Government Opposes Clemens' Request for Legal Fees and Costs Relating to Mistrial

As reported in the Wall Street Journal Law Blog, the government has opposed former MLB pitcher Roger Clemens' request for reimbursement of the legal fees and costs incurred by him in the government's prosecution of Clemens for perjury, false statements and obstruction of justice. Clemens' trial in the U.S. District Court for the District of Columbia ended in a mistrial in July after  the prosecution played a video to the jury which referenced statements by fellow Yankees pitcher Andy Pettitte that Clemens allegedly admitted to using human growth hormone, evidence which the Court had ruled was excluded from trial. Clemens is currently scheduled to be retried in April 2012.

Following the mistrial, Clemens filed a Motion for the Award of Fees and Costs Associated with Mistrial. The government has filed a response in opposition, arguing that Clemens' request is barred by the doctrine of sovereign immunity.

In criminal cases, the sole mechanism for recovering fees and costs is under the Hyde Amendment, 18 U.S.C. § 3006A Note. The Hyde Amendment imposes considerable hurdles to reimbursement, however. It provides, in relevant part, that "[t]he court, in any criminal case... may award to a prevailing party... a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust." Therefore, a defendant must first prevail against all charges. Second, he or she must demonstrate that the government's position in the prosecution was "vexatious, frivolous, or in bad faith"--that is, lacking any reasonable grounds or from an improper motive. Lastly, the Amendment permits the government to argue that any award would be unjust. Clemens' lawyers did not invoke the Hyde Amendment, as the government's response points out, and could not do so in any event since he faces re-trial and has not yet prevailed.

Despite having been in effect for nearly 14 years, Courts have rarely awarded defendants fees pursuant to the Hyde Amendment. See United States v. Aisenberg, 358 F.3d 1327, 1335 (11th Cir. 2004) (reducing award of $2,680,602.22 in attorney’s fees to $1,298,980.00 in attorney’s fees and litigation expenses of $195,670.32, where the appellees were prosecuted for alleged false statements in relation to the disappearance of their daughter, and the government dismissed the indictment against the appellees after the district court found that investigating county detectives made false statements, statements in reckless disregard for the truth, and omitted material facts in wiretap applications; failed to inform the state circuit court that they had not yet interviewed several witnesses and that they were still waiting for the crime lab to process evidence and for a financial analysis of the appelleees; reported and quoted alleged telephone conversations in their wiretap applications which were either not present or not intelligible on the tapes and “deliberately or with reckless disregard summarized conversations out of context,” intercepted communications which were unrelated to the offenses and failed to minimize the recordings of conversations not otherwise subject to the interception authorization); United States v. Sherburne, 249 F.3d 1121, 1125 (9th Cir. 2001) (affirming the trial court’s award of attorney’s fees under the Hyde Amendment to the defendants who had charges against them relating to alleged abuses in the construction of a housing development on an Indian reservation dismissed, observing that the government had “distorted the truth,” “ignored evidence,” and failed to present facts establishing any false representations); United States v. Braunstein, 281 F.3d 982, 996 (9th Cir. 2002) (concluding that the government’s position that the defendant had engaged in wire fraud, interstate transportation of goods obtained by fraud, and money laundering in selling discounted computers to domestic distributors and resellers, despite evidence that computer company was aware of the defendant’s actions and had no agreement with the defendant, “was so obviously wrong as to be frivolous”); United States v. Claro, No. Crim. H-04-126-1 2007 WL 2220980, *6 (S.D.Tex. Jul 31, 2007) (Opinion on Defense Fees and Expenses) (unpublished), affirmed in part, vacated in part by, United States v. Claro, 579 F.3d 452, 456 (5th Cir. 2009) (awarding $391,292.29 in fees and expenses under the Hyde Amendment where court had dismissed indictment for conspiracy, mail fraud, and money laundering against the defendant, observing that the government had no evidence to support its allegations and that “[the defendant] defended himself for nearly sixteen months from fifty-four counts derived from shifting legal theories and inaccurate representations of the facts”).


The Strauss-Kahn Case and Immunity

 Readers are familiar with the attempted rape charges against International Monetary Fund Chief and French national, Dominique Strauss-Kahn. If convicted, Mr. Strauss-Khan could face a sentence of 5 to 25 years' imprisonment. Mr. Strauss-Khan was denied bond by the New York City Criminal Court on Monday and is currently in custody at Riker's Island Prison.

Questions have arisen as to whether Mr. Strauss-Kahn might benefit from some form of immunity as a representative of an international organization. Any potential immunity would have to come from Title 22, Chapter 7, Subpchapter XVII of the United States Code, governing privileges and immunities of International Organizations. 22 U.S.C. § 288d provides, in relevant part:

"(b) Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned."

  22 U.S.C. § 288d.  This "functional" immunity is far less complete that the total immunity from legal proceedings enjoyed by members of diplomatic missions to the United States and their families under 22 U.S.C. § 254d and the Vienna Convention on Diplomatic Relations. 

In order to be immune from suit or legal process under Section 288d, the complaint or charge must arise from the individual's employment with  the international organization and relate only to acts performed in his or her official capacity. See Van Aggelen v. United Nations, 311 Fed.Appx. 407, 409 (2d Cir. 2009) (citing Donald v. Orfila, 788 F.2d 36, 37 (D.C.Cir. 1986); D'Cruz v. Annan, No. 05 Civ. 8918, 2005 WL 3527153, at *1 (S.D.N.Y., Dec. 22, 2005)). Thus, the functional immunity conferred upon representatives of international organizations has also been held by courts to be insufficient to bar criminal prosecution in the past. Similar arguments have been ineffective in preventing the indictment of a Russian national and procurement officer for the United Nations for money laundering, U.S. v. Kuznetsov, 442 F.Supp.2d 102 (S.D.N.Y. 2006); or the prosecution of a Tanzanian national and U.N. Economic Affairs Officer, Economic Affairs for third degree assault and resisting arrest, People v. Leo, 95 Misc.2d 408, 407 N.Y.S.2d 941 (N.Y.City Crim.Ct. 1978); or charges against a U.N. security officer for criminal mischief, People v. Weiner, 85 Misc.2d 161, 378 N.Y.S.2d 966 (N.Y.City Crim.Ct. 1976).

The brutal actions alleged against Mr. Strauss-Kahn certainly cannot be argued to relate to his official capacity as Chief of the IMF. The silver bullet of immunity will probably prove of little or no assistance against the serious charges he faces in New York.

Rascos Give Up the Fight; U.S. Senate Assumes Role of a Court for Impeachment Trial of Louisiana District Judge G. Thomas Porteous, Jr.

We have commented on the case of Alfredo and Niurka Rasco of South Georgia, who were charged in a $6.5 million Medicare fraud scheme. Well, despite a heated and well-founded defense against the charges based upon illegal use of immunized evidence by the government, Mr. Rasco and his wife pled guilty to the charges against them last week during their trial, according to a press release by the U.S. Attorney's Office for the Southern District of Georgia. Mr. and Mrs. Rasco face maximum terms of imprisonment of 12 years and 6 months respectively.

In other news, the U.S. Senate will convene next week to hold an impeachment trial of U.S. District Judge G. Thomas Porteous, Jr., of the Eastern District of Louisiana according to the National Law Journal. Judge Porteous is charged with corruption. Specifically, Judge Porteous is charged with accepting meals, trips and other gifts from bail bondsman Louis Marcotte III and his sister Lori Marcotte in return for giving the Marcottes and their clients special treatment while he was a state court judge. Judge Porteous is also alleged to have made false statements to the Senate and to the FBI in 1994 regarding his past.

Judge Porteous' attorneys are vigorously defending him, however, pointing out that much of the conduct charged against Judge Porteous occurred prior to his appointment to the bench. Furthermore, a federal grand jury had investigated Judge Porteous as part of wide-ranging probe into Louisiana corruption, however no charges resulted. The U.S. Department of Justice also decided to drop the case against Judge Porteous. Judge Porteous' attorneys have denied any wrongdoing by Porteous, and state that he has done nothing to justify his removal from office.  The defense also contends that the FBI and the Senate were aware of the allegations against Judge Porteous prior to voting to confirm his appointment.

A fascinating fact is that Congress is also the nation's least used court. The trial of Judge Porteous will be the Senate's first since the impeachment trial of President William Jefferson Clinton (who appointed Judge Porteous to the bench) in 1999, and the first of a federal judge since 1989. The U.S. House of Representatives has considered bringing impeachment proceedings against federal judges in the interim, but the judges had resigned before the proceedings could be brought. Judge Porteous was referred to the Senate for impeachment by the Judicial Conference of the United States, led by Supreme Court Chief Justice John Roberts Jr., in June of 2008. A committee of 12 senators will serve as both judges and jurors at his trial. Members of the House will serve as prosecutors, or "managers." The Senators will vote on whether to convict Judge Porteous, with a two-thirds majority required to convict. Any of the Senators may question witnesses following examination and cross-examination by counsel. The Senate Committee will first gather evidence for consideration by the full Senate. Each side will have 20 hours to put on evidence. The Senate can only vote to impeach Judge Porteous, and cannot impose any sentence of imprisonment or fine. The trial will take place in the same chamber the Senate uses for confirmation hearings.

SEC Announces New Tools to Secure Cooperation in Investigations and Enforcement Proceedings


The Securities and Exchange Commission announced this week a new initiative to encourage private individuals and corporations to cooperate in SEC investigations and enforcement. The SEC will revise its Enforcement Division's enforcement manual to add a new section entitled "Fostering Cooperation." The section will allow SEC investigators to use the following "tools":

Cooperation Agreements — Formal written agreements in which the Enforcement Division agrees to recommend to the Commission that a cooperator receive credit for cooperating in investigations or related enforcement actions if the cooperator provides substantial assistance such as full and truthful information and testimony.

Deferred Prosecution Agreements — Formal written agreements in which the Commission agrees to forego an enforcement action against a cooperator if the individual or company agrees, among other things, to cooperate fully and truthfully and to comply with express prohibitions and undertakings during a period of deferred prosecution.

Non-prosecution Agreements — Formal written agreements, entered into under limited and appropriate circumstances, in which the Commission agrees not to pursue an enforcement action against a cooperator if the individual or company agrees, among other things, to cooperate fully and truthfully and comply with express undertakings.

The proposed changes also streamline the process for requesting immunity from the Justice Department for witnesses assisting in SEC investigations and enforcement actions. They futhermore set forth considerations for evaluating cooperation by individuals, including:

The assistance provided by the cooperating individual.
The importance of the underlying matter in which the individual cooperated.
The societal interest in ensuring the individual is held accountable for his or her misconduct.
The appropriateness of cooperation credit based upon the risk profile of the cooperating individual.
As the announcement recognizes, the "tools" are tools which the Department of Justice has long employed to secure cooperation and obtain information. Professor Ellen S. Podgor of Stetson University College of Law and the White Collar Crime Prof Blog has listed concerns regarding the SEC's new cooperation criteria.

Holding the Government to Its Promises: United States v. Rasco and Immunity

            In criminal cases, the government frequently employs the strategy of offering immunity to one defendant or witness for information to use in an investigation or against others. In some cases, the government may come to regret its agreement and may seek to get around it to prosecute the cooperating defendant or witness. However, as the Supreme Court held in Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the―affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Where the government reneges on an agreement of immunity in exchange for testimony or information and seeks to prosecute a defendant, the defense must seek to vigorously hold the government to its promise by requiring it to prove that all information used to prosecute the defendant was obtained from wholly independent, legitimate sources.

One such situation has arisen in the U.S. District Court for the Southern District of Georgia, in the case of U.S. v. Rasco, Case No. 4:08-100. Alfred Rasco was arrested May of 2008 as a result of Medicare fraud in relation to his operation of United Therapy, which operated infusion clinics. Following his arrest, Mr. Rasco offered to meet with the government. In May of 2008, Mr. Rasco and his counsel met with attorneys for the United States Attorney’s Office for the Southern District of Georgia and investigating agents. Mr. Rasco and his attorney understood that the purpose of the meeting was so that Mr. Rasco could make a proffer of information to the government for the government to evaluate, and that he would receive certain protections, including in not having any of the information which he provided used against him.

Mr. Rasco and the government entered into plea negotiations. In August of 2008, Mr. Rasco and his attorney met with representatives of the government a second time pursuant to a letter proffer agreement. The proffer agreement provided, in relevant part, that (1) the government would not make any “direct use” of the statements or information provided by Mr. Rasco against him, (2) the government could make “derivative use” of investigative leads suggested by any statements or information provided by Mr. Rasco, and (3) the proffer agreement would not protect against prosecution for perjury or false statements. Mr. Rasco provided the government with statements and information which the government used to indict Mr. Rasco’s co-conspirator, Riccy Mederos, in September of 2008.

Despite the government’s promises and the proffer agreement and the information provided by Mr. Rasco, in October of 2008, the prosecution obtained a superseding indictment against Mr. Rasco and his wife for conspiracy and health care fraud. Mr. Rasco moved to dismiss the indictment or to prohibit the government from using any evidence or information which it obtained during the proffer meetings against him, arguing that the government’s indictment was largely the direct result of evidence and information provided by Mr. Rasco. A hearing was held on the motion on August 31, 2009. The prosecution responded by returning to the grand jury again to obtain a second superseding indictment against Mr. Rasco.

The defense contended, however, that the evidence presented to the grand jury, which included testimony by Mederos, and the allegations in the second superseding indictment were directly derived from statements and information provided by Mr. Rasco to the government in his proffer meetings relating to false Medicare diagnostic codes and tests and Mederos’ advice to Rasco to locate the infusion clinic outside of Florida. It argued that Mederos’ testimony was tainted by statements and information provided by Mr. Rasco. The defense also maintained that the prosecution had presented the testimony of a case agent to the grand jury, who falsely testified to the grand jury that he had obtained his information from interviewing a key physician witness, when the agent had actually obtained the information from Mr. Rasco in his second proffer. In May of 2009, Mederos agreed to cooperate with the prosecution and attended proffer meetings with the same agents who had interviewed Mr. Rasco.

The defense has filed a Supplemental Motion to Dismiss and Motion In Limine, which may be viewed here, arguing that the government must be prohibited from using the statements and information provided by Mr. Rasco during his proffer meetings against him, pursuant to the proffer agreement, and requesting that the second superseding indictment be dismissed. Mr. Rasco has also requested a Kastigar hearing to require the prosecution to prove that it obtained the second superseding indictment based upon legitimate, untainted sources wholly independent of any statements or information provided by Mr. Rasco pursuant to the proffer agreement. Mr. Rasco also relies on Federal Rule of Evidence 410, which provides that evidence of plea negotiations is not admissible against a defendant participating in the negotiations.

The prosecution has responded to the defense’s supplemental motion, which response is viewable here. It contends that Mr. Rasco’s contentions regarding the relocation of the infusion clinic are moot because it has dropped these allegations from its indictment. It also defends that it obtained information regarding United Therapy’s false diagnostic codes and tests from sources independent of, or prior to, Mr. Rasco’s proffer to the government, and asserts that it did not falsely represent facts to the court during the August hearing or suborn perjured testimony before the grand jury.

Mr. Rasco is represented by Savannah, Georgia, attorney Julie M. Wade, of the Wade Law Firm. Assistant United States Attorney Brian T. Rafferty is representing the United States. On Friday, the Court issued a 60 page order, viewable here, in which it granted a Kastigar hearing. The Blog intends to keep track of the case and the outcome of Mr. Rasco's efforts to enforce the proffer agreement and hold the government to its word.

Qualified Immunity from a Warrantless Search-Or the Strange Case of Bates v. Harvey

        “J.T.” was a 17 year-old troubled youth who abused alcohol and drugs, as well as other persons. So troubled, in fact, that his parents obtained a civil commitment order for him from the Probate Court of Upson County, Georgia, averring that J.T. “present[ed] a substantial risk of serious harm to himself or others…” Sergeant Walker of the Upson County Sheriff’s Department was taskedwith executing the order. J.T.’s mom gave Sgt. Walker an address in Pike County, Georgia, where J.T. was staying with a friend, and Sgt. Walker enlisted the help of Deputy Harvey of the Pike County Sheriff’s Department to execute the order. Neither Sgt. Walker nor Deputy Harvey possessed a search or arrest warrant.

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