Monday, March 23, 2020
Prosecutor Whose Father Was Victim of Embezzlement, As Was He, Breached Ethics in Urging FBI Probe
It is unethical for a prosecutor who was personally victimized by criminal conduct to complain to a law enforcement office and prompt action, the Ninth U.S. Circuit Court of Appeals declared on Friday.
A three-judge panel affirmed the conviction of James Miller on five counts of wire fraud and four counts of filing false tax returns but said, in an opinion by District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation, that there was instructional error and misconduct by an assistant U.S. attorney.
Under the 2016 U.S. Supreme Court decision in Shaw v. United States, Rakoff said, the jury should have been instructed that wire fraud entails an intent to “deceive and cheat”; it was told the there must be an intent to “deceive or cheat.” That error, he declared, was harmless.
A second issue in the case concerned the involvement of a prosecutor. Miller had been president and managing member of MWRC Internet Sales, LLC., from which he embezzled $300,000; Russell Lesser had an 18 percent share in the company, and his son, Gregory Lesser, held a 1.25 percent interest.
Gregory Lesser, an assistant U.S. attorney for the Central District of California, prompted the FBI to investigate. Discussing a prosecutor’s ethical obligation, Rakoff wrote:
The second question here presented is whether an Assistant U.S. Attorney (AUSA) from the Central District of California who had a personal and financial interest in the outcome of this case impermissibly tainted the prosecution by involving himself in the early stages of the investigation and then continuing to express interest in the case even after the entire U.S. Attorney’s Office for the Central District of California recused itself from the matter. We are deeply troubled by this Assistant’s disregard of elementary prosecutorial ethics. But we also note that as soon as the Department of Justice became aware of the impropriety, it took every necessary step to cure any resulting taint, including turning over the entire prosecution of the case to disinterested prosecutors from the Southern District of California. We therefore hold that the misconduct of the Central District Assistant does not entitle Miller to any relief.
AUSA Greg Lesser’s role in the Miller prosecution, however limited, was a clear violation of his ethical and professional duties. Nothing, of course, prevented his father from reporting the embezzlement to the FBI, as through a public tip line or the like. But it was totally inappropriate for AUSA Lesser to. at a minimum, create the appearance of having used his personal contacts in the Bureau as a means to pull strings in favor of an investigation…. And his errors compounded: after helping to initiate the Miller investigation. Lesser faced an obvious duty to report his conflict of interest (and presumptive recusal) to his supervisor as soon as possible….Instead, inexplicably, he waited three weeks to disclose his conflict, even while his father was, at the behest of the FBI, secretly recording a conversation with Miller.
Just as concerning are AUSA Lesser’s apparent continued attempts to involve himself in the Miller case even after the Central District” s recusal. For example, in January 2013. AUSA Lesser called Special Agent [Joseph] Swanson to inquire, “in his capacity as part-owner (or part-shareholder) of MWRC,’ about the status of the case.” At some point after that. Greg Lesser solicited his colleagues’ help through his work e-mail to track down information on Mr. Miller s employment history. These attempts represented a continuing violation of Greg Lesser’s ethical obligations as an Assistant United States Attorney.
The question before as, however, is not whether AUSA Lesser acted improperly, which is clear. Our question is whether Lesser” s ethical and professional lapses entitle Miller to dismissal of the indictment. We review the district courts denial of Millers motion to dismiss on Due Process grounds de novo, and we review for abuse of discretion the district court’s decision not to dismiss the indictment under its supervisory powers….
Although we have held that a prosecutor may violate a defendants Due Process rights through conduct that “is so grossly shocking and so outrageous as to violate the universal sense of justice”…, we think that the facts of this situation do not rise to that level, chiefly because the prosecutorial improprieties had no material effect on the case and because the Department of Justice took every step it could reasonably have been expected to take to cleanse the Miller prosecution of any possible taint from AUSA Lesser’s involvement. Most significantly, after the Central District of California recused itself from any further involvement in the prosecution, an AUSA from the Southern District of California took over the case. She had no contact with Lesser whatsoever, and she came to an independent decision on whether and how to charge Miller. And although AUSA Lesser’s limited attempts to involve himself in the case after the Central District” s recusal were more than sufficient to create an appearance of impropriety, there is no indication that Lesser in any way influenced the prosecutor who was actually in charge of the case at that time. Further, even during the three weeks before the Central District’s recusal, there is no evidence that AUSA Lesser himself, rather than Special Agent Swanson was directing the investigation of Miller.
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