Monday, May 28, 2018

Taint Teams

Guest Blogger - Josh Greenberg

Biggest-Ever Health Care Fraud Case Jeopardized By Prosecutors’ Failure To Implement A Taint Team After Seizing Documents From Defendant’s Personal Attorney, In Contrast To The Practices Advocated By Their Counterparts (And The President!) In The Analogous Case Of The Search Of The Office Of Michael Cohen

In the summer of 2016, Philip Esformes was indicted in the U.S. District Court for the Southern District of Florida for what the government describes as the biggest health care fraud case in U.S. history. The indictment alleges that Mr. Esformes ran a network of skilled nursing facilities and assisted living facilities that defrauded Medicare and Medicaid of $1 billion.  Remarkably, after Mr. Esformes was indicted, the government did not create a taint team to review privileged documents seized from the office of one of his attorneys.  The prosecution is in jeopardy as a result.

On the same day the indictment was filed, the prosecution team applied for a warrant to search an assisted living facility named in the indictment. Several cooperating witnesses had informed the prosecution team that Mr. Esformes’s personal attorney maintained his law office at that facility and did legal work for Mr. Esformes on matters relating to the allegations in the indictment.  The application for the warrant did not disclose these facts.  Moreover, the U.S. Attorney’s Manual imposes strict conditions on applications for warrants to search the offices of an attorney who, as with Mr. Esformes’s personal attorney, is a subject of an investigation.  Before applying for such a warrant, federal prosecutors must both obtain “the express approval of the United States Attorney or pertinent Assistant Attorney General” and “consult with the Criminal Division.”  The prosecutors in Mr. Esformes’s case, who are based in D.C., evidently did neither.

A magistrate judge issued the warrant without being told that the facility to be searched included an attorney’s office. One day after the indictment was filed, agents executed the warrant and seized over 170,000 pages of documents – including many privileged documents, a number of which addressed matters relating to the allegations in the indictment.  By this point, even though Mr. Esformes’s Sixth Amendment right to counsel had attached, no taint attorney was assigned to the search.  Instead, one of the agents was tasked with taking the lead in identifying and segregating potentially privileged documents.  But the agent was not given the information needed to do so, such as the names of the attorneys and law firms defending Mr. Esformes.  Of the documents the agents seized, only ten were put in a box marked “Taint.”  The rest were put in 69 boxes – one of which was labeled “Carlton Fields,” the name of the law firm then defending Mr. Esformes – and given to the prosecutors.  In addition, agents who executed the warrant remained or later became part of the prosecution team.   

During the search, Marissel Descalzo, one of the attorneys from Carlton Fields, informed agents at the scene orally – and the lead prosecutor via email – that Mr. Esformes’s personal attorney represented Mr. Esformes, that the agents were seizing privileged materials, and that Mr. Esformes objected to these seizures. Whereas the lead prosecutor assured Ms. Descalzo that a taint team was in place, the same prosecutor began reviewing privileged documents in the 69 boxes on the next business day.  The documents the lead prosecutor reviewed included notes and spreadsheets prepared at Ms. Descalzo’s request by a legal assistant for Mr. Esformes’s personal attorney.  Later, despite learning that the notes and spreadsheets were privileged, the lead prosecutor, another prosecutor, and case agents from several different agencies questioned the legal assistant about those documents and learned the defense strategies reflected therein.  The prosecutors decided not to notify either Mr. Esformes or the court of their review of the privileged documents or their interrogation of the legal assistant.

In April 2017, Mr. Esformes’s defense team – Roy Black, Howard Srebnick, and Jackie Perczek of Black Srebnick Kornspan & Stumpf and Ms. Descalzo, now of Tache, Bronis, Christianson and Descalzo – moved to dismiss the indictment or disqualify the prosecution team. A lengthy evidentiary hearing ended earlier this year and the motions are fully briefed.

 The prosecution team’s approach in Mr. Esformes’s case stands in sharp contrast to the positions taken by the U.S. Attorney’s Office for the Southern District of New York (the “USAO-SDNY”) and by President Donald Trump in the case of Michael Cohen, the President’s personal attorney. Following  the search of Mr. Cohen’s office, before any law enforcement official reviewed a single seized document, the USAO-SDNY sought the court’s permission to implement a “rigorous” taint team protocol, as is “common practice in th[at] District,” after Mr. Cohen sought a temporary restraining order.  (This protocol is also the norm in other districts, including the Southern District of Florida.)  Under the protocol, attorneys walled off from the prosecution team identify potentially privileged documents and “confer with counsel for the privilege holder” before sharing such documents with the prosecution team.  To the extent that the privilege holder’s counsel objects, the taint team seeks a judicial determination as to privilege by submitting the documents under seal so that each side can present its arguments.  A narrow exception allows ex parte review in “extraordinary cases” if “absolutely necessary,” such as where explaining the government’s position “would jeopardize a covert aspect of [an] investigation.”  (Even under that exception, the privilege holder still receives judicial review.  Mr. Esformes received no protection whatsoever.) 

President Trump objected to a taint team, insisting that attorneys from the same office prosecuting Mr. Cohen cannot be trusted to decide which documents are potentially privileged and cannot fairly make such decisions. President Trump sought far greater protections, contending that his attorneys should decide which documents relating to him are withheld on the basis of privilege from the prosecution team.  Ultimately, the court ruled that the USAO-SDNYs position was correct as a matter of law, but that it would appoint a former judge as a special master to avoid even an arguable appearance of bias given the politically charged nature of the case.

In Mr. Cohen’s case, recognizing the importance of protecting the attorney-client privilege even before an indictment, the USAO-SDNY sought to follow accepted taint team procedures rather than risk disqualification or dismissal in a potential future prosecution. The prosecution team in Mr. Esformes’s case, however, did not take such prophylactic measures when searching his personal attorney’s office after Mr. Esformes was indicted.  Even if due to mere negligence, such exposure to privileged information – the very harm that a proper taint team prevents – cannot be undone.  It is difficult to see how Mr. Esformes could have a fair trial against a prosecution team that learned his defense strategies long in advance.  Courts have disqualified prosecutors who even inadvertently encountered far less significant privileged information.  Insofar as the prosecutors recklessly or deliberately reviewed privileged materials that reveal his trial strategy, Mr. Esformes may also have a strong argument that his case should be dismissed.  In the Eleventh Circuit, dismissing an indictment is appropriate where a Sixth Amendment violation caused “demonstrable prejudice.” United States v. Ofshe, 817 F.2d 1508, 1515 (11th Cir. 1987).  That standard may be met when a post-indictment failure to establish a taint team results in prosecutors, and perhaps their supervisors as well, obtaining particularly sensitive privileged information without any judicial review. 

(JG)

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