In the case of a Mexican businessman accused of drug trafficking, Zhenli Ye Gon, the Justice Department says U.S. District Judge Emmet Sullivan is taking this whole Brady thing a touch too far. Justice moved to dismiss the case earlier this week - not for any self-discovered violation of its obligation to turn over exculpatory material to the alleged drug trafficker’s defense team — but because they believe authorities south of the border have a better shot at putting him away for a long, long time.
But Sullivan, the judge who ordered a criminal investigation of the prosecutors who handled the Ted Stevens case, asked the government for a supplemental brief to explain why it waited until its June 22 motion to dismiss to disclose that two witness are recanting, reports The National Law Journal’s Mike Scarcella. Sullivan suggested the government had yet again trampled rights of the defendant.
The answer refuting Sullivan’s suggestion came from none other than Paul O’Brien, chief of the Narcotics and Dangerous Drug Section. In a strange coincidence, it was O’Brien who led the DOJ internal investigation of the handling of evidence by the Stevens prosecutors in Public Integrity. It was O’Brien who stood before Judge Sullivan in April and apologized in open court for the prosecution errors that led to dismissal of the high-profile public corruption case against the former senator from Alaska. “[W]e deeply, deeply regret this occured,” O’Brien said of the Stevens debacle.
But in a brief filed Wednesday, O’Brien defended his section lawyers, Paul Laymon and Wanda Dixon, writing that Sullivan’s suggestions of impropriety in the Ye Gon case are not supported by law.
O’Brien noted that in the Ye Gon case, “the government has turned over more than 75 volumes of discovery materials, including forensic reports, reports of interviews, banking records, gambling records, shipping records, and so on,” beginning in 2007.
The Court has suggested that, despite the fact that we are four months before the scheduled trial in this case, the government’s compliance with a court-ordered deadline for producing Brady material nonetheless constitutes a failure to turn over Brady material. The court’s suggestions are not supported by the law. Indeed, courts have uniformly rejected the notion that Brady disclosures need to be made in pretrial proceedings, let alone immediately, as the Court appears to suggest; due process is satisfied as long as the material is disclosed in time for the accused to make effective use of it at trial.
Sullivan was also peeved that the government didn’t let him know about the problem witnesses. In a footnote, O’Brien said the government didn’t have to.
The government’s disclosure obligation runs to the defendant. We are not aware of any requirement under Brady that the government disclose the materially favorable information to the court.
If the Ye Gon case is transferred to Mexico, he will face charges of organized crime and the importation of and manufacture of psychotropic chemicals, among others. Ye Gon has been in U.S. custody since he was arrested in a restaurant in Westfield Wheaton mall in 2007. Mexico is seeking to extradite him, but his lawyers, Manuel Retureta and A. Eduardo Balarezo, are fighting to keep him here.
O’Brien also refuted any implication that the government’s case was too weak to stand in U.S. court.
We submit only that, as between the two countries’ prosecutions, there are sufficient reasons — including a less complicated set of charges and the prospect of a very lengthy sentence - to defer to Mexico’s request for the return of its citizens for trial there.
A status hearing is scheduled in the case for June 30 at 2 p.m.