Recently in the Pretrial Dismissal category:
Some Recent Decisions of Note on Fast Track Disparity and Unconstitutionality of Gun Possession Laws
Fast Track Disparity
As explained by Judge Sweet in United States v. Paulino-Melende, 08 cr 176 (RWS), 2008 WL 4553148 (S.D.N.Y. October 8, 2008), fast-track disparity is created by the existence in some districts but not others of a “fast track program” whereby an individual charged with illegal re-entry agrees to quick removal, thus saving the Government resources, and in return receives a substantially lower sentence than would otherwise be dictated by the Guidelines. Quoting SDNY Judge Kaplan, Judge Sweet points out “it is difficult to imagine a sentencing disparity less warranted than one which depends upon the accident of the judicial district in which the defendant happens to be arrested.” Rejecting this unwarranted disparity (and relying in part on the Sentencing Commission’s own acknowledgement of the disparity, as well as a criminal history double-counting issue that occurs in illegal re-entry cases), he imposed a sentence that was approximately half of the low end of the applicable guideline range.
Gun Possession
In United States v. Erwin, 07-CR-556 (LEK), 2008 WL 4534058 (N.D.N.Y. October 6, 2008), a defendant charged with various crimes relating to his purchase of a firearm while subject to an order of protection argued an “outright ban on the possession of a simple shotgun” by someone “only alleged to be the subject of an order of protection fails to pass constitutional muster” under the Supreme Court’s recent right-to-bear-arms holding in District of Columbia v. Heller, 128 S.Ct. 2783 (2008)]. Pointing out that in Heller, the Court held that “nothing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms,” Judge Kahn denied the motion to dismiss the indictment. He pointed out that the provision at issue in Erwin’s case, 18 U.S.C. § 922(g)(8), “is not an outright ban on firearm possession like the situation in Heller,” but rather a temporary ban “as long as the underlying state court order is in effect.” Moreover, the ban is “narrowly tailored” to the “compelling government interest” of “[r]educing domestic violence.”
United States v. Stein, 07-3042-cr, 2008 WL 3982104 (2d Cir. August 28, 2008), arose out of the notorious “Thompson Memorandum” which provided that advancing legal fees was a factor prosecutors could consider in assessing the extent of a corporation’s cooperation in an investigation of misconduct. That memo has been superseded more than once, most recently by the Filip Memorandum, also issued on August 28, 2008, which now instructs U.S. Attorneys and line prosecutors not to treat the attorney-client and work product privileges or payment of corporate employees’ attorneys’ fees as obstructions of justice – thus effectively mooting the main thrust of the Stein decision.
While the government is no doubt dismayed by the Court’s ruling, it can at least take comfort in the Court’s failure to rely on Judge Kaplan’s reasoning – that the government had behaved in conduct that “shocked the conscience.”
The case provides much food for thought on the right to counsel, the right to counsel of choice, and what represents counsel of quality. As the White Collar Crime Blog notes,
The best line from the case - "But if it is in the government’s interest that every defendant receive the best possible representation, it cannot also be in the government’s interest to leave defendants naked to their enemies."
Holding
The holding of the case is summarized here and here. Essentially, the Court held:
We hold that KPMG's adoption and enforcement of a policy under which it conditioned, capped and ultimately ceased advancing legal fees to defendants followed as a direct consequence of the government's overwhelming influence, and that KPMG's conduct therefore amounted to state action. We further hold that the government thus unjustifiably interfered with defendants' relationship with counsel and their ability to mount a defense, in violation of the Sixth Amendment, and that the government did not cure the violation. Because no other remedy will return defendants to the status quo ante, we affirm the dismissal of the indictment as to all thirteen defendants.
Comment
Yes – a great (if ultimately mooted) victory for the right to counsel.
What I find most intriguing about this decision is the subtext – that quality representation in document-intensive white collar cases equates with expensive representation. In some cases, that is true. But one should not lose sight of the issue at the heart of criminal cases: what did the individual defendant know and when did he know it? There may be twenty million documents in the KPMG prosecution, but the ones that matter for each defendant are the ones they wrote, or that mention them, or they received – a subset that the government can be easily required to provide, and are usually significantly less than the entirety of the government’s production. Moreover, the key documents in this subset will be an even tinier subset – and an experienced lawyer can sift through many of the irrelevant ones very rapidly (or hire a smart law student at $30 an hour to do the same) -- leading to a final selection that might take a day or a week to review. Even at $700 - $1,000 per hour, such a process takes significantly less than the millions in defense fees cited in Stein.
The key in criminal prosecutions, including white collar prosecutions, is defense counsel who are experienced and intelligent, who offer advice grounded in experience, empathy and (that rare commodity) judgment – which an intransigent defendant is free to disregard, but which, one presumes, is ultimately what the defendant pays those big bucks for. In the famed prosecution of Frank Quattrone – where the issue was his intent about a sole e-mail to staff regarding a document destruction policy – it was his testimony in the first trial that contributed to the hung jury rather than an acquittal, and it was the introduction of that testimony in his second trial that contributed to the conviction (ultimately reversed). In other words, the critical advice in the case turned on whether or not to testify, and while that advice is of course based on a certain amount of document review, it also hinges on a gut, practical assessment of the defendant’s quality as a witness and the quality of the government’s case, something that stems from great genetic instinct and years of experience, but can hardly be reduced to immediate “lawyer time.” And its value hinges on the defendant listening to it. Similarly, in the prosecution of Martha Stewart, she lost her case when she voluntarily proffered to the government, and made statements that conflicted with a tiny number of key documents. Again, the key to her salvation lay in judgment (her own and that of her lawyers) not expensive lawyer time.
As a former federal defender, who still believes that the best trial lawyers I have ever met are state and federal public defenders, I find it amusing and troubling that so many people think that in the context of criminal defense, you get what you pay for.
A middle-aged woman, who taught English and translated documents for an Iranian dissident group dedicated to democracy, hardly fits the image of a terrorist, but that individual happens to be the sole defendant in a single-count federal indictment in Brooklyn charging her with providing material “personnel” support to terrorists. Ms. Taleb-Jedi’s problem is that the organization for which she worked, the People’s Mojahedin Organization of Iran (“PMOI”) is also committed to the violent overthrow of the Iranian government, and as such, is on the U.S. government’s list of foreign terrorist organizations (“FTO”). The fact that now – more than ten years after that designation – the PMOI has become the current darling of the U.S. military, the U.K. no longer designates it a terrorist organization finding that its means and methods have changed, and the U.S. military as well as several members of Congress similarly think the terrorist designation should be reversed, is immaterial.
In United States v. Taleb-Jedi, 06 Cr 652 (BMC), 2008 WL 2832183 (E.D.N.Y. July 23, 2008), the court denied her lawyers’ multi-layered and creative motion to dismiss the indictment, but in the process warned the prosecutors that “if the proof at trial shows only that defendant participated in the PMOI through mere membership and chanting at meetings, it may well be insufficient to reach a jury or sustain a guilty verdict.” Similarly, “if the defendant taught English for the sole purpose of helping other members to advocate before the United Nations on behalf of the PMOI, the statute may not reach such conduct.”
The case is a splendid example of no-stone-unturned criminal defense. Ms. Taleb-Jedi’s lawyers argued variously that the indictment should be dismissed for failure to state a claim under Fed.R.Crim.P. 7(c) (because it fails to detail the material support provided), that the statute is unconstitutional under the First and Fifth Amendments (because it precludes the defendant from challenging at trial the FTO designation), that the statute’s specific intent element is deficient (it is not enough that the defendant intend to further the PMOI’s goals, she must also specifically intend to further its terrorist aims), that the statute is impermissibly vague (because it doesn’t adequately define “personnel”), that the statute is overbroad (because it criminalizes protected First Amendment activity) and that the prosecution is outrageous (e.g., because the U.S. military may now use the PMOI to gather intelligence).
In a lengthy and meticulous decision, the court rejected these challenges, highlighting the difference between someone who is merely an advocate, and one who is an actual employee, “under the terrorist organization’s direction or control.” The court also noted that in wartime, it is permissible for the military to pick and choose its friends, and the DOJ its enemies, war being an “outrageous but . . . sometimes necessary undertaking.”
The case is, however, a disturbing reminder – in the same week that Osama Bin Laden’s driver gets acquitted of the most serious charge against him and sentenced to close to time-served by a military jury – that in the war on terror, just like the war on drugs, the Department of Justice devotes its preciously limited resources on easy and innocuous targets.
See Archives for all posts since September 2007.
