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March 1999 RICO Report By Barry Tarlow
The author wishes to thank Blair Berk and Shereen Charlick, members of his firm, for their invaluable assistance in the preparation of this column. Update on Gotti, Jr. — Second Circuit Bars Pre-Trial Restraint of Substitute Assets The New York press is reporting that John A. Gotti, Jr., the indicted son of John Gotti, Sr., is “no longer able to pay the grocery, household and medical bills for his wife and four children,” as he awaits trial on federal racketeering charges in New York. Gotti, Jr., a.k.a. “Junior,” is accused of being the acting boss of the Gambino crime family on behalf of his imprisoned father. In no small part, his present predicament is due to the post-indictment pre-trial restraint of substitute assets. The same day that Junior and his co-defendants were initially indicted, Judge Charles Brieant of the Southern District of New York issued a post-indictment asset restraining order pursuant to 18 U.S.C. § 1963(d)(1)(A) and 18 U.S.C. § 982(b)(1)(A), prohibiting the transfer or dissipation without government approval of various assets, including “substitute assets” that would be forfeitable only to the extent directly forfeitable assets such as cash proceeds were not available. The “substitute assets” included a six-bedroom home in Oyster Bay, Long Island, another home in Masapequa, commercial buildings in Queens, properties in the Poconos, and various bank accounts and business interests. Fortunately, but perhaps too late to ease Gotti’s financial problems, the Second Circuit Court of Appeals ruled that the pre-trial restraint provision of the Racketeering Influenced & Corrupt Organizations Act, 18 U.S.C. § 1963(m), does not authorize the post-indictment pre-trial restraint of substitute assets. United States v. Gotti, 155 F.3d 144, 145 (2d Cir. 1998), affirming, 996 F. Supp. 321 (S.D.N.Y. 1997). As reported previously in this column (See, RICO Report, The Champion, July 1998; July 1995; Sept./Oct. 1993), the circuit courts are split on the issue of whether 18 U.S.C. § 1963 authorizes the post-indictment pre-trial restraint of substitute assets. Compare, In re Assets of Martin, 1 F.3d 1351 (3d Cir. 1993); United States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994); United States v. Riley, 78 F.3d 367 (8th Cir. 1996) (Substitute assets not subject to pre-trial restraint). In re Billman, 915 F.2d 916 (4th Cir. 1990) (Congress intended § 1963 to be “liberally construed” to permit pre-trial restraint of substitute assets). Section 1963(a) mandates the forfeiture of property linked to racketeering activity, and subsection (m) authorizes the forfeiture of what has come to be known as substitute assets when, due to an act or omission on the part of the defendant, the property described is otherwise not available. However, the majority of courts have ruled that the provision that authorizes the post-indictment pre-trial restraint of assets refers only to preserving the availability of property linked to racketeering activity. When Gotti, Jr.’s assets were first restrained following his indictment, his defense team, led by pre-eminent New York lawyers Gerald Shargel and Bruce Cutler, challenged the restraining order, arguing that neither the RICO forfeiture provision under § 1963(a) nor the general criminal forfeiture provision under § 982 permit the pre-trial restraint of substitute assets. Although the district court agreed (see, Gotti, 996 F.Supp. at 321), the Justice Department appealed that ruling to the Second Circuit. The panel decision, authored by Judge Rosemary S. Pooler, held that although Congress may have intended for §1963 to be liberally construed: “Where a statute is plain on its face, the court does not resort to the legislative history or the purpose of the statute to discern its meaning.” Gotti, 155 F.3d at 149. Judge Pooler adopted the position this column has repeatedly advocated regarding post-indictment restraint of substitute assets, and concurred in the rulings in the Fifth, Ninth and Third Circuits. In distinguishing the Fourth Circuit’s anomalous ruling in In Re Billman, the panel agreed that it was Congress’ intent to strip racketeers of the economic power, but recognized that the plain language of a statute prevents a court from going any further. Id. at 149. Neither the United States Supreme Court nor the Second Circuit, prior to the decision in Gotti, Jr., had directly addressed this issue. The Gotti panel concluded that while the pre-trial restraint of substitute assets might arguably serve the stated legislative purpose of preserving assets for forfeiture upon conviction, “the unambiguous language of 18 U.S.C. § 1963(d)(1)(A) provides no authority for the restraints.” Id. at 150. “Junior” Gotti apparently has not found much comfort in the Second Circuit’s overturning the restraint of his substitute assets. Claiming that bail expenses and the government seizure of his other assets have impoverished him, lawyers for Gotti are quoted in the New York Times as saying that he might voluntarily go back to jail unless he is allowed to discontinue paying private security guards $21,000 a month to monitor his activities at his main house in Oyster Bay, Long Island. The guards were part of conditions to which he stipulated as part of his $10 million bail package. Jerry Shargel is quoted as saying that Gotti “has been forced to borrow large sums of money to pay the security company expenses thus far, and he has simply been unable to meet many of the other expenses, including his attorneys fees.” Federal prosecutors continue to oppose the defense application to discontinue the private security condition. Positional Predisposition — Not Entrapment Panacea But There May Be Alternative Medicine In the October 1997 RICO Report we discussed the viability of the lack of “positional readiness” to commit a crime as an approach to defeating “predisposition” when asserting an entrapment defense. See, RICO Report, The Champion (Oct. 1997, June 1997 and May 1994). At that time, the Fifth Circuit in United States v. Knox, 112 F.3d 802, 809 (5th Cir. 1997), interpreted the Supreme Court’s seminal entrapment decision, Jacobson v. United States, 503 U.S. 540 (1992), to require the prosecution to prove that the defendant, “absent government involvement, was in a position to launder money.” Id. (emphasis added). The Knox Court followed the Supreme Court’s lead in Jacobson 503 U.S. at 548-49, holding that: “[w]here the Government has induced an individual to break the law, and the defense of entrapment is at issue, . . . the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Knox, 112 F.3d at 806 (quoting Jacobson v. United States, 503 U.S. 548-49). Knox concluded that the Seventh Circuit’s interpretation of Jacobson — the “positional definition of predisposition” set forth in United States v. Hollingsworth, 271 F.3d 1196 (7th Cir. 1994)(en banc), was appropriate. See Knox, 112 F.3d at 809; see also RICO Report, The Champion (Oct. 1997, June 1997). In Knox, Pastor David Brace, of the Faith Metro Church of Wichita, Kansas, found his ministry in a precarious financial position — the church owed $10 million dollars to its bondholders. Brace had attempted, unsuccessfully, through legitimate means, to raise these funds. In his efforts to obtain funds for his church, the pastor’s financial consultant met another individual who, unbeknownst to Brace, was targeted by law enforcement as a suspected money launderer. The targeted individual met with undercover agents and offered up the pastor as “interested in laundering cocaine funds.” Knox, 112 F.3d at 805. Agents subsequently met with Pastor Brace, told him the money’s source was cocaine proceeds, and that he was to launder it. In exchange, he would receive a “loan” of $10 million. Brace was not troubled by the source of the money because, as he said, he had prayed for guidance as to whether or not he “was supposed to do this” and “God said that...[h]e [God] helped put this together.” Knox, 112 F.3d at 805, n.6. The government agents structured all the transactions, gave Brace the account number for an undercover account at a London bank, and even had the pastor do several “test runs” involving $100,000 and $150,000 which the agents gave him to wire to the London bank and a domestic bank. In its decision, the Knox panel specifically stated: Brace argue, “as a matter of law, he was entrapped,” and “[t]hat the government concedes that Brace was induced.” Id. at 806. Thus, according to prevailing law, “the evidence must prove beyond reasonable doubt that Brace was predisposed to launder money.” See id.; Jacobson, 503 U.S. at 548-49. It was apparent from the phrase “Brace argues” that the issue of entrapment was raised on appeal. Additionally, that panel specifically addressed the co-defendant’s waiver of the entrapment issues by his failure to raise them. Knox, 112 F.3d at 806, n.9. The Knox panel engaged in a thorough analysis of the Supreme Court’s latest entrapment pronouncements in the Jacobson decision, and adopted the interpretation of Jacobson set forth in Hollingsworth, 27 F.3d 1196. The Hollingsworth Court reasoned that “in determining predisposition” Jacobson required that “we . . . ask what the defendant would have done absent government involvement.” According to Hollings-worth, this meant:
Applying Hollingsworth’s “positional” definition of predisposition, Knox reversed Pastor Brace’s conviction because “the government failed to prove that Brace, absent government involvement, was in a position to launder money.” Knox, 112 F.3d at 809-10. Not only had the government simply “offered no evidence that Brace was in a position to launder money “but it also failed to show” that real drug dealers would use a novice such as Brace to launder money” — Brace even had to “send an associate to the library to figure out the mechanics of laundering money.” Since the issue of “positional predisposition” is significant to entrapment law, and, as the split in the circuits demonstrates, it is an issue susceptible to differing opinion, it was no great surprise that the Fifth Circuit granted rehearing en banc to consider “whether, in order to rebut the entrapment defense raised by David Brace, the Government was required to prove ‘positional predisposition’ on his part . . . .” United States v. Brace, 145 F.3d 247, 250 (5th Cir. 1998). However, rather than clarifying, reaffirming or even retracting its position, the Fifth Circuit chose to punt. Amidst much hue and cry from the dissent, the majority decided that it could not address the positional predisposition issue because “it was neither preserved in the district court nor even raised for the first time on appeal.” Brace, 145 F.3d at 250. According to the en banc Fifth Circuit’s divided decision, although Brace argued on appeal that he was “entrapped” as a matter of law, this was insufficient to raise the entrapment “subissue” of “positional predisposition.” Brace, 145 F.3d at 255. The en banc majority ignored the well-established principle of “waiver” doctrine that if one party fails to raise “waiver,” that issue itself is waived. See, e.g., Atkins v. New York City, 143 F.3d 100, 103 (2d Cir. 1995)(“[b]ecause the appellees failed to raise . . . [waiver] ...they are the ones who have waived the issue”); United States v. Anaya, 32 F.3d 308, 312 (7th Cir. 1994)(same). Brace chided the government for failing to raise the waiver issue until the en banc oral argument hearing while simultaneously claiming that the government’s failure to address Hollingsworth in its briefs, was understandable because “there was no notice to the Government that it was at issue.” 145 F. 3d at 260. Thus, in the Fifth Circuit, government lawyers must not be expected to read their opponents briefs. Clearly, if they had, since Brace’s brief cited Hollingsworth, this “obvious” waiver argument would have been raised. So, notwithstanding the prosecution’s failure to raise the waiver issue and the original panel’s belief that the positional predisposition issue was properly before it, the en banc majority blithely noted that “the reason for rehearing evaporate[d],” and that this “sometimes happens,” as here, when the court made its unexpected discovery that Brace had “waived” the positional predisposition “subissue.” Ironically, in its decision not to decide this issue, purportedly in the interests of “judicial efficiency and economy,” the majority spent a full 15 pages discussing the facts, the law of entrapment, and more specifically, the law of positional predisposition. Brace, 145 F.3d at 256. They concluded by finding that the evidence sufficient to defeat Brace’s entrapment defense because Brace was “ready and willing’ to launder money and “ready and willing is not necessarily synonymous with “[r]eady, willing and able.” Id. at 257. Ignoring the Supreme Court’s directive that evidence of “ready and willing” must derive from events prior to the participation in the prosecution’s scheme, see Jacobson, 503 U.S. at 553 (“[p]etitioner’s ready response [to the solicitation] . . . cannot be enough to establish . . . that he was predisposed, prior to the Government acts . . . ”), the en banc majority held that the three “test transfers” of money to domestic and foreign bank accounts were sufficient evidence to convict Brace. Id. at 257. Judge DeMoss, the author of the Brace dissent and the original author of the ill-fated Knox panel decision was, perhaps, more candid. See Brace, 145 F.3d at 265 (this “case is an unfortunate and embarrassing example of my colleagues’ results-driven determination to avoid making a decision.”). He derided the majority’s “sudden discovery” of procedural default on this important issue only after the rehearing en banc had been granted, and the issues briefed. To the majority’s weak effort to throw up its hands while proclaiming that “the reason for rehearing evaporate[d],” the dissent responded: “[a]ll that has evaporated here is the parties’ expectation that this court would fulfill its judicial obligations.” Brace, 145 F.3d at 265. The dissent contends, with good reason, that notwithstanding the “considerable time, effort and expense” devoted to briefing, supplemental briefings and oral argument on the positional predisposition argument, the majority opinion “sweeps its substantial issues under the rug.” Id. at 266. It argues that Brace’s general objection to the sufficiency of evidence was all the law required to preserve his entrapment defense for appellate review, and cites persuasive case law to that effect. See Brace, 145 F.3d at 266 (DeMoss, J., dissenting). However, more significant is the fact that Brace raised the factual underpinnings and legal citation for “positional predisposition,” including citation to Hollingsworth. He simply failed to refer to the “subissue” by name and he failed to request an additional jury instruction or to object to the pattern’s “ready and willing” language. While the en banc decision was not good news to Pastor Brace, we can take small comfort in the fact that by failing to decide the “positional predisposition” issue, at least the Hollingsworth position is still arguably viable in the Fifth Circuit and elsewhere (with the exceptions of the Ninth and First Circuits). In other jurisdictions, a jury instruction should be proposed pursuant to Hollingsworth, which defines the typical pattern instruction’s “ready and willing” language. A quote from Hollingsworth would be appropriate:
In Gendron, 18 F.3d 955 (1st Cir. 1994), instead of adopting an “enhanced” definition of Jacobson’s “ready and willing” language, then-judge Stephen Breyer set forth the following “simplified . . . understanding of the entrapment defense” as a two-part defense necessitating: (1) government inducement and (2) defendant’s predisposition. Id. at 961. The Gendron court defined the “inducement” as government actions “con-sist[ing] of opportunity plus something else — typically excessive pressure . . . on the defendant or the government’s taking advantage of an alternative noncriminal type of motive.” Gendron, 18 F.3d at 961. Gendron provides a non-exhaustive, but instructive list of “improper inducements” which include: threatening a defendant’s family, threatening the defendant, forceful solicitation, playing upon certain sympathies and sentiments and using repeated suggestions which succeeded only after the defendant had lost his job. Id. at 961. Turning to the more difficult predisposition inquiry, the Gendron court decided that the best way to frame the inquiry, keeping in mind that the government bears the burden of proving predisposition, was to ask: “how the defendant likely would have reacted to an ordinary opportunity to commit the crime,” defining “ordinary” as “an opportunity that lacked those special features of the government’s conduct that made of it an ‘inducement,’ or an ‘overreaching.’” Id. at 962 (emphasis in original). Asked in other words: was the defendant “predisposed” to respond affirmatively to a proper, i.e. “ordinary opportunity” rather than an “improper lure” or “special inducement.” Gendron, 18 F.3d at 962-963 (emphasis in original). By incorporating into the predisposition analysis, the government’s conduct in creating an implausible, unrealistic setting for this crime in order to lure the defendant into its commission, the Gendron court recognized that “government misconduct lies at the heart of the entrapment defense.” Id. (emphasis in original). Thus, this entrapment framework which asks the question: “would the defendant have done this under “ordinary” circumstances,” defeats the oft-heard argument that predisposition can be discerned from the simple fact that the defendant committed the crime or committed it “with enthusiasm.” See Brace, 145 F.3d at 262, 270 (5th Cir. 1998). It can defeat even the argument that a defendant with a prior conviction for a similar offense is automatically “predisposed” — provided that the government-created circumstances are “out of the ordinary” and designed to improperly lure a “reformed” defendant. Indeed, the original panel decision in Knox noted that even under Gendron, the pastor’s conviction must be reversed because the “government failed to offer any evidence that Brace would accept an ‘ordinary’ opportunity to launder money.” Knox, 112 F.3d at 808, n.8. Depending upon where a case is tried, the lesson to be learned from the Knox/Brace debacle may be to take a tact which is less assailable — focus the entrapment defense on the Gendron principles. Then request proposed jury instructions which define “inducement” as the “opportunity plus” and which define predisposition by asking whether the defendant would have committed this crime if faced with “ordinary” real-life opportunities, as opposed to special inducements. The original panel decision in Brace stated precisely what Gendron requires when it asked: “What would Brace have done if he had never met the undercover agents?” Because the prosecution’s proof at trial could not and did not lead to the answer: “launder money for real drug dealers,” see Knox, 110 F.3d at 809, under both Gendron and Hollingsworth, the correct and just result would have been reversal of Brace’s conviction. Fertile Ground for Entrapment Defenses Some federal and state law enforcement agents are engaging in “nontraditional” methods of ferreting out crime, for example, using sexual acts or romantic promises to encourage a defendant to participate in illegal activities. This conduct, though rarely meeting the stringent standards for dismissal based upon “outrageous governmental misconduct,” has serious entrapment implications. The cases in which “sexual entrapment” was successfully utilized are difficult to measure as they, fortunately, for these defendants, did not result in reported decisions. However, it is clear from a review of the limited existing law that defendants who succumbed to the government’s sexual inducements were entitled to present entrapment defenses and obtain an entrapment jury charge. See, e.g., United States v. Gamache, 156 F.3d 1 (1st Cir. 1998) (case remanded for new trial to present entrapment defense where defendant was “ensnared by the detective’s artifice” — preying upon defendant’s interest in her to finally elicit admissions and acts indicating desire to have sex with her minor children); United States v. Prairie, 572 F.2d 1316, 1319-20 (9th Cir. 1978) (though unsuccessful, defendant presented entrapment defense to jury where informer “emotionally and sexually seduced” him); see also United States v. Cuervelo, 949 F.2d 559, 563, 568 (2d Cir. 1991) (although entrapment defense was rejected by jury, case was remanded for evidentiary hearing regarding outrageous governmental misconduct where defendant alleged DEA agent seduced her, had sex with her at least 15 times, bought her gifts and finally, entreated her to act as intermediary with associates involved in drug-trafficking). Courts have opined that they would be less sympathetic to the prosecution where an actual law enforcement agent engages in sex or sex-related conduct with a defendant, as opposed to an informer. See United States v. Simpson, 813 F.2d 1462, 1468 n.4 (9th Cir. 1987) (court left open the question of “whether the use of sex as a law enforcement tool would ‘shock the conscience’ under circumstances where the government is clearly responsible, as would be the case if [the informant] had been a law enforcement officer rather than a paid informant”). In addition, the more pervasive the sexual conduct, the more harshly it will be regarded by the courts and the greater the odds of mounting a successful entrapment defense. In United States v. Nolan Cooper, 155 F.3d 221 (3d Cir. 1998), the Third Circuit addressed substantiated claims that undercover agent Louis Oubre had sex with the target of his investigation, attorney Angela Nolan-Cooper. Oubre also gave Cooper gifts, wined and dined her and invited her back to his plush hotels. On one occasion, a fellow agent accompanying Oubre on his “undercover” (literally) assignment with Nolan-Cooper, ended up having sex with Nolan-Cooper’s friend while Oubre had sex with Nolan-Cooper. While the Nolan-Cooper Court disapproved of the conduct, unfortunately for the defendant, it found that she had agreed to perform the money-laundering services immediately and the sexual activity only occurred when “the investigation was nearing its close.” Nolan-Cooper, 155 F.3d at 224. Although the panel did not discuss entrapment, the court lays a framework for future analysis of both the inducement and predisposition prongs of sexual entrapment claims when it notes: “[h]ad the sexual misconduct been present throughout the investigation (with the actual or constructive knowledge of supervisory personnel) a different situation would be presented.” Id. Because Nolan-Cooper decided to enter a conditional guilty plea and proceed on appeal with her outrageous government misconduct motion, she did not go to trial to present an entrapment defense. However, as an aside, in remanding for resentencing (on other grounds), the Third Circuit informed the district court that it could consider the “government investigatory misconduct” as grounds for a downward departure. Id. at 225; see also United States v. McClelland, 72 F.3d 717, 724 (9th Cir. 1995) (district court’s decision to depart downward six levels for “imperfect entrapment” upheld). The state courts, along with many jurors who have deliberated in these type of cases, have taken a less forgiving approach to law enforcement agents, including confidential informers straying into forbidden sexual territory. See, e.g., State v. Banks, 1986 Fla. App. LEXIS 11526 (Ct. App. 5th Dist. 1986),where the confidential informer, who knew the defendant previously, met up with him again and asked him on several occasions to get her cocaine. When he finally told her he had “kicked the habit,” she “started kissing him and asked him if he would please get her something and that if he would . . . they would get together for the weekend, fool around and party.” Id. The informer subsequently admitted that she told the police that the defendant had “said that he didn’t want to get her drugs,” but the police officers told her “to push it [because] they were sure I could talk him into it.” Id. That court aptly noted:
* * * Sex is much too strong and effective an inducement to be used as bait to catch only those with a predisposition to engage in specific criminal activity. When law enforcement agencies utilize confidential informants who use sex . . . there is no way for the courts or anyone else to determine whether such inducement served only to uncover an existing propensity or created a new one. Banks, 1986 Fla. App. LEXIS 11526 at *4. In California, law enforcement agents’ misconduct is the sole focus of the entrapment inquiry — “was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?” People v. Barraza, 23 Cal. 3d 675, 689-90 (1979). California’s entrapment defense is “objective . . . because it focuses exclusively on police conduct and ignores the suspect’s subjective intent or any predisposition to commit the crime.” People v. Holloway, 47 Cal. App. 4th 1757, 1764-65 (1996). An outrageous police misconduct defense is thus related (and exists independently of) an entrapment defense. Id. at 1765. In People v. Martinez, 157 Cal. App. 3d 660, 668 (1984), a case where the police conduct was relatively tame compared to that discussed above, the court remarked that “[t[he use of an attractive young female undercover agent posing as an unemployed Las Vegas card dealer, introduced to appellant . . . and, generally, acting the part of a loose woman who might trade sexual favors for narcotics, falls far short of an acceptable standard of police conduct and constitute[s] entrapment.” Id. at 668; see also Barraza, 23 Cal. 3d at 689-690 (listing examples of motives which improper police conduct appeal to — other than criminal motives — in inducing commission of crimes, for example, friendship and sympathy). In an unpublished decision, a California appellate court found that the California landmark entrapment decision, Barraza, did not limit police overreaching to just improper appeals to “friendship and sympathy;” rather, “police inducements which play on ‘base’ emotions are no less reprehensible than those which appeal to more altruistic feelings.” People v. Hillary, 23 Cal. App. 4th 288, 294-295 (1994) (unpublished). In Hillary, where there was evidence that the undercover agent, speaking on the telephone, “offered highly alluring sexual pleasures” in exchange for narcotics, the court found that was “sufficient evidence to explain,as a matter of entrapment, [the defendant’s] decision to obtain cocaine for Ms. Ross.” However, since the defendant testified that “when he saw Ms. Ross, he no longer desired to have sex with her” but then obtained the cocaine anyway, the court did not remand for a new trial regarding entrapment. It certainly should be “common knowledge” that no government agent or informer should employ or condone the use of sex as an “investigatory” tool. These “sexual entrapment” cases, where, at a minimum, the agents’ actions “fall... far short of an acceptable standard of police conduct” present persuasive evidence supporting one variation of an entrapment defense with substantial jury appeal. The best odds of success still remain in the trial court because many jurors are receptive to the Banks court’s warnings that “sex is much too strong and effective an inducement to be used as bait.” If we do permit such inducements, as Banks cautions, we will never know “whether such inducement served only to uncover an existing propensity or created a new one.” Hitting Rogue Prosecutors Where It Hurts When a rogue prosecutor commits misconduct during trial that does not prejudice the defendant so as to require reversal, there are essentially no meaningful consequences. A court usually warns the offending prosecutor or his office not to commit the misconduct again. This toothless admonition was described in one famous case, United States v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979), as “judicial tongue clicking.” The absence of effective sanctions for prosecutors who engage in unethical conduct was documented when the House Committee on Government Operations investigated ten cases in which federal judges found that “very serious” prosecutorial misconduct had occurred. See Federal Prosecutorial Authority in a Changing Legal Environment—More Attention Required: Hearings Before the House Committee on Government Operations, House Rep. 101-986, 101st Cong., 2d Sess. 25 (1990). This misconduct included violation of grand jury rules, violation of defendants’ Fifth and Sixth Amendment rights, knowing presentation of false information to the grand jury, and abuse of witnesses. Id. The committee’s report emphasized that “courts often do not themselves take disciplinary action but defer to the Department of Justice,” which is “much like the fox guarding the chicken coop.” Id. at 35-36. The report documents the fact that the Justice Department effectively ignored the courts’ findings of governmental abuse, and that not one of the individuals was sanctioned, thereby raising “serious questions regarding what the Department considers ‘prosecutorial misconduct.’” Id. at 24-25. Yet with the increase in the number of “loose cannon” prosecutors who engage in outrageous misconduct knowing they are essentially immune, some judges are beginning to look for an effective response to this problem. A panel of the U.S. Court of Appeals for the Eleventh Circuit has called on federal district courts to respond to prosecutorial misconduct by directly and personally sanctioning the offending prosecutor. United States v. Wilson, 149 F.3d 1298, 1300 (11th Cir. 1998). While this concept is hardly novel, it is difficult to find any reported cases involving misconduct where a prosecutor has been personally sanctioned. In 1995, Kevin Wilson was targeted as a substantial drug dealer by a multi-agency federal and state drug enforcement task force. He was ensnared in a sting operation in which he was asked by a confidential informer to supply 125 grams (4.5 ounces) of crack cocaine. Unfortunately for the vast law enforcement force enlisted to take down the “buy,” Wilson showed up with less than an ounce of crack — complaining that he did not have access to more. Despite the sale of the ounce, agents waited to arrest Wilson on the pretense of continuing the investigation into Wilson’s “organization.” Id. at 1300. Although Wilson agreed to try to obtain more cocaine, he never succeeded. Id. at 1299. He was later prosecuted federally for the ounce crack transaction under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 for distribution of cocaine base. During his trial, however, the prosecutor repeatedly and improperly characterized Wilson as a “major” drug dealer, even in the face of Wilson being charged with a “single sale of only a small amount of cocaine.” Id. at 1300. Recognizing that “. . . pertinent remarks of the prosecutor were improper,” but concluding that Wilson had failed to show substantial prejudice, the panel opinion authored by Judge Edmonson delivered a clarion call to other federal judges to impose alternative sanctions constituting much more than a judicial tongue-clicking when prosecutors commit misconduct. Id. at 1303. Quoting the profound words from Handford v. United States, 249 F.2d 295, 296 (5th Cir. 1957), in which the responsibility and obligation of a federal prosecutor was described as being “. . . dedicated to fairness and equal justice to all and, in this respect, . . . ow[ing] a heavy obligation to the accused . . . better the guilty escape than the innocent suffer,” the panel in Wilson concluded that trial courts “must . . . consider” more direct sanctions to deter prosecutorial misconduct when the government’s lawyer subverts or ignores those solemn obligations and responsibilities. Wilson, 149 F.3d at 1304. Signaling quite clearly that “prosecutors must expect that this court will support district judges who take reasonable steps to correct prosecutorial conduct that is not right,” the panel identified six specific and direct sanctions which “must” be considered in a case where misconduct has occurred: (1) contempt citations; (2) fines; (3) reprimands; (4) suspension from the court’s bar; (5) removal or disqualification from office; and (6) recommendations to bar associations to take disciplinary action. Id. Wilson is a strong and unusual directive by a federal appellate court to personally and meaningfully punish wayward prosecutors, which will without question help eliminate some misconduct. Yet, in isolation, this message by the appellate court will in the end still have no teeth unless district courts actually impose sanctions. That is why when less than two weeks after the Wilson decision, it was heartening to hear news of a federal trial court’s decision in the Western District of Michigan, ordering the U.S. Attorneys’ Office to pay a corporate criminal defendant’s attorneys’ fees as a sanction for the prosecution’s failure to disclose exculpatory Brady evidence. United States v. Ranger Electronic Communica-tions, Inc., 22 F. Supp. 2d 667 (W.D. Mich. 1998). Underscoring comments made by U.S. Congressman Henry Hyde (R-Ill.), who sponsored a provision allowing for the sanction of attorneys fees against the prosecution where its position in litigation is found to be in bad faith (in an amendment to the Justice Department’s 1997 Appropriations Bill), the court concluded that the prosecution’s failure to disclose Brady information constituted “bad faith” and found the Hyde Provision was the appropriate remedy. Id. at 676. In Ranger, a foreign manufacturer of radio equipment was indicted for importing prohibited radio equipment. During the course of the prosecution, the Assistant U.S. Attorney withheld e-mail transmissions and other documents between Federal Communications Commission employees as to the clear confusion which existed about the regulations prohibiting the very imports being prosecuted. The corporate defendant argued that the materials tended to prove its innocence by showing legitimate confusion over the regulatory requirements relating to the importation of the company’s radios. Ranger Electronic Commun-ications also claimed that the prosecutor should be sanctioned for his professional misconduct as a result of the failure to disclose the Brady material. Chief Judge Richard Allan Enslen, relying on Congressman Hyde’s own statements when introducing his amendment authorizing an attorneys’ fees sanction directed at the government, ruled that payment of the defense attorney’s fees would, in fact, be the appropriate sanction for the misconduct. Id. As Congressman Hyde stated: “[Some federal prosecutions are] not just wrong, but willfully wrong . . . frivolously wrong. They [federal prosecutors] keep information from you that the law says they must disclose . . . they suborn perjury.” Judge Enslen relied upon Hyde’s statements in his ruling in Ranger Electronic Communications, Inc., “. . .It is fair to say that the [Hyde Amendment] was intended specifically to curb abuses associated with the bringing of frivolous indictments, the subordination of perjury and the failure to disclose exculpatory evidence.” Id. at 673. The court also ordered the Assistant U.S. Attorney in the case to show cause why he should not be disciplined for violating Michigan’s Rule of Professional Conduct 3.8, which requires prosecutors to make timely disclosure of evidence tending to negate the guilt of a defendant. The decision in Ranger Electronic Communications, Inc. signals that some federal judges are at last ready, willing and able to put some bite behind their bark. Meaningful sanctions will go far in discouraging rogue prosecutors from deliberately engaging in misconduct.
RICO Report Barry Tarlow 9119 Sunset Boulevard Los Angeles CA 90069 Phone (310) 278-2111 Fax (310) 550-7055 | |||||||||
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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 | |||||||||
