A mistrial has been declared in the fraud and bribery trial of two American Samoa officials, according to The Blog of Legal Times.
Lt. Gov. Aitofele Sunia and American Samoa lawmaker Tini Lam Yuen, a senator in the territorial legislature, were charged with fraud and bribery.
The trial, before Judge Reggie Walton in federal court in the District of Columbia, began Jan. 12 and the jury had been deliberating for more than two weeks when it announced on Tuesday that it was deadlocked. Eleven of the jurors said they favored acquittal.
Federal prosecutors in the 2007 indictment of Sunia and Yuen allege that they used their political positions and relationships to secure contracts worth hundreds of thousands of dollars for companies under their control, BLT reported. Under the contracts, the companies supplied classroom and library furniture to the American Samoa Department of Education.
Stephen Anthony, a partner at Covington & Burling and a lead attorney for Sunia, told BLT the jury deliberated “carefully and thoroughly” in the case. He added, “It was clear the jury paid close attention to the evidence.” Sunia also was represented by Covington & Burling partner Emily Henn. Yuen was represented by Michele Peterson, an assistant federal public defender in Washington, D.C.
When the indictment was issued, Lanny Breuer, then a partner at Covington & Burling, was lead counsel for Sunia and appeared in court several times. He withdrew from the case in February 2009, a month after being nominated to head the criminal division at the Justice Department. He recused himself from participating in the prosecution of the case.
The case was prosecuted by DOJ trial attorneys Matthew Stennes and Kathryn Albrecht of the Public Integrity Section. They did not comment on whether DOJ plans to prosecute Sunia and Yuen again, BLT reports.
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The Washington Post’s Del Quentin Wilber has a nice take-out on the saga of the government’s case against five former Blackwater guards, with an emphasis on the lead prosecutor, Assistant U.S. Attorney Kenneth Kohl.
The case stems from a shooting in a crowded Baghdad traffic circle in 2007 that left 17 Iraqi civilians dead. The incident inflamed anti-U.S sentiment in Iraq and fueled a debate here over the oversight of the private security firms in war zones. The former guards, who were escorting a convoy of U.S. diplomats, say they took fire and responded with appropriate force. Prosecutors say the guards fired without provocation.
Wilber pieces together the scene in Baghdad’s Nisour Square, as others have, and presents a fine summary of a federal judge’s ruling dismissing the indictment on the grounds that prosecutors used tainted evidence to build the case. (We’ve written about the opinion and the government’s subsequent appeal here and here.)
But much of the new material focuses on Kohl, a prosecutor in the National Security Division of the U.S. Attorney’s Office for the District of Columbia. The judge, Ricardo Urbina, scolded Kohl for disregarding the advice of a “taint” attorney, who was tapped to determine whether certain statements the guards gave to State Department investigators after the shootings could be used against them.
Kohl declined comment for Wilber’s story but wrote in an e-mailed statement, ”All of us who were involved in this case felt an obligation to the 34 victims who were killed or wounded at Nisour Square to do everything we could, within the bounds of the law, to bring this case to trial in an American courtroom.
“We don’t want federal prosecutors to flinch at taking on tough cases involving complex legal issues, and I worry that some of the reaction to the court’s ruling will have that effect.”
Kohl, 50, joined the department in 1985, after graduating from the Northern Illinois University College of Law. (He grew up in the Chicago area.) According to Wilber, the prosecutor was a fast riser who earned a reputation as an “aggressive and zealous advocate for victims.”
When Kohl was working homicides, he never lost a case, several of his colleagues told Wilber. His colleagues appeared equally impressed with his more recent work. Wilber reports:
In more recent years, he was assigned national security cases, including the years-long investigation into the anthrax attacks. In 2007, Kohl won a conviction against a Colombian rebel leader who took three Americans hostage. The man was sentenced to 60 years in prison.
Alex Barbeito, an FBI agent who worked on that case, said Kohl was meticulous and brave. “He came down to Bogota several times, despite death threats to U.S. prosecutors,” Barbeito said. “To me, he’s exactly the type of prosecutor an agent wants to handle complex international criminal cases.”
Kohl visited Baghdad three times during his investigation of the Blackwater guards. On one trip, Wilber reports, he had to dive under the bunk of his trailer, located in the Green Zone, when the compound was hit by rockets and mortar shells.
“And yet he still went back,” a fellow prosecutor wrote in an e-mail. “It would take a lot for me to go back there” after that.
It’s also worth noting that while Urbina used strong language to criticize the prosecutors, in a separate ruling the judge said their conduct did not warrant cutting off the government’s ability to bring new charges.
“The court is not persuaded that the additional, extreme sanction of dismissal with prejudice is justified under these circumstances,” Urbina wrote.
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The White House and the Justice Department are vetting the head of the Office of Professional Responsibility, Mary Patrice Brown, for a federal judgeship, according to two people familiar with the matter.
Brown, a well-regarded career prosecutor, is expected to secure a nomination to the U.S. District Court for the District of Columbia, assuming she clears her FBI background check and American Bar Association review, the people said.
Brown was tapped to lead the Justice Department’s ethics unit in April, amid a high-profile probe of former Office of Legal Counsel lawyers whose legal opinions paved the way for waterboarding of terrorism detainees. Her office reportedly determined that the lawyers — John Yoo, now a law professor, and Jay Bybee, now a federal judge — violated professional standards in blessing some of the Bush administration’s most controversial national security policies.
The Justice Department official who oversees OPR in the Deputy Attorney General’s office, David Margolis, softened the report to say the lawyers were guilty of “poor judgment” but not of professional misconduct — a finding that would have warranted referrals to state bar associations, Newsweek reported.
The issue would almost certainly be raised in Brown’s Senate confirmation hearings. Many Republicans strongly oppose disciplining Yoo or Bybee for their work during the Bush administration in the aftermath of the 9/11 attacks, while many Democrats have called for them to account for approving an interrogation method that Attorney General Eric Holder and others have equated with torture.
Brown, just the third OPR counsel since the office was created in 1975, came from the U.S. Attorney’s Office for the District of Columbia, where she was chief of the Criminal Division. The Justice Department announced the move the day after a federal judge criticized OPR for dragging its feet in an investigation of possible misconduct in the botched prosecution of former Alaska Sen. Ted Stevens. The events were unrelated.
The judge, Emmet Sullivan, took the extraordinary step of appointing a special prosecutor to investigate government lawyers for possible criminal contempt. Sullivan’s actions also set in motion a series of reforms designed to ensure that prosecutors meet their obligations to turn over evidence to defendants. (Brown would be Sullivan’s colleague on D.C.’s federal trial court, among the most prestigious in the country.)
The OPR investigations of the Stevens prosecutors and of the former OLC lawyers elevated the profile of Brown’s office. Rarely do OPR findings see the light of day, much less become the subject of congressional inquiries, as the OLC probe has. As a result, the office has received more complaints, Brown has said.
Delegate Eleanor Holmes Norton sent Brown’s name to the White House, along with eight others, for three vacancies on the court. (The names were generated by Norton’s nominating commission, the same group that interviewed candidates for U.S. Attorney in the District.) The White House appears to have pared the list down to three names, and the Justice Department’s Office of Legal Policy has been assisting with the vetting since December, the people said.
The lawyers being considered for the other two vacancies are Venable LLP partner Robert Wilkins, former special litigation chief for the D.C. Public Defender Service, and D.C. Superior Judge James “Jeb” Boasberg, who was an Assistant U.S. Attorney in District before his confirmation in 2002, the people said.
Brown could not be reached for comment. Wilkins and Boasberg declined to comment.
The court has a fourth vacancy as of late December, when U.S. District Judge Paul Friedman took senior status. It’s unclear whether the White House will select a nominee from Norton’s list, ask for more names or conduct its own search.
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The Justice Department on Friday appealed a court decision dismissing charges against five former Blackwater guards involved in a 2007 shooting in Baghdad that left 17 Iraqis dead.
Vice President Joe Biden announced the government’s intention to file an appeal last weekend, after a meeting with Iraqi President Jalal Talabani.
Prosecutors say the guards opened fire in a crowded Baghdad intersection without provocation, killing or wounding more than 30 Iraqis, including women and children. Attorneys for the guards say their clients, who were protecting U.S. diplomats, took fire from insurgents and responded in kind.
U.S. District Court Judge Ricardo Urbina in Washington dismissed manslaughter charges against the guards in a harshly worded Dec. 31 ruling, in which he faulted Justice Department prosecutors for using tainted evidence to build their case and for abusing the grand jury process.
Many Iraqis were outraged by the decision, viewing it as evidence that the U.S. was not accountable for bloodshed in their country. Iraqi leaders have been collecting signatures for a class action against the security contractor, which changed its name to Xe Services last year.
Urbina’s December ruling invited comparisons to the the botched prosecution of former Sen. Ted Stevens (R-Alaska), whose conviction was erased last year because of government missteps.
In that case, Judge Emmet Sullivan, who sits on same court as Urbina, criticized the government for failing to disclose materials that could have aided in Stevens’ defense. Sullivan dismissed the case at Attorney General Eric Holder’s request, and then appointed a counsel to investigate prosecutors for possible criminal contempt.
Urbina, however, made no formal finding of misconduct, and in a ruling earlier this month, he said the Justice Department could seek a new indictment against the men. Urbina said prosecutors acted with “disregard” but concluded that dismissing the case — without prejudice — was punishment enough.
The government has not yet filed a brief explaining the grounds for appeal. In pretrial hearings, prosecutors argued that interviews the guards gave to the State Department after the shooting were part of the normal course of their job and could be used against them. Urbina ruled that interviews were compelled, which immunized the guards.
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The Justice Department wants to bar the public from a federal district court hearing in D.C. on Jan. 7 in the Blackwater criminal case because the proceeding may result in the disclosure of classified information, reports the Blog of Legal Times. The department’s justification for the request came in a court affidavit filed today.
According to the blog, Justice Department officials “filed a motion Dec. 3 in U.S. District Court for the District of Columbia so that the court can determine the use, relevance and admissibility of classified information in the prosecution of five Blackwater security guards, who are charged in the shooting deaths of 17 Iraqi civilians.” Much of the Blackwater litigation has been conducted under seal and in closed courtrooms.
David Kris, assistant attorney general for the Justice Department’s National Security Division, said today in an affidavit that the Jan. 7 hearing should be held in camera. Kris was acting on behalf of Holder pursuant to the Classified Information Procedures Act. Kris said his request is based on his knowledge of the evidence and based on discussions he has had with other Justice officials. (Click here for Kris’ affidavit.)
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Lawyers for a group of former Blackwater guards accused of voluntary manslaughter will not be protected by the U.S. military when they go to Iraq to prepare for trial, a federal judge ruled Monday.
The lawyers requested a military detail similar to that afforded to federal prosecutors and agents as they put together their case against the five former guards, who are charged in the September 2007 shooting deaths of 17 Iraqis in a crowded square in Baghdad.
Justice Department lawyers had called the request “radical” and unnecessary.
Judge Ricardo Urbina, of the U.S. District Court for the District of Columbia, said the guards’ lawyers, “who never asserted an inability to finance their own security measures,” did not show that private security companies operating in Iraq could not ensure their safety.
The government provided the lawyers with a list of companies to pick from, but defense lawyers argued they could not offer the same level of protection as the military. Urbina disagreed.
[T]he defendants have offered no support for the assertion that none of the private security companies identified by the DOD in the September 30 Letter can provide the security necessary for the defense team to safely conduct a pretrial investigation in Iraq.
In his opinion, Urbina cited the regional security officer for the U.S. embassy in Baghdad, who noted that private contractors provide security for a range of government personnel visiting Iraq.
The judge, however, granted the lawyers’ request for updated contact information for the alleged victims and Brady witnesses identified by the government.
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Gregory Katsas, former Assistant Attorney General of the Civil Division in the Bush administration, will rejoin Jones Day next month as a partner in the issues and appeals practice, the firm announced on Thursday. He is scheduled to start on Nov. 9.
In his eight years at the department, Katsas represented the government in every federal circuit and the U.S. Supreme Court. He seemed to specialize in the controversial, arguing in cases concerning the detention of enemy combatants at Guantanamo Bay, the use of national security letters in counterterrorism investigations, the applicability of the state secrets privilege, the closure of immigration hearings for suspected terrorists, and the constitutionality of federal statutes on topics ranging from the Pledge of Allegiance to partial-birth abortion.
Between 2001 and 2008, Katsas held numerous front office jobs at DOJ, including Deputy Assistant Attorney General, Principal Deputy Associate Attorney General and Acting Associate Attorney General. He was confirmed as Assistant Attorney General of the Civil Division in June 2008 — shortly after the Supreme Court issued its landmark opinion in Boumediene v. Bush, which granted Guantanamo Bay detainees the right to challenge their confinement in federal court. (Katsas argued the case before the U.S. Court of Appeals for the D.C. Circuit, a high point of his career, he said.)
The Court’s decision came down on June 12, the day Katsas returned from his honeymoon. At the time, he was leading the Civil Division in an acting capacity. Katsas was consumed with marshaling resources and assembling records to meet court deadlines in more than 200 habeas cases in the U.S. District Court for the District of Columbia. He and his team recruited dozens of lawyers from the Civil Division and various other corners of the Justice Department for the effort.
“In my eight years at DOJ, I don’t know of any other AAG who had to ask for a detail like that,” Katsas said in a telephone interview. “We had wonderful support from Attorney General Mukasey and Deputy Attorney General Filip, and we put together a great team very quickly.”
As of early September, federal district judges had ordered the release of 29 detainees and sided with the department seven times. About 50 government lawyers are defending the detentions in court.
Before joining the department, Katsas (Princeton, Harvard Law) was an issues and appeals partner at the firm, specialing in complex appellate and trial-court litigation. He was a law clerk to Judge Edward Becker of the U.S. Court of Appeals for the Third Circuit and to Justice Clarence Thomas.
“We are very pleased to have Greg back,” Mary Ellen Powers, partner-in-charge of Jones Day’s Washington office, said in a statement. “He was already a great lawyer, but the experience of running DOJ’s Civil Division obviously adds an extra dimension to his ability to help the firm’s clients in a wide variety of matters.”