The Justice Department mounted its defense anew against allegation that prosecutors withheld exculpatory information from defense lawyers representing Zhenli Ye Gon, a Chinese-born Mexican businessman charged with conspiring to manufacture methamphetamine bound for the U.S.

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Emmet Sullivan

The rundown: The department has moved to dismiss the case without prejudice, deferring to the Mexican government’s request to extradite Zhenli. After weighing the strengths of the respective cases, prosecutors settled on Mexico as the better forum. In their motion to dismiss, filed about four months prior to trial, they also raised concerns about witnesses who gave conflicting statements, recanted, and refused to testify.

U.S. District Judge Emmet Sullivan has questioned why the government waited until the motion to reveal the information, and defense lawyers Manuel Retureta and A. Eduardo Balarezo have asked that case be dismissed with prejudice, citing the government’s late disclosure. (The Justice Department strenuously disputes this point.)

At a hearing last month, Sullivan read a lengthy statement from the bench, asking, among other things, whether the government’s assertions that it fulfilled its discovery obligations should be “viewed with suspicion,” whether prosecutors lied to the court, and whether they ran afoul of the U.S. Attorneys’ Manual. The overarching question was whether Sullivan should dismiss the case with prejudice or without.

In a brief filed today, Paul O’Brien, chief of the Narcotic and Dangerous Drug Section, delivered a forceful reply.

[W]e are aware of no case dismissing an indictment with prejudice under Rule 48(a) because the court believed that, had the case gone to trial, the government might have violated its constitutional obligation to disclose exculpatory materials….The Court has nonetheless asked us to address a hypothetical: might there have been a Brady violation if the case had gone to trial (as it was previously scheduled to do) on either December 3, 2008 or June 22, 2009. At the outset, the government respectfully submits that an inquiry by the Court into a hypothetical Brady violation is misguided. Even if a hypothetical Brady violation could be found, that would not suffice for a finding of an actual Brady violation; nor, as we noted above, would a finding of an actual violation warrant dismissal with prejudice.

And on the issue of the U.S. Attorneys’ Manual:

We respectfully suggest that the answer to this query cannot affect the outcome of this case. As the Manual itself explicitly states, the government’s disclosure policy “does not create a general right of discovery in criminal cases. Nor does it provide defendants with any additional rights or remedies.” U.S.A.M. § 9-5.001(E). Instead, the manual is strictly a matter of Department of Justice policy, and any possible failure to comply with it is therefore a matter of internal concern.

Sullivan today asked the Federal Public Defender for the District of Columbia and/or the Public Defender Service for the District of Columbia to weigh in on the prejudice issue.

To continue reading the government’s brief, click here ^[2]. To read our previous coverage of the Zhenli case, click here ^[3] and here ^[4].