Monday, January 10, 2005

Spy Case Dismissed for Prosecutorial Misconduct in Plea Agreement

The government's efforts to keep one defendant away from another by inserting a clause in a plea agreement forbidding the cooperating defendant from speaking with the other defendant's lawyer has resulted in a dismissal of the indictment against the remaining defendant for prosecutorial misconduct.  The government's prosecution of Katrina Leung for allegedly spying on behalf of China while pretending to cooperate with the FBI has ended, at least at this point, with the dismissal of all charges against Leung because of the plea agreement with ex-FBI agent (and former lover) James Smith.  A post on the website Watching Justice states:

U.S. District Judge Florence-Marie Cooper of California issued a sharply worded decision on January 6, 2004 dismissing all charges against Katrina Leung, a socialite and Republican fundraiser arrested in 2003 along with her lover, FBI agent James Smith. The FBI had been paying Ms. Leung to provide intelligence on the Chinese government for years before the agency claimed to have discovered that she had been spying on that nation's behalf, according to the Washington Post.

Leung was recruited by Smith in 1982 for her valuable contacts in the Chinese government, the Post reported. She was reportedly paid $1.7 million over two decades for intelligence on China's military and espionage capabilities and its attempts to influence U.S. politics. The FBI eventually came to believe that she was secretly copying classified documents that Smith – with whom she had a romantic relationship – brought to her house. Smith eventually pleaded guilty to lying about the affair during an FBI background check and agreed to cooperate with the investigation of Leung in exchange for dropping more serious charges of mail fraud and mishandling classified documents. The agreement contained a clause forbidding Smith from sharing any more information with Leung or her lawyers.

The opinion, issued Jan. 6, raises troubling questions about the Department of Justice's approach to the case, specifically its intent in having the "no cooperation" clause in the plea agreement.  Judge Cooper stated:

This is the most troublesome aspect of this entire motion. The government in the many documents filed with this Court in connection with this motion has repeatedly insisted that it never intended to communicate to Smith that he could not talk to Leung’s attorneys; that the language was inartfully drawn and not carefully thought out; and that at the time of the plea, the government was not particularly concerned about Smith’s being interviewed by Leung’s attorneys. The evidence before the Court absolutely belies these representations.

The evidence makes it abundantly clear to the Court that the government, in negotiating and drafting a plea agreement for Smith, wanted to secure his promise that he would not talk to Leung or her attorneys. The clause was intentionally placed in the agreement to accomplish that purpose. When confronted with Ms. Leung’s motion to dismiss, the government proffered an assortment of explanations and denials. Such conduct compounds the problem by undermining the Court’s confidence in the integrity of the process.

While the dismissal of an indictment for prosecutorial misconduct is rare, it does on occasion happen. The district court relies on due process and a finding of outrageous government conduct as the basis for ordering dismissal, grounds that are frequently rejected by the circuit courts when there is a less drastic alternative. Given the high stakes involved in the case, an appeal to the Ninth Circuit is likely. (ph)

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