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Ticked Off Federal Judge Orders Acting SDNY U.S. Attorney to Make Prosecutors Read Opinion Exposing Misconduct

Acting United States Attorney for the Southern District of New York, Audrey Strauss, speaks to the media at a press conference to announce the arrest of Ghislaine Maxwell, the longtime girlfriend and accused accomplice of deceased accused sex-trafficker Jeffrey Epstein on July 02, 2020 in New York City. 

It’s not often that one sees a federal judge order a U.S. Attorney to force prosecutors under their supervision to read an opinion of the court that counts the ways the government committed misconduct during a criminal prosecution, but that’s what U.S. District Judge Alison Nathan did on Wednesday.

Nathan, whom you may recognize as the judge presiding over Ghislaine Maxwell’s criminal trial, took the government to the woodshed for its actions in the since-dismissed case against Ali Sadr Hashemi Nejad. Nejad was accused of “violating American sanctions laws against Iran by moving millions of dollars in payments for his family business through the U.S. financial system.”

Nejad was facing charges of conspiracy to defraud the U.S., conspiracy to violate the International Emergency Economic Powers Act, bank fraud, conspiracy to commit bank fraud, money laundering and conspiracy to commit money laundering. But all of those charges ended up getting thrown out after a jury found Nejad guilty in March 2020. The government withheld crucial exculpatory evidence and forced the court to conduct an inquiry as to “whether the Government intentionally and in bad faith withheld exculpatory evidence or intentionally misled the Court,” Judge Nathan noted.

“[I]n part because of its disclosure failures, the Government later agreed that the Court should grant Mr. Sadr’s motion for a new trial, vacate his guilty verdict, and dismiss the indictment against him with prejudice. The Court did just that, thus ending this criminal proceeding with respect to Mr. Sadr—but it is not the end of the matter,” Nathan began to fume. “As this Court stated to the Government lawyers at trial and in several later orders, the serious and pervasive issues related to disclosure failures and misleading statements to the Court by at least one or more of the Government lawyers must be addressed separate and apart from the resolution of this case against Mr. Sadr.”

Nathan expressed her judicial dismay both in a lengthy summary on the docket and in a 42-page opinion and order that repeatedly tore into prosecution. On the docket:

OPINION & ORDER as to Ali Sadr Hashemi Nejad. The Government in this case has failed to live up to these ideals. The Court has recounted these breaches of trust, proposed some systemic solutions, urged referral to the Office of Professional Responsibility for admitted prosecutorial failures apparent in the existing record,and ordered further fact-finding. The cost of such Government misconduct is high. With each misstep, the public faith in the criminal-justice system further erodes. With each document wrongfully withheld, an innocent person faces the chance of wrongful conviction. And with each unforced Government error, the likelihood grows that a reviewing court will be forced to reverse a conviction or even dismiss an indictment, resulting in wasted resources, delayed justice, and individuals guilty of crimes potentially going unpunished. The Court thus issues this Opinion with hopes that in future prosecutions, the United States Attorney for the Southern District of New York will use only “legitimate means to bring about a just” result. Id. Nothing less is expected of the revered Office of the United States Attorney for the Southern District of New York. That Office has a well – and hard-earned reputation for outstanding lawyers, fierce independence, and the highest of ethical standards. The daily work of the prosecutors in that Office is critically important to the safety of ourcommunity and the rule of law. Those who stand up in court every day on behalf of that Officeget the benefit of that reputationbut they also have the responsibility to maintain it. The Court hereby ORDERS that the Acting United States Attorney ensure that all current AUSAs and SAUSAs read this Opinion. Within one week of the date of this Opinion, the Acting United States Attorney shall file a declaration affirming that this has occurred The Court FURTHER ORDERS that each of the trial team AUSAs, supervising Unit Chiefs, and the SAUSA submit the declarations described in Section III no later than October 16, 2020. By October 30, 2020, the executive leadership for the USAO may submit a brief as to why no further proceeding for additional fact-finding or credibility determinations is necessary. Counsel for Mr. Sadr may, if they wish, submit a responsive filing by November 13, 2020, and the Government a reply by November 20, 2020 (Signed by Judge Alison J. Nathan on 9/16/2020)(jw) (Entered: 09/16/2020)

As you can see, Judge Nathan ordered acting U.S. Attorney Audrey Strauss (Geoffrey Berman’s replacement for now in SDNY) to force all of her Assistant U.S. Attorney and Special Assistant U.S. Attorney subordinates to read and comprehend this smackdown, then provide certification to the court that the homework assignment was completed.

Judge Nathan said that she had hoped the government would have provided answers necessary to avoid this course of action, but the judicial inquiry only uncovered at least one misrepresentation to the court, more “errors,” more “disclosure failures” and “new admissions of misconduct related to the Government’s handling of search-warrant returns.” That misconduct even included documented evidence of one prosecutor suggesting, in the middle of the trial, that they “bury” key evidence in a pile of documents that had already been disclosed to the defense. A second prosecutor agreed, and others were “loop[ed] in,” the court said:

The Government also revealed new, highly problematic internal communications between the AUSAs who prosecuted this case. In particular, in the middle of trial, Government lawyers allegedly realized for the first time that they had not turned over a particular document to the defense. Instead of immediately disclosing that file, Government lawyers spent almost twenty hours strategizing how best to turn it over. One prosecutor suggested to another that they “bury” the evidence along with other, already-disclosed documents, and the second prosecutor agreed. And after looping in more prosecutors, the Government did just that, obfuscating its disclosure. The Government now admits that this document had exculpatory value for Mr. Sadr. Disappointingly, the leadership of the USAO has failed to unequivocally condemn these prosecutors’ improper actions and communications, and the Court has not been ensured that an investigation by the Department of Justice’s Office of Professional Responsibility will take place. A further response is therefore required from the Court.

Remarkably, the government maintained all along that a letter from 2011, which it had since at least 2015 (GX 411), was inculpatory (or incriminating), not exculpatory (or tending to favor Sadr). The government now admits that the letter is exculpatory. Sadr, per the judge, contended that the letter “undermine[d] an argument that was central to the Government’s trial theory: that Mr. Sadr structured the charged transactions to conceal connections to Iran.”

This is the same letter that prosecutors strategized about “burying”:

According to their own internal communications, therefore, on the evening of March 6, the prosecutors in this case again came across GX 411, recognized somehow for the first time that it had never been disclosed to the defense, recognized that its lack of disclosure would likely draw objection, strategized how to “bury” the document, settled on a plan to do so, and discussed waiting an additional day before turning it over to aid in burying the document among others.

Even the next day, disclosure was not immediately forthcoming. Instead, on the morning of Saturday, March 7, the Government admits that several members of the prosecution team discussed GX 411 and debated how and even whether the exhibit should be disclosed. Id. at 11. At this time—in the midst of trial—the Government represents that “there was never any notion [among the AUSAs] that GX 411 might be of exculpatory value to the defense.” Id. On that morning, “AUSAs discussed . . . [w]hether the exhibit was worth offering.” Id. According to the Government’s own theory, if prosecutors believed that the document was wholly inculpatory and decided not to offer it at trial, they likely would have never turned it over to the defense. Indeed, AUSA-1 “did not want to get into a fight with defense counsel over the document,” and she “recalls a discussion” amongst the prosecutors that its lack of disclosure may not violate Federal Rule of Criminal Procedure 16. Id. There were thus some members of the prosecution team who, even after recognizing that the document had not been disclosed, argued that the Government should not turn it over.

The judge went on to describe a complete ethical breakdown that was justified after the fact by the SDNY as not a big deal:

In other words, according to their own after-the-fact account, the Government lawyers knew that GX 411 had not previously been disclosed, but nonetheless thought it best to call no attention to the document and hoped that the defense would stipulate to its authenticity with little fanfare. That did not come to pass. Even if the story stopped there, things would be bad enough. No responsible Government lawyer should strategize how to “bury” a document that was not, but should have been, previously disclosed to the defense. A responsible Government lawyer should—at a minimum—forthrightly and truthfully reveal late disclosures to the defense.

The leadership of the USAO attempts to justify this conduct by arguing that what the prosecutors did was not, in fact, “burying” a now-admittedly exculpatory document, and instead conveys to its prosecutors and the Court that the conduct of the Government lawyers described above is not condemnable. Dkt. No. 354 at 11 (“[T]he document, which was in fact produced less than 24 hours later, was not buried. . . . [W]e believe it would go too far to condemn [AUSA-1] for a Friday night lapse in thinking regarding a document that was in fact disclosed Saturday afternoon.”). This Court disagrees and hereby strongly condemns this conduct.

You can read the filing in full below:

Judge Alison Nathan Calls Out SDNY by Law&Crime on Scribd

[Image via Spencer Platt/Getty Images]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.