Russell Caso Jr. pleaded guilty to a crime that's no longer a crime. Now, prosecutors are fighting his effort to erase his conviction, saying he has failed to prove his innocence to a charge the government didn't bring.
A judge in Washington this year refused to vacate Caso's conviction for conspiracy to commit honest services fraud, and he's now challenging that ruling in a federal appellate court.
Caso, according to the government, couldn’t simply walk away unscathed. He had to show he's innocent on a false statements charge—a crime the government left behind in exchange for Caso's guilty plea as part of a deal with the government.
The U.S. Court of Appeals for the D.C. Circuit yesterday grappled with where to draw boundaries in the pre-indictment arena. The corruption case against Caso raises questions about uncharged conduct—the stuff prosecutors could have filed but didn't.
Prosecutors don't routinely identify those other would-be or could-be charges in plea agreement papers publicly filed in court. Typically, there's the plea agreement itself, detailing the charge, and a statement of the offense. In instances where a person has been indicted, prosecutors will sometimes drop certain charges as part of an agreement.
D.C. Circuit Judge Judith Rogers said at one point during oral argument that she's concerned about the "ramifications of how far this case goes." In the pre-indictment stages, the judge noted, prosecutors could believe a charge has merit but never mention it to a defendant's lawyer. "You can't read a prosecutor's mind," Rogers said.
Charged via a one-count information, Caso pleaded guilty in Washington federal district court in December 2007 to conspiracy to commit honest services wire fraud.
The crime was rooted in his failure to disclose certain information, on financial disclosure reports, that would have revealed a conflict of interest related to his wife's employment. Caso was sentenced two years later to a term of probation and home confinement. His probation ended in August.
Caso, now a self-employed consultant, didn't appeal the conviction and judgment. A decision in June 2010 in the U.S. Supreme Court then changed the landscape. The high court in Skilling v. U.S. narrowed the scope of honest services charges to conduct that involves bribery or kickbacks. Neither of those elements was present in Caso's case.
The government contends—and a federal trial judge agreed—that Caso is actually innocent on the honest services charge. No dispute there. But the case is more complicated than that. Because Caso didn’t appeal his conviction, prosecutors argued that his request to set aside the conviction is procedurally barred.
To overcome that defect, the government said, Caso had the burden to show his innocence to the charge of making a false statement—in essence, lying on a financial disclosure form. Prosecutors said they could have lodged that charge. A government lawyer filed an affidavit in the case noting that the false statements charge was, indeed, discussed.
Chief District Judge Royce Lamberth in Washington refused to vacate Caso's conviction and sentence. The evidence in the case against Caso, the judge said in his ruling in January, "conclusively determine his guilt" on the never-filed false statements charge.
Caso is challenging Lamberth’s decision in the D.C. Circuit. His lawyer, Elizabeth Oyer, an assistant federal public defender in Baltimore, argued in the appeals court that Caso doesn't have to prove he didn't commit a crime the government did not bring. The case against Caso wasn’t one where prosecutors brought a bunch of charges, dropping all but one in a plea deal. There was only a single crime. Conspiracy to commit honest services wire fraud.
In court papers, Oyer said this about Lamberth's decision: "no other court has set such a high procedural barrier." Oyer said Lamberth's ruling "squarely conflicts with the reasoned decisions of multiple circuit and district courts." Requiring Caso to prove his innocence to a hypothetical charge, Oyer said, is "unworkable and unfair."
"It would turn the simple threshold question of the scope of the actual innocence requirement into a complex question of the government’s subjective intentions at the time of the plea, needlessly consuming substantial resources of the court and the parties with a collateral matter," Oyer wrote in a brief in the D.C. Circuit.
The inquiry, Oyer argued, should be limited to show actual innocence to charged conduct—in this case, the honest services conspiracy charge.
Lamberth also concluded that the “actual innocence” showing would require Caso to show his innocence on equally or more serious charge than conspiracy to commit honest services wire fraud.
But what’s the measure of the relative serious of crimes? The question is in front of the D.C. Circuit in Caso’s case. Should it be the highest amount of prison time for a particular crime? Or this: the sentencing guidelines—that is, the range of potential prison sentences that a person is likely to get?
Lamberth, siding with prosecutors, used statutory maximum sentences to determine the relative seriousness of offenses. A defendant who wants to prove actual innocence, Lamberth said, must show innocence "of both equally serious and more serious charges the government did not pursue as a result of plea negotiations."
Sentencing guidelines, Lamberth said, "no longer absolutely constrain a sentencing court's authority, but the maximum sentences found in criminal statutes continue to do so. Those congressionally set penalties thus provide the appropriate lens for determining the relative seriousness of offenses."
Prosecutors, including Lauren Bates, an assistant U.S. attorney in Washington who argued in the D.C. Circuit, contend that false statements and honest service conspiracy are equally serious charges. Both crimes carry a statutory maximum of five years in prison, the government noted. DOJ's brief is here.
Oyer argued that false statements is a lesser offense than the honest services charge. Sentencing guidelines, not a crime's maximum punishment, play a chief role in plea negotiations, Oyer said in the D.C. Circuit. That argument seemed to get some support from D.C. Circuit Judge Merrick Garland, who heard the case with Rogers and Judge Thomas Griffith.
"No real lawyer that does plea bargaining looks at the maximum sentence," Garland said at the hearing Thursday.
If the D.C. Circuit vacates Caso’s conviction, prosecutors could decide to push forward with a false statements case. But that could trigger another dispute: the statute of limitations. Caso committed his crime in 2006. False statements has a five-year limit.
Practically speaking, Caso admitted to the elements of a making a false statement when he pleaded guilty to the honest services charge. Garland suggested prosecutors wouldn’t have a difficult time proving that charge against Caso.