NACDL sued the Justice Department seeking disclosure of its Federal Criminal Discovery Blue Book. This publication reportedly covers the law, policy, and practice of prosecutors’ disclosure obligations. The U.S. Court of Appeals upheld the lower court’s decision that the publication is protected work product. Included here are key pleadings filed in the National Association of Criminal Defense Lawyers' (NACDL) Freedom of Information Act (FOIA) lawsuit seeking the Department of Justice's Federal Criminal Discovery Blue Book.
Motion for Compassionate Release (March 11, 2021)
Order Granting Compassionate Release Under D.C. Code (Feb. 1, 2021)
Order Granting Federal Compassionate Release (April 23, 2021)
Argument: Mr. McLean was incarcerated for a DC code offense. While held at Lorton, he incurred a federal charge in the Eastern District of Virginia. Obtained a reduction in sentence to time served from DC Superior Court, and then filed in federal court to reduce his 33 month federal sentence. With this second grant, Mr. McLean is on his way home.
Of special note: McLean had recovered from COVID and also received one dose of the Moderna vaccine. However, the government acknowledged that "vaccine efficacy in immunocompromised persons such as defendant is currently unknown," and so the court found that Mr. McLean "faces a particularized risk of serious illness if he should become reinfected with COVID-19."
The court also took note of Mr. McLean's vulnerability as a Black man over 50 in granting release, citing to the CDC's data on "Risk for COVID-19 Infection, Hospitalization, and Death By Race/Ethnicity." ("compared to white, non-Hispanic persons, African Americans are 2.8 times as likely to be hospitalized and 1.9 times as likely to die from COVID-19, despite being only I.I times as likely to get sick with COVID-19.").
Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Amaro Goncalves, United States v. Amaro Goncalves, et al., No. 09-CR-335-RJL.
Argument: The Goncalves case, often referred to as the Africa gun sting case, involved an undercover sting operation executed by the FBI in 2010 at a Las Vegas gun show called the Shot Show convention. Specifically, the FBI created a fictitious deal to outfit the presidential guard of a small African country with weapons and security gear that included a $1.5 million bribe to that nation’s defense minister. Ultimately, the FBI arrested and charged 22 men and women, all in the military and law enforcement equipment industry, for allegedly participating in a conspiracy to bribe the defense minister of Gabon, and therefore violate the FCPA. Three of those charged pled guilty to conspiracy charges, but several others took their case to the jury at two separate trials.
At trial, the defense argued that the deal on its face appeared legitimate and that there was no conspiracy to violate the FCPA by the defendants. Further, the defense presented evidence that the informant and agents were vague in describing the illicit payments and that they never referred to them as bribes or kickbacks. The first trial, involving four defendants, took place in the District Court for the District of Columbia in July 2011. After more than six days of deliberations, that trial resulted in a hung jury. The second trial of six others lasted four months, ending in January 2012, and resulted in three acquittals and a hung jury for the remaining defendants. The Department of Justice finally dismissed the charges against the remaining defendants in February 2012. When granting DOJ’s motion to dismiss, U.S. District Court Judge Richard Leon described this prosecution as a “long and sad chapter in the annals of white collar criminal enforcement.” He further stated, “I, for one, hope this very long, and I’m sure expensive, ordeal will be a true learning experience for both the Department and the FBI.” In March 2012, the government also dismissed the charges against those three defendants who had pled guilty and were awaiting sentencing.
"Feds Drop Case Against Final Africa Sting Defendants," The FCPA Blog, March 27, 2012.
“DOJ Considers Abandoning Its FCPA Sting Prosecution,” The BLT: The Blog of LegalTimes, February 7, 2012. [Commentary from trial’s Jury Foreman]
“Federal jury deals setback to large Justice Department sting operation,” The Washington Post, January 31, 2012. [Additional coverage and analysis]
"In FCPA Sting Case, Prosecutors Revise Discovery Process," The BLT: The Blog of LegalTimes, August 25, 2011.
"FCPA Attorneys Gear up for Round Two in Gabon Bribery Case," The BLT: The Blog of LegalTimes, August 18, 2011.
"Mistrial Declared in FCPA Sting Case," The BLT: The Blog of LegalTimes, July 7, 2011.
In November 2005, Scanlon pled guilty to a one-count information charging conspiracy with three objects, bribery, mail and wire fraud, and honest services fraud. Folling the Skilling decision, Scanlon moved to modify or amend his plea agreement. The court ordered brief, heard oral argument, and on November 30, 2010, denied the motion. On February 11, 2011, District Court Judge Huvelle sentenced Scanlon to 20 months in federal prison.
The first trial, held in fall 2009, resulted in a hung jury on all ten counts (six under 18 USC 1346 and one conspiracy). In response to the government’s attempt to bring the case to trial again, Ring filed a motion for judgment of acquittal, based heavily on the recent Skilling decision. D.C. District Judge Ellen Segal Huvelle denied to motion and case went to trial in fall 2010.
Argument: On Monday, November 15, 2010, the jury found Ring guilty of one count of conspiring to corrupt congressional and executive branch officials by providing things of value; one count of paying a gratuity to a public official; and three counts of honest services wire fraud. Ring was acquitted of three additional counts of honest services fraud.
On December 15, 2010, Ring filed motions for judgment of acquittal and for a new trial. The District Court denied all these motions on March 11, 2011. In October 2011, Kevin Ring was sentenced to 20-months for the honest services fraud counts and a concurrent sentence of 15-months for the single gratuities count. Ring appealed his conviction to the D.C. Circuit Court and oral argument was held on Nov. 15, 2012.
Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Defendant.
Argument: The criminal justice system is a system of plea negotiations that gives prosecutors enormous leverage over criminal defendants. Defendants face a higher sentence if they go to trial, which drives many defendants to take a plea bargain. This “trial penalty” means that some innocent defendants plead guilty. Defendants who plead guilty while maintaining their innocence should not be subject to a sanction of criminal contempt for doing so. Prosecutors may have wholly laudable reasons to dismiss cases even after a plea, and courts should not chill such actions with the threat of a contempt sanction.