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Tuesday, July 5, 2011

Government Witness on Drugs? Oh It's No Big Deal

In an embarrassing oversight that endangers an ongoing criminal prosecution of the "bad boy of Wall Street" Ross Mandell and one associate, federal prosecutors today admitted that they had failed to turn over to the defense in pretrial discovery evidence that a key cooperating witness was using illegal drugs while working for the federal government. Such drug use clearly compromises the credibility (if not the memory and other faculties) of the witness, is a crime, and violates the standard terms of cooperation agreements between the Justice Department and its cooperating witnesses.

(Think the jury might be impressed by that?)

Such an oversight -- alarming given the government's resources -- may be a Brady violation (as pointed out by defense counsel). The underlying issue, of Constitutional dimensions, is the defendant's right to due process under the Fourteenth Amendment.  The violation's name comes from the 1963 U.S. Supreme Court case Brady v. Maryland, which held that the suppression by the prosecution of evidence requested by the defense that is material to the guilt of the accused violated the defendant's Due Process rights.

The sheepish assistant federal prosecutor handling the case gave a one-sentence response asserting that the defense was not prejudiced in its ability to cross-examine a witness. Tough job for the prosecutor, who was not originally on the case.  The issue bears continued watching.

Second Interesting Fact of the Day: In the same Mandell case, there is a potential government witness who, it could be argued, committed bankruptcy fraud and a fraud upon the court...the same federal court in which the Mandell case is being heard (different judge)...also while being a government informant/cooperator and under government supervision. This informant (a) filed a motion on August 7, 2007 to be dismissed as a defendant in a civil lawsuit, one involving suspected mortgage broker fraud, with one judge in the Southern District of New York, on the basis of the automatic stay afforded applicants under bankruptcy law, which on the very same date (b) was lifted when the bankruptcy court in Newark. NJ granted the same informant's very own motion (which had been filed on July 30, 2007) to withdraw his own bankruptcy because an even earlier bankruptcy made him ineligible to file it.

This means, in essence, that the informant lied to a federal district judge in New York in order to get dismissed as a defendant in a civil case, because he relied on a bankruptcy stay that he very much intended to have lifted by his own, prior motion.

If a government informant and witness -- and in this case, someone who had already pleaded guilty to multiple felonies -- would demonstrably lie to a federal district court judge, the question must be posed:  Who wouldn't he lie to?

More interesting, however, is that this cooperator had three versions of names (all on actual public court documents)...all while working for the federal government! One version for the New Jersey federal court (where he pleaded guilty), a second for the New Jersey bankruptcy court, and a third for the New York federal district court in which he was sued civilly in another case involving possible criminal mortgage fraud.   Of course, the multiple names help evade detection and thwart pre-trial discovery...but not everyone gets thrown off the trail.

Some of the government's witness handlers/supervisors need to wake up. Perhaps we need more resources to witness supervision. Or perhaps we need to be that much more skeptical of the testimony we are getting from cooperators (a.k.a., admitted felons) whose motives to lie, embellish and exaggerate are clearly tied in to their desire to avoid prison. 

Eric Dixon is a New York investigative lawyer and is available for consultation at edixon@NYBusinessCounsel.com.

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