Friday, March 1, 2024

Hunter Biden Testifies

Here is the transcript of Hunter Biden's testimony before a joint session of the House Judiciary Committee and House Oversight and Accountability Committee on February 28, 2024.

Hunter Biden House Testimony Transcript.

(wisenberg)

March 1, 2024 in Celebrities, Congress, Contempt, Corruption, Current Affairs, Defense Counsel, Fraud, Investigations, Legal Ethics, Money Laundering, News | Permalink | Comments (0)

Thursday, February 1, 2024

Robert Hunter Biden Motion to Dismiss Federal Gun Charges: The Briefs Are In.

The briefing is now complete on Hunter Biden's Motion to Dismiss Based on Immunity Conferred by his Diversion Agreement. This motion was filed in the District of Delaware where three felony gun counts are pending against Biden. Biden contends that the Diversion Agreement was a binding contract once signed by the parties to it, and that the only parties to it were Biden and the U.S. Attorney's Office. DOJ disagrees on both points. Biden also argues that U.S. Probation's approval was not necessary and that, even it was necessary, U.S. Probation in fact approved the Agreement.  A similar motion will no doubt be filed in the federal tax case now pending in the Central District of California, with respect to the aborted tax-related Plea Agreement, but Biden's chances of success are much better at getting the federal gun charges in Delaware dismissed, since Diversion agreements do not require approval by the district court. The Diversion Agreement was related to the overall Plea Agreement that blew up last July in Judge Maryellen Noreika's Delaware federal courtroom. Here are Biden's original brief, the Government's Response, and Biden's Reply. Attached also is the Declaration of Christopher Clark, who was Biden's attorney involved in the negotiations surrounding the Plea and Diversion Agreements.

U.S. v. Robert Hunter Biden-Defendant's Motion to Dismiss Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden-Government's Response to Defendant's Motion to Dismiss Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden-Reply in Support of Motion to Dismiss the Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden--Declaration of Christopher J. Clark.

(wisenberg)

 

 

February 1, 2024 in Celebrities, Corruption, Current Affairs, Defense Counsel, Deferred Prosecution Agreements, Investigations, Judicial Opinions, Media, News, Privileges, Prosecutions, Prosecutors, Tax | Permalink | Comments (0)

Tuesday, December 12, 2023

Free Speech v. Fair Trial: D.C. Circuit Rules on Trump Gag Order

On Friday, December 8, 2023,  a panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed in part and vacated in part District Court Judge Tanya Chutkan's Gag Order in U.S. V. Trump. Here is the opinion, written by Judge Patricia Millett. Trump's attorneys praised the opinion, but vowed to appeal. 

(wisenberg)

December 12, 2023 in Current Affairs, Defense Counsel, Judicial Opinions, Legal Ethics, Media, News, Obstruction, Privileges, Prosecutions | Permalink | Comments (0)

Saturday, November 18, 2023

Trump Gag Order Appeal: Oral Arguments Are Next Up In D.C. Circuit

The parties' briefs are all in and the case is set for oral argument on Monday, November 20, at the U.S. Court of Appeals for the District of Columbia. Gathered together here are: Former President Trump's Opening Brief re Appeal of Judge Chutkan's Gag Order; the Government's Answering Brief; Trump's Reply Brief; and the Gag Order itself.

10-17-23 Trump Gag Order in DC Case

U.S. v. Trump - Donald Trump's Opening Brief re Appeal of Gag Order

U.S. v. Trump - Answering Brief of the United States re Donald Trump's Appeal of Gag Order

U.S. v. Trump - Reply Brief of Defendant-Appellant Donald Trump re Trump's Appeal of U.S. District Court Chutkan's Gag Order

(wisenberg)

November 18, 2023 in Celebrities, Current Affairs, Defense Counsel, Investigations, Judicial Opinions, Legal Ethics, Media, News, Privileges, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, November 15, 2023

Hunter Biden's Motion for Issuance of Rule 17(c) Subpoenas Before Trial

Today Hunter Biden's lawyers filed a Motion for Pretrial Issuance of Subpoenas Duces Tecum, pursuant to Federal Rule of Criminal Procedure 17(c)(1), to Donald Trump, William Barr, Jeffrey Rosen, and Richard Donoghue. The proposed subpoenas demand documents relating to decisions involving the investigation or prosecution of Hunter Biden in both the Trump and Biden Administrations. The defense maintains that the documents are highly likely to be relevant to its contention that the Hunter Biden Indictment is an example of a constitutionally impermissible vindictive or selective prosecution. Defendants are entitled under the Sixth Amendment to present a defense and to  compulsory production of witnesses and documents in aid of that right. Here is the motion. U.S. v. Hunter Biden - Defense Motion for Issuance of Subpoenas Duces Tecum Pursuant to Rule 17(c) and Memorandum in Support.

(wisenberg)

November 15, 2023 in Corruption, Current Affairs, Defense Counsel, Deferred Prosecution Agreements, Fraud, Investigations, News, Privileges, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, November 8, 2023

D.C. Circuit Grants Administrative Stay in Trump Gag Order Appeal

On Friday afternoon, November 2, 2023, the U.S. Court of Appeals for the District of Columbia Circuit granted an administrative stay of Judge Chutkan's 10-17-23 Gag Order in U.S. v. Trump. The Court was careful to point out that, "[t]he purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion." In other words, the Court issued an administrative stay while considering, on an expedited basis, Trump's Motion for a Stay of the Gag Order pending appeal of that Order. The granting of the administrative stay did not involve any analysis of the likelihood of Trump's ultimate success on the merits of the Gag Order. Trump's brief on the Motion for Stay Pending Appeal is due today, 11-8-23, as is the Joint Appendix. The Government's Response is due 11-14-23. Trump's Reply is due 11-17-23. Oral argument is set for 11-20-23.

Here is Defendant-Appellant Donald Trump's Emergency Motion for Stay Pending Appeal and Request for Temporary Administrative Stay of Gag Order.

Here is the Circuit Court's Friday Order Granting an Administrative Stay.  U.S. v. Donald Trump - U.S. Court of Appeals for D.C. Order Granting Administrative Stay of Trump Gag Order.

Stay tuned for more.

(wisenberg).

November 8, 2023 in Contempt, Corruption, Current Affairs, Defense Counsel, Fraud, Investigations, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, October 18, 2023

Release Pending Appeal Granted Based on Substantial Question Regarding Ineffective Assistance of Counsel

It is a truism that federal circuit courts very seldom entertain ineffective assistance of counsel claims on appeal, because the record below is usually inadequately developed. Criminal defendants typically must wait to raise such claims in a habeas petition. But last week the Sixth Circuit released appellant Faraday Hosseinipour pending her appeal, holding that she had already raised a substantial question regarding her trial counsel's competence. Trial counsel was her brother-in-law who had almost no federal criminal experience. More to come on this case in the coming days. Here is the 6th Circuit Order on Motions for Release Pending Appeal.

(wisenberg)

October 18, 2023 in Defense Counsel, Judicial Opinions | Permalink | Comments (0)

Thursday, January 5, 2023

Another Post-Ruan Acquittal: Dr. Lesly Pompy Found Not Guilty On All Counts in E.D. Michigan

Congratulations to Dr. Lesly Pompy, acquitted on all counts (illegal distribution and health care fraud) on January 4, 2023, in the Eastern District of Michigan.  Kudos as well to his outstanding team of defense lawyers, Ronald Chapman II (Chapman Law Group), Joe Richotte (Butzel Long), and George Donnini (Butzel Long). Here is a recap from Ron's Federal Defense Blog. Attached below is Defendant's Proposed Jury Instruction. The proposed illegal distribution charge should serve as a model for other defense attorneys practicing in this area.

U.S. v. Lesly Pompy M.D. Defendant's Proposed Jury Instructions.

I don't yet have a copy of the district court's final jury instruction, but will post it as soon as it becomes available on PACER.

This is one of several post-Ruan acquittals that have come down in the last six months. In each of these cases the government's evidence was weak and the strengthened scienter requirement established in Ruan v. United States no doubt played a major role in facilitating the not guilty verdicts.

(wisenberg)

January 5, 2023 in Defense Counsel, Fraud, Investigations, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Monday, October 10, 2022

Another Post-Ruan Acquittal: United States v. Saloumeh Rahbarvafaei

Congratulations are in order for Licensed Physician's Assistant Saloumeh Rahbarvafaei and her defense attorneys, Federal Public Defenders Erin Murphy and Michael Driscoll, Jr. Rahbarvafaei was acquitted in late August on all eight charged counts of illegal distribution of a narcotic controlled substance. The case was out of the Central District of California. Michael Fitzgerald was the judge. This is the third total victory for a defendant health care professional that I am aware of since Ruan v. United States was handed down by the U.S. Supreme Court on June 27, 2022. Here is the U.S. v. Saloumeh Rahbarvafaei Offense Instruction on the elements of illegal distribution. It is the best one I have seen so far in the post-Ruan era. Keep in mind that 9th Circuit jury instructions in this area were already among the most defense friendly in the country. More to come on jury instruction permutations, post-Ruan, in future installments.

(wisenberg)

October 10, 2022 in Defense Counsel, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Wednesday, June 29, 2022

Total Victory for the Defense in Greenbelt Health Care Fraud Case

After a three-week trial, and only one full day of deliberations, a federal jury in Greenbelt, MD acquitted Kasandra Vilchez-Duarte and Donnie Amis on all counts of an indictment charging conspiracies to defraud Medicaid and violate the Anti-Kickback statute.  Congratulations to the defense teams: Federal Defenders Maggie Grace & Ned Smock on behalf of Ms. Vilchez-Duarte, as well as John McNichols & Allie Eisen (Williams & Connolly) and Eugene Gorokhov (Burnham & Gorokhov) on behalf of Mr. Amis.

(wisenberg)



June 29, 2022 in Defense Counsel, Fraud, Privileges, Verdict | Permalink | Comments (0)

Monday, June 13, 2022

The Timothy Shea Mistrial: It's Tough To Dismiss An Obstinate Juror

SDNY Judge Analisa Torres granted a mistrial last week in the federal fraud trial against "We Build A Wall" Defendant Timothy Shea. On June 2, 11 of the jurors sent a note to the judge, asking that a 12th juror be dismissed because he allegedly refused to deliberate, based on what appeared to be his Trumpian political comments and bias.  The hold-out denied the charges, and accused his fellow jurors of liberal political bias. Judge Torres questioned the juror on the record, but in private away from the public and the other jurors. According to the New York Times account, "she asked whether the juror had 'biases or personal views' that would prevent him from being 'fair and impartial,' whether he could determine facts subject to her explanation of the law and whether he could consult with other jurors. The juror replied no to the first question and yes to the second two." Judge Torres declined to kick the hold-out off the jury, gave a modified Allen charge, and told the jury to continue deliberations. By Tuesday they were at a total impasse and a mistrial was declared. Shea's counsel, John Meringolo had already filed a motion for mistrial, based on Judge Torres' modification of the Allen charge and the 11 jurors' alleged breach of jury secrecy when the jury note revealed their numerical division. It doesn't look like Judge Torres ever ruled on that motion. She didn't need to, once the jury reached a total impasse. 

Recall that the case concerned the alleged fraudulent diversion of funds solicited under the premise of finishing then-President Trump's wall between the U.S. and Mexico. Shea allegedly conspired with others, including former Trump advisor Steve Bannon who was pardoned by Trump. Venue could have been had in a number of jurisdictions, but the prosecutors chose SDNY. Gee. I wonder why. So did the 12th juror. Was the 12th juror truly refusing to deliberate or was he simply unconvinced of Shea's guilt beyond a reasonable doubt. According to the Times, the other jurors spoke of the hold-out's refusal, "to deliberate based on evidence." Hmmm. Does that mean the evidence as they saw it, but not the hold-out? You can see the danger in dismissing hold-outs in this context, particularly in a politically charged case. Any 11 could complain about the hold-out's recalcitrance and "refusal to deliberate." Was there truly a "refusal to deliberate" or 11 bullies ganging up on a principled hold-out? We'll never know of course. The Second Circuit law is very clear on this issue. Once the hold-out answered Judge Torres's questions in the manner he did, he could not be removed. Under United States v. Thomas, 116 F.3d 606, 608 (2nd. Cir. 1997), a juror can be dismissed "for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution's case." That standard was simply not met in Shea's case. This was the right result under the case law. Meringolo's objection to the modified Allen charge was based on Judge Torres's additional admonition that the jurors not be swayed "by sympathy, emotion, or political views or opinions." (emphasis added).

Here is the New York Times story. Here is Meringolo's U.S. v. Timothy Shea Letter Motion for Mistrial.  

(wisenberg)

June 13, 2022 in Current Affairs, Defense Counsel, Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Friday, February 18, 2022

Michael Sussman's Motion to Dismiss

Here is the Sussman Motion to Dismiss for Failure to State an Offense, filed in Special Counsel John Durham's 18 U.S.C. Section 1001 false statement prosecution against former Perkins Coie attorney Michael Sussman. Sussman's argument is that even if the facts laid out in Durham's Indictment are true, they fail, as a matter of law, to allege/establish the essential Section 1001 element of materiality or to establish a sufficient nexus between Sussman's alleged falsehood and the agency (FBI) decision purportedly capable of being affected. Keep in mind that Sussman's alleged false statement to FBI General Counsel James Baker was that he was not acting on behalf of any client in reporting the Alfa Bank tip to Baker, when, in truth and in fact, Sussman was there representing and acting on behalf of Tech-Executive 1 and the Clinton Campaign. The materiality portion of the Sussman Indictment has always struck me as weak, but very little is required of the government in order for it to prove materiality in a Section 1001 prosecution. Sussman's real problem in winning on this motion is decades of case law holding that an indictment setting out the statutory elements of the offense, along with minimal factual allegations, is sufficient to allege an offense as a matter of law.  In other words, the defendant is not allowed to go beyond the indictment's allegations in litigating whether it alleges an offense. There appears to be no recognition of this case law in the Sussman brief. Durham was not required to put much meat on the skeletal elements of the offense. But he chose to do so, presenting a 27-page speaking indictment to the grand jury. There is some scattered authority for the proposition that an indictment setting out in detail what appear to be the full  and undisputed facts behind the offense, in addition to the statutory elements, can be defeated by accepting those facts as true and arguing that the do not constitute the purported offense being charged. See for example, U.S. v. Ali, 557 F.3d 715, 719-20 (6th Cir. 2009). That's what Sussman is up to here. Durham's response will surely be that he has set out the required statutory elements plus additional contextual detail and that the Government must be allowed to show its full factual case to the jury in order to prove why, under said factual particulars, Sussman's alleged lie was material. 

(wisenberg)

February 18, 2022 in Current Affairs, Defense Counsel, Fraud, Government Reports, Grand Jury, Investigations, Judicial Opinions, Prosecutions, Prosecutors | Permalink | Comments (0)

Sunday, January 2, 2022

Attorney Joshua Treem and Investigator Sean Gordon Acquitted On All Federal Charges

Congratulations are in order for Bob Trout and Noah Cherry of DC's Schertler Onorato Mead & Sears and to Dan Goldstein on the 12-28-21 federal district court acquittal of their client, longtime Baltimore criminal defense attorney Joshua Treem. Treem had been accused of conspiracy to obstruct an official proceeding and related charges in connection with his representation of Baltimore attorney Kenneth Ravenell in a criminal case. Also acquitted of all charges was private investigator Sean Gordon who was the private investigator working with Treem on the Ravenell matter. Gordon was represented by Geremy Kamens and Rebecca LeGrand. Congratulations to them as well. Here is the Baltimore Sun's story on the acquittal. According to Trout: "The prosecution of Josh Treem was an utter failure of judgment by the U.S. Attorney’s Office in Maryland." Kamens commented that, "these people were defending a client; they were not committing a crime." Here are the respective judgments of acquittal: Joshua Treem Judgment of Acquittal and Sean Gordon Judgment of Acquittal.

(wisenberg)

January 2, 2022 in Defense Counsel | Permalink | Comments (0)

Tuesday, December 7, 2021

The Eastman Letter and the Fifth Amendment

Here is the Eastman Letter to January 6th Select Committee Chairman Bennie G. Thompson from Eastman's attorney Charles Burnham, invoking Eastman's Fifth Amendment Privilege Against Self-Incrimination and raising other issues as well. The letter is in response to a Committee subpoena for Eastman's testimony and documents. Burnham's letter  leaves open the question of whether Eastman will appear at all, although that is clearly the proper course. As I noted here, in order to successfully invoke the Fifth Amendment Privilege Against Self-Incrimination the client must appear and invoke it on a question by question basis. This will be easy for Eastman to do, as Burnham's letter makes clear, because so many public figures and office-holders have expressed their belief that he has serious criminal exposure. Federal judges, most recently U.S. District Judge Amy Berman Jackson, have suggested that January 6 rally speakers have exposure as well. Chairman Thompson wants to "test" the assertions of witnesses invoking the privilege and Norm Eisen, E. Danya Perry, and Joshua Perry argue here in the Washington post that he should vigorously do so with witnesses such as Eastman and former DOJ Civil Division Chief Jeffrey Clark. But a Fifth Amendment assertion by either man is a no-brainer. All Burnham has to do is point to the public record, as he amply does in his letter. Almost any question after name, address, age, and current occupation could furnish a link in a potentially incriminatory chain. The Committee also demanded from Eastman a broad array of documents, and Burnham has invoked the Fifth Amendment "Act of Production" Privilege, a part of the Privilege Against Self-Incrimination, with respect to these documentary demands.  Eastman arguably does not even have to provide a Privilege Log, because the very act of listing the documents might bring into play the "foregone conclusion" exception to the Act of Production Privilege. Of course, the Committee may be able demonstrate that the existence and possession of such documents by Eastman is a "foregone conclusion" based on testimony and documents it has received from other witnesses. Stay tuned. 

(wisenberg)

December 7, 2021 in Congress, Contempt, Current Affairs, Defense Counsel, Investigations, Legal Ethics, Privileges | Permalink | Comments (0)

Saturday, April 3, 2021

Be Careful What You Ask For: Third Circuit Vacates Two Sentences For Defense Breaches Of Plea Agreement

In two cases consolidated for appeal, U.S. v. Yusuf and U.S. v. Campbell, the Third Circuit reversed downward variances based on defense breaches of the plea agreement. Both cases came out of the District of New Jersey and both involved plea agreements that recognized the sentencing court's ability to downwardly vary, but forbade the defense from arguing for a departure or variance below the recommended Guidelines range. The agreements also forbade the government from arguing for a departure or variance above the recommended range. Yusuf pled guilty to aggravate identity theft and conspiracy to commit bank fraud. Campbell pled guilty to felon in possession. Both cases involved mitigating circumstances that typically garner downward variances. Both cases involved sympathetic judges who all but encouraged defense breaches based on their searching inquiries during sentencing. Both cases stand for the proposition that there is a difference between defense counsel presenting the sentencing judge with all relevant facts about the defendant and the offense, including mitigating facts, and defense counsel asking for a downward variance, either directly or through questions to the client. This distinction is critical for defense counsel to keep in mind, even in response to questions for the court. In Campbell, defense counsel had the client ask the court for no jail time. In Yusuf, a much closer case in the Third Circuit's view, defense counsel suggested a sentence below the recommended Guidelines range. The Court distinguished defense counsel's sentencing hearing arguments in Yusuf from those of counsel for Yusuf's co-defendant Adekunle. (Adekunle's case was not on appeal and he had been sentenced by a different judge.) Adekunle's lawyer had reminded the sentencing court of its duty to consider proportionality, and the sentences handed down to co-defendants, but never asked for a downward variance and reminded the court twice that she was bound by the plea agreement: "I am constrained from arguing a below guideline sentence." The government also argued in Campbell that presenting character letters to the court asking for probation violated the plea agreement. The Third Circuit declined to reach this issue, which had not been preserved at sentencing, based on its finding that counsel's arguments alone constituted a breach. The Court cautioned district court judges at sentencing, "to be particularly mindful of the strictures on counsel when plea agreement provisions like the ones here are in place."

(wisenberg)

April 3, 2021 in Computer Crime, Defense Counsel, Fraud, Judicial Opinions, Prosecutions, Prosecutors, Sentencing | Permalink | Comments (0)

Thursday, March 18, 2021

Gideon Day & The Role of Public Defenders In White Collar Cases

Today, March 18, 2021,  is the 68th birthday of the Supreme Court decision in Gideon v. Wainwright. Although Gideon marks the recognition of the Sixth Amendment right to counsel as a fundamental right applicable in state cases, it reinforces the Court's prior decision in Johnson v. Zerbst, holding the right to counsel in federal cases.  More importantly, the progeny of cases coming from Gideon has allowed court's to use the holding to include the importance of expenses of experts (e.g. Ake v. Oklahoma) as part of that fundamental right.  Many of these cases play an important role in white collar cases, especially ones that require experts such as forensic accountants.   

In the context of white collar crime, many believe that these cases are handled by private counsel and the role of the public defender is minimal.  That may not have been the case, and more importantly it is likely not to be the case as many of the fraud cases on the horizon will be COVID fraud related matters.  Whether it be the improper acceptance of money, or the improper use of money, public defenders are likely to be handling some of these cases. So, on Gideon Day it is important to note the key role that public defenders play in white collar cases. 

(esp)

March 18, 2021 in Defense Counsel | Permalink | Comments (0)

Friday, July 31, 2020

Where We Are Now In The Michael Flynn Case

           The full United States Court of Appeals for the D.C. Circuit yesterday granted Judge Emmet Sullivan’s Motion for Rehearing En Banc, vacating a decision by one its three-judge panels, and will soon decide whether to grant General Michael Flynn’s Petition for a Writ of Mandamus against Judge Sullivan. Flynn seeks the Writ of Mandamus in order to force Judge Sullivan to immediately grant the Department of Justice’s May 7, 2020 Motion to Dismiss the criminal case against him, a motion consented to by Flynn. Regardless of the full Court’s ultimate ruling on the mandamus issue, DOJ’s Motion to Dismiss will have to be granted sooner or later under governing legal precedents. No federal appellate court has ever sustained a district court’s refusal to grant an unopposed government motion to dismiss an indictment.

        There are two separate but related legal issues at stake before the Court of Appeals. First, does the law require Judge Sullivan to grant DOJ’s Motion to Dismiss in the absence of a grave constitutional issue, reducing Sullivan’s function to a ministerial one? Federal Rule of Criminal Procedure 48(a) requires “leave of court” when the government moves to dismiss an indictment, but an abundance of federal case law holds that the district court’s role is in fact quite limited when the government moves to dismiss a criminal case and the defendant consents. Second, is mandamus the appropriate remedy for Flynn given that Judge Sullivan has yet to rule on DOJ’s Motion to Dismiss? Mandamus is an extraordinary remedy, typically reserved for situations where the remedy provided at law is inadequate. Judge Sullivan had not yet ruled on DOJ’s Motion to Dismiss when Flynn filed his Petition for a Writ of Mandamus. Why didn’t Flynn just wait for Judge Sullivan to rule and for DOJ to appeal Sullivan’s order if he denied the motion?

        The DOJ has argued that Judge Sullivan’s: 1) appointment of retired federal judge John Gleeson as an amicus, or friend of the court, for the specific purpose of opposing DOJ’s Motion to Dismiss; and 2) Judge Sullivan’s indication that he intends to examine closely DOJ’s motives in filing the Motion to Dismiss, will themselves be an improper intrusion into Executive Branch functions, in violation of Separation of Powers. Flynn has argued that these same factors, along with Sullivan’s setting of a drawn out briefing schedule, harms him financially and reputationally by delaying the immediate relief he is entitled to.

        What is likely to happen next?

        Argument before the Court sitting En Banc has been set for August 11, but the Court wants no further briefing. The Court’s Order states that the parties “should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).” Cheney is a key Supreme Court case involving the intersection of Separation of Powers and Mandamus case law. In other words, the key issue before the full D.C. Circuit is whether mandamus is premature. Should Judge Sullivan have been allowed to hold a hearing and make a ruling before Flynn went to a higher court seeking mandamus relief or did the very mechanisms set in place by Sullivan create an improper intrusion into Executive Branch matters and a harmful delay in the relief to which Flynn was entitled?

        Even if the Court of Appeals ultimately holds that mandamus is premature, expect the full Court to set clear standards as to what Judge Sullivan can and cannot do (and how long he can take) in ruling on DOJ’s Motion to Dismiss. And make no mistake about it. The DOJ’s Motion will ultimately be granted.

(wisenberg)

July 31, 2020 in Current Affairs, Defense Counsel, Government Reports, Investigations, Judicial Opinions, Legal Ethics, News, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Monday, July 20, 2020

New Filings in Flynn Mandamus Action

Michael T. Flynn's Opposition to Rehearing En Banc has been filed today in the United States Court of Appeals for the D.C. Circuit. This is in opposition to Judge Emmet G. Sullivan's Petition for Rehearing En Banc, filed on July 9. The Department of Justice was invited by the Court to respond and did so today in the United States' Response to the Petition for Rehearing En Banc.

Both Flynn and DOJ argue that Sullivan lacked standing to file the Petition for Rehearing, as he is not a party and there is no longer a case or controversy. Apparently only one federal judge in history has filed such a petition and it was denied. DOJ's brief also argues in detail, quite effectively I think, that the panel's decision granting mandamus does not conflict with: D.C. Circuit precedent; precedent in other circuits; or Supreme Court precedent. 

DOJ also responds directly and succinctly to Judge Sullivan's argument that mandamus was premature, because he had not yet held a hearing or made a ruling on DOJ's Motion to Dismiss. Flynn therefore had an effective remedy on appeal from any adverse ruling. This argument ignores the continuing harm to the Executive Branch's interests occasioned by the judge's dilatory behavior:

"That objection misses the point: at stake is not mere consideration of a pending motion, but a full-scale adversarial procedure spearheaded by a court-appointed amicus hostile to the government’s position raising factual questions, relying on extra-record materials, probing the government’s internal deliberations, and second-guessing core prosecutorial judgments.... Accordingly, while the panel specifically recognized that '[a] hearing may sometimes be appropriate before granting leave of court under Rule 48,' it determined that the hearing contemplated by the district court here would 'be used as an occasion to superintend the prosecution’s charging decisions' and would cause 'specific harms.' "

My prediction is that Judge Sullivan's Petition for Rehearing En Banc will be denied.

(wisenberg)

July 20, 2020 in Current Affairs, Defense Counsel, Government Reports, Investigations, Judicial Opinions, Legal Ethics, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Sunday, June 14, 2020

The Flynn Plea Agreement: A Pernicious Paragraph

One of the ironies of high-profile, criminal investigations of public officials, particularly Special and Independent Counsel investigations, is the outrage expressed by certain segments of the populace upon discovering the existence of very common law enforcement techniques. Hence the outrage among President Clinton's supporters when they learned that Linda Tripp secretly tape-recorded her "best friend" Monica Lewinsky at the behest of Ken Starr's prosecutors. Hence the outrage, among Trump's supporters,  when they discovered that FBI officials wanted to catch General Flynn in a lie and threatened his son with prosecution in order to coerce a guilty plea. "That happens all the time," say the know-it-all criminal law cognoscenti who fellow-travel with one side or another, as well as their minions who parrot the party line to the faithful. Except in the case of Judge Starr. Almost nobody was on our side, parroting our points. Except the courts. Most of the time. But I digress.

Our subject today is a nasty little paragraph inserted into General Flynn's plea agreement by Bob Mueller's staff. I first started noticing this provision 5 or 6 years ago in some of the plea offers that came my way, depending on which U.S. Attorney's Office I was dealing with at the time. It has shown up more often since then, but is far from universal. It can be found in most or all of the Mueller team's plea agreements. It is typically found in Paragraph 9(F) within the Waivers section. It states as follows: "Your client agrees to waive all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including and without any limitation any records that may be sought under the Freedom of Information Act, 5 U.S.C. Section 552, or the Privacy Act, 5 U.S.C. Section 552(a), for the duration of the Special Counsel's Investigation." The limiting of the waiver to the duration of the investigation is not a feature I have previously encountered.

Although the waiver does not mention Brady material on its face, it clearly applies to requests for exculpatory records. (As I noted here recently, it was after General Flynn’s case was transferred to Judge Sullivan’s court, and Sullivan entered his broad standing Brady Order, that Mueller’s team appears to have provided voluminous additional discovery to Flynn’s lawyers.) Prosecutors have a constitutional duty to turn over exculpatory information to the defense even if defense counsel does not request it. But case law holds that more detailed, specific defense requests create a greater prosecutorial obligation. In my view, this paragraph forces defense counsel to breach his or her ethical duties to the client to vigorously demand Brady material as well as mitigating information required under state ethical rules and the McDade Amendment. The Department of Justice should put a stop to this and prohibit all such provisions from being part of its plea agreements. This includes FOIA requests, which serve to ensure, post-judgment, that the government's Brady obligations have been met.  Here is the Flynn Plea Agreement.

(wisenberg)

 

 

June 14, 2020 in Current Affairs, Defense Counsel, Investigations, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Saturday, June 6, 2020

Materiality and the Flynn Prosecution

Title 18, United States Code, Section 1001, criminalizes certain false statements or omissions made to the federal government. The statute requires that the false statement be material to a matter within the jurisdiction of a federal agency or department. Materiality is an element of the offense that must be alleged and proved beyond a reasonable doubt. It is usually a fairly easy element for prosecutors to establish.

General Michael Flynn was charged with violating Section 1001 in a one count Criminal Information that tracked a portion of the statutory language. The Information was filed in federal court on December 1, 2017, by prosecutors in Special Counsel Robert Mueller's office. Those prosecutors charged Flynn with lying to the FBI during the course of a White House interview conducted on January 24, 2017. The January 24 interview concerned late December 2016 conversations between Flynn and Russian Ambassador Vitaly Kislyak during the post-election Presidential transition period.

A federal court cannot accept a guilty plea without a Factual Basis, sometimes referred to as a Factual Statement or Statement of the Offense. It is typically filed along with the Plea Agreement or is incorporated into the Plea Agreement itself. According to the Statement of the Offense filed in General Flynn's case:  "Flynn's false statements and omissions impeded and otherwise had a material impact on the FBI's ongoing investigation into the existence of any links or coordination between individuals associated with the Campaign and Russia's efforts to interfere with the 2016 presidential election." We now know this wasn't true. Flynn's statements, whether false or not, had no effect on the Russian Collusion investigation.

Crossfire Hurricane, launched on July 31, 2016, was the name given to the FBI’s counterintelligence investigation into possible collusion, witting or unwitting, between members of Trump’s campaign team and Russians attempting to influence the 2016 election. Crossfire Hurricane was not begun based on any allegations related to General Michael Flynn.  Instead, the Bureau authorized Crossfire Hurricane after it learned, third-hand, that Russia may have “suggested” assisting the Trump campaign by anonymously releasing dirt on Hillary Clinton. An FBI subfile was created on Flynn, not because of any allegations against him, but because of Flynn’s known contacts with Russia. Such contacts would hardly be surprising for a former Director of the Defense Intelligence Agency who was a Trump advisor rumored to be Trump’s choice for National Security Director if he won the election. The subfile investigation of Flynn was known as Crossfire Razor.

FBI officials Jim Comey, Andy McCabe, Peter Strzok, and Lisa Page each knew, well before Flynn's January 24 interview, that the General had no involvement whatsoever in any improper or illegal coordination with Russia regarding the 2016 election. Flynn had already been completely cleared in Crossfire Razor by January 4, 2017. A draft Closing Communication, documenting the complete lack of evidentiary support for Flynn's involvement in, or knowledge of, 2016 election collusion, was prepared on January 4 by the Crossfire Razor team. But the decision to close the file had been made even before January 4. Such a draft Closing Communication would never have been commenced unless the case agents had received prior approval from their FBI Supervisor, and Former FBI Director Comey testified that he authorized the closing of Crossfire Razor by December 2016. 

But none of this exculpatory information regarding materiality was shared at any time with the original defense attorneys representing Flynn, either before or after he entered his December 1, 2017 guilty plea. (Nor was it shared with Deputy Attorney General Rod Rosenstein, who was by then the Acting Attorney General for purposes of the Mueller Investigation and had final authority over Mueller's charging decisions.) The knowledge that Flynn's January 24, 2017 interview responses did not influence and were arguably incapable of influencing the Crossfire Hurricane investigation was relevant both to Flynn's guilt and punishment. While there is some uncertainty in the law as to whether Brady material must be turned over to the defense prior to a guilty plea, there is no uncertainty about Judge Emmet G. Sullivan's standing Discovery Order that he enters in every criminal case, and entered in Flynn's. It directs the government "to produce to defendant in a timely manner any evidence in its possession that is favorable to defendant and material either to defendant's guilt or punishment. This government responsibility includes producing, during plea negotiations, any exculpatory evidence in the government's possession."

Flynn had already pled guilty when his case was transferred to Sullivan's court, but he was still awaiting punishment. After the case was transferred, and Sullivan entered his Standing Order, Mueller's team produced voluminous additional documents to Flynn's team. Why did they do this when, under the terms of the Plea Agreement, Flynn was no longer allowed to request additional documents from the government? Because Mueller's prosecutors knew the significance of Sullivan's Standing Order and the additional burden it placed on them. Moreover, Sullivan had Flynn reaffirm his original plea colloquy, under oath, in December 2018. There is thus no question that the information discovered by Eastern District of Missouri U.S. Attorney Jeffrey Jensen, and publicly released for the first time last month at the direction of Bill Barr, should have been produced by Mueller's team to Flynn. What we don't know yet is whether any prosecutor on Mueller's original team, or on the post-Mueller team handling the Flynn case, knew about the recently disclosed documents. 

And one more thing. You can ignore commentators like Chuck Rosenberg, who recently listed here, in the Washington Post, all the folks (Trump, Pence, Priebus, etc.) who presumably thought Flynn's allegedly false statements were material. Chuck is relying on the general public's ignorance of federal criminal law. The only materiality at issue in U.S. v. Flynn is the materiality of the January 24, 2017 statements Flynn made to high-ranking FBI Supervisory Agents, which statements formed the basis of Michael Flynn's guilty plea and Statement of the Offense. Those post-inauguration statements about post-election conversations with Ambassador Kislyak, were clearly immaterial to an investigation of election-related collusion that had already cleared Flynn.

(wisenberg)

June 6, 2020 in Current Affairs, Defense Counsel, Government Reports, Investigations, Judicial Opinions, News, Obstruction, Perjury, Prosecutions, Prosecutors, Sentencing | Permalink | Comments (1)