AUSA Misstep Costs Him Possible Prosecution
By Stephanie Woodrow | December 5, 2009 10:26 pm

A misstep by a prosecutor in the U.S. Attorney’s office in the Central District of California has cost the office the option of prosecuting a former business official allegedly involved with securities fraud, The American Lawyer reported.

The case involves the former CFO of Broadcom, William Ruehle. In June 2008, Ruehle and Henry T. Nicholas III, the co-founder and former president and CEO of Broadcom, were charged with improperly backdating stock options.

On Dec. 1, U.S. District Court Judge Cormac J. Carney granted a motion by Ruehle’s attorneys to grant immunity to ex-Broadcom general counsel David Dull and Broadcom co-founder Henry Samueli, who had indicated they would invoke their Fifth Amendment rights against self-incrimination to avoid testifying, The American Lawyer reported.

After the judge granted immunity, Assistant U.S. Attorney Andrew Stolper phoned Dull’s attorneys. Stolper told Dull’s lawyers that their client could be charged with perjury if he provided prosecutors with the same answers he gave the Securities and Exchange Commission regarding the case, according to an Orange County Register report cited by The American Lawyer.

Dull had not been criminally charged in the case but was named in an SEC complaint, according to The American Lawyer. Dull’s lawyers — James Asperger of Quinn Emanuel Urquhart Oliver & Hedges and Seth Aronson of O’Melveny & Myers — reported the call to the judge.   Cormac J. Carney called a hearing in response to the call.

During the hearing, Stolper indicated the purpose of the call was to clarify the law, The American Lawyer said. But Carney suggested the call was an attempt to influence testimony. “I do believe there was government misconduct, but cannot tell from testimony of witnesses if there was an actual threat to Mr. Dull,” the judge said.

Robb Adkins, an Assistant U.S. Attorney in the office, told The Orange County Register that Stolper’s phone call was “a bad idea.” He added, “That, in my view, is extremely regrettable.” Adkins told The Register that as result of the phone call the U.S. Attorney’s office will be unable to prosecute Dull.

According to The National Law Journal, Dull was expected to sign a non-prosecution agreement with the U.S. Attorney’s office, headed by acting U.S. Attorney George S. Cardona, by the end of this week.

CORRECTION: An earlier version of this story incorrectly stated the sequence of events.  The motion to grant immunity was not filed in response to AUSA Stolper’s call to Dull’s attorneys. The motion to grant immunity to Dull in exchange for his testimony was granted before Stolper’s call.  The story also  incorrectly stated that the prosecutor, Stolper, was granted immunity. Main Justice regrets the errors.

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