Federal Prosecutors Observe "No Touch" Ruling on Possible Retrial of San Diego Councilman for Alleged Honest Services Fraud; Former Alaska Chief of Staff to Have Honest Services Conviction Dismissed

Last week was a good one for public officials charged with Federal crimes. First, the U.S. Attorney's Office for the Southern District of California announced that it would not seek a second trial of former San Diego Councilman Michael Zucchet on alleged honest services fraud charges pursuant to 18 U.S.C. 1346, relating to political contributions from the owner of a strip club, as reported by the Los Angeles Times. Mr. Zucchet was indicted with two other City Council members and an aide in 2003. The government alleged that the Council members had a meeting with a lobbyist for the strip club owner for the alleged purpose of changing the City's "no touch" ordinances relating to strip clubs. The Council members, however, argued that they reported the contributions on their financial disclosure forms. The government's decision was prompted by the U.S. Supreme Court's recent decision in U.S. v. Skilling, No. 08-2349, in which, as we have noted,  the Court held that the "honest services" mail fraud statute, 18 U.S.C. §1346, applies to bribery and kickback schemes, and not to mere "undisclosed self-dealing by a public official or private employee," alone.

Councilman Charles Lewis died before trial. Mr. Zucchet and Councilman Ralph Inzunza were convicted by a jury following trial in July of 2005. However, U.S. District Judge Jeffrey Miller dismissed the jury's guilty verdict on seven counts against Mr. Zucchet. The Judge permitted the government to retry Mr. Zucchet on the two remaining counts. The Ninth Circuit Court of Appeals upheld the district court's ruling on appeal. Mr. Inzunza has also appealed his convictions. Mr. Zucchet resigned from the Council soon after his conviction, and is currently General Manager of the San Diego Municipal Employees Association.

Then, according to the Achorage Daily News, the U.S. Attorney's Office for the District of Alaska announced that it would agree to the dismissal of the honest services fraud conviction of Jim Clark. Mr. Clark was the former Chief of Staff to Alaska Governor Frank Murkowski, a lobbyist and attorney, and was once viewed as the most powerful unelected official in Alaska. The U.S. Attorney's Office announced that Mr. Clark's 2008 guilty plea was to a felony that no longer exists, pursuant to the Supreme Court's Skilling decision. Mr. Clark pled guilty to alleged conspiring with former officials of the defunct oil-field services company Veco Corp. to channel $68,550 in illegal contributions to Governor Murkowski's political campaign -- without the Governor's knowledge. He is expected to be a witness for the government in a possible upcoming trial of State Representative Bruce Weyhrauch on bribery, extortion and conspiracy charges. Mr. Clark's law license, which was suspended following his guilty plea, is expected to be reinstated by the Alaska Supreme Court.

USA Today on Misconduct by Federal Prosecutors; AUSA in Senator Ted Stevens Prosecution Takes Life;

USA Today ran a lengthy piece on prosecutorial misconduct on September 22. The article states that, since 1997, federal courts have determined that Department of Justice attorneys violated laws or ethical rules in some 201 cases, including the duty expressed by Supreme Court Justice George Sutherland over 70 years ago in Berger v. United States, 295 U.S. 78 (1935);

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Most of the cases of misconduct involved concealment of favorable or impeaching evidence from the defendant and presenting false testimony to the jury. In the cases found by the reporters as part of a six month investigation, the misconduct by the prosecution was so egregious that courts dismissed the charges against the defendants or overturned the defendants' convictions. The story states that investigations of prosecutorial misconduct by the Department of Justice prompted by complaints from judges rose to 61 last year, from 42 in 2001. The Department's Office of Professional Responsibility has reported that it has completed more than 750 investigations over the past decade, and that it has found intentional violations in 68 cases. Reporters found that only one prosecutor had been barred from practicing law, even temporarily, in the past 12 years. In one rare exception, in 2007 the Department prosecuted Richard Convertino, a former Assistant U.S. Attorney, for allegedly obstructing justice in his handling of a Detroit terrorism case. Convertino was acquitted.

The story cites the case of Nino Lyons, who was alleged to have been a drug trafficker, and allegations that prosecutors concealed evidence which would have discredited the witnesses against him, many of whom were incarcerated convicted felons. The prosecution was alleged to have withheld from Mr. Lyons' defense promises made to the witnesses to reduce their prison time, and the failure of one key witness to even identify Mr. Lyons. The concealed evidence came to light only after it was suggested in a government filing after Mr. Lyons had already been incarcerated for three years. The U.S. District Court for the Central District of Florida overturned Mr. Lyons' conviction and declared him innocent.  The ordeal also cost Mr. Lyons his home and his business. U.S. District Judge Gregory Presnell wrote in his order that prosecutors engaged in "a concerted campaign of prosecutorial abuse" including covering up evidence and letting felons lie to the jury. Judge Presnell further said that prosecutors "brazenly" defied court orders and presented witnesses who were "allowed, if not encouraged, to lie under oath." As small compensation, the Justice Department paid $150,000 of Mr. Lyons' legal bills in a confidential settlement. The story states that the Department of Justice has paid nearly $5.3 million in legal bills for wrongly accused defendants.

The article noted the heavy caseload and lack of supervision of many federal prosecutors as a possible causes of misconduct. In response to the article, Acting Deputy Attorney General Gary Grinder wrote a letter to the editor, which may be read here, in which he defended that the number of cases of prosecutorial misconduct is actually "minuscule," given the fact that the Department of Justice prosecuted more than 720,000 cases and more than 1 million defendants in the time period covered by the study, suggesting that serious prosecutorial misconduct only occurs in approximately 1 in 3,600 cases.

In related news, following the dismissal of the prosecution of late Alaska Senator Ted Stevens, the Department of Justice commenced an investigation of several Department attorneys for potential prosecutorial misconduct. Senator Stevens was killed in a plane crash on August 9, 2010. One of the attorneys under investigation was Assistant U.S. Attorney Nicholas A. Marsh. Marsh, aged 37, committed suicide late last month, as reported in the Louisville Courier-Journal.

U.S. District Judge Emmet Sullivan appointed a special prosecutor to investigate what he called the worst misconduct he had seen in nearly 25 years on the bench. Marsh's attorney issued statements to the media following his death that Marsh was fearful of the investigation preventing him from continuing to work at the Department of Justice, and indicated that Marsh and investigators were actually "on the verge of a successful resolution." The Department has expressed its condolences to Marsh's family, as does the Blog.



Report Alleges Bush Administration DOJ Shielded BP and Executives from Criminal Prosecution over Alaska Spill

As the oil spill from the Deepwater Horizon well in the Gulf of Mexico turns two months old, an article in Digital Journal details how the government considered bringing criminal charges against British Petroleum and its executives during the Bush Administration. The article quotes Scott West, a former Special Agent in Charge for the Environmental Protection Agency. West was in charge of investigating the rupture of a pipeline at Prudhoe Bay, Alaska, which occurred in March 2006. The rupture went undetected for nearly a week due to malfunctions in monitoring equipment, and spilled more than a quarter of a million gallons of crude oil. The rupture was reportedly the size of a pencil eraser and was caused by corrosion. BP shut down five oil processing centers for nearly two weeks, causing a rise in gas prices.

EPA's criminal division, the Federal Bureau of Investigation and the Department of Justice spent thousands of hours investigating the rupture, and supposedly was considering criminal charges against BP and certain of its executives for ignoring warnings from employees about the condition of pipeline and the monitoring equipment.

However, the article claims that the DOJ allegedly "killed" the investigation in August of 2007. BP pled guilty to a misdemeanor violation of the Clean Water Act and paid a $20 million fine. BP also entered into a deferred prosecution agreement with the government in relation to an explosion at a refinery in Texas City which resulted in 15 deaths.