In a remarkably strongly-worded decision, Judge A. Howard Matz of the Central District of California tosses FCPA convictions for misconduct.
In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness.While I’ve only managed to scratch the surface as yet due to time constraints, Judge Matz’s decision is fascinating, including a broad swathe of “inside baseball”-type stuff that rarely sees the light of day. This is the sort of stuff we all know, but nobody official will ever admit. Judge Matz does. For example,
So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.”
Second, when a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees. That is what occurred here. This Court was confronted with so many motions challenging the Government’s conduct that it was difficult to step back and look into whether what was going on reflected not isolated acts but a pattern of invidious conduct. Although the Court did issue orders granting various of Defendants’ motions to suppress, motions to exclude evidence, motions to compel further discovery, motions for curative instructions, etc., it did not fully comprehend how the various pieces fit together. And fit together they do. The Government has acknowledged making many “mistakes,” as it characterizes them. “Many” indeed. So many in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry. To paraphrase what former Senator Everett Dirksen supposedly said, “a few mistakes here and a few mistakes there and pretty soon you’re talking misconduct.”
Oh baby. And this:
When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.1 In this case, for example, the Court denied several previous motions to dismiss and permitted the prosecution to proceed over the heated objections of defense counsel because it was willing to accept the prosecutors’ assurances that their conduct was inadvertent and would not be repeated. The Court even said it was “not anxious to attribute a deliberate, intentional, and devious motive” to the Government.
1 For an example of a court’s reluctance to make those findings, see United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008). There, the apparently ambivalent district judge stated that “the government did not act intentionally” but also said that the government “did not . . . act [ ] . . . unintentionally.” The appellate court characterized this ruling as “somewhat confusing.” Id. at 1080 n.2.
When is the last time a federal judge conceded that prosecutors have to murder babies before any judge will hold them accountable for misconduct?
While I expect to return to this decision, and the underlying conduct, as soon as I can read through the papers, I would be remiss not to share this. Get out the popcorn, kick back and enjoy.
H/T C.D. Cal, FPD Blog and Solomon Wisenberg at White Collar Crime Prof Blog
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Prosecutors who engage in willful misconduct should do hard time.
The only things missing from that decision (which I did read in full) were sanctions and referral to the bar. Oh… and naming the names of the lawyers, though one was named exculpatorily.
I don’t know whether an appeals court can apply sanctions (beyond dismissing the case, of course). But a referral to the bar would seem easily done.
A glaring hole in an otherwise great decision. Sad. Very sad.
And they might even get away with murdering babies, if they can spin it so the babies are in collusion with terrorists (can a baby have any other relationship when being nursed, after all?)
The docket report for USA v. Noriega et al (Case # 2:10-cr-01031) identifies the following prosecutors as attorneys of record/attorneys to be noticed: Douglas M Miller, Jeffrey Goldberg, Jennifer M Resnik, and Nicola Jean Mrazek.
Matz pretty well laid it on the line; they are going to do everything within their power to cover the government’s misconduct. And when it’s so egregious that it can’t be denied, they aren’t going to lay a finger on these prosecutors, who show “admirable professionalism, integrity and fairness.”
The misconduct occurred in 2009 and continued to 2011.
It involved several prosecutors. We have a conspiracy involving predicate acts, spanning two years.
Sounds like a RICO indictment.
Instead, the judge won’t even name the prosecutors.
The line about “professionalism, integrity and fairness” is especially hilarious when one conspiracy the implication of a multi-year conspiracy to violate civil rights and commit fraud.
Obviously the prosecutors weren’t adequately supervised. They clearly didn’t fear their supervising lawyers.
Is there supervisor weak, or has he implicitly signaled that prosecutorial misconduct is acceptable?
Incidentally, Allen Chiu of the C.D. Cal. USA office also committed prosecutorial misconduct. (Chiu remains employed by DOJ.)
It seems clear, that the Central District of California’s United States Attorney Office, rather than being loaded with ethical professionals, is better described as RICO enterprise.
Did you see Lanny Breuer on 60 Minutes tonight, explaining why they haven’t managed to indict anyone for mortgage or bank fraud? I’ve never seen anyone more mealy-mouthed. And you think DOJ is going to deal with prosecutorial misconduct?
This is a great and important decision by Judge Matz.
Unfortunately these days most such decisions are at the district court level, and often not published. The government has gotten (understandably) gun-shy about appealing them, particularly in places like the 9th Circuit, and as a result have avoided Circuit-level precedent in such cases. Though the government has preserved its rights here by filing a notice of appeal, I’d lay long odds they won’t ultimately take it up.
Sure, we can’t expect anymore more (or should we say less) from DOJ.
It’d be nice, though, if all of those Federalist Society judges started taking separated powers seriously – perhaps by exercising its supervisory powers when faced with fraud from the Executive.
The relationship between judges and prosecutors, their executive branch cousins, is always unsavory. The only saving grace is that it ends the minute a prosecutor leaves the office to go to the other side.
Would a referral do any good? Seems to me the disciplinary committee is more like a whitewash unless something really heinous occurs.
I saw it online. Occupy is too little too late.
Judge Matz is in deep with the prosecutors office of the Central District of California, especially since his son is one of them. Of note is his word “mistakes.” Only when he could no longer cover up their “mistakes” did he pull their plug. When he commits the same, or worse, he calls them “technical errors.” What is worse is his attempts to cover them up by ordering his decisions to be unpublished, and far worse.
[Ed. Note: Links deleted per rules.]