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Saturday, March 7, 2015

Menendez Prosecution: Explaining The Process

There are many sobering points about a potential criminal prosecution of Senator Robert Menendez (D-Hoboken). Here is a short list:

1. As of now, Menendez has not been charged with a crime nor has he been arrested. I urge readers to wait until all the facts come out. That means waiting until you see, and actually read, the government's charging documents filed with the federal court. Even then, understand you will be reading just cherry-picked facts. A much fuller picture (for better or for worse) will come out in the trial. 

2. Sometimes, there is no trial. But that will happen only if the charges (if they're ever filed) get dropped, or Menendez should plead guilty to a crime. Federal prosecutors rarely admit their mistakes, so don't hold your breath hoping this is one of those cases that get closed after charges are brought.   

3. Don't hold your breath waiting for Menendez to resign. His term expires at the end of 2018. And the trial, if there is one, will not be around the corner. There will be motions, requests for discovery, hearings and plenty of other action behind the scenes that will cause the trial to be postponed for months if not years. This trial may not occur until the summer of 2016, or later. 

4. Can we say right now what federal criminal charges would be brought? No! Absolutely not. We can only make educated guesses. There are reports suggesting the feds' inquiry into Menendez concerned whether he interfered with another federal inquiry into his friend Dr. Salomon Melgen. This would risk an obstruction of justice charge. There have been multiple reports about the value of the private jet trip which Menendez apparently failed to report. Sometimes these minor, administrative campaign finance reporting mistakes can be the basis for a criminal case! (One of the Bid Rig defendants here in Hudson County served nearly two years in prison for a rather technical and seeemingly minor delay in reporting a campaign contribution from the notorious Solomon Dwek, which he still insists was not a bribe.) 

There can be other "out of the blue" charges, based on the information that cooperators provide and which is believed credible by prosecutors.  Let's start with his friend Dr. Melgen. Dr. Melgen has reportedly been under investigation regarding his medical practice for at least two years. Press reports have concerned the use of Melgen's private jet, a trip (or trips) to the Dominican Republic, even allegations of favors involving underage prostitutes. Let's see what actually sticks. 

That last allegation is borderline funny. Who needs to go to the Dominican to get underage prostitutes? One can do that (or so I hear) right in Hudson County! Luisa Medrano (an infamous cooperating witness against former Guttenberg mayor David Della Donna) used to run that business out of her bars in the northern part of Hudson County. She avoided potentially lengthy jail time for sex trafficking of minors. She got probation! How did she do that? By finding a juicy "name" target at which to point an accusatory finger, and then selling that to the United States Attorney's Office.

And who ran that office at the time? Our current Governor, Chris Christie.

5.  In the criminal system, there's always one question: How much jail time is at issue? There is no way to know right now. It depends on the charges that are brought and which are ultimately proven at trial, or admitted to by the defendant. Even then, the government and defendant can negotiate on what a plea covers. There is plea bargaining, and then there is a practice known as fact bargaining. This is how jail time can get negotiated down, because the facts and scope of a crime to which one admits affect the assessment of the crime by the judge. Remember, the sentence is set by no one but the judge. The government can "make a deal" but it always must advise the judge of its recommendation. That's why there is this thing called a "5K1.1" letter, which is a government recommendation of a particular sentence length range. There are complex numerical-based federal sentencing guidelines that account for the severity of a crime and enhancing factors (which add time) and mitigating factors (which reduce it). 

This all becomes particularly important with public officials, because the federal sentencing guidelines treat elected officials' crimes much more stiffly than those of ordinary civilians. Yes, justice is NOT equal. The elected official status of public officials is an enhancing factor. So is the "leadership" role in any business. Remember this: the more accomplished you are, the higher profile you have, the worse you get treated and the greater risk you face in the federal justice system. Also be aware that the "name" status of any defendant is one which can have personal appeal for prosecutors. After all, they are human, they want to make their careers, and a "big name" case can make their career in the private sector. So elected officials, business owners, pro athletes, anyone with a profile, is almost by definition a good target. 

Remember this the next time you think the "rich and famous" get special treatment. They do! It just happens to work against them.

6.   That last point brings us to a key component of how the federal criminal justice system works. It is reliant (perhaps too reliant) on the witness testimony of people who almost always are trading testimony in return for leniency or absolution (i.e. a shorter jail term or none at all). This raises two questions. One is whether Dr. Melgen would be a witness against Senator Menendez. That question may be answered in any charging papers (so stay tuned). The second question is whether, down the road, Senator Menendez would be inclined to "spill the beans" against any sort of people as to whom criminal misconduct may be found. There is a powerful incentive as prison sentences for "cooperators" are often much shorter than those 

This is why, for many in the political world, the only question about Menendez is not the substance of any charges he may face; it will be whether he can and will "flip" on them. You'd better stock up on antacids if you're nervous.

7. Any federal felony sounds serious and they all are. But some are more serious than others. Obstruction is one thing. Bribery and fraud are something else and even more serious. Just this week, a former New York City councilman, Dan Halloran, was sentenced to ten years in federal prison for a bribery scheme in which Halloran was part of a scheme to sell the Republican nomination for New York City Mayor to a Democrat. Yes, you read that right. 

On the other hand, former Clinton Administration National Security Advisor Sandy Berger got probation and a fine for destroying official documents, which he secreted out of government buildings by stuffing them down his pants, in his socks and possibly in other places we don't want to explore. You will hear "corruption" and other horrible terms. Just don't rush to assume that Menendez is facing a decade or two in prison. 

8.  The final point is the human dimension. Someone under investigation, and definitely someone under indictment, will experience tremendous pressure from all sides. I have consulted with people who claim to have suffered multiple heart attacks while awaiting trial. This is a process whereby the government will use its leverage, including the pressure it can exert using all of its power at its disposal, to convince (or force) a defendant to "cry Uncle" and give up. 

From the people I've dealt with, both as released offenders and as government targets, and also from my personal experience with the government, one thing is certain. Resisting the awesome power of the government, and asserting your innocence, will definitely change you. The power to prosecute, indeed to jail you and basically affect the remainder of your life, is perhaps the greatest power the government can wield and also perhaps the power most susceptible to abuse. 

The people who stand up to the government deserve a measure of admiration. Some, to be sure, are delusional or irredeemably defiant. Others are stone-cold innocent, perhaps just in the wrong place or too close to the wrong people at the wrong time. The criminal justice process is not perfect, but it seems to winnow out the fakers and the frauds. Time will tell on this case as well.

Eric Dixon is a New York-based corporate lawyer and a member of the New York and New Jersey bars. He has represented public and private companies, corporate officials and elected government officials on various business and investigative matters over a 20-year career since graduating from Yale Law School in 1994. He can be reached at EDixon@NYBusinessCounsel.com.

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