview, one of these people signed the card acknowledging his understanding of his rights with his left hand. The trial court did not permit the defense to reopen – stating that the government’s disclosure was “better late than never” – and Miller was convicted.

In reversing Miller’s conviction, the Court of Appeals emphasized that the lateness of the government’s disclosure had deprived the defense of the chance to make effective use of the information. The court observed that some commentators believe that “[p]rosecutorial resort to a strategy of ‘delay and conquer’ . . . [is] not . . . uncommon” but warned that such an approach “is not acceptable.” The question of when the government must make Brady disclosures is a fact-specific inquiry, but Miller makes clear that the courts will not tolerate an unjustified decision by the government to delay the disclosure of Brady information.

The reversal was handed down in a 2-1 ruling of the court panel. Interestingly, one of the judges in the majority, Judge Vanessa Ruiz, went so far as to write a separate concurring statement, contending that the trial court should conduct an inquiry as to whether the government lawyers complied with professional ethics rules in making the disclosure as they did and in describing their Brady disclosures to the court. However, Senior Judge Frank Schwelb, the other judge in the majority, did not agree with Ruiz’ recommendation, so no such inquiry will be conducted. Still, the fact that one appellate judge held this view indicates again how seriously this court regards Brady violations.

Nov 17

Time to Make Brady Compliance Part of Prosecutors’ Culture

On Thursday, November 4, 2010, Rod Rosenstein, the U.S. Attorney for Maryland, defended the U.S. Department of Justice’s recent efforts to address its compliance with Brady v. Maryland, the 1963 Supreme Court case requiring prosecutors to disclose information that would tend to exculpate criminal defendants.

Rosenstein, speaking before a group of defense attorneys at an American Bar Association town hall meeting, said that the DOJ takes its discovery obligations seriously. Rosenstein said that prosecutors now have new guidelines that represent a change in the culture of the department on Brady compliance. Programs are in place for regular Brady training, and written office policies and discovery coordinators address Brady concerns and attempt to harmonize the approaches to discovery obligations taken by various DOJ offices.

In our view, however, the new guidelines simply maintain the status quo and do not really promote change at all.

The background for Rosenstein’s comments is as follows. After several high-profile discovery missteps, the DOJ issued three memoranda on January 4, 2010, which include guidance for all federal prosecutors and details the steps the department has taken to address Brady concerns. The most notable instance of government non-compliance with Brady came in April 2009 when the DOJ dismissed a seven-count public corruption indictment of former U.S. Senator Ted Stevens. The dismissal followed a guilty verdict in a jury trial, during which the judge repeatedly rebuked prosecutors for failing to disclose evidence that was potentially helpful to the defense.

After the dismissal in the Stevens case, Attorney General Eric Holder Jr. announced that he would require additional training for federal prosecutors to bolster their knowledge of the rules governing discovery in criminal cases. The most important of these memoranda detail procedures that prosecutors must follow when providing discovery to criminal defendants. Although the intent of these memoranda is to encourage consistency across the board in criminal matters, they do not adopt a “one-size-fits-all approach.” The DOJ noted: “In many cases, broad and early disclosures might lead to a speedy resolution and preserve limited resources for the pursuit of additional cases. In other cases, disclosures beyond those required by relevant statutes, rules and policies may risk harm to victims or witnesses, obstruction of justice, or other ramifications contrary to our mission of justice.”

In a memorandum to all U.S. attorneys and department heads handling criminal cases, then Deputy Attorney General David W. Ogden directed each office to establish a discovery policy by March 31, 2010. The memorandum provides that departures from each office’s discovery policy should be allowed on a case-by-case basis where “specific, case-related considerations may warrant a departure from the uniform discovery practices of the office.”

But the DOJ guidelines, while attempting to provide a systematic approach to prosecutors’ discovery obligations, actually do not result in national uniformity. Whether criminal defendants will obtain discovery of all materials to which they are entitled will still be largely dependent on the judgments of the individual prosecutors. The guidelines do not create any enforceable discovery rights.

Although an unambiguous rule that would mandate the disclosure of all exculpatory evidence, except in the most extraordinary circumstances, would seem required by Brady, Rosenstein said that he does not think such a rule is necessary. So even after the DOJ’s “new” guidelines, individual prosecutors will continue to be free to develop their own discovery practices and to depart from them at will, allowing prosecutorial misconduct to go unpunished, and, in some instances, undetected. Perhaps the answer is that the government should simply err in the direction of providing open discovery of its files to defendants.

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About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, health care, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen and George Calhoun, counsels Jeff Hamlin and Drew Barnholtz, and associates Rachel Hirsch, Nicole Kardell, Steven Eichorn, David Yellin, and Jessica Feil. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

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