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January/February 1999 RICO Report By Barry Tarlow Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney’s Office and is a member of The Champion Advisory Board. The author wishes to thank Blair Berk and Kevin Jon Heller, members of his firm, for their invaluable assistance in the preparation of this column. Yes, You Can Be Prosecuted for Providing Traditional Legal Services A recent Seventh Circuit decision may give pause to all criminal defense practitioners committed to vigorous advocacy on behalf of clients. That court decided in United States v. Cueto, 151 F.3d 620 (7th Cir. 1998), that an attorney’s actions representing a client under investigation for racketeering and illegal gambling, which included filing pleadings, urging co-counsel to file pleadings, urging the state to indict a government agent and challenging the grand jury’s composition, obstructed justice and constituted a conspiracy to defraud the United States. For these actions, Amiel Cueto was sentenced to 87 months in prison. Although the holding could have easily been limited to the instances where, as here, the attorney was involved in the illicit business with his client or where an attorney uses unlawful means in defending clients, the decision expansively notes that “[o]therwise lawful conduct, even acts undertaken by an attorney in the course of representing a client, can transgress § 1503 [obstruction of justice] if employed with the corrupt intent to accomplish that which the statute forbids.” Id. at 631. This decision is one in a series of prosecutions of criminal defense lawyers for actions taken while representing clients. Several such noteworthy prosecutions include that of prominent San Francisco defense attorney Patrick Hallinan, who was acquitted of RICO and conspiracy charges, and more recently the convictions of Miami defense attorney William Moran and Washington, D.C. lawyer Michael Abell of conspiracy to commit RICO and conspiracy to commit money laundering arising out of their representation of drug kingpin, Miguel Rodriguez Oruella. Cueto expands the reach of the obstruction of justice statute to encompass defense lawyers’ legitimate actions, including those typically taken in defense of individuals accused of crimes. Though it notes that to be criminal, this “otherwise lawful conduct” taken in defense of a client must be done with a “corrupt motive” this provides little protection because such “corrupt motive” is ill-defined and subject to an equally overbroad interpretation. The circumstances leading to the conviction of criminal defense attorney Amiel Cueto arose out of the investigation and ultimate prosecution of his client, Thomas Venezia, owner of B&H Vending/Ace Music Corporation, which operated a vending and amusement business (“B&H”). Venezia and B&H were supplying video poker games to taverns and the tavern owners paid cash winnings to customer-players. B&H then reimbursed the taverns for their payouts and shared profits from the games with the tavern owners. Cueto was hired to defend both. Venezia and the tavern owners were arrested for having the gambling machines in their places of business. An additional unique circumstance was Cueto’s unwise decision to participate in Venezia’s business dealings. He became co-owner of a nightclub with Venezia, he allowed Venezia to purchase his office building, and he participated in financing construction costs and other real estate purchases with Venezia. It is dangerous for a criminal lawyer to invest even in an ostensibly legitimate business with current, former or potential clients. Entry into a business whose legality is questionable, with a client or potential client, is quite simply a disaster waiting to happen. According to the government’s theory, the nightclub and these other business transactions depended, financially, upon the continued operation of the illegal gambling. The decision notes that “[e]ven after Cueto became a business partner of Venezia and invested in various real estate and development projects with him, he continued to give Venezia legal advice.” Cueto, 151 F.3d at 627. Venezia came under suspicion when the Illinois Liquor Control Commission (“ILCC”) and the Illinois State Police conducted a joint investigation into illegal gambling. The FBI became involved and employed an ILCC agent, Bonds Robinson, to work undercover and approach Venezia and solicit a bribe, Venezia informed his attorney, Cueto, of the bribery solicitation and Cueto referred the matter to his law partner. The Court of Appeals notes that “[i]n an attempt to portray Robinson as a dishonest agent, [the law partner] reported to the ILCC that Robinson had solicited a bribe. . . .” Cueto, 151 F.3d at 625. Notwithstanding the court’s intimation of some criminality, there is no wrongdoing in portraying a state agent who solicited a bribe as corrupt. Cueto wrote to the state prosecutor’s office describing Robinson’s bribery solicitations and he filed a state court complaint alleging that Robinson was a corrupt agent and had interfered with Venezia’s business. Cueto then obtained a court order requiring Robinson to appear in court for one of the gambling prosecutions and used that opportunity to serve Robinson with a subpoena compelling his appearance 15 minutes later at an injunction hearing on the state court complaint. Apparently without querying the validity of such service of process or taking the 15 minutes to call the FBI for assistance, Robinson proceeded to state court where his requests for an attorney were denied and he was questioned under oath by Cueto. Of course, during this hearing, facts about the covert FBI investigation were disclosed. The Cueto court notes that “the state court judge permitted Cueto to question Robinson about the FBI’s investigation (which at that point was still a covert operation) and the evidence it had obtained in the course of the investigation.” Id. at 625. The decision does not explain how and whether Cueto knew, at that time, that Robinson, an Illinois state liquor agent, was working for the FBI in a covert capacity. According to the decision, “Cueto admitted that he obtained the court order for unlawful purposes and he fraudulently used the court order to lure Robinson to court for the injunction proceedings.” Id. at 625 n.5. However misuse of the legal process has subjected individuals to sanctions, or at worst, contempt proceedings, not conspiracy and obstruction of justice charges. The court also notes that an additional act comprising part of the criminal charges was Cueto’s cross-examination of agent Robinson during a hearing held after the arrest of one of Venezia’s corporate employees. After this hearing, Cueto brought the transcripts of Robinson’s testimony to the State’s Attorney’s office to urge that Robinson be prosecuted for perjury. The decision does not state that the cross-examination was conducted in an improper manner, and while the Court of Appeals notes that the State’s Attorney declined to prosecute Robinson for perjury, there is no discussion of the merits of Cueto’s belief that the agent lied under oath. Throughout the investigation and proceedings, including appeal, Cueto always maintained that Robinson had solicited a bribe for criminal purposes. See Cueto, 151 F.3d at 625; Appellant Cueto’s opening brief at pp. 9, 45. During the investigation of the racketeering case, Cueto also filed motions and appeals challenging the composition of the grand jury, all of which were unsuccessful (except when used as evidence against him in his own prosecution). In March 1995, both Venezia and B&H were indicted on federal racketeering and illegal gambling charges. While Cueto represented Venezia during the pendency of the investigation prior to the return of the indictment, he was not counsel of record during the trial on the federal charges. Notwithstanding this, the Seventh Circuit found that “Venezia continued to rely on Cueto’s advice throughout the prosecution of the racketeering case,” and that Cueto “participated in the preparation of Venezia’s defense in the racketeering prosecution.” Cueto, 151 F.3d at 620. There is no discussion as to how or why this was unlawful. At this juncture, Cueto approached a local congressman and requested that he offer a judicial position to the present State’s Attorney if the State’s Attorney would recommend that Cueto be named as the next State’s Attorney — hardly an appropriate manner of selecting our public officials, yet, again not an unlawful act. The court also cites with disapproval Cueto’s exercise of First Amendment freedoms where he authored articles complaining of prosecutorial misconduct in the racketeering case and subjected specific Assistant United States Attorneys (AUSAs) to criticism. In December 1995, both Venezia and B & H were convicted of racketeering, illegal gambling and a conspiracy arising out of the gambling business. Seven months later, Cueto, Venezia and a local public official were charged with conspiring to defraud the United States in violation of 18 U.S.C. § 371 and obstructing justice in violation of the omnibus clause of 18 U.S.C. § 1503. These charges against Cueto resulted from the actions outlined above taken in his capacity as Venezia’s defense attorney during the investigation and prosecution of Venezia and B&H. Specifically, he was charged with conspiring to attempt to defraud the United States by “misus[ing] his office as an attorney and unlawfully and intentionally conspir[ing] . . . to impede, impair, obstruct and defeat the lawful function of the FBI, the grand jury and the federal district court in connection with the investigation, indictment and prosecution of Venezia” and with the substantive crime of obstruction of justice. Cueto, 151 F.3d at 628-29. According to the government, Cueto engaged in the following three-part conspiracy to obstruct justice:
Next, Cueto was accused of obstructing justice in violation 18 U.S.C. § 1503, because he “corruptly endeavored to use his office as an attorney to influence, obstruct and impair the due administration of justice in various court proceedings” involving prosecution of Venezia and B&H. Cueto, 151 F.3d at 628-29. The specifics underlying the accusations of obstructing justice were those same acts alleged in parts 1-3 of the conspiracy charges, specifically, filing or causing pleadings to be filed, including an appellate brief and petition for certiorari, Cueto’s supposed interference with the grand jury by his efforts to have agent Robinson prosecuted and the preparation of, filing, and urging other defense counsel to file, “false pleadings” in the racketeering case. Id. at 629. The prosecution alleged that the business relationship between Cueto and Venezia “created Cueto’s financial motive for his participation in the conspiracy, in which he endeavored to protect the illegal gambling enterprise . . . in order to safeguard his personal financial interests.” Id. at 628. On appeal, Cueto mounted overbreadth, vagueness, First Amendment and sufficiency of the evidence challenges to the criminal conspiracy and obstruction statutes. He also raised evidentiary issues. All of his grounds for appeal were denied. Cueto’s case history and his relationship with his client appears sufficiently “unique” that the Seventh Circuit’s holding should have been quite fact-specific. Certainly, one can argue that the Cueto decision limits criminal liability to attorneys involved in illegal business relationships with their clients and to those who use unlawful means in the client’s defense. Cueto expressly instructs that its “ruling today does not interfere with legitimate avenues of advocacy of even the most zealous of attorneys.” Cueto, 151 F.3d at 629. The opinion clearly recognizes the dangers of permitting prosecutors “to inquire into the motives of criminal defense attorneys ad hoc,” and claims that Cueto is not intended to provide that vehicle because it is “limited to [its] specific facts.” Id. at 634. These “specific facts” appear to be that “Cueto held a personal financial interest in protecting the illegal gambling enterprise” and that the “corrupt endeavor to protect the illegal gambling operation and safeguard his own financial interest . . . motivated” the outwardly lawful actions, making them illegal. Cueto, 151 F.3d at 631; see also id. at 632 (“Cueto’s personal financial interest is the heart of his corrupt motive”). Cueto’s conduct can be distinguished from that of other criminal defense lawyers who utilize traditional litigation-related tactics to defend clients, because he was alleged to be involved in the illegal gambling operation with his client and because he is alleged to have used unfair tactics, such as filing false pleadings, to protect this illicit financial interest. As further support for this limited reading, the opinion provides: “[i]t is undisputed that an attorney may use any lawful means to defend his client, and there is no risk of criminal liability if those means employed by the attorney in his endeavors . . . remain within the scope of lawful conduct. Id. at 631 (emphasis added). Thus, Cueto is guilty because he used some unlawful means to defend the client and had he employed solely lawful conduct, there would be no “risk of criminal liability.” See id. at 631. If this were the only reading of Cueto, the decision would not pose any real threat to criminal defense attorneys. However, there is a grave risk that Cueto will receive a much broader reading — a risk posed by other statements in the opinion which are wholly unnecessary if the holding was predicated solely upon Cueto’s unlawful actions and unholy business alliance with his client. This broader reading arises because the court notes that “[o]therwise lawful conduct, even acts undertaken by an attorney . . . representing a client, can transgress §1503 if employed with the corrupt intent” to obstruct justice. Cueto, 151 F.3d at 631. While on first reading this proposition appears neither novel nor remarkable, it presents a number of serious problems. If the court of appeals intended to limit criminal liability to attorneys undertaking unlawful acts such as those alleged against Cueto — the illicit financial involvement in his client’s gambling enterprise which caused him to file false pleadings and urge a baseless prosecution — the decision could have been a much shorter work than 56 pages. The lengthy discussion about taking lawful actions with corrupt motives, the sweeping statements that otherwise lawful “defense lawyer” conduct, taken on behalf of a client, can violate the law if there is a subjective “corrupt intent,” are entirely unnecessary to a truly limited decision. Additionally, certain portions of the opinion actually note that Cueto’s wrongdoing involved protecting Venezia from criminal prosecution as well as protecting his own financial interest. Cueto, 151 F.3d at 633 (Cueto’s actions were taken “with the corrupt intent to protect Venezia, Venezia’s associates, and his business from criminal prosecution and to safeguard his personal financial interest in the illegal gambling operation.”) (emphasis added); see also id. (“The jury was amply justified in concluding that Cueto’s repeated filings were motivated by his attempt to protect his client from prosecution and to safeguard his financial interest.”) (emphasis added). These particular statements pose great difficulty for the defense bar because as Venezia’s and B & H’s lawyer, one would expect and hope that Cueto was attempting to protect them from criminal prosecution — that would have been his job. This passage in the decision suggests that Cueto’s protection of his own financial interest (and not even the illegal interest) is simply another basis, in addition to the performance of his legal responsibilities to his client, upon which the jury could have convicted him. These passages are entirely inconsistent with the law prior to this opinion, inconsistent with other statements throughout the opinion, and extremely dangerous for all lawyers. NACDL filed an amicus brief expressing concern that the decision will result in prosecutions of criminal defense lawyers engaged in good faith litigation and chill zealous advocacy on behalf of criminal defendants. See Cueto, Amicus Curiae Brief, by Mark Lippman and Barbara Bergman, filed by NACDL. The Seventh Circuit’s re-sponse was to note that lawyers neither receive nor deserve special immunity from criminal prosecution. Id. at 632. This overly simplistic answer ignores fundamental problems posed by having a jury decide the subjective issue of whether or not a criminal defense lawyer engaging in conduct ordinarily part of defense representation, acts with a “corrupt motive” while helping an obviously guilty client avoid jail. There is a particular danger in a case, such as Cueto, where another jury has already decided that the client is guilty. If jurors are entitled to rely upon lawful actions taken in defense of a client, they may believe that the defense lawyer’s efforts to obtain an acquittal and otherwise keep this “guilty” person out of jail constitutes such a “corrupt motive.” To the average citizen, justice means the guilty go to jail, so any effort to derail the prosecution from this path could be viewed as “obstructing justice.” Every criminal defense lawyer who has been asked: “how can you defend those people” realizes that the questioner does not understand that criminal defense lawyers are obligated to protect their client, “guilty” or not, from jail, by utilizing all lawful means at their disposal. The risk is very real that those who do not understand how we can defend “those people” are the same individuals who will be asked to determine whether we had the subjective intent to obstruct justice in our efforts to keep “those people” out of jail. In this era where the general public perception persists that defense lawyers win on “technicalities,” there is a danger that lawyers’ motives to “get their clients off” will be viewed as “corrupt” and considered a violation of § 1503. The failure to adequately define and limit Cueto’s “corrupt motive” to his financial interest in the illegal gambling enterprise could result in an enormous problem for defense lawyers. Most criminal defense lawyers, other than public defenders, clearly have a financial interest in the defense of their client. If the client is not jailed, he can hire them again, refer them business or perhaps pay the remainder of the fee as promised. Often the client’s business pays the bill. All of these are financial motivations which could co-exist with the desire to keep one’s client out of jail, as the job requires. According to Cueto, these attorneys could be subject to criminal prosecution, depending on a prosecutor’s interpretation of their subjective motivation during the performance of their defense obligations. Even the Cueto court itself expressed concern over using §1503 to punish this type of conduct, stating that “[t]his theory of prosecution brings us some pause,” Cueto, 151 F.3d at 631 n.10. It was forced to concede that “[t]here is little case authority directly on point to consider whether an attorney acting in his professional capacity could be criminally liable . . . for traditional litigation-related conduct that results in an obstruction of justice.” Id. at 631. However, the court did not let the lack of authority impede its decision to address these matters. In fact, Cueto cited no authorities which actually hold that wholly legitimate, traditional litigation-related conduct can be criminal. The closest that Cueto comes is its citation to three decisions; however, they are so factually inapposite that they highlight the legitimacy of Cueto’s actions in comparison with the lawyers in these cases. See United States v. Aguilar, 115 S. Ct. 2357 (federal judge lied to FBI agents but no obstruction because no evidence agent was to be subpoenaed in grand jury proceeding) (1995), United States v. Goulding, 26 F.3d 656 (7th Cir. 1994) (attorney proposed and set up money-laundering scheme for confidential informant and used billing invoice to pretend was a legitimate attorney-client relationship) and United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987) (attorney “representing” a grand jury witness was tape-recorded conferring with another individual to ensure the witness’ silence in the grand jury, discussing the murder of the witness, and advising the then-immunized witness to remain silent and commit contempt “for the sole purpose of shielding others.”). Cintolo is the only case which remotely resembles Cueto. In Cintolo, the First Circuit considered the argument that permitting jurors to draw inferences from “traditional” lawyerly conduct, such as filing motions, imperiled the effectiveness of the defense bar, but it refused to decide that issue noting that Cintolo did not perform traditional defense counsel functions — he “spurn[ed] the interests of his own client and conspire[d] to subject him to a prison term for the benefit of a third party. . . .” Id. at 995. At the same time, Cintolo adhered to the principle that “if an attorney acts in good faith in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held liable for error in judgment.” Id. at 994 (citations omitted). Of course, the district court’s evidentiary rulings, which included excluding the transcript of Robinson’s testimony upon which Cueto urged the perjury prosecution, precluding Cueto from testifying about his motives for seeking the perjury prosecution and redacting the pleadings alleged to contain these “false statements,” all severely limited Cueto’s ability to present evidence of good faith in his actions. The facts as set forth in Cueto conclude that certain events occurred. For example, Cueto presumes the existence of these “false pleadings” but never explains what they were or what was false about them. The parties’ briefs reveal enormous differences of opinions about the actual existence of “false pleadings.” A close reading of the decision suggests that at least some of these “false statements” may be nothing more than Cueto’s views about Robinson’s veracity and attempts to extort money from Venezia. If this is the case, the court of appeals cannot be asserting that these claims are “false” simply based upon the jury’s verdict of guilty, especially since the supposed objective evidence that Robinson committed perjury, the transcript, as well as Cueto’s testimony on this point, was excluded from evidence. Additionally, portions of the purportedly false documents were redacted, over defense objection, at trial. It appears that Cueto may have had something concrete upon which he predicated these claims which neither the jury nor the reader of the decision hears about. Next, the court of appeals considered it unlawful that Cueto attempted to have agent Robinson prosecuted for perjury, but, in fact, Cueto employed a legitimate means by which to do this, he brought his allegations to the State’s Attorney’s office which actually commenced an investigation. Simply because the investigation did not come to fruition does not mean Cueto’s allegations were false nor was there any evidence noted that the State Attorney’s Office somehow found these allegations frivolous. Regarding Cueto’s “urging” other defense counsel to file “false” pleadings — the court of appeals takes a very paternalistic approach to the decisionmaking of these other attorneys, who are presumably licensed men and women, with minds of their own. These lawyers were participants in the racketeering trial and hopefully were familiar with both the facts and the law – if they did not wish to file pleadings, certainly, they could have refused. To the extent that there were truly “false pleadings” and/or false statements to the State’s Attorney, the court of appeals should have specified, even summarily, what they were and why they were false. In this same vein, aside from the existence of the commingling of Cueto and Venezia’s financial endeavors, the decision never notes any evidence that Cueto took his litigation-related actions based upon the desire to protect his own illicit financial interests rather than a desire to defend a longtime (though not loyal) client, Venezia. Certainly, if such evidence existed, and it may have since, not surprisingly, Venezia had become a prosecution informer by the time of Cueto's trial, it should have been noted. Nevertheless, it is apparent that Cueto’s actions as an attorney while having a financial stake in the business enterprise placed him in an impossible situation. Finally, Cueto is troubling for reasons other than its failure to properly circumscribe the criminal liability of attorneys representing their clients. Even the court of appeals queried why, if Cueto was involved in the gambling enterprise, was he not charged in the underlying gambling and racketeering case. Cueto, 151 F.3d at 631. Perhaps the answer is that the prosecution would have difficulty proving the elements of the racketeering and gambling charges, particularly Cueto’s knowledge of and participation in the predicate acts, while § 1503 permits the government to simply point at the financial interests and presume knowledge of the illegality. This raises yet an additional problem. Lawyers defending clients in a pre-charging context often have knowledge of illegal conduct. Will they then be subject to prosecution or, at a minimum, will this decision effectively “chill” full and free communication between attorney and client pre-indictment? It is very clear what happened here — Cueto was a problem for these prosecutors and agent Robinson by his persistent efforts to derail the prosecution of his clients. His bad judgment in going into business with his client furnished his adversaries with an opportunity that they could not resist. The most troubling aspect of this opinion is, however, its unspoken message: if in your duties as a criminal defense attorney, you anger the government by continuous efforts to stave off your client’s conviction while using the litigation tools which are supposed to be at your disposal, you could face prosecution. Of course, your subjective “corrupt motive” must be shown but if the evidentiary rulings of the Cueto district court are at all instructive, the prosecutor’s theory regarding your motive will be all that the jury will ever hear. In the past, the Department of Justice has exercised prosecutorial restraint and ordinarily has not filed cases where the disputed issues involve a defense lawyer’s subjective intent in performing traditional legal services. Hopefully, future decisions will properly limit Cueto’s reach if not its precedential value. Intentional Prosecutorial Misconduct Bars Retrial A retrial is ordinarily permitted after a mistrial is declared in response to a defendant’s motion or with a defendant’s consent. The principle exception is when the Double Jeopardy Clause is invoked to bar retrial because the government engaged in misconduct that “was intended to provoke the defendant into moving for mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679 (1982); see also, United States v. Oseni, 996 F.2d 186, 188 (7th Cir. 1993) (holding that double jeopardy bars retrial if the prosecution engages “in trial misconduct that is intended to and does precipitate a successful motion for mistrial by the defendant”). The Constitution treats these matters as if the mistrial had been declared on the prosecution’s initiative. United States v. Higgins, 75 F.3d 332, 333 (7th Cir. 1996). As we have reported in the past (see, RICO Report, The Champion, April 1998), “Kennedy” motions are nearly impossible to win. Triggering the first prong of the double jeopardy bar may not be difficult where a prima facie showing can be made that the mistrial motion was initiated in response to prosecutorial misconduct. However, meeting the second prong of the Kennedy test, proving the misconduct was intended to provoke a defense motion for mistrial, is problematic. See, e.g. United States v. Millan, 17 F.3d 14, 18 (2d Cir. 1994) (prosecution’s failure to disclose information about police misconduct in an investigation unintentional and not intended to provoke mistrial); United States v. Jozwiak, 954 F.2d 458, 460 (7th Cir. 1992) (novice prosecutor’s opening statement mentioning that several co-defendants pled guilty not an attempt to provoke mistrial); United States v. McCoy, 78 F.3d 446, 449 (9th Cir. 1996) (government’s failure to produce witness statements in timely manner unintentional and not intended to goad defendant into seeking mistrial); United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992) (prosecutor’s questions leading witness to testify that defendant made lethal threats did not constitute “a calculated move aiming at forcing” defendant to request mistrial). No sooner had this column declared in April’s RICO Report its lack of awareness of any reported case in which the defense eventually prevailed on a Kennedy motion, than we received news of the dismissal of a Tampa federal indictment with prejudice after mistrial, in response to a defendant’s Kennedy motion based on egregious prosecutorial misconduct. United States v. Sterba, 1998 U.S. Dist. LEXIS 13320, Case No. 97-441-CR-T-23E (M.D. Fla. 8/13/98). Thanks to the dogged efforts of Tampa Federal Public Defenders Sharon Lever, Anthony Martinez, and intrepid F.P.D. investigator Joe Palmer, on behalf of their client, James Sterba, Judge Steven D. Merryday was convinced that the unconscionable deception by a federal prosecutor in concealing the true identity of her key witness in an attempted child molest/Internet case “forced” the defendant into requesting mistrial. This triggered a double jeopardy bar to further prosecution. James Sterba was indicted October 15, 1997, for allegedly violating 18 U.S.C. § 2422(b) by using his computer and the services of an adult “chat room” on American Online to contact and persuade a minor to engage in sexual activity at an agreed upon time and place. The minor was actually a U.S. Customs Service confidential informer, identified and described to the defense just prior to trial as “Gracie Greggs,” a 35-year-old employee of an Internet service provider, performing some work for the government on the side. In response to a standard pre-trial discovery order, mandating that the prosecution disclose to the defense the existence and substance of any payments, promises of immunity, leniency, preferential treatment or other inducements made to prospective witnesses, along with an order to supply the defendant with a record of prior convictions of any witnesses who would testify at trial, Sterba sought to interview the informer. The AUSA declined to permit an interview, and refused to reveal the informant’s name or background until the beginning of trial. The prosecutor asserted that the informer had no criminal background and had not been paid for testimony. Over defense objections, a magistrate judge sided with the prosecution, and refused to order the production of the informer. When trial began in May 1998, the prosecution produced a witness list, which included a witness named “Gracie Greggs.” When the trial judge called upon AUSA Karen Cox to read the witness list to the venire, in order to assist in their determination of whether any of the jurors had any connection or information about witnesses in the case, she read the name “Gracie Greggs.” When the witness was then called at trial, she identified herself as “Gracie Greggs,” and proceeded to relate “Gracie Greggs’” biography. Towards the close of the trial, in the midst of a “charge conference” between the attorneys and U.S. District Judge John Merryday, AUSA Cox was again asked the informer’s name, and responded “Gracie Greggs.” Sterba’s lawyer, Federal Public Defender Anthony Martinez, already quietly frustrated and suspicious throughout the case because of his inability to get any information on the prosecution’s star witness, decided to raise his suspicions with the judge. It turns out that the FPD investigator on the case, Joe Palmer, not relying on the government’s proffer that “Ms. Greggs” had no criminal record, had performed his own independent investigation and computer check on the background of “Gracie Greggs” to see if there were any prior convictions of record. Not only could the investigator find no prior convictions, as far as the entire federal database was concerned, no “Gracie Greggs” existed. After telling the judge of his befuddlement, Judge Merryday again inquired of the prosecutor about “Gracie Greggs’” history with law enforcement. Astonishingly, for the first time, AUSA Cox revealed that Gracie Greggs was not the informer’s real name, but that her real name was Adria Jackson. This extraordinary disclosure came after both the prosecution and defense rested. When confronted by the judge, seeking to confirm that Cox had “commandeered this process to its own use by knowingly disguising the identity of a government witness and deceptively using the name ‘Gracie Greggs,’” the prosecutor prevaricated. Even in the face of the abject outrage by the court to this news, AUSA Cox tried to assert that somehow her disclosure of the informer’s name as “Gracie Greggs” was a true name because that was the “identity” assigned to the witness by the U.S. Customs Service. The following bizarre exchange took place with the court:
The Court: It is not quite like when you get married. . . It is a little bit like if I went out — if I dispatched the Marshal out to get someone to sit right over there in that defense seat, with the idea that they would imitate the defendant, and the defendant was safely out of the courtroom, is that just sort of like when you get married? AUSA Cox: No. The Court: You bet it is not.” In response to Sterba’s immediate motion for mistrial, AUSA Cox continued to argue that Gracie Greggs actually existed “because. . . Customs created identities for people and they created an identity that exists in documents with Customs for her as Gracie Greggs.” Cox attempted to bolster her argument by stating that she previously told defense counsel that Gracie Greggs had no record, and that the only inducements or promises that were made to her were revealed, “so I don’t know what, if any, prejudice they can show.” Incredibly, further investigation by the defense revealed that the informer not only had a criminal background, but had been well-paid by the prosecution for her testimony. Although Judge Merryday immediately granted the mistrial, with the new information of even more egregious misconduct, the defense quickly moved to dismiss the indictment on double jeopardy grounds, based on the outrageous misconduct of AUSA Cox. At the hearing on the motion to dismiss the indictment, before a now angered Judge Merryday, facts flooded in which drowned any remaining credibility of the prosecutor. In their investigation, Sterba’s counsel Martinez and Defense Investigator Palmer uncovered the fact that not only had the star informer used a false name, she had also been paid $2000 for her testimony in payment vouchers, which were actually in the prosecutor’s possession before trial. Moreover, Jackson had come to Customs’ attention in the first place because of her involvement with an international pornography ring. The informer had also been previously convicted of making a false statement and filing a false police report. Incredibly, that case had involved accusations by the informer that led to the arrest of an innocent man for armed robbery. Additionally, statements introduced at the hearing also corroborated that the informer had an extensive drug use history, was on anti-depressants, had been treated at a mental health center, was presently the subject of a pending contempt action in an unrelated case, and had a reputation in the community as an accomplished liar. What is clearest about the government’s misconduct, is that AUSA Karen Cox did not expect to be dealing with an outraged and courageous judge, who was deeply offended by her conduct. Finding that Cox “either manufactured or accepted a plan to employ a fictitious name for Jackson and deploy that name in the service of the prosecution, both before and during trial to further the prosecutorial goal of conviction,” the court, in an extraordinary move, granted Sterba’s motion to dismiss based on double jeopardy grounds:
Id at___. Finding that the prosecutor’s intent was to “get away with it” and “remain unencumbered in her efforts,” the court distinguished i from Kennedy, relying on the 11th Circuit’s decision in United States v. Fern, 117 F.3d 1298 (11th Cir. 1997), which interpreted Kennedy to authorize dismissal where the conduct was intentional. Although the Eleventh Circuit in Fern refused to find that the particular prosecutorial misconduct in that case was sufficient to establish that the prosecution had “goaded” the defense into seeking mistrial, it recognized that where the prosecution’s actions compel the defense to move for mistrial, the Double Jeopardy Clause does bar retrial. Fern involved the mail fraud, false statement and witness tampering prosecution of the owner of a Miami asbestos testing and consulting firm accused of orchestrating a fraudulent scheme to profit from a bogus asbestos abatement project following a fire in a local hotel in Miami Beach. After the testimony of the prosecution’s first witness, an ATF agent, the prosecutor was notified that the agent was himself the subject of an ongoing criminal investigation for misuse of a government credit card and theft of government property. Id. at 1302. Once the Brady disclosure was made, the defense was notified that the agent would invoke his Fifth Amendment privilege if re-called to the stand. After a defense motion for mistrial was granted, Fern sought dismissal based on the Double Jeopardy Clause when he learned that another AUSA had known that the agent was under investigation and had not disclosed the fact to the trial prosecutor. Id. at 1303. The Eleventh Circuit panel considering the district court’s refusal to dismiss the indictment focused on the fact that the investigation of the agent was very preliminary prior to the time it was disclosed, and that the actual trial prosecutor was unaware of the Brady material until after the agent had testified. Id. at 1304. Based on the prompt notification to the defense and a finding that the misconduct was not intentional, the panel concluded that the need for the mistrial motion did not arise because of “goading” on the government’s part. Id. at 1305. Finding, however, that the prosecutor’s plan “was avowedly intentional, obviously adulterated and irresistibly provocative of a motion for mistrial by the defense,” the court in Sterba ruled that such actions “fundamentally implicate the Fifth Amendment’s immunity from double jeopardy.” Citing, United States v. Sara, 882 F.2d 471 (11th Cir. 1989); United States v. Garza, 603 F.2d 578 (5th Cir. 1979); United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976); United States v. Broderick, 425 F. Supp. 93 (S.D. Fla. 1977). The court’s reasoning in Sterba seems to emphasize the fact that as a direct result of Prosecutor Cox’s “furtive” plan to conceal the true identity of Gracie Greggs, she in essence not only held but made the very key which could be used at any time to unlock a mistrial in the case and thereby give the prosecution another open door to conviction if she needed it. The secret nature of the prosecutor’s misconduct, the repeated and affirmative deceptions made to the defense and to the court, the intrusion on a defendant’s fundamental right of confrontation, all combined, in the court’s view, to irreparably unbalance the playing field in the government’s favor in any future trial of Sterba. Quoting Sissela Bok’s book Lying: Moral Choice in Public and Private Life, Vantage Books; New York 1978, the court underscored the dangers of lies supposedly motivated by some “perception of duty, public good or the paternalistic lie grounded in a misguided sense of altruism.” The fact that the one intending to do good lies, in the belief that it will further the altruistic goal matters not. Good intentions can never assure a good result. While it is clear that dismissal was a just result in the Sterba case, it is less clear whether Judge Merryday’s opinion will, by itself, lead to other double jeopardy dismissals. In all fairness, the opinion is quite an expansion in the reach of the double jeopardy bar, and Judge Merryday’s opinion never really answers the question it begs: why wouldn’t any concealed intentional significant misconduct by a prosecutor which forces a defense request for mistrial result in a double jeopardy bar? Perhaps this question will never be answered in this case. The facts in Sterba are so egregious that the Justice Department may choose not to pursue this appeal. In addition, regardless of the merits of the Kennedy issue, this may be a case which can properly be dismissed under the court’s supervisory power because of the outrageous government misconduct. See, United States v. Kojayan, 8 F.3d 1315, 1325 (9th Cir. 1998); United States v. Marshank, 777 F.Supp. 1507, 1530 (N.D. Cal. 1991). Not surprisingly, AUSA Cox has already been referred to the U.S. Justice Department by her own boss, United States Attorney Charles R. Wilson, for an OPR ethics inquiry. She has also been relieved of her duties as a trial attorney in the major crimes section of the U.S. Attorney’s Office for the Middle District of Florida, and has been exiled to the appeals section of that office until further notice. What is most unfortunate is that it took many years to sanction her. Defense attorneys in the Tampa area had long been questioning her tactics, both as a federal prosecutor and as a long-time state prosecutor. Many believe that Cox’s drive to win at all costs often meant compromising the fundamental rights of the accused. This case is a devastating example of the opportunities for the abuse of power by a prosecutor, whose outrageous misconduct in this case and many others could just as easily have gone undetected but for a serendipitous foray on a computer by seasoned defense lawyers and their investigator. Readers are a vital source of information without which this column could not be supplied with current information on RICO developments. Information regarding developments in pending cases, decisions and interesting briefs and motions should be sent to: RICO Report Barry Tarlow 9119 Sunset Boulevard Los Angeles CA 90069 Phone (310) 278-2111 Fax (310) 550-7055RICO Report | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
