The BLT: The Blog of Legal Times

Federal Judge Questions Prosecution Conduct in Ye Gon Case

Reading slowly and deliberately from a prepared statement, Judge Emmet Sullivan of the federal trial court in Washington questioned whether prosecutors in a high-profile drug trafficking case violated the D.C. Rules of Professional Conduct by making false statements to the court or failing to correct false statements.

A little background: prosecutors last week moved to dismiss the conspiracy case against businessman Zhenli Ye Gon, accused in an international drug trafficking scheme with roots in Mexico and China. Last week in court, Sullivan had a lot of questions about the sudden decision to dump the case. Sullivan said today he will grant the government’s request.

But the judge also wants prosecutors to tell him why he should not be skeptical about their position that Justice Department lawyers did not violate their obligation to turn over favorable information to Ye Gon’s attorneys.

Sullivan is no stranger to disputes about Brady material. He presided over the Ted Stevens prosecution, which ended with the Justice Department seeking to reverse the jury verdict and dismiss the indictment based on the revelation that prosecutors withheld key evidence from defense lawyers. Sullivan obliged the department in April—and he launched a criminal investigation into the Stevens prosecution team.

“This is the second time in less than three months in a high profile case where the Department of Justice has come before this court and asked it to dismiss an indictment after allegations that Brady-Giglio information was not timely produced to the defense,” Sullivan said today.

At one point during his remarks Sullivan quoted from the U.S. Attorney’s Office manual when he spoke about the prosecution’s obligation to err on the side of disclosing exculpatory material. “All of this raises legitimate questions about whether the government ever intended to abide by its constitutional obligation to provide this information to the defendant,” Sullivan said.

The judge suggested the prosecution’s conduct may not have comported with the U.S. attorneys manual and with Attorney General Eric Holder Jr.’s oft-repeated statement that the job of the prosecutor is not to win cases but to do justice.

He also questioned whether prosecutors in the Ye Gon case violated the D.C. Rules of Professional Conduct with respect to “candor to tribunal”—that is, whether certain statements made to the court and in pleadings were false. But the judge said he was not making any formal finding of wrongdoing.

Paul O’Brien, chief of the Justice Department’s Narcotic and Dangerous Drug Section, said the government will respond in writing to Sullivan’s concerns “to educate the court better” about the timing of events in the Ye Gon case.

O’Brien maintained that the government did not violate its obligations to provide favorable material to Ye Gon’s lawyers.

D.C. Superior Court Rules Against Same-Sex Marriage Referendum

D.C. Superior Court Judge Judith Retchin ruled today that there will not be a voter referendum held on legislation recently passed by the D.C. Council recognizing gay marriages performed in other jurisdictions.

A group of ministers who oppose the legislation had asked the court to overrule the D.C. Board of Elections and Ethics and force a referendum on the bill. The leader of the group, Bishop Harry Jackson of Hope Christian Church in Beltsville, Md., told radio station WTOP that the ministers will now try to get a voter initiative on the 2010 ballot that would define marriage in the nation's capital as between a man and a woman.

The legislation, passed by the D.C. Council May 5, was introduced by Councilmember Phil Mendelson (D-at large). But fellow councilmember, lawyer David Catania (I-at large), is credited with taking the measure a step further. The original legislation would've recognized same-sex couples married elsewhere as domestic partners in the District. Catania convinced the council to change the bill so that those couples would be recognized as married.

Both Mendelson and Catania were recognized for their efforts in a special issue of The National Law Journal. 

FCC Chairman Picks His Staff

Federal Communications Commission Chairman Julius Genachowski has announced his staff. Not surprisingly, the list includes quite a few lawyers.  

Genachowski has tapped Edward Lazarus, a partner in Akin Gump Strauss Hauer & Feld's Los Angeles office, to serve as his chief of staff. Lazarus is a former prosecutor, having served as an assistant U.S. attorney for the Central District of California. Lazarus started his legal career as a law clerk to Justice Harry Blackmun.

Priya Aiyar will serve as a legal advisor, with particular responsibility for wireline competition and international issues. She joins the FCC from Kellogg, Huber, Hansen, Todd, Evans & Figel, where she was a partner in the firm’s litigation and telecommunications practices.

Colin Crowell will serve as senior counselor to the chairman and will focus on the communications, legislative, intergovernmental affairs, and public liaison functions of the agency. Crowell previously worked for Rep. Edward Markey (D-MA).

Bruce Gottlieb will serve as Genachowski’s chief counsel and senior legal advisor. Gottlieb will manage the commission’s overall agenda and have responsibility for policy coordination with the bureaus.

Ruth Milkman will lead the transition effort in Genachowski’s office. Milkman served at the FCC between 1986 and 1998 in a variety of roles, including deputy chief of the International and Common Carrier bureaus. Milkman also was a founding partner of Washington’s Lawler, Metzger, Milkman & Keeney.

Mary Beth Richards will serve as Genachowski’s special counsel for FCC Reform, and will head a program to provide openness and transparency at the agency. Most recently, Richards worked as the FCC’s deputy general counsel, and has been serving as acting managing director. 

Sherrese Smith will serve as a legal advisor, focusing on media, consumer and enforcement issues. She was most recently vice president and general counsel of Washington Post Digital. Prior to that, Smith was a member of the intellectual property group at Arnold & Porter.

Campaign Finance Case and the Vote on Sotomayor

The Supreme Court's unusual order Monday delaying a decision in Citizens United v. Federal Election Commission and setting it for re-argument Sept. 9 may introduce more pressure on the Senate to confirm Supreme Court nominee Sonia Sotomayor and have her on the bench by then.  

Here's how it works: the Court, for whatever reasons -- and theories abound -- ordered new arguments and wants the parties to file additional briefs on whether the Court  should overturn its 1990 decision Austin v. Michigan Chamber of Commerce and part of the 2003 ruling in McConnell v. FEC. Both decisions upheld bans on independent expenditures in connection with campaigns from corporations and unions. The only way corporations and unions can participate in campaigns now is through regulated political action committees.

The Court's action sounded alarms among campaign reform organizations, who see those key precedents in jeopardy at the hands of the Roberts Court, which has shown general hostility toward several provisions of the 2001 McCain-Feingold law upheld in McConnell. Fred Wertheimer of Democracy 21 said that if the precedents the Court wants to review in September are overturned, companies would be "free to spend hundreds of millions of dollars of their corporate wealth" on campaigns, and such an action by the Supreme Court would be  "the height of judicial activism and an abandonment of the principles of judicial restraint."  

Justice David Souter, who retired as of midnight last night, was a reliable vote in favor of campaign finance regulations, so would have been almost certain to uphold Austin. If Sotomayor is seated in time to hear the arguments, her record suggests she would be a likely supporter too. Without her, the outcome on an eight-member Court would be uncertain. Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas have already criticized Austin.

In this post on Election Law Blog, Rick Hasen even wonders aloud whether Souter knew about the Court's plan to reargue the case when he decided on May 1 to retire as of the start of the summer recess, rather than when his successor is seated. If he had done the latter, he might have sat for the argument but been off the Court by the time a decision was announced -- an awkwardness he might have wanted to avoid.

Womble, Carlyle, Sandridge & Rice Faces Malpractice Suit

Womble, Carlyle, Sandridge & Rice is facing a legal malpractice suit from a Catholic radio broadcaster and education group that alleges mistakes by the firm cost it millions of dollars.

The North American Catholic Educational Programming Foundation alleges that Womble missed crucial deadlines and made other mistakes that caused the foundation to lose its bids for several telecommunications channels and new broadcast licenses. The bids were made in small markets, such as Eureka, Calif., as well as larger cities such as Las Vegas and Toledo, Ohio.

The foundation’s complaint, filed last week at the U.S. District Court for the District of Columbia by a legal team from Zuckerman Spaeder—including Mark Foster, Thomas Mason and Andrew Goldfarb—names Womble as well as former Womble attorney Howard Barr as defendants. Womble’s general counsel declined to comment on the suit, but a secretary at its Washington office said Barr had not worked at the firm in more than a year. No new contact details for Barr could immediately be found.

The foundation’s allegations stretch back to an application it filed in 1994 to acquire four new telecommunications channels in Henderson, Nev., just outside Las Vegas. When the Federal Communications Commission rejected the application in 2004, handing the channels to a competitor instead, the foundation instructed Womble to file an appeal with the U.S. Court of Appeals for the D.C. Circuit. The firm allegedly filed after 32 days — two days past the deadline. The appeals court dismissed the filing as untimely.

“But for Defendants’ errors, the Court of Appeals would have considered the substance of NACEPF’s appeal and would have vacated the FCC’s decision,” the complaint states. “Defendants’ errors in connection with the license application for the Las Vegas market injured NACEPF and caused it to suffer millions of dollars in damages.”

The complaint goes on to list a series of alleged missed deadlines and botched applications between 2004 and 2007. Its counts include legal malpractice, breach of contract, breach of implied duty and breach of fiduciary duty, and it asks for unspecified damages.

Quinn Gillespie Goes to Dinner in the Caymans

Quinn Gillespie lobbyists Jack Quinn and Manuel Ortiz will update their client, the Cayman Islands Financial Services Association, on their Capitol Hill efforts - over dinner in the Caymans. 

The firm confirms that Quinn and Ortiz will speak at a dinner sponsored by the association on July 7. The subject is strategies to combat the islands' reputation as a haven for American tax evaders, something the association and Quinn Gillespie dispute. 

"We’re going to be reporting to a group in the Cayman Islands on our ongoing efforts to get the truth out," Quinn said, in a statement relayed through a spokesperson. The Cayman Islands, he says, are "a vital element of the global financial marketplace, not a place to practice tax evasion."

The National Law Journal published a story about lobbying over tax haven legislation here. 

Former Morgan, Lewis Chairman Dies at 90

Francis Milone, chairman of Morgan, Lewis & Bockius sent the following e-mail to all personnel today, announcing the death of one of the firm's former chairmen, Thomas Lefevre, at the age of 90:   

A number of you may have heard that former firm chair Thomas V. Lefevre – one of the legendary “Gang of Four” partners critical to Morgan Lewis’s evolution from a Philadelphia practice into a national firm in the 1970s – has passed away. Tom would have been 91 in December. Our sympathies go out to Tom’s family as we remember this venerable partner’s many significant, lasting contributions to the firm and its success. 

Tom’s history at Morgan Lewis began in 1955, when he joined the firm as a tax law associate. He made partner a year later, gaining a reputation as an outstanding lawyer with not only a steel-trap mind for the complex intricacies of tax law, but a gift for making the subject matter understandable to others. In addition, Tom developed a segment of tax practice focused on leveraged lease transactions – the success of which ultimately spawned the opening of our New York office. 

Over the course of several years, Tom also emerged as a bold and enthusiastic agent of progress and change at the firm. He co-authored an unsolicited report to firm leadership in 1962, critiquing Morgan Lewis’s high partner-to-associate ratio, its lack of retirement policy and the absence of partnership selection criteria. The report was rejected by many initially but gained respect over time. Quoting an American Lawyer article on the ascent in 1971 of Tom and partners Park Dilks, Robert Young and William Curtin, the firm was “turn[ed] over to a Gang of Four … who proceeded to implement” then-firm chair W. James MacIntosh’s “vision of expansion.” 

Born in Dallas on December 5, 1918, Tom graduated from high school at age 16, and earned his B.A. and law degrees from the University of Florida in 1939 and 1942, respectively. He enlisted in the Marines, survived heavy combat in World War II and rose to the rank of major before retiring from the service in 1945 and obtaining his L.L.M. from Harvard the following year. 

Before joining Morgan Lewis, Tom practiced as a litigation associate at Sullivan & Cromwell; as a trial lawyer at the IRS; at a Washington, D.C. firm launched by former Sen. Claude Pepper; at Paul, Weiss, Rifkind Wharton & Garrison; and finally at Chapman, Bryson, Walsh & O’Connell, where he met Brady Bryson, then a former Morgan Lewis associate who was planning a return to the firm as partner and convinced Tom to join him. 

Tom left Morgan Lewis in 1979 to become VP of corporate development for longtime firm client UGI Corp. A year later, he became UGI’s president, and, ultimately, its chairman and CEO – a position he held until his retirement in 1989. 

Once again, please join me in offering Tom’s family condolences during this sad time, and in acknowledging the important chapter Tom represents in this firm’s history. 

F.M.M.

Franken's Court Ruling a Victory for D.C. Lawyer

The unanimous ruling by the Minnesota Supreme Court in favor of Democratic Senate candidate Al Franken is also a win for D.C. lawyer Marc Elias.

Elias, a partner with Perkins Coie, has represented Franken through much of the legal battle since the November election. A specialist in elections law and campaign finance who was general counsel to the Kerry-Edwards campaign in 2004, Elias argued Franken’s case before the Minnesota Supreme Court a month ago.

The court ruled 5-0 today that Franken, a satirist-turned-politician, won the election and should be certified as the winner, the Minneapolis Star Tribune reports. The decision could have far-reaching implications for the Senate, where Franken would be the 60th vote controlled by or allied with the Democrats (58 Democratic and two Independent senators). Among other things, it would be easier to advance nominees for the U.S. Supreme Court, the lower federal courts and the Department of Justice.

The case is now in the hands of Republican Gov. Tim Pawlenty, who has the authority to issue a certificate of election to Franken. If former Sen. Norm Coleman, the Republican candidate whose incumbency ended in January, chooses to appeal to the U.S. Supreme Court, then any emergency request would go to Justice Samuel Alito Jr. Alito hears all emergency appeals from the 8th Circuit, which includes Minnesota.

Minneapolis lawyer Joseph Friedberg represents Coleman.

UPDATE: Alito's services will not be needed. Coleman has conceded.

Sizing Up the Supreme Court Term

Please forgive a brief interruption from the editor.

On Monday, we will be gathering four lawyers who argued some of the biggest cases of the Supreme Court term for a roundtable discussion with our Supreme Court correspondent Tony Mauro.

The panel includes David Frederick, a partner at 
Kellogg, Huber, Hansen, Todd, Evans & Figel, who argued three cases this term; Neal Katyal, deputy solicitor general; Gregory Coleman, a partner at Yetter, Warden & Coleman, who argued two of the highest-profile cases of the term Ricci v. DeStefano and Northwest Austin Municipal Utility District Number One v. Holder; and Pamela Harris, of counsel at O’Melveny & Myers, who argued Pleasant Grove v. Summum, a major First Amendment case.

This panel is aimed directly at practicioners and law students — and is a great event for summer associates: Mauro focuses on lawyers who appeared before the court during the previous term and asks them to walk through their cases, their strategies before argument, and how they reacted to questioning from the bench.

The discussion is being held at Georgetown University Law Center’s Hart Auditorium, 600 New Jersey Ave., NW, in Washington. Tickets are $35, which covers the costs of the panel discussion and a wine-and-cheese networking reception following the panel. Registration begins at 3 p.m., and the panel discussion begins at 3:30. You can find more details or purchase tickets here.

Defense Lawyers Want Charges Dismissed with Prejudice in Ye Gon Case

Earlier this month, Judge Emmet Sullivan took the bench in a hearing in the prosecution of Zhenli Ye Gon, a businessman at the center of an international drug trafficking conspiracy, and the judge put the government on notice.

If government prosecutors don't abide by their obligations to turn over favorable information to Ye Gon’s defense lawyers, the judge said at the hearing June 2 in U.S. District Court for the District of Columbia, “the sanctions will be severe,” according to a transcript released Monday.

“I don’t want to spend a lot of time on Brady because if no one knew about Brady before [the ex-Sen. Ted] Stevens [case], everyone does now, and I’ve crafted a standing order I’m going to issue,” Sullivan said at the hearing. “Everyone’s fairly aware of everyone’s—of the government’s Brady obligations and that’s just not an issue that’s open for debate."

Last week, Justice Department prosecutors moved to dismiss the conspiracy charge against Ye Gon, citing “evidentiary concerns” and the importance of prosecuting the case in Mexico. Authorities in Mexico, according to Justice filings, consider the Ye Gon case one of high public interest. Prosecutors moved to dismiss the case without prejudice. A hearing is scheduled for this afternoon in Sullivan’s court.

Following the government’s motion, Sullivan ordered all the lawyers into court for an emergency status conference. The judge lashed the prosecution team and questioned the motive for the sudden twist in the case. Ye Gon has been jailed since his arrest in the summer of 2007.

Mexican authorities have for some time sought Ye Gon’s return to Mexico for prosecution there on charges that include organized crime and drug manufacturing, the judge noted in court. Sullivan grilled prosecutors about why the “evidentiary concerns” were not passed along to Ye Gon’s lawyers sooner.

Lawyers for Ye Gon, including Manuel Retureta and A. Eduardo Balarezo, said in a filing (.pdf) Monday evening that the conspiracy charge should be dismissed with prejudice because the government knew about “evidentiary concerns”—the fact a key witness recanted—for more than a year before the information was disclosed to the defense.

“The fact that the government knew that a witness recanted months ago and didn’t disclose that information to the defense is, indeed, sanctionable in itself,” Sullivan said in court June 2.

At the hearing, Justice Department trial attorney Paul Laymon noted how “things have a habit of turning quickly” in the Ye Gon case.

Laymon noted that the government hit “stumbling blocks” trying to arrange depositions in China. The Chinese government sought to impose certain restrictions on the depositions, Laymon said. Ultimately, the government abandoned the depos.

“Is this case due for a change real quickly?” Sullivan asked at the June 2 hearing. Indeed, it was.

Paul O’Brien, chief of the Justice Department’s Narcotic and Dangerous Drug Section, made an official appearance in the Ye Gon case this week. O’Brien was among the prosecutors tapped to replace the trial prosecution team in the Ted Stevens case after allegations of prosecution misconduct surfaced.