Nearly a year after a defense lawyer was indicted in Washington on a charge of assaulting two deputy U.S. marshals, prosecutors took a close look at the indictment and discovered a mistake—a typographical error. Oops.
That error—the use of the word “or” in place for “and”—is a big enough deal that the assistant U.S. attorney prosecuting the case, Karla-Dee Clark, said the government should “immediately” secure a superseding indictment against defense attorney Ning Ye.
But Ye’s lawyer, Gregory Smith, is trying to block the government from getting a second grand jury to indict Ye, who is accused of assaulting two deputy U.S. marshals during a hearing in a criminal case in 2007 in the U.S. District Court for the District of Columbia. On Sept. 4, Smith, a solo practitioner in D.C., filed a motion to dismiss the indictment.
Here’s Smith’s argument to Judge Richard Leon, who has presided over the case since Ye was indicted in October 2008. Grand juries may charge in the conjunctive—where the word “and” strings together alleged offenses. A grand jury that indicts in the conjunctive finds probable cause for all of the means to commit a crime, not just any single mean that is identified.
Instead of using the word “and” in the Ye indictment, the government mistakenly used the word “or.” The exact language from the two-page indictment: Ye “did unlawfully and knowingly forcibly assault, resist, oppose, impede, intimidate, or interfere” with two deputy U.S. marshals. The “or” is problematic, Smith said.
“[There] is no way to know if a sufficient number of grand jurors found probable cause to believe that any one of these specific alleged activities occurred,” Smith said in court papers filed Sept. 4. “More specifically, some grand jurors may have voted to indict based on the ‘assault’ allegation, while others may have voted to indict based on ‘resist’ or ‘impede’ allegations.” Click here (.pdf) for Smith's motion to dismiss.
Smith was court-appointed to represent Ye, who had been pro se in his defense. Smith filed a notice of appearance in the case in August. Ye is a former defense lawyer for Zhenli Ye Gon, the Mexican businessman who prosecutors alleged was a participant in an international methamphetamine trafficking ring. (The indictment against Ye Gon was dismissed with prejudice last month.)
Clark said the government first became aware of the typographical error in the indictment after re-reading it following Smith’s motion to dismiss earlier this month. The prosecutor said in court papers (.pdf) Sept. 22 that the government will “immediately seek” a superceding indictment to correct the error and to prevent any possible Fifth Amendment issues that may later arise.
Clark said the indictment is not “fatally defective.” The prosecutor, however, did not elaborate. Ye, according to Clark, is not harmed in any way by a superceding indictment. (There had not been a superseding indictment filed against Ye as of noon today.)
In response to Clark, Smith said the government cannot simply “fix” the typographical error in the indictment. The planned superceding indictment—which would include the word “and”—would charge Ye with all six of the separate ways to violate the federal assault law.
Leon “need not rearrange [his] calendar and restart this case in an effort to indulge the Government’s request for an eleventh-hour ‘mulligan,’” Smith wrote in court papers filed today.
“Is it in the best interests of justice for this case to go forward with those risks posed to both sides? That's a question. That's not a rhetorical question. That's a question,” Leon (pictured at left) said at a hearing in the case in March, according to a transcript. “I hope both sides will seriously think through. This is a case that calls out for a resolution.”
Leon said at the hearing that maintaining control and order in court is of “paramount concern.” Judges will not tolerate fights in courtrooms, Leon said. “But we are past that now. We are at a different point. We are at a point in trying to figure out what's the most just way to resolve this,” the judge said.
“It's not as easy a question as you might think as to whether any foul blows have been struck here,” Leon said. “We are in that little zone of the law where prosecutorial discretion and good judgment need to come together to resolve things.”