Eastern District of California Blog

Divided 11th Circuit Overturns $600,000 Hyde Amendment Award And Sanctions Against Miami Prosecutors

In U.S. v. Shaygan, No. 09-12129, a partially divided Eleventh Circuit today reversed a $600,000 Hyde Amendment award, vacated misconduct sanctions against Miami federal prosecutors, and remanded for further proceedings in a case I had oft-blogged, see 4/9/09, 3/26/09, 3/19/09 3/13/09, 3/3/09 posts.  The dissenting judge would have affirmed the Hyde Amendment award. 

This is the case where the jury returned a verdict of not guilty on all 141 counts.  The defendant was represented by former Judge Karlton clerk Marc Seitles and SDFL blogger David Markus.

Nevada U.S. Attorney's Office Drops Charges Against Irrigation District

The Truckee-Carson Irrigation District announced Thursday all charges have been dropped in a federal indictment against TCID. According to a press release, Judge James C. Mahan of the Federal District Court for the District of Nevada approved the dismissal with prejudice of all charges against TCID, Lyman McConnell, and John Baker in a federal indictment issued by a Grand Jury on Dec. 3, 2008.

“TCID has always asserted its innocence regarding these charges,” said Ernie Schank, president of the TCID board of directors. “In the face of some very significant motions filed by Michael Van Zandt, TCID's defense counsel, based partially on alleged government misconduct during the investigation, and to its credit, the U.S. Attorney's Office in Reno took a look at the case and decided not to go forward with the prosecution of TCID.”

Lahontan Valley News, 1/21/10.  The EDCA connection is at the end of the article:

“There were some significant concerns raised by these motions that undermined the government's theory of the charges and demonstrated that the charges in fact were not well-founded,” Van Zandt said.

As to the misconduct allegations, Van Zandt said he cannot give specific information, but indicated it involved the manner in which the case was investigated by the U.S. Department of Interior Office of the Inspector General under the supervision of the U.S. Attorney's Office in Sacramento.

Santa Ana Federal Judge Dismisses Charges Against Broadcom Defendants for Government Misconduct

As reported in the Orange County Register, CDCA Santa Ana U.S. District Judge Cormac J. Carney today acquitted one defendant and dismissed charges against a second defendant in the Broadcom backdating case using the court's supervisory powers to remedy the government's misconduct in intimidating witnesses.   [Added 12/16/09 NYT story]. 

The transcript of the court's unusually strong ruling is available here:  Download U.S. v. Ruehle RT, 12-15-09 

Explain This One To Me: DOJ Argues It Can Watch An Innocent Man Be Convicted Of Murder To Protect Its Informants Who Committed the Murder

Let me see if I got this right.  The FBI has evidence that its informants committed a murder that a defendant is charged with committing in state court.  To protect its informants, the government does not disclose its evidence.  The defendant is convicted of murder and sues after he is exonerated.  The government takes the position that it had no duty to disclose its evidence of the defendant's innocent because the defendant was being prosecuted in state court.   How can anyone think that is a lawful and and ethical position to take?  At least the judge saw through that mumbo-jumbo in awarding the defendant and others who were wrongly convicted of murder over $100 million. 

At least that's how I read a recent Talk Left story:   

As TalkLeft noted in 2002, Joseph Salvati had good reason to sue the FBI. The nation's premier law enforcement agency encouraged false testimony against Salvati at his state court murder trial because it knew the murder had actually been committed by FBI informants. Protecting its informants became a higher FBI priority than protecting the liberty of innocent people.

In its defense of Salvati's lawsuit, the Justice Department attempted to convince District Court Judge Nancy Gertner that the FBI didn't know Salvati's accuser would commit perjury, and that even if it did it had no duty to disclose evidence of Salvati's innocence because Salvati was being prosecuted in a state court. As TalkLeft noted in 2007, Judge Gertner rejected those arguments and awarded $101.7 million to Salvati and three others who were wrongly convicted of the murder.

Salvati is still waiting to collect. He's 76 years old, living with his wife in a one bedroom apartment. They get by on Salvati's social security benefit and his wife's small pension. The FBI should have apologized and written a check years ago. Instead, the Justice Department continues to insist that the FBI did nothing wrong.

Attorney General Promises New Day To U.S. District Judges

According to this piece in the National Law Journal, Attorney General Eric Holder met with about 90 federal district judges, 

At the meeting, Holder said improvements to the Office of Professional Responsibility were imminent. "The attorney general said he was going to take [OPR] complaints very seriously and that the whole process has to be more transparent and timely resolved," said one chief judge.

Holder invited the judges to contact him directly about problem prosecutors and other areas of concern. He even gave the crowd his phone number, a symbolic gesture that resonated with many judges who say the department's emphasis on national security, while justified, has put distance between the two branches in recent years. The judges said Holder won high marks for his candor and attentiveness. (He received two standing ovations -- one more than any visiting attorney general in recent memory, the judges said.)  . . .

Holder also said his department would take steps to eliminate the vast disparities in federal sentencing for possession of crack versus powdered cocaine and expressed his commitment to look into alternative courts to deal with drug-related offenses, the judges said.

 

The Full Monty! SDFL Court Orders Sanctions Including $601,795.88 in Attorney Fees and Costs Against Miami US Attorney's Office In Shaygan Case

I've previously reported on the S.D. Florida Shaygan case, which resulted in not guilty verdicts on all 141 counts after a trial at which defense attorneys learned the U.S. Attorney's office had authorized witnesses to tape their conversations with defense attorneys during the defense's pretrial investigation of the case.  After the trial, U.S. District Judge Alan S. Gold held a 2-day hearing on a motion for sanctions under the Hyde Amendment, after which the government admitted misconduct and agreed to (limited) attorney fees as a sanction.  Download Shaygan - Govt Response Misconduct.  Shaygan's attorneys, including former Judge Karlton clerk Marc Seitles, filed an excellent response calling for much more extreme sanctions.  Download Shaygan - Reply

Today, Judge Gold awarded the Full Monty!  Download Shaygan - Order on Defendant's motion for Hyde Amendment Sanctions:  $601,795.88 in attorney fees and costs, an injunction against the SDFLU.S. Attorney's Office against "future witness tampering investigation of defense lawyers," a public reprimand against the US Attorney's office and individual prosecutors, and a referral to the appropriate State Bar's disciplinary board for possible sanctions.  Oh, and in case he forgot something, the judge reserved the right "to impose any further sanctions and/or disciplinary measures against AUSAs Cronin and Hoffman after reviewing the results of the Department of Justice's Investigation."  Congratulations to SDFL attorneys David Markus, Marc Seitles, and the whole gang!

U.S. v. Harrison Jack, et. al.: Government Response To Motion Dismiss Just Filed

Download Gov't response to mtn to dismiss, filed April 6, 2009 

Sacramento Bee Story, 4/6/2009 here

Change I Can Believe In! Former Governor Stevens Dismissal

The government's motion to set aside the verdict against former Alaska Senator Ted Stevens, Download Stevens_govt-motion-to-dismiss, is refreshing in its candor.  Not only did the Government agree that a new trial was in the interest of justice, the DOJ moved to dismiss the indictment WITH prejudice under Fed.R.Crim.P. 48(a). 

Attorney General's Eric Holder's Press Release, DOJ Stevens Dismissal Press Release, 4/1/09 here,

"In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

"The Department’s Office of Professional Responsibility will conduct a thorough review of the prosecution of this matter. This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case.

Here's hoping this signals a real change in the DOJ, one that will apply to cases that don't get as much public scrutiny.  A DOJ willing to admit mistakes and take action to correct them would be a huge, positive step forward.  --John

 

SDFL U.S. Attorney's Office Agrees to Pay Defense Attorneys' Fees Resulting From Prosecutors' Misconduct In Taping Defense Attorneys' Conversations In Shaygan Case

After admitting misconduct in having witnesses tape conversations of Miami defense attorneys in a hotly-contested prosecution, the U.S. Attorney's Office for the S.D. Florida has agreed to pay the defendant's attorney fees resulting from the government's misconduct.    Download Shaygan - Govt Response Misconduct.  And, not only did the government agree to Hyde Act sanctions, but the Government's response announces that lead prosecutor Sean Cronin transferred out of the criminal division and Karen Gilbert resigned as Chief of the Narcotics Section.   Congrats to former Judge Karlton clerk Marc Seitles and SDFL blog author David Markus, after the jury returned not guilty verdicts on all 141 counts for their client, even if the government still mispelled Marc's first name in its response.  --John 

SDFL Judge Holds 2-Day Hearing On Prosecutorial Misconduct

Following up on past posts, here's an update on the SDFL case where federal prosecutors used witnesses to record conversations with defense attorneys in a hotly-contested prosecution of a doctor for over-prescribing pain medications, see Miami Herald, 3/18/09.   Not only did former Judge Karlton clerk Marc Seitles and others gain acquittals on 141 counts, the judge's hearings on the government's attorneys' "flagrant violations" may require them to pay all the defense attorneys' fees and lead to other sanctions.